by Steve Nickelsburg, David DiBari and Rebecca Hekman
The international legal obligation to protect human rights has long been understood to be the province of sovereign states, not of corporations or individuals. In the United States, litigation against corporations invoking statutes such as the Alien Tort Statute, the Torture Victim Protection Act, and the Trafficking Victims Protection Act has blurred that line – providing private plaintiffs a cause of action to address alleged human rights violations in a variety of circumstances.
The nuance of that litigation would take numerous additional posts to cover, but even against that backdrop, for corporations the general requirement to respect human rights traditionally has been more a matter of social expectation than legal and regulatory requirements, falling under the rubric “corporate social responsibility” (“CSR”) rather than “hard law.” Continue reading
by David DiBari
Whether the DOJ chooses to bring criminal charges (and what charges to bring) is traditionally a decision beyond the purview of judicial intervention. The U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) recently reaffirmed this bedrock constitutional principle with respect to the DOJ’s decision to enter into a deferred prosecution agreement (“DPA”). On April 5, 2016, in the closely-watched case of United States v. Fokker Services B.V. (PDF: 114 KB), the D.C. Circuit issued its opinion on a matter of first impression and vacated an unprecedented district court order rejecting the DPA between the DOJ and Fokker Services B.V.. Amid the attention surrounding the D.C. Circuit’s Fokker opinion, however, several salient points are worth highlighting. Continue reading