Posts Tagged ‘Alien Tort Statute’

SCOTUS rejects extraterritorial application of ATS in Kiobel v. Royal Dutch Petroleum Co.

April 17, 2013

The U.S. Supreme Court today released a significant decision on personal jurisdiction in Kiobel v. Royal Dutch Petroleum Co. (No. 10–1491, slip opinion: link). (backgrounder here and here).

The Court unanimously denied the appeal. (more…)

Julian Simock on Kiobel, RICO and Litigating Corporate Abuse

September 11, 2012

Julian Simcock (JD Candidate, Stanford Law School; Harvard University – Harvard Kennedy School (HKS)) has posted “Recalibrating after Kiobel: Evaluating the Utility of the Racketeer Influenced and Corrupt Organizations Act in Litigating Corporate Abuse”, New York City Law Review, Vol 14, 2012 (forthcoming). The abstract reads: 

This analysis seeks to explore the un-examined question of whether RICO could one day become a useful surrogate for the Alien Tort Statute (ATS) in litigating international corporate abuses. Decades after the ATS had become a robust tool for bringing claims for international violations in U.S. courts, the Second Circuit recently ruled in Kiobel v. Royal Dutch Petroleum that corporations cannot be held liable for torts in violation of the law of nations under the ATS. Rulings by the D.C Circuit and the Seventh Circuit quickly breathed new life into the debate, and the circuit split is now destined for resolution by the Supreme Court. Although the final outcome is still unknown, Kiobel’s reverberations are already apparent. With corporations potentially immune from the reach of the ATS, the search has begun for vehicles by which to sustain momentum in litigating international corporate abuses.

The article is available on SSRN for download here.

 

 

 

Kedar S. Bhatia, “Reconsidering the Purely Jurisdictional View of the Alien Tort Statute”

May 16, 2012

Kedar S. Bhatia (Student-at-law, Emory University School of Law) has posted  “Reconsidering the Purely Jurisdictional View of the Alien Tort Statute”, Emory International Law Review, 2013, forthcoming/Emory Public Law Research Paper. Here’s the abstract:

The Alien Tort Statute is a remarkable provision. This thirty-three word statute lay dormant for nearly two centuries but now allows federal courts to hear claims for violations of the law of nations stemming from behavior anywhere in the world. Such an extraordinary interpretation was far from inevitable and remains on unsteady footing.

This article argues that the Statute should be read as purely jurisdictional, rather than as a hybrid provision granting both jurisdiction and a cause of action. In contrast to the current hybrid model, a strictly jurisdictional view of the Alien Tort Statute would provide a manageable framework for expanding the scope of the statute. Rather than requiring courts to first measure the specificity of international law and then gauge the practical consequences of recognizing a new cause of action, the jurisdictional view would require Congress to make those difficult, complex, and weighty policy decisions. A purely jurisdictional view of the statute adheres more closely to well-established views toward federal common law and also patches many of the problems that have arisen in applying the statute.

Download a pdf version of the article via SSRN here.

SCOTUS grants cert. in ATS case: Kiobel v. Royal Dutch Petroleum

October 17, 2011

John Bellinger at Lawfare reports that the U.S. Supreme Court has granted certiorari in Kiobel v. Royal Dutch Petroleum. 

Briefly, on September 17, 2010, the United States Court of Appeals for the Second Circuit, in a 2-1 split decision,  ruled that the Alien Torts Statute (ATS) grants U.S. courts jurisdiction over alleged violations of international law by individuals only, not by corporations. Essentially, the majority opinion held that corporations cannot be sued under the ATS for violations of customary international law because “the concept of corporate liability . . . has not achieved universal recognition or acceptance of a norm in the relations of States with each other.”  (Slip op. at 49).

The two issue presented before the U.S. Supreme Court are:

(1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and

(2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

The Kiobel appeal is joined with Mohamad v. Rajoub which will address the issue:

Whether the Torture Victim Protection Act of 1991 permits actions against defendants that are not natural persons

SCOTUS Blog has full coverage, including briefs and documents here and here.

Murray et al., Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel”

August 24, 2011
Corporate America Hallway

David Kinley and Odette Murray (University of Sydney – Faculty of Law) and Joe W. “Chip” Pitts III (Stanford Law School) have published “Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel”, Melbourne Journal of International Law, Vol. 12, No. 1, pp. 57-94, 2011/Sydney Law School Research Paper No. 11/48.

The abstract reads:

Over the past 15 years or so, we have become accustomed to assuming that corporations are proper subjects of litigation for alleged infringements of the ‘law of nations’ under the Alien Tort Statute (‘ATS’). But, in a dramatic reversal of this line of reasoning, the United States Court of Appeals for the Second Circuit in Kiobel v Royal Dutch Petroleum 2010 (‘Kiobel’), has dismissed this assumption and concluded that corporations cannot be sued under the ATS. This article explores the Court’s reasoning and the ramifications of the decision, highlighting the ways in which the Kiobel judgment departs from both Supreme Court and Second Circuit precedent. The authors take to task the critical failure of the majority in Kiobel to distinguish between the requirements of legal responsibility at international law and that which is necessary to invoke ATS jurisdiction in the US District Courts. In the context of the maturing debates over the human rights responsibilities of corporations, the authors point to the political as well as legal policy implications of Kiobel and underscore the reasons why the case has already attracted such intense interest and will continue to excite attention as a US Supreme Court challenge looms.

The .pdf copy of the article is available from SSRN here.

* Readers should take note of the recent decision of the U.S. Court of Appeals for the District of Columbia in  John Doe VIII v. Exxon Mobil Corp.. U.S. Court of Appeals (D.C. Circuit, No. 09-7125, July 8, 2011)) which expressly rejected the Kiobel v. Royal Dutch Petroleum decision on the application of the ATS to corporate conduct.


Follow

Get every new post delivered to your Inbox.

Join 1,830 other followers

%d bloggers like this: