Corporat e Liability

• Pages: 55-56

55

international law update Volume 17, July–September 2011

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

courts under English law, since we will declare

unenforceable choice clauses only when the remedies

available in the chosen forum are so inadequate that

enforcement would be fundamentally unfair.” 652

F.3d 1283 (internal citation omitted).

“In Lindo’s case, the arbitration clause, if

anything, is fundamentally fair for several reasons.

For starters, the clause is part of a union-negotiated

collective bargaining agreement. e fact that the

Jones Act claim was expressly referenced in that

CBA is clear indication that this type of claim

was expressly considered during the negotiation

process. Lindo cannot obtain the advantages of his

union-negotiated Contract, while rejecting what

he now perceives as its disadvantages. is union-

negotiated agreement is enforceable and valid even

if it waives Lindo’s U.S. statutory claim under the

Jones Act.” 652 F.3d 1284.

“Lastly, Lindo’s position would eectively

eviscerate the mutually binding nature of the

Convention. Lindo maintains that his arbitration

agreement is void as against public policy because

he cannot assert his U.S. statutory rights under

Bahamian law. By this logic, courts in other

nations could likewise refuse to recognize valid,

mutually agreed-upon arbitration provisions if they

contemplated the application of American law, in

derogation of home-based statutory remedies. Yet

if every country refused to recognize arbitration

agreements that contemplate the application of

foreign law, the multilateral commitment of the

Convention would be defeated.” 652 F.3d 1284.

: Lindo v. NCL (Bahamas), 652 F.3d 1257

(11th Cir. 2011).

CORPORATE LIABILITY

S C    

 ,  

     

 A T S,  

      

   

 

Twenty-three Liberian children led suit

against Firestone Natural Rubber Company for

violation of international child labor laws under the

Alien Tort Statute (“ATS”). Firestone operates an

118,000-acre rubber plantation in Liberia through

a subsidiary. e Plaintis charged Firestone with

utilizing hazardous child labor on the plantation

in violation of customary international law. e

district court granted summary judgment in favor

of Firestone and other defendants, but the Plaintis

have appealed the judgment.

e United States Court of Appeals for

the Seventh Circuit arms the district court’s

decision. e Court considers two issues: whether

a corporation can be liable under the ATS, and if

so, whether the evidence presented by the Plaintis

created a triable issue to determine if the Defendant

violated customary international law. e Court

rst determines “what is customary international

law?” is question presents two problems for

the Court: a problem of notice and a problem of

legitimacy. e Court nds that these problems

had not been adequately addressed by the seminal

Supreme Court case of Sosa v. Alvarez-Machain,

542 U.S. 692 (2004). Instead, the Court states that

the precedent set a mood of caution.

Turning to the issue of corporate liability under

the ATS, the Court states that Sosa left the issue

open for interpretation. In analyzing previous case

law in other federal courts, the Court nds that a

corporation had not been held liable for violating

customary international law. “We have to consider

why corporations have rarely been prosecuted