Supreme Court Grants Cert. in Kiobel and Mohamad

by Roger Alford

Last week I wrote that the Supreme Court’s docket of international law cases was thin, thin, thin. Today the Court granted certiorari in two blockbuster cases, Kiobel v. Royal Dutch Petroleum/Shell and Mohamad v. Rajoub.

The Question Presented in Kiobel is:

“(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 or may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.”

The Question Presented in Mohamad is:

“whether the Torture Victim Protection Act of 1991 permits actions against defendants that are not natural persons.”

The Court announced that the two cases are to be argued in tandem.

John Bellinger and Donald “Trey” Childress have more on the grant of cert. in Kiobel and Mohamad here and here.

5 Responses

  1. Further to Roger’s excellent post, readers should recall that the SG has filed on these sorts of issues before.  When the South Africa cases first went up on cert, the SG took the unusual step of filing an unsolicited amicus brief in support of cert [Disclosure – I represented and continue to represent an amicus in that case].  The guts of that brief argued that the ATS did not authorize extraterritorial assertions of jurisdiction on the basis of aid/abet liability.  I have always admired the principled nature in which the SG has adhered to its prior litigating position even when administrations change.  In light of its prior position in Ntsebeza, it will be very difficult for the SG to take a different stand in this case.

  2. Response…
    Thank goodness!  Now the Supreme Court will understand that “it” has ALREADY recognized in at least TWENTY Supreme Court cases that corporations and companies can and have had duties and right under international law.

  3. Well, looks like everyone is happy with the cert grant on Kiobel.
    It’s about time SCOTUS clarified ATS caselaw.

  4. Response…
    And since the SG wss wrong as a matter of law, the SG SHOULD change its position.

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