Tag Archives | Alien Tort Statute

New Paper: “Kiobel Surprise: Unexpected by Scholars But Consistent with International Trends”

My article on Kiobel v. Royal Dutch Petroleum is up on SSRN. It is forthcoming in the Notre Dame Law Review‘s Federal Courts Issue.

Here is the abstract; comments on the article are welcome:

The unanimous ruling in Kiobel v. Royal Dutch Petroleum blind-sided the legal academy. The case involved one of the most contentious and dynamic aspects of U.S. foreign relations law, the Alien Tort Statute (ATS). Yet the Court surprised observers by deciding the case on grounds almost entirely ignored by the academy – the presumption against extraterritoriality.

Amazingly, despite an extensive academic literature on the ATS, the winning issue in Kiobel had never been examined in a law review until a 2003 student note. No court ruled on it until 2010. Indeed, the issue had not even been part of the litigation in Kiobel until the Court sua sponte raised it during oral argument. Finally, the Court’s unanimous endorsement of an extraterritoriality limitation came as yet another surprise to most observers, who predicted a split along more ideological lines.

The story of the extraterritoriality issue in ATS litigation is a case study in the path dependence of legal doctrine and of agenda-setting by the Supreme Court and the Justice Department. This Article examines the intellectual history of extraterritoriality arguments in ATS litigation, while placing Kiobel in a broader context of international trends in universal jurisdiction. The Article also considers possible reasons for this academic oversight. While normative approval of ATS litigation no doubted contributed to the neglect of the issue in the exciting early years of ATS litigation, its longstanding omission must also be attributed to broader intellectual factors. It demonstrates the power of sub silentio decisions: while courts had never dealt with presumption in ATS cases, most observers assumed the issue to have been

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France’s Kiobel

I wrote yesterday about the French Court of Appeals decision holding that French train companies did not violate international law (and particularly the Fourth Geneva Convention) by building a light rail system in Jerusalem, including areas occupied by Jordan before 1967.

The case, PLO v. Alstom, is a perfect foreign coda to the Supreme Court’s decision in Kiobel, as it also deals with suits for extraterritorial conduct of multinational corporations (though without the universal jurisdiction twist of Kiobel). It illustrates how the efforts of some American courts to implement international law norms through civil damages remedies is in fact a rather parochial exercise detached from international practice.

1) Most significantly, the Court found that international law does not create liability for corporations. This accords with the view of the Second Circuit in Kiobel – corporate liability was the issue on which cert in Kiobel had been granted, though the case was ultimately decided on extraterritorially grounds. Many who favored corporate liability argued that on this issue, courts should apply not international law, but rather federal common law. In future ATS litigation against companies with some U.S. nexus, the PLO v. Alstom decision will not make plaintiffs’ work easier.

2) The Versailles court also seemed to take a narrow view of aiding-and-abetting liability. The issue is hard to separate from the corporate liability issue, but the Court basically found that even if Israel’s conduct violated international law, the corporation does not incur liability for its involvement.

3) Ironically, the best examples of corporate liability under international law came from ATS cases (where courts had upheld such liability after having been assured of its existence outside ATS cases). Yet the French court brushed off precedents under the ATS by noting that they were merely applications of a “domestic statute” and […]

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The Alien Tort Statute Returns to the Supreme Court: International Law versus Law of the Hegemon?

As I have occasionally noted here at VC, this term the Supreme Court will hear an Alien Tort Statute case, the Kiobel case, in which a primary question is whether the ATS embraces a theory of corporate liability.  The Supreme Court presumably took the case because of a circuit split that has arisen over the corporate liability question, and perhaps because of a sense that the exceedingly vague guidance of its last visit to the ATS, the Sosa decision, left many crucial items open.

The case has attracted intense interest among outsiders, professors particularly – 19 amicus briefs filed on behalf of plaintiffs, and 16 on behalf of defendant corporations. (I signed one, despite my general reservations about scholars’ amicus briefs (drawing upon Richard Fallon’s article, which I have blogged about here at VC, including a response by Amanda Frost), mostly because I know this subject matter very well and believed that if called upon, I could have drafted the brief I signed myself.)

Former DOS Legal Advisor John Bellinger writes at Lawfare that the governments of Germany, the UK, and the Netherlands have filed amicus briefs in support of corporate defendant Shell Oil; the Obama administration filed a brief in support of plaintiffs.  (His post at Lawfare provides links to most of the briefs or the ABA site with amicus brief links.)

Here is what I wish could be got in front of the justices. (I am not a litigator, so I don’t pretend to know how one would frame this substantive point in a way so as to put it in a brief.)  The basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the “law of the hegemon.”  The District […]

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