Tag Archives: kiobel

Do Over: The Supreme Court Takes a Second Shot at Kiobel

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In a move reminiscent of Citizens United, the Supreme Court has agreed to reargue Kiobel v. Royal Dutch Petroleum so as to reach an issue not squarely presented by the case in the first instance: whether the ATS applies extraterritorially.  Anyone watching the first (now moot) argument could get the sense that the Court was especially uncomfortable with the geographic broadness of the present statute. But, as counsel for the Petitioner emphasized during his argument, that was not a question presented. The Supreme Court, never letting the limits of a particular case get in its way, has now addressed that problem by slapping on the extra question itself.

This move strikes me as an exceptionally haphazard way of dealing with a complex statute. By gobbling up all of these questions in one case, the Supreme Court threatens to do a poor job of addressing any one particular issue.  I predict a sloppy opinion composed of various rudimentary answers to all sorts of ATS-related questions; I’d wager that the final product, a slapped-together product stumbling about like Frankenstein’s monster, will effectively emasculate the ATS and render Filartiga nothing more than an historical footnote.

-Michael

One Prediction on the Court’s Decision in Kiobel

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Susan has offered her eight predictions below, but I’ll offer only one: the court will not determine whether corporations may be held liable under the Alien Tort Statute. Instead, the Court will determine that the question of corporate liability is not a question of subject matter jurisdiction and dismiss the rest of the case.

Why? Keep in mind the procedural posture here. This case came out of the district court as a certified appeal unrelated to corporate liability. The Second Circuit only reached that question because it determined corporate liability was a question of subject matter jurisdiction that it had an obligation to address sua sponte. If that decision was improper, then I expect the Supreme Court will simply flip it back to the Second, scold them for reaching an unnecessary issue, and avoid addressing the meat of the argument for now.

Such a decision would fit the Court’s recent tendency to insist that most questions are not questions of subject matter jurisdiction. But it would also be another moment when civil procedure ruins everything. Blech.

-Michael

Eight Predictions on the Court’s Decision in Kiobel

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With Supreme Court oral arguments on Kiobel v. Royal Dutch Petroleum set for tomorrow, it will still be a while yet before the Court releases its opinion. In the meantime, however, here are my predictions on what the outcome of the case will be. Once the Court has actually gotten around to issuing an order, I’ll check back to see if I managed to get any right.

  1. The Kiobel plaintiffs will lose. Either directly on the Supreme Court’s ruling, or after being kicked back to the lower courts with a directive to make findings that spell doom for the plaintiffs, the case against Royal Dutch/Shell will ultimately be dismissed.

  2. But not because of a finding that corporations cannot be liable under the Alien Tort Statute. The ATS was enacted as a mechanism allowing aliens injured by acts violations of international law to recover damages directly from the party who caused them harm, rather than having the U.S. itself make reparations to the victims. The ATS’s concern is not punishment, but in the financial reparation of damages. And, to that end, from the precedent set by prize law, marine torts, and other areas of the law which, in 1789, regularly featured civil claims for violations of the law of nations, there is plenty for the Court to draw from in finding that principles of agency law apply when ascertaining the entity liable for the damages under the ATS. Sosa already made it clear the Court is going to pay close attention to history in making pronouncements on the ATS’s scope and function, and an enquiry into the historical purpose of the statute necessitates a finding of corporate liability.

  3. Instead, Kiobel will be dismissed under principals of comity. If I had to bet, this is the battleground on which Kiobel will be fought. The hubris of allowing a suit brought by aliens against foreign companies for foreign torts will be too much for the Supreme Court to look past, and they will find that international comity requires that U.S. courts decline to exercise jurisdiction in the situation presented. The defendants are corporations based in and operated out of the United Kingdom and the Netherlands, and none of their corporate holdings in the U.S. had any direct involvement with Shell’s abhorrent practices in Ogoniland. Allowing suit against these companies in the U.S. is one step short of having U.S. federal courts declare themselves to be an international tribunal competent of adjudicating foreign state’s violations of the law of nations, and the Supreme Court just isn’t going to go there. Bonus prediction: look to see Charming Betsy invoked to explain why the Founders only intended the ATS to be limited to cases with either (a) a sufficient U.S. nexus, whether it be based on territorial concerns or personality jurisdiction, or (b) universal jurisdiction. If Justice Breyer gets his way, part (b) will be expansive and include Really Super Bad Awful Acts. Otherwise, it’ll be limited to piracy and any other crimes in the jurisdictional void.

  4. And possibly for failing to meet exhaustion requirements. The requirement that a plaintiff exhaust all domestic remedies before proceeding in a foreign forum was not a consideration in Sosa, but the Court noted then that “[w]e would certainly consider this requirement in an appropriate case. ” It’s also an issue that cropped up frequently in amici briefs submitted by foreign sovereigns in Kiobel, so the Court may consider it again now, assuming it doesn’t stop once it gets to the comity issue. Although I expect the Kiobel plaintiffs won’t be required to have filed suit in Nigeria in order to meet exhaustion requirements, their failure to pursue suits in the Netherlands and the UK may prove fatal. Particularly so for the UK — the fact that many of the plaintiffs, including the Kiobel family, are themselves UK citizens or residents puts the inappropriateness of a U.S. forum into stark relief.

  5. The Court may also look into the Second Circuit’s decisions regarding aiding-and-abetting liability. The “knowledge and purpose” standard for aiding and abetting liability under the ATS may get some dicta thrown its way, but as Kiobel can be decided without reaching the question of secondary liability, I would guess that it will not feature prominently in the Court’s decision. There may be some discussion, though, about aiding and abetting as a substantive violation vs. agency liability as a theory of recovery, and whether both are decided under domestic law, neither are, or one is but not the other.

  6.  Justice Scalia will author a very terse opinion dissenting in part.  Expect it to feature scathing but memorable descriptions about the purported ridiculousness of the Court exercising jurisdiction under the ATS.

  7. Justice Thomas will join Scalia’s dissent.  True story.

  8. Ultimately, even though the specific plaintiffs in this case will lose, the Court’s decision in Kiobel will strengthen, not weaken, a global regime of corporate liability for international human rights violations. The Court’s opinion will signal its intention to respect both international comity and international human rights. As such, one day, in a different case, with different facts, where the U.S. is a proper forum from which a judgment should be issued, Kiobel will ultimately provide support for a finding of corporate liability for violations of international law. And aside from that, the simple fact that the highest court in the U.S. will have gone on record acknowledging that the activities of corporations are indeed cognizable under international law will be a small but significant step in shaping global norms regarding corporate human rights abuses.


-Susan

Is There an Easy Jurisdictional Answer to Kiobel? (Nope.)

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Professors Brad Clark and Anthony Bellia have again offered some thoughts on the Alien Tort Statute in advance of the Supreme Court’s arguments in Kiobel. This time, in a short essay to be published in the Georgetown Journal of International Law, the professors suggest that alien-on-alien torts are not covered by the Alien Tort Statute. If this turns out to be true, the professors reason that only U.S. corporate defendants could face suit; such suits wouldn’t need to rely on the ATS because they would likely meet the requirements of diversity jurisdiction. Thus, the issue of corporate liability under the ATS would largely be a moot point.

The professors’ argument is a nifty one, but I think it rests on the faulty premise that the ATS was “originally intended” to cover only suits by aliens against U.S. citizens. The professors distinguish between a tortious act of a U.S. citizen (which they say could be imputed to the United States if it were left unredressed) and a tortious act of an alien (which supposedly “was not directly imputed to the United States under the law of nations if the United States failed to redress it.”)

Of course, the professors’ approach ignores Susan’s excellent discussion of how the original impetus for the ATS might have been an alien-on-alien crime in the United States.

But perhaps more importantly, it ignores the fact that nations have certain obligations related to the acts of persons other than their own citizens. It’s not a simple matter of imputation. In the criminal context, for instance, nations have an obligation not to shield a wrongdoer (whatever his citizenship) who is justly sought by another country. It might be said that the duty arises from the obligation of the “refuge” state to provide a means for the requesting state to vindicate its own interests. Likewise, in the tort context, Nation A has an obligation to provide redress for an injury to a citizen of Nation B because, absent such redress, the wrongdoer might avoid penalty by using Nation A as a (personal) jurisdictional shield. Acting as a shield might then provoke Nation B, who under well-understood principles of diplomatic protection might then take action against Nation A.  Indeed, one authority suggests that “the assault or wrongful treatment of foreigners was one of the major reasons for the incitement of war,” regardless of the nationality of the offender.

The Marbois Incident, which Susan posits led to the ATS in the first place, is actually an excellent example of this idea in practice. When one Frenchman committed a violation of the law of nations against another Frenchman, France obviously had no grounds to be angry towards the United States based on any theory of “imputation.” Rather, France took issue with the United States’ independent failure to provide a remedy; America’s interests were “stand[ing] in the way of French justice.” (To be fair, the perpetrator in the Marbois incident was nominally an American, but it was well-understood that the citizenship was pretextual.)

As Professor William Dodge has also noted, Congress first reacted to the Marbois incident (and another minor incident involving a New York police officer) by recommending to the states that they provide for punishment of violations of the law of nations. This resolution had two critical elements: (a) allowing torts suits to be brought by the alien for the breach of a treaty or international law; and (b) an indemnification provision for harm to the United States caused by the breach. Interestingly, while the indemnification provision applied only to acts committed by United States citizens, there is no similar limitation as to the tort suit portion. Thus, early Congresses seemed to anticipate that any defendant could face liability for a violation of the law of nations.

Let’s also not forget the plain text of the ATS. While the Act obviously provides for an alien plaintiff, it does not define the relevant class of defendants. Complementary state laws, such as one in Connecticut, did indeed define the defendant class, but they defined it broadly: any person whatsoever.

In sum, while I can appreciate the efforts of Professors Clark and Bellia, I think they err in reviving this long dead argument (which Curtis Bradley seems to have been making for some time now).  The puzzle of Kiobel cannot be so easily solved.

-Michael

*The Professors also bring back the old argument that Article III does not anticipate any independent jurisdiction of courts to enforce the law of nations.  I think that point has already been well-addressed before, so I choose not to rehash it here.  A quick read of Filartiga should suffice to address that concern.  See Filartiga v. Pena-Irala, 630 F.2d 876, 885-87 (2d Cir. 1980).

[H/T: Volokh]

Privateer Corporations and Agency Liability: A Response to the Cato Institute’s Amicus Brief in Kiobel

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The Cato Institute’s amicus brief in Kiobel v. Royal Dutch Petroleum, along with a couple of other amici, repeatedly enact a straw man (straw law?) version of international law as it existed prior to 1789. The ATS, they argue, should be applied in the context of the law of nations of the Enlightment era, which is conceived to have been a limited, formalist creature, with no concern for individuals, dealing only with kings vis-à-vis kings. This idealist version of international law is then contrasted with international law as it exists today, which, in their view, is apparently some kind of bloated, sovereignty-munching leftist obsession with human rights. But while it is the case that international human rights law did not exist prior to the 20th century, Cato’s idealist version of international law ignores the fact that, for many centuries, the law of nations was an omipresent force of domestic legal systems in a manner which today’s domestic courts would scarcely be able to recognize. Domestic enforcement of private claims under international law was far more prevalent in 1789 than it was in 1989.

The Cato amicus’ delicate selections of quotes from Grotius are particularly inept at proving that international law in the 17th century matched Cato’s positivist depictions of it. Cato goes so far as to argue that in Kiobel “the Second Circuit employed an analysis based on the principles enunciated by Grotius,” which is that “under the law of nations corporations are not answerable in tort.” It is exceedingly unclear what precise “principles” Cato is referring to here, because Grotius certainly never made any direct assertions to that end. Grotius fully recognized that sub-sovereign entities were subject to rights and obligations under the law of nations, corporate entities included. In fact, Grotius got his start working as counsel for the Dutch East India Company, defending the company from claims that it had taken Portuguese prizes in violation of international law. His early works in particular were more advocacy pieces than treatises, intended as a defense of the Company’s right to engage in trade in the East Indies, and its powers to wage private war and take prizes.

In On the Law of War and Peace, which Cato quotes from, Grotius repeatedly acknowledges that private entities are capable of violating the law of nations, and can further be personally liable for those violations:
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Why Kiobel Might Matter In This Year’s Election

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Update (again): Guess I’m not crazy.  Check out this recent article in Supreme Court Insider titled, “Will alien tort case be next Citizens United?”

Update: Our friends over at the Alien Tort Claims Act Blog don’t agree that Kiobel could amount to anything in the next election, calling it something that might show up in ”hour three of Rush Limbaugh’s show” at best. That’s probably fair; this post was meant to be somewhat tongue-in-cheek and I didn’t mean to overstate the case’s significance. Still, it’s possible you might see some discussion of this for a few days in June when the opinion comes out. It won’t drive the election (by any means) but it might provide an interesting talking point for one news cycle.

Right now, the only people excited about the upcoming Supreme Court argument (and ultimate decision) in Kiobel v. Royal Dutch Petroleum are international law nerds. At first glance, the case presents issues only a mother scholar could love:

(1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

But even though that sounds extraordinarily technical, the facts of the case actually might provide fodder for some explosive campaign rhetoric.

At bottom, Kiobel could be thought to confront two fundamental issues: (1) the rights of aliens to enjoy certain protections in U.S. courts; and (2) the accountability of corporations for acts that caused injury. Those issues touch upon some raw feelings, driven by xenophobia, anti-corporatism, and general distrust of the Supreme Court. Either way the case goes, it’s likely to stir intense political feelings:

  • If the court rules that corporations may not be held liable under the Alien Tort Statute, we’re likely to see a mini-replay of the Citizens United furor. The decision would fit neatly into the narrative that the Roberts court cares more about the interests of corporations than individuals. I can already imagine President Obama giving a speech about the Court’s unwillingness to place limits on the acts of corporations, whether those limits come in the form of campaign spending law, basic human rights laws, or otherwise.
  • If the court rules that corporations may be held liable under the Alien Tort Statute, then Republicans could use this case as another example of how “those people” (i.e., aliens, foreigners, what have you) have too many rights in this country. Launching into his best “they-terk-er-jerbs” speech, the Republican candidate could use Kiobel to condemn how the government has become more interested in protecting the interests of foreign citizens, rather than protecting the interests of small business owners, family farmers, apple pie bakers, etc. Then again, Arizona v. United States might provide a better platform for anti-immigrant rants than Kiobel.
  • If the court simply punts and says that the Alien Tort Statute does not apply extraterritorially, I don’t think anybody will care. Some people will scream about judicial activism, others will applaud the court’s judicial restraint. For its part, the Alien Tort Statute will be dead, squashed like a roach under the jackboot of judicial fuddyduddyness.

Personally, I think it’d be kind of nice to see candidates sparring on things of substance (like Kiobel) rather than spitting the same ‘ole sound bites. But that’s probably too much to ask for.

-Michael