Author Archives: Andrew Sanger

Amicus Briefs filed in Kiobel v. Royal Dutch Petroleum

Amicus Briefs filed so far in the Kiobel v. Royal Dutch Petroleum US Supreme Court case:

Amicus briefs filed by the Petitioners [filed 14 December 2011]

Amicus briefs filed in support of the Petitioners (Kiobel) [filed 21 Dec 2011]

[Filed 20 December 2011]

[Filed 16 December 2011]

Amicus briefs filed in support of neither party [filed 21 December 2011]

[Some of these links were taken from Business & Human Rights]

Chevron Looses Appeal Case in Ecuador

See:

An appeals court in Ecuador has upheld an $18bn ruling against Chevron Corporation for oil pollution in the Amazon rainforest more than 20 years ago.

The ruling confirmed a February judgment in the case. The Ecuadorean plaintiffs said in a statement that the decision was based on scientific evidence presented at trial proving that waste had poisoned the water supply.

“The appellate court relied on a record that proved that Chevron has violated the rights of the communities where it operates,” the plaintiffs said in the emailed statement.

The lawsuit deals with pollution of the rainforest by energy company Texaco, which Chevron bought in 2001.

Chevron denounced the appeals court’s decision and said it would continue to seek recourse in other courts outside Ecuador.

“Today’s decision is another clear example of the politicisation and corruption of the justice system in Ecuador,” Chevron said in an emailed statement.

The San Ramon, California-based company has previously alleged fraud in the case. The plaintiffs have also accused Chevron of defrauding the Ecuadorean court to hide the scale of the oil contamination.

By the time of last year’s judgment the case had been winding its way through US and Ecuadorean courts for more than 17 years.

The suit was originally filed in a New York federal court in 1993 against Texaco and dismissed three years later after the oil company argued that Ecuador was the proper venue to hear the case. It was refiled in Ecuador in 2003.

Though it had only 47 named plaintiffs, the lawsuit sought damages on behalf of 30,000 people for environmental contamination and illnesses that allegedly resulted from Texaco’s operation of an oil consortium from 1972 to 1990 in the rainforest.

[Taken from The Guardian link above]

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 conflictoflaws.net] – 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.

Sarei v. Rio Tinto – Certiorari Petition to the US Supreme Court

There is now another certiorari petition to the US Supreme Court concerning corporate liability under the ATS. This time from the Ninth Circuit decision in Sarei v. Rio Tinto. The petitioners want the Supreme Court to hear the case alongside Kiobel – but with different questions:

1. Whether U.S. courts should recognize a federal common law claim under the ATS arising from conduct occurring entirely within the jurisdiction of a foreign sovereign, especially where the claim addresses the foreign sovereign’s own conduct on its own soil toward its own citizens.

2. Whether U.S. courts should recognize a federal common law claim under the ATS based on aiding-and-abetting liability, even absent concrete factual allegations establishing that the purpose of the defendant’s conduct was to advance the principal actor’s violations of international law.

3. Whether a plaintiff asserting a federal common law claim under the ATS addressed to conduct occurring entirely within the jurisdiction of a foreign sovereign must seek to exhaust available remedies in the courts of that sovereign before filing suit in the United States, as international and domestic law require.

4. Whether federal common law claims asserted under the ATS for violations of international human rights law norms may be brought against corporate entities.

In other related news, see here for the recanted filed brief by Nigerian plaintiffs in the US SC Kiobel case.

French criminal case against AMESYS in relation to acts of torture in Libya

As reported by Opinio Juris this morning (see here), FIDH and LDH have just filed a criminal complaint concerning the responsibility of the company AMESYS in relation to acts of torture in Libya.

This complaint, which singles out a company for being complicit in grave violations of human rights on the basis of extraterritorial jurisdiction, is considered within the framework of the struggle against impunity, at a time when a growing number of companies is being denounced for having provided similar systems to authoritarian regimes.

“We hope that the judicial investigation will be opened as quickly as possible so as to determine the possible criminal liability of Amesys and its executives”, stated Patrick Baudouin, honorary president of FIDH and head of the FIDH legal action group.

“On a larger scale, this procedure may contribute to shedding light on the extent of the crimes committed by the Gaddafi regime,” declared Pierre Tartakowsky, President of LDH.

The facts

When Tripoli was liberated, on 29 August 2011, journalists from the Wall Street Journal entered the building where the Libyan regime monitored communications. They found manuals written in English carrying the logo of Amesys, a French subsidiary of the Bull Group.

In 2007 Amesys entered into an agreement with the government of Libya to make technology available for the purpose of intercepting communication, data processing and analysis.

Agreements for technological cooperation, and more particularly software installation, meant not only making material available but also included a phase of development, assistance and monitoring.

See: http://www.fidh.org/FIDH-and-LDH-file-a-complaint

And: http://opiniojuris.org/2011/10/20/french-case-filed-against-corporation-for-complicity-in-torture-in-libya/

US Supreme Court grants certiorari in Kiobel v Royal Dutch Petroleum

Today the US Supreme Court granted certiorari in Kiobel v Royal Dutch Petroleum, which is to be argued in tandem with Mohamad v. Rajoub.  The Question Presented is:

1. Whether the issue of corporate civil tort liability under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.

2. Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the Eleventh Circuit has explicitly held.

As many will no doubt be aware, the US Appeals Court is split, with the decision in Kiobel providing to be very controversial (as demonstrated by the remarkable Concurrence in Kiobel).