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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Justice Thomas will join Scalia’s dissent. True story.
- 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.
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Justice Thomas will join Scalia’s dissent. Afterwards he might even be curious enough to read it to see what it was.