Kiobel v. Royal Dutch Petroleum

In Kiobel, et al., v Royal Dutch Petroleum, et al., lawyers for 12 individuals seeking to hold major oil companies legally responsible for human rights abuses in Nigeria in the 1990s have asked the Supreme Court to overturn a federal appeals court’s ruling that corporations are immune to such claims in U.S. courts. The law at issue is the Alien Tort Statute , a law that dates from the first Congress in 1789 but has grown in importance after a wave of lawsuits over the past three decades — lawsuits that were originally aimed at individuals, and then began targeting corporations in 1997.

“Understanding the impact the Kiobel decision might have requires taking a step back to see what has happened since the Court’s decision in Morrison v. National Australia Bank, which like Kiobel involved the extraterritorial application of U.S. law to foreign conduct. In that case, the Court held that Section 10(b) of the 1934 Securities Exchange Act does not provide a cause of action to foreign plaintiffs suing foreign defendants for misconduct in connection with securities traded on foreign exchanges. The Morrison decision has required courts not only to dismiss so-called “foreign cubed” cases that is, foreign plaintiff, foreign defendant, foreign conduct filed under the federal securities laws, but also federal securities law claims where the harm complained of occurred on foreign securities exchanges regardless of the nationality of the parties.”

“The supplemental amicus brief of the United States provides a partial answer for U.S. courts. There, the United States argues that, in certain circumstances in which a federal Common law cause of action is created under the ATS for extraterritorial violations of the law of nations, doctrines like exhaustion, forum non conveniens, international comity, act of state, and related doctrines could be applied if the parties and conduct have little connection to the United States. Not only would these doctrines apply in federal cases, but they could also be employed in cases filed under state or Foreign Law . While the government’s brief does not specifically tie these doctrines to cases filed under non-federal law, there is nothing that necessarily limits their application to state and Foreign Law claims filed in federal or state courts. How will federal courts apply these doctrines? Should state courts apply these doctrines and, if so, would they apply them in the same way as federal courts?”

Donald Childress, Online Kiobel symposium: A brave new world of transnational human rights litigation, SCOTUSblog (Jul. 12, 2012, 5:52 PM), https://www.scotusblog.com/2012/07/online-kiobel-symposium-a-brave-new-world-of-transnational-human-rights-litigation/

In october 2011, the United States Court of Appeals for the Ninth Circuit issued a mammoth en banc opinion in the case of Sarei v. Rio Tinto. The Ninth Circuit holds that the Alien Tort Statute may be applied extraterritorially notwithstanding recent Supreme Court caselaw requiring a clear statement of extratteritorial intent. Slip op. at 19337-19339. Also, it holds that there can be corporate liability under the ATS. Slip op. at 19341.

These holdings complicate the ATS landscape substantially given other recent appellate decisions. The Supreme Court’s cert. grant in Kiobel (discussed earlier on this blog) just became much more important to resolving many of these question. It will be especially interesting to see what the Government’s position through the Solicitor General’s office will be in Kiobel given the many citations to Harold Koh’s writings on corporate liability relied on by the en banc panel.

Author: international

Mentioned in these Entries

Alien Tort Statute, Common law, Foreign Law.

Kiobel v Royal Dutch Petroleum in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): In December 2011, the United States filed a brief as amicus curiae in the Supreme Court of the United States in the case Esther Kiobel v. Royal Dutch Petroleum Co., No. 10-1491. The U.S. brief argued that a corporation can be held liable in a federal common law action brought under the ATS. The case was brought by former residents of a region in Nigeria where defendant corporations, through a Nigerian subsidiary, were engaged in oil exploration and production. Plaintiffs alleged that defendants aided and abetted, or were otherwise complicit in, human rights abuses by Nigerian military and police forces that violated international human rights law. The district court had dismissed the case, in part. On interlocutory appeal, the court of appeals dismissed the complaint in its entirety for lack of subject matter jurisdiction, reasoning that corporate liability had not attained universal acceptance among nations so as to represent customary international law. The U.S. brief first argued that the issue of corporate liability was a question of the merits rather than subject matter jurisdiction and, second, urged the Supreme Court to determine that a corporation can be held liable in a federal common law action under the ATS for violating the law of nations. Excerpts from the United States brief appear below (with most footnotes and citations to the record omitted).*

Kiobel v. Royal Dutch Petroleum

In relation to the international law practice and Kiobel v. Royal Dutch Petroleum in this world legal Encyclopedia, please see the following section:

International Criminal Law

About this subject:

International, Hybrid, and Other Tribunals

. Note: there is detailed information and resources, in relation with these topics during the year 2011, covered by the entry, in this law Encyclopedia, about Khmer Rouge Tribunal (“ECCC”)

Resources

See Also

• Foreign Relations
• Alien Tort Claims
• Torture Victim Protection

Resources

Notes and References

1. * Editor’s note: On March 5, 2012, the United States Supreme Court issued an order in the Kiobel case directing the parties to file supplemental briefs addressing the issue of “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Digest 2012 will discuss the United States supplemental brief addressing this issue.