2nd Circuit Apparently Rules No Corporate Liability in ATS

I have just now been forwarded a copy of the 2nd Circuit opinion released today in Kiobel v. Royal Dutch Petroleum.  I say “apparently” because I have hastily read it in the last couple of minutes; see also Julian’s post above.  But unless I am greatly mistaken, it is a blockbuster opinion on the basics of ATS litigation.  However, the most provocative and important holding seems to be that the ATS does not embrace corporate liability … at all:

Plaintiffs assert claims for aiding and abetting violations of the law of nations against defendants—all of which are corporations—under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, a statute enacted by the first Congress as part of the Judiciary Act of 1789. We hold, under the precedents of the Supreme Court and our own Court over the past three decades, that in ATS suits alleging violations of customary international law, the scope of liability—who is liable for what—is determined by customary international law itself. Because customary international law consists of only those norms that are specific, universal, and obligatory in the relations of States inter se, and because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS. Accordingly, plaintiffs’ ATS claims must be dismissed for lack of subject matter jurisdiction.

I cannot resist pointing out that the court’s view of this point appears to be nearly identical to the position I first took in two expert declaration, here (Declaration) and here (Reply), on this point in the Agent Orange Litigation, before Judge Weinstein and eventually reviewed by the 2nd Circuit.  That is actually a couple of specific points.  One is, as the bit above says, the scope of liability is determined not under some Federal standard, but instead by customary international law itself.  Second, the court notes that customary international law does not subject corporations to civil or criminal liability.  The question of corporate liability has always been two distinct issues – the question of whether there is such a thing as civil liability in international law (or at least for non-state actors) and whether there is liability of any kind for corporate actors, as opposed to individual persons for whom there is sometimes individual criminal liability.  The court seems, on my first read, to have rejected each of those propositions.  I grant, though, that I have raced through this, and perhaps I have read this too favorably to my own position.  Still, I had not expected to read the above holding in language quite that plain.

(My thanks to my old friend AC, going back to the days when I was drafting these expert declarations in the Agent Orange litigation, for forwarding this to me.)