Briefs filed in support of the petitioners in Kiobel

Two more Briefs have been filed in support of the petitioners in Kiobel:

The first is the Brief of Yale Law School Center for Global Legal Challenges as Amicus Curiae in Support of Petitioners dated 16 December 2011.

The second is the Brief for the United States as Amicus Curiae Supporting Petitioners dated 21 December 2011. [Link from] – Interestingly, the Brief, which argues inter alia that a corporation can be held liable under federal common law for a violation under the Alien Tort Statute, stands in contrast to previous briefs filed by the US in other ATS cases. The Brief explains that:

II. The merits question before this Court is narrow: whether a corporation can be held liable in a federal common law action based on the ATS. Although there are a number of other issues in the background of this case (e.g., aiding-and-abetting liability, extraterritorial- ity, etc.), those issues were not decided by the court of appeals here. This Court therefore should address only the corporate-liability issue. On that issue, the court of appeals’ holding is categorical and applies to all suits under the ATS, regardless of the theory of liability, the locus of the acts, the involvement of a foreign sovereign, or the character of the international-law norm at issue.

A. A corporation’s liability in a suit under the ATS does not depend on the existence of a generally accepted and well-defined international law norm of corporate liability for law-of-nations violations. The particular limitation this Court found dispositive in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)—that any claim under the ATS must at least “rest on a norm of interna- tional character accepted by the civilized world and de- fined with” sufficient “specificity,” id. at 725—pertains to the international-law norm itself and not to whether (or how) that norm should be enforced in a suit under the ATS. The latter question is a matter to be deter- mined by federal courts cautiously exercising their “re- sidual common law discretion.” Id. at 738. International law informs, but does not control, the exercise of that discretion.

At the present time, the United States is not aware of any international-law norm of the sort identified in Sosa that distinguishes between natural and juridical persons. Corporations (or agents acting on their be- half) can violate those norms just as natural persons can. Whether corporations should be held accountable for those violations in private tort suits under the ATS is a question of federal common law.

B. Courts may recognize corporate liability in ac- tions under the ATS as a matter of federal common law. The text and history of the ATS itself provide no basis for distinguishing between natural and juridical persons. Corporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our “legal culture.” Pet. App. A8. Sosa’s cautionary admonitions provide no reason to depart from the com- mon law on this issue.

International law does not counsel otherwise. Al- though no international tribunal has been created for the purpose of holding corporations civilly liable for vio- lations of international law, the same is true for natural persons. And while international criminal tribunals have, thus far, been limited to the prosecution of natural persons, that appears to be because of matters unique to criminal punishment. Notably, several countries that have incorporated international criminal offenses into their domestic law apply those offenses to corporations.

In addition, the Harvard Law School’s International Human Rights Clinic submitted an amicus curiae brief on 22 December 2011. View their blog post here.

(See below for a link to the Brief for Petitioners filed on the 14th December 2011)

Argument at the Supreme Court has been set for the 28th February 2012.


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