Kiobel Roundtable: The Supreme Court Gropes Toward a Sensible Solution

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs of the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

My thanks to Opinio Juris for inviting me to guest blog on the reargument in Kiobel v. Royal Dutch Petroleum Co., which I attended on Monday. As most readers likely know, the Supreme Court originally granted cert to decide whether corporations may be sued for human rights violations under the Alien Tort Statute (ATS) as natural persons may be. But after oral argument last February, the Court asked the parties to address the additional question of whether, and under what circumstances, the ATS applies to conduct in foreign countries. Because almost all claims brought under the ATS to date—including the Second Circuit’s seminal 1980 decision in Filartiga v.Pena-Irala and the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain—have involved alleged conduct abroad, the Court’s additional question raised the stakes for human rights litigation considerably.

Respondents and many of their amici urged the Court to apply the presumption against extraterritoriality to the ATS and limit causes of action exclusively to violations of international law in the United States. But that argument appeared to gain little traction with the Court on Monday. Chief Justice Roberts expressed skepticism when Respondents’ counsel Kathleen Sullivan argued that piracy on the high seas was not within the original scope of the ATS, while Justice Scalia (who wrote the Court’s most recent decision applying the presumption against extraterritoriality in Morrison v. National Australia Bank) said he did not know of any cases applying the presumption only to the territory of a foreign country and not to the high seas. Sullivan’s assertion that “[e]very single founding era precedent that stimulated the ATS or came soon in its aftermath involved international law violations alleged to have occurred on U.S. soil or in U.S. waters” was quickly rebutted by Justice Breyer, invoking Attorney General Bradford’s 1795 opinion that expressed “no doubt” that a civil suit could be brought under the ATS for violations of the law of nations in Sierra Leone.

Meanwhile, Justice Kagan offered a variation of the 1784 Marbois incident, hypothesizing that the French ambassador to Britain was attacked in London by an American citizen who sought refuge in the United States and suggesting that the ATS “contemplated exactly that sort of action.” Sullivan answered that there would have been alternative remedies, including extradition of the American assailant to France (rare at the time and indeed refused in the Marbois case even though the assailant was French) and a transitory tort action in state court. But if anything is clear from the history of the ATS, it is that Congress wanted to provide a federal forum for aliens injured by torts in violation of the law of nations so that they would not have to rely on state courts.

Justices Ginsburg and Kennedy appeared concerned that Respondents were asking the Court to overturn Filartiga and In re Estate of Marcos Human Rights Litigation, cases the Court’s 2004 decision in Sosa endorsed. Sullivan conceded that under her theory Filartiga was wrongly decided. (Justice Sotomayor thought Respondents were asking that Sosa itself be overruled—at least its reasoning, if not its actual holding.) This concern about Filartiga harkened back to Justice Kennedy’s observation during the first oral argument in February that in Filartiga there was no other place the suit could have been brought. A number of other countries—including the Netherlands—recognize a doctrine of “forum by necessity” when no other court can provide relief.

During his argument, Petitioners’ counsel Paul Hoffman was pressed by Justices Ginsburg, Kagan, and Alito on whether Dutch or U.K. courts might offer alternative forums for the petitioners’ claims. If what bothers the Court about Kiobel—in contrast to Filartiga—is that plaintiffs’ claims might have been brought in the defendants’ home countries, there are a number of ways the Court might respond. Preliminarily, and irrespective of the availability of another forum, U.S. rules on personal jurisdiction will shield many foreign defendants from suits under the ATS. In particular, the limitations Goodyear DunlopTires Operations, S.A. v. Brown placed on general jurisdiction over corporate defendants seem likely to dispose of a number of suits against foreign corporations in the future. But when a district court has personal jurisdiction, the availability of an adequate alternative forum allows the defendant to move for dismissal under the doctrine of forum non conveniens, a well-established and familiar tool of judicial management designed precisely to cull cases more properly brought elsewhere.

Another possibility would be for the Court to impose an exhaustion requirement as part of Sosa’s federal-common-law cause of action. Justice Sotomayor seemed particularly attracted to the European Union’s argument as amicus that, as she put it, “you have to borrow both the substantive and procedural international law norms” including exhaustion of local remedies. As a matter of international law, there are at least two problems with this possibility. First, as a procedural rule of international law, the doctrine of exhaustion limits only the jurisdiction of international tribunals. The relationship among national courts, by contrast, is mediated by domestic doctrines like forum non conveniens or, in civil law systems, lis pendens. Second, the exhaustion doctrine requires exhaustion only of local remedies at the place of the wrong (Nigeria) not in the defendants’ home countries (the Netherlands and the United Kingdom). Of course, in exercising its common-law-making powers, the Supreme Court would not be bound by these limits, but one hopes the Court would not pretend to be applying established international law if it took this route. More fundamentally, one must wonder why the cause of action must do all the work in ATS cases. Why it is necessary to incorporate an exhaustion requirement into that cause of action itself when forum non conveniens already allows the district court to consider the availability of suit in Dutch or U.K. court?

In any event, exhaustion, forum non conveniens, or equivalent doctrines also answer the reciprocity concern voiced by Justice Kennedy at Monday’s argument—violations of international law by U.S. corporations in the United States could not be brought anywhere in the world so long as U.S. courts provide an adequate alternative forum.

Finally, despite the attention paid today to the geographic scope of the ATS, there remains the question of corporate liability. The answer to that question should be easy. As I have noted in a forthcoming paper, the Second Circuit majority erred by examining corporate liability in the abstract, without reference to the particular norms at issue. None of the norms actionable under Sosa distinguishes between natural and juridical persons. Justice Kagan spotted the nonsense of requiring cases applying particular norms to corporations at February’s oral argument, noting that the prohibition against torture applies to Norwegians even if there are no past cases involving Norwegians. With respect to torture under international law, there is no relevant difference between Norwegians and Paraguayans, or between corporations and natural persons (though there is a relevant difference between those who act under color of state law and those who do not). Justice Kennedy in particular should have no trouble with this point. In Citizens United v. FEC, he wrote that “Political speech is ‘indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.’” The same reasoning applies mutatis mutandis to corporate liability for human rights violations—torture violates the law of nations, and this is no less true because the torture is inflicted by a corporation rather than an individual.