Boimah Flomo v Firestone… continued

A decision on the Boimah Flomo case was reached on July 11th 2011 by the US Court of Appeal for the 7th Circuit (The decision can be found here). It is worth mentioning because it significantly contradicted the findings of the Indiana’s District Court which dismissed the claim on the ground that the plaintiffs had “failed to establish a legally cognizable claim because no corporate liability exists under the ATS” (See my previous note here). The case is also noteworthy because of its conclusions on child labour.

On corporate liability

Establishing corporate liability was a major issue for the tribunal, which nonetheless provided a fairly clear reasoning and achieved a very acceptable conclusion. It overall rejected Firestone’s (the respondent) argument that “conduct by a corporation or any other entity that doesn’t have a heart-beat can never be a violation of customary international law, no matter how heinous the conduct” (p5), and by the same token clearly rejected the analysis of corporate liability provided in Kiobel, which it clearly deemed ‘incorrect’ (p6).

The Court overall suggested that there had to be a first time for litigation to enforce a norm, especially considering that there is no compelling reason to justify that corporations have rarely been prosecuted criminally or civilly for violating customary international law (p7-8)

Note on… Boimah Flomo v Firestone and corporate liability under ATS/ACTA

By Antoine Martin.
Following the findings of the US Court of Appeal for the Second Circuit in Kiobel v Shell, (see a previous Int’Law Notepad Note) the respondent (FNRC) in Boimah Flomo (Boimah Flomo, et al v Firestone Natural Rubber Company (United States District Court Southern District of Indiana Indianapolis Division, Case 1:06-cv-00627-JMS-TAB Filed 10/05/10) contended that “international law does not impose liability on corporations” so that the plaintiffs had no cognizable cause of action (p.2).

The Court, overall, concluded that although it had sufficient jurisdiction to hear the claim, the plaintiffs’ claim was to be rejected due to the absence of corporate liability for human rights violations under ATS/ATCA This note summarises the main findings of the Court’s partial decision.