Category Archives: ATS

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]

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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.

Article on Corporate Responsibility and the Kiobel Decision

Corporate Responsibility for Human Rights Violations: Some remarks on the US Court of Appeals’ decision in Kiobel case by Marco Fasciglione

Since the Khulumani judgment, in which judge Korman in his minority opinion raised the objection that multinational corporations might not be sued under the Alien Tort Claims Act (ATCA) as they are not subjects of international law, multinational corporations summoned in ATCA litigations for violation international human rights norms have started to include such an objection among their defense strategies. On 17 September 2010 this theory has been upheld by the Court of Appeals for the Second Circuit in the Kiobel case. Following this reversal, arguably aimed at erasing the entire ATCA case law which made possible to suit before US domestic tribunals corporations having violated international human rights provisions, the theory that corporation are proper subjects of litigations under atca, might be no more applicable. This article examines the Court’s reasoning and its misapplication of the Supreme Court’s precedent in Sosa case as well as its weaknesses from an international human rights law perspective.

The full article can be accessed here: Corporate Responsibility for Human Rights Violations.

Marco Fasciglione (PhD) is Researcher at the Institute for International Legal Studies of the Italian National Research Council (ISGI-CNR). He has more than ten years of experience as researcher, legal adviser and trainer in international law field, with specific experience in international human rights law mechanism, corporate social responsibility, migration’s flows regulation. Former legal officer at the European Court of human Rights, since 2010 he is member of the independent experts’ group of the European Commission (DG JLS) for the sectors of Civil justice and Fundamental rights and citizenships.

New article on the mens rea standard of corporate aiding and abetting under the ATS

Angela Walker, The Hidden Flaw in Kiobel: Under the Alien Tort Statute the mens rea standard for corporate aiding and abetting is knowledge,
10 Nw. U. J. Int’l Hum. Rts. 119, (2011).

This article addresses the circuit split concerning the mens rea standard for corporate aiding and abetting under the Alien Tort Statute by analyzing the flawed analysis set forth by Judge Leval in Kiobel v. Royal Dutch Petroleum Co. While many experts focus on whether international law or U.S. federal common law should govern the standards for accessorial civil liability under the ATS, it is the misinterpretation of international customary law that is the root of the diverging opinions concerning the mens rea standard. In fact, international law and domestic law reach the same conclusion, which is that the mens rea standard for accessorial civil liability is knowledge.

The full article can be accessed here: The Hidden Flaw in Kiobel.

Litigación civil internacional por abusos contra derechos humanos. El problema de la competencia judicial internacional (article)

Volume X of the Anuario Español de Derecho Internacional Privado has just been released. In pages 259 to 300 you will find an article on cross-border civil litigation and jurisdiction that I wrote a few months ago. The abstract reads as follows:

In 2008, the Committee on Civil Litigation and the Interests of the Public of the International Law Association launched research into the area called “private litigation for violations of human rights”, with particular focus on the private international law aspects of civil actions against multinational corporations. In its 2010 report the Committee presented the issue of international jurisdiction as one of the most serious obstacles to such actions. Our study examines personal jurisdiction criteria in the U.S. (so far the prime forum for this kind of litigation), and Europe (as potential forum, likely to become a real one to counterbalance the increasingly serious restrictions to access to American jurisdiction). Not surprisingly, we conclude that the situation is unsatisfactory, and that as far as Europe is concerned, the proposal for amending EC Regulation No. 44/01 does not alter such result. Changes in PIL will not be enough for private litigation to become a useful regulatory mechanism of corporations in relation to human rights; a much more comprehensive action is needed, supported by international consensus. In other words: there is still a long way to run.

I have the pdf file; don’t hesitate to ask me in case you feel like reading it (in Spanish).

 

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).