Session 5

Wednesday, October 31, 2012
11:30 am - 1:00 pm
Carr center Conference Room (R-219)

Tyler Giannini, Clinical Professor of Law at Harvard Law School, and Clinical Director of the Human Rights Program


Susan Farbstein, Assistant Clinical Professor of Law at Harvard Law School, and Clinical Director of the Human Rights Program

Title:"Corporate Accountability for Human Rights Violations: The U.S. Supreme Court and Kiobel"

About Talk:

Professors Tyler Giannini and Susan Farbstein at Harvard Law School filed "friends of the court" briefs in the Kiobel v. Royal Dutch Petroleum case that was argued before the U.S. Supreme Court last spring and is being re-argued this fall. They will share their insights into how the U.S. Supreme Court is expected to rule and will discuss the implications for human rights and corporate responsibility. A recent article in the Harvard Gazette ( provides a nice overview:
The lawsuit, brought by 12 Nigerians, alleges that the Dutch oil company was complicit in torture, extrajudicial executions, and other crimes against humanity from 1992 to 1995. The plaintiffs are members of the Ogoni people of the Niger Delta, who during this time were protesting a new pipeline being laid by Shell contractors. The amici — the clinic’s clients — are nine legal historians, including Charles Donahue, Harvard’s Paul A. Freund Professor of Law.

Susan H. Farbstein, a team member and an assistant clinical professor at Harvard Law School, called Kiobel ”one of the biggest human rights cases the [Supreme Court] has heard in recent years.”
At issue: What are the limits of corporate liability? And can U.S. courts hear lawsuits regarding incidents outside U.S. territory? (It’s an issue lawyers call “extraterritoriality.”)
Behind those questions is a debate over the interpretation and intent of the Alien Tort Statute, a 1789 law that allows foreigners to bring suit in U.S. courts. The statute was seldom cited until 1980, when it was revived as the basis for international human rights litigation.
“Decades of jurisprudence are on the line in Kiobel,” said Clinical Professor of Law Tyler R. Giannini, who co-directs the clinic with Farbstein. “Cases have been litigated for more than 30 years for claims arising outside the United States, including for more than 15 years against corporations.” A Supreme Court ruling against either corporate liability or extraterritoriality, he said, “would represent a radical departure from this recent history.”"
Suggested Readings:

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Tyler Gianniniis a Clinical Professor of Law and the Clinical Director of HRP at Harvard Law School. Prior to joining HLS, he was a founder and director of EarthRights International (ERI), an organization at the forefront of efforts to link human rights and environmental protection. Giannini spent a decade in Thailand with ERI conducting fact-finding investigations and groundbreaking corporate accountability litigation. He served as co-counsel in the landmark Doe v. Unocal case, a precedent-setting Alien Tort Statute (ATS) suit about the Yadana gas pipeline in Burma, which successfully settled in 2005. He is currently co-counsel in In re South African Apartheid Litigation, a major ATS case that seeks to hold multinationals liable for their support of human rights violations committed by the apartheid state. He is also co-counsel in Mamani v. Sanchez de Lozada, which brings claims against the former Bolivian president and defense minister related to a 2003 civilian massacre. Giannini has authored numerous amicus curiae briefs including, in 2010, two to the United States Supreme Court in Samantar v. Yousuf and Presbyterian Church of Sudan v. Talisman. He has authored numerous publications and reports including Prosecuting Apartheid-Era Crimes? A South African Dialogue on Justice (Human Rights Program, Distributed by Harvard University Press, 2009) (with Susan Farbstein, et al.); "Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees," 33 Harv. Env. L. Rev. 349 (2009) (with Bonnie Docherty); Down River: The Consequences of Vietnam's Se San River Dams on Life in Cambodia and Their Meaning in International Law (2005) (with Eric Rutkow and Cori Crider); Total Denial Continues: Earth Rights Abuses Along the Yadana and Yetagun Pipelines in Burma (2002) (with Katie Redford, et al.); and Earth Rights: Linking the Quests for Human Rights and Environmental Protection (1999) (with Jed Greer). He teaches in the fields of business and human rights, human rights and the environment, human rights in contemporary South Africa, human rights in Southeast Asia, and ATS litigation, and has led clinical students on numerous missions including in Bolivia, Cambodia, Papua New Guinea, Thailand/Burma, South Africa, and South Korea. Giannini holds graduate degrees in law and foreign policy from the University of Virginia, where he was a member of the law review. He is a member of the Virginia State Bar and speaks Thai.

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Susan Farbstein'scurrent work focuses on Alien Tort Statute litigation, transitional justice, and South Africa. She is co-counsel in In re South African Apartheid Litigation, a suit against major multinational corporations for aiding and abetting human rights violations committed by the apartheid state. She is also co-counsel in Mamani v. Sanchez de Lozada, which brings claims against the former Bolivian president and defense minister related to a 2003 civilian massacre. She participated in litigating Wiwa v. Shell, which charged Shell with complicity in the torture and killing of non-violent Nigerian activists in the mid-1990s and successfully settled in 2009. For her work as a member of the Wiwa legal team, Farbstein was honored as finalist for the 2010 Public Justice Trial Lawyer of the Year Award. She has authored numerous amicus curiae briefs, including to the Supreme Court in Kiobel v. Royal Dutch Petroleum Co. (on behalf of professors of legal history), Presbyterian Church of Sudan v. Talisman (on behalf of international law scholars), and Samantar v. Yousuf (on behalf of human rights organizations). Farbstein has worked on transitional justice issues in South Africa, Zimbabwe, Burma, and Thailand. She has an interest in clinical pedagogy and, in 2011-2012, was a recipient of the Harvard President's Innovation Fund for Faculty Grant for her clinical work. Before joining the Human Rights Program, Farbstein worked at the Cape Town office of the International Center for Transitional Justice. Prior to that, she clerked for the Honorable Morris E. Lasker of the Southern District of New York. She was an intern with the International Criminal Tribunal for Rwanda and has provided research assistance to the Special Court for Sierra Leone and Human Rights First.
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