Kiobel and Mohamad Oral Argument Transcripts

by Kenneth Anderson

… from this morning’s hearing:  Kiobel and Mohamad.  I would be curious as to readers’ prognostications of how the Justices will rule based on the oral arguments today. (Thanks for comments, interested in more.  For example, where did this extraterritoriality question suddenly materialize from and does it portend something different from what was originally thought?  You can also see John Bellinger’s take on the argument at Lawfare.)

Update: Reading the transcripts more carefully, as well as Chimene Keitner’s thoughtful post above, I recall that in some blog post somewhere a few year ago – my old blog, OJ, Volokh, I don’t even remember – I said that the problem of corporate liability and that ATS was that in order to get the international law predicate going, “you needed not just a what but a who.”  I assumed that this would be an issue in the oral argument; like lots of other folks, I didn’t anticipate that extraterritoriality would figure in any significant way.

http://opiniojuris.org/2012/02/28/kiobel-and-mohamad-oral-argument-transcripts/

11 Responses

  1. Response…Quite sad that during argument Hoffman did not seem to know about universal jurisdiction under international law and the many U.S. cases that have recognized such a jurisdictional competence in the U.S.  Also, he did not state that the Supreme Court has already recognized in at least 20 cases that corporations and companies can have duties and rights under treaty-based and customary international law.  51 Va. J. Int’l L. 577, 578 & n.2, 586-89 (2011).
    Kneedler didn’t know that private actors can commit torture.
    And the focus on “common law” was the wrong focus!
    Still, all in all, 5/4 decision in favor of the plaintiffs against the corp.

  2. 1) As always, it all comes down to pirates: precedent for corp liability or not? I think not for the reasons Sullivan mentioned in argument, and some others, but plausible argument. 

    2) the court was over the extraterritorial issue from the start, though not really an issue on appeal.

  3. I took a quick scan of the transcript, and nothing really surprising jumps out at me. A few quick thoughts.

    1) Paul Hoffman ended up in most of his initial argument fencing with Justice Kennedy and Justice Alito on the argument made most dramatically by Prof. Jack Goldsmith on behalf of Chevron: that no other country would allow this kind of lawsuit, and relatedly, that many other countries object to this kind of lawsuit, because it has almost no connection to the United States. Hoffman kept trying to point out that this is not the question for this case and should be briefed more carefully as a separate issue.  But I think Justice Kennedy (again the likely swing justice) is definitely attracted by this approach because it is far less controversial than the straight no-corporate liability argument.   I sense a concurring opinion en route on this basis.

    2) Kathleen Sullivan (for Respondent Shell) stuck to her guns on what I am calling the “unattractive argument” against corporate liability. The Court pressed her with various hypotheticals on whether there would be corporate liability for piracy (no), for assaulting an ambassador (no), for torture (no), for genocide (no), for slavery(!) (no).  I think she was right to stay consistent, but it is this type of hypothetical that makes this argument so unattractive.  But she did an excellent job of reading the court (at least as far as I can tell).  She actually quoted Goldsmith’s brief, noting how the Court (e.g. Justice Kennedy) seemed so attracted by it.  But she also made a clear and coherent argument, and, to be frank, made the unattractive argument a bit more attractive.

    3) Edwin Kneedler from the U.S. was questioned (quite reasonably) on the question of whether corporate liability is a question of substantive international law or domestic common law.   Justice Kennedy showed again that he is attracted by the Goldsmith/Chevron argument (and Justice Breyer showed that he is trying to avoid that argument).  But more interestingly, Justice Kagan gave Kneedler a hard time about the claim that this is merely a question of domestic remedies and enforcement. This doesn’t mean she will rule against the position of the United States (and her tough questions to Sullivan run counter to this), but it does suggest she is at least open to it. 

    Bottom Line:  Based on the questions of the Justices, one can imagine a solid majority for finding this is a substantive question of international law, and perhaps a full five or six justices ruling against the petitioners on some combination of the corporate liability and extraterritorial arguments.  But the Court is notoriously hard to read, especially based on oral arguments, which are far from firm predictors of how they will vote.

  4. BIZZARO WORLD: A great irony of the corporate liability issue is that conservatives (roughly speaking) want international law to government he issue, and the liberal (also broadly speaking) wants US common law instead! And neither with a touch of irony. The question, as always, is who is being results-oriented: one side, both, or none?

  5. The court’s tangent on extraterritoriality seemed to throw Paul a bit. Rightfully so since it wasn’t an issue before the court and shouldn’t matter unless they plan on overruling their stance on the ATS in general. Hard to gauge what the overall result will be since the discussion was all over the map.

  6. I recently published an article in the Virginia Law Review that address in large part the ATS and extraterritoriality, entitled A Unified Approach to Extraterritoriality, 97 Va. L. Rev. 1019 (fall 2011). I suspect the issue has taken on new significance in light of the Supreme Court’s 2010 decision in Morrison v. Nat’l Aust. Bank revitalizing the presumption against extraterritoriality. In the article, I argued that if ATS suits apply extant international law, the presumption should not apply. Rather, the relevant canon of construction for measuring extraterritorial application is Charming Besty. But if it is a domestic U.S. norm that purports to attach to the foreign conduct, the presumption may have traction.

  7. Response…
    Anthony: Not merely Charming Betsy but also the Cook rule that Congress must expess a clear and unequivocal intent to override international law in the legislation.  And actually, the history of the ATCA (ATS) demonstrates early attention to universal jurisdiction, that the statute was meant to apply to conduct abroad (esp. the early Op. Att’y Gen. on U.S. citizens (private actor) violations of international law on the coast of Africa).
    I think that the focus on “common law” was a mistake, especially since, as noted above, 20 U.S. S.Ct. cases have already recognized corporate and company duties and rights under international law.  The statute expressly refers to the two basic types of international law as the substantive law at least and incorporates them by reference (al la U.S. v. Smith (re: piracy) and Ex parte Quiring (re: all offenses against the laws of war as offenses against the laws of the United States, now in 10 U.S.C. sec. 818).
    If an errant Justice (who pays no attention to the 20 cases) concludes (erroneously) that corporations have no duties under international law, then it would follow that coproprations have no rights — e.g., with respect to property confiscated abroad, property expropriated abraod without fair compensation, equal protection under FCN treaties, freedom from national origin discrimnation under customary international law (recall the lower court rulings in Sabbatino and the decisions after the S.Ct. decision on remand), and so forth.

  8. Response…
    And on some other points, there ARE forreign cases recognizing corporate or company liability for violations of international law, although more thorough research could be done.  See, e.g., my older article on Human Rights Responsibilities of Corporations, 35 Vand. J. Transnat’l L. 801, 809-10 (2002), available at http://ssrn.com/abstract=1548112  And the article has a section on private duties under human rights law at 810-17.
    Early attention to universal jurisdiction over violations of custmary international law (then, the law of nations) is widely available, and see http://ssrn.com/abstract=1497122  (in a footnote).
    I suspect that Scalia wants to reify his dissent in Hartford Fire, where he confused mere “comity” and “choice of law” with international law regarding jurisdiciton.  Since there is universal jurisdiction for violations of customary international law his erroneous dissent in Hartford Fire should be irrelevant — esp. since the Rest. sec. 403 (which also erroneously considered that a comity-factors analysis should be used regarding objective territorial jurisdiciton did NOT apply to sec. 404 universal jurisdiction and rightly noted that there do not have to be any contacts with the forum with respect to universal jurisdiciton).

  9. It makes no sense that a corporation has rights (i.e., to file claims under int’l investment treaties) yet can evade liability because, presumably, a corporation is not subject to obligations.

  10. Something with which I am having trouble, and would appreciate experts’ thoughts:

    If the decision comes down rejecting corporate liability, then wouldn’t the Court also have to address whether or not corporations can be reached through respondeat superior liability?  Justice Sottomayer seemed to get at this when she was questioning Mr. Kneedler.

    Otherwise, couldn’t plaintiffs just do an end run by suing an official?

    Would this be the easy way out for the Court? If the Court says corporate liability, but, under a theory of respondeat superior . . .

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