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Does anything go in corporate litigation?
by Jonathan Kaufman
Does anything go in corporate litigation, or does the international human rights system impose some limitations on the arguments and objectives of lawyers and corporate defendants? Professor John Ruggie asks this question in a recently posted thought piece, concluding that whatever the legal merits of their position in Kiobel, the dishonest tactics and dishonorable goals of Shell and its legal team risk destroying their reputation and dashing society’s expectations of ethical conduct.
Professor Ruggie’s point of departure is the body of work he produced as the former U.N. Special Representative for human rights and business. Over six years, the Ruggie mandate commissioned several research reports on the legal and social aspects of corporate human rights obligations. Most prominently, the Special Representative developed a widely accepted framework positing that companies have a responsibility to respect human rights, avoid infringing on the rights of others, and address those harms that they cause or contribute to. Shell’s lawyer at the Supreme Court, Kathleen Sullivan, cited one of Ruggie’s reports as support for her contention that the United Nations has found that companies do not have human rights obligations.
The problem, as my colleague Rick noted Monday, is that Ruggie and his team never made this statement. The misuse of his work disturbed the Special Representative so much that he submitted an amicus brief to the Supreme Court to correct the record: Ruggie’s team actually found that while international human rights treaties do not appear to apply directly to companies, there is a steadily expanding web of legal liability that holds corporations accountable for human rights abuses. And Shell’s misleading statements don’t end there. Professor Ruggie points out that Shell’s briefs fudge the truth on a number of matters, from the false suggestion that U.S. litigation against companies that abetted the crimes of the apartheid regime in South Africa caused international friction to a bizarre attempt to portray as a victim the oil company that was sued in the U.S. for supporting crimes against humanity in Sudan.
All of this raises a new question for Professor Ruggie: do companies and law firms have a responsibility to avoid taking positions that would undermine human rights and weaken victims’ ability to seek justice? Sure, it’s not illegal for Shell’s legal counsel to put a misleading spin on the facts, or for Shell to demand a re-interpretation of well settled legal doctrine that would undermine one of the few effective remedies for international human rights violations. But Shell could also find ways to deal with the allegations against it that stop short of a broadside attack on the ATS, and its lawyers could find other ways to provide legal counsel that take into account the full range of consequences of its possible legal positions.
Ruggie’s framework does not indicate whether the corporate responsibility to respect is ever legally binding under international law; rather, he focuses on society’s expectations that companies will act ethically and in accordance with the international human rights regime. Why, he asks, should lawyers and legal processes be exempt from this universal expectation? I agree with Professor Ruggie that, regardless of the legal merits of Kiobel, if Shell succeeds in using misleading tacticts to destroy the Alien Tort State as an avenue of redress for gross abuses, it and its legal team will have broken society’s trust and turned their back on the responsibility to respect human rights.