Weekend Roundup: April 13 – 19, 2013

by An Hertogen

This week on Opinio Juris, it was hard to miss our insta-symposium on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. Ken beat Julian to the punch to break the news and link to the opinions.

The core part of Chief Justice Roberts’ opinion for the Court, on the insufficiency of “mere corporate presence” to displace the presumption against extraterritoriality, can be found in this post by Julian. Roger read this to require that the ATS can only apply to conduct that at least partly takes place within the United States. Julian concluded that instances of corporate civil liability under the ATS are now restricted to very specific, and very unlikely, situations.

A recurring theme in the comments were the many questions that the majority opinion left unanswered, a point that was also raised in Justice Kennedy’s one paragraph concurrence, which Deborah would like to have identified those questions in more detailsThomas Lee and Marty Lederman had a go at developing scenarios in which the presumption against extra-territoriality could be rebutted.

Although Chimène Keitner welcomed how the majority’s opinion may have made the ATS more robust by clearing up some issues, she agreed with other commentators that Justice Breyer’s concurrence took the better conceptual approach. Anthony Colangelo criticised the majority opinion for extending the presumption against extraterritoriality to causes of action, which as part of lex fori are by definition not extraterritorial. Also favouring the Breyer concurrence was John Knox, who was happy to see the presumption against extrajurisdictionality resurfacing. Alex Mills pointed out that by applying a presumption against total extraterritoriality, i.e. in foreign cubed cases, the majority opinion failed to answer conclusively whether the ATS applies when there is some form of territorial hook, and argued that the Breyer concurrence may end up being the more influential one.

Julian pointed out how Justice Breyer’s concurrence essentially read the ATS as an expression of the protective principle used to allocate prescriptive jurisdiction, and expressed surprise that Justice Breyer’s concurrence took a narrower stance than his 2004 concurrence in Sosa.

So, where does this leaves human rights litigation against corporations?  Peter argued how Kiobel does not spell the end for corporate compliance with international human rights obligations while Roger saw a big future in transnational tort litigation and listed seven advantages this approach has over its alternatives. Chris Whytock agreed that human rights litigation in state courts could increase, but pointed to a few barriers to this approach.

Mike Koehler discussed the impact of Kiobel on enforcement of the Foreign Corrupt Practices Act, and Ishai Mooreville discussed why questions of personal jurisdiction would become more important, and why they were only lurking beneath the surface during the Kiobel litigation.

It wasn’t all about Kiobel this week though! Ken wrote about new scholarship, including some of his own, on law and ethics for autonomous weapons systems. Julian discussed reports that Japan is considering to take its dispute with China over the Diaoyu/Senkaku islands to the ICJ, and attracted a lot of comments with his argument that the US could legally bomb North Korea’s missile before it is deployed.

In ICC news, Kevin wrote about comments by Fatou Bensouda about retroactivity when Palestine decides to ratify the Rome Statute and about the start of the construction of the ICC’s permanent home, set to be completed in 2015.

Finally, as always, we listed upcoming events and announcements and provided you with weekday news wraps.

Have a nice weekend!

http://opiniojuris.org/2013/04/20/weekend-roundup-april-13-19-2013/

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