Who is Afraid of Corporate Liability
If I am asked to advice corporations, which seems to be scared about the possible outcome (say in favor of plaintiffs, for instance) of the Kiobel et al v. Royal Dutch Shell case. I will simply offer these simple, honest and responsible, win-win lines: Do the right things by respecting host communities, especially those of developing countries where corporations are almost powerful than the states. The people of developing countries should be treated not like animals, but human beings like those in America and Europe.
Corporations should apply same standards across the board and not encourage or sponsor rogue states such as Nigeria to kill the weak and disadvantaged-Ogonis, for instance, in order that profit may flow unlimited. Transparency, honesty, integrity, accountability and collaboration in nation or community building (Corporate Social Responsibility) should be their watch words at all times.
If greed, power, discrimination and other degrading thoughts, diabolical plans toward host communities and countries are eliminated by corporations, there will be little or no reasons to worry about corporate liability, because chances that the violation of the Law of Nations or international law may occur would be slim.
Meanwhile, Corporate Liability is an old American legal tradition. More so, corporate liability was part of the Nuremberg (Nazi) trial of 1945 as history shows. Therefore, when corporations such as $hell Oil and others known to be America's worry about them being held accountable if, or when in violation of the Law of Nations such as torture, other crimes against humanity, ethnic cleansing and genocide, it is obviously unnecessary. Such thought or fear should be discountenance!
Although some or most corporations may feel they are indirectly on trial with $hell tomorrow. There is nothing to fear insofar as they stick to the same humanistic standards, which happens to be the proper and most honorable thing to do. Thinking and acting right is the key as "there is no right way of doing wrong."
Why worry about being sued if you will not disrespect small and weaker groups such as Ogoni and Niger delta; and why become nervous, claiming your corporation may be forced to invest less in African and other developing nations when the business have not committed any crime and the propensity for doing so is not there?
Who or which company is afraid of corporate liability and accountability, in respect of the Law of Nations and not afraid of being accountable when in violation of municipal laws, which also have connection to the Law of Nations? Are these corporations showing a battered face without a punch claiming, it is okay to treat people differently; that is respecting the rights of their own people (who also struggle to force them to be fair), obeying the laws of their own states and acting the opposite and even most dangerous way to others; why is that that these corporations feels disenchanted in treating those abroad fair or equally while profits are also made?
This noise about corporate furiousness, which has made many corporations pull their wieghts behind $hell in the Kiobel case makes no sense-unless human beings no longer own and run corporations to be able to understand and exercise good judgment, which balances profit, equal treatment and actions aimed at preventing the crimes in which they fear legal action.
Using the 1789 Alien Tort Statute test, Kiobel et al v. Royal Dutch Shell holding at the United States Supreme Court on February 28, only will determine whether $hell, which in collaboration with the Nigerian government committed the aforementioned crimes among others should stand trial in America where it has business presence. We have to note that the Wiwa et al v. Shell went through the American courts for about 12 years. It finally settled out of court in 2009. Other cases have also succeeded, though some failed.
There is no way all the judges who presided over these cases and three recent rulings, which affirms corporate liability, can be that wrong not to know the unfortunate argument and position made by majority of the Appellate Court judges (though they also almost divided even for and against corporate liability) who threw away the plaintiffs' case.
Finally, as said earlier, corporations should do the right thing. They should worry not about being sued when all the right things are done. No executive should be afraid of liability, but own up when errors occur and find amicable means of resolving same. What $hell Oil, like the Nigerian government did to Ogoni, and still doing by not cleaning the Ogoni environment after a devastating UNEP report will definitely bring liability about.
The arugment that corporations are not human beings or individuals, whereas it is common sense that the legal entity "corporation" does not speak or do business by itself in an empty building, rather human beings act for and in corporations (so should be liable for wrongdoing and not an empty building), is non sequitur.