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.
- “DC Circuit upholds corporate liability under the Alien Tort Statute” (professorbainbridge.com)
- Supreme Court Urged to Review Ruling that Shields Corporations from Human Rights Suits (yubanet.com)
- Supreme Court May Consider Whether Companies Can Be Sued Over Human Rights (nytimes.com)
- Keitner on Corporate Alien Tort Cases (lawprofessors.typepad.com)
- Exxon Wants Rehearing In Corporate Liability Dispute (legaltimes.typepad.com)
- You: Holding oil firms liable for rights violations (search.japantimes.co.jp)
- Hot Off The Presses: Recent Articles Of Interest (lawprofessors.typepad.com)
- Exxon Seeks Rehearing In Indonesian Liability Case (businesslawdaily.wordpress.com)
- Exxon Seeks Rehearing In Indonesian Liability Case (businesslawdaily.net)