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Kiobel Roundtable: Getting Exhaustion Right

[Doug Cassel is Professor of Law at Notre Dame Law School] If Alien Tort Statute suits to redress human rights violations committed abroad are upheld in Kiobel, the Supreme Court is likely to require that plaintiffs first exhaust their foreign and international remedies (or show good cause for not doing so).  If so, it is important that the Supreme Court get right the contours of the exhaustion doctrine under international law.  The Court should require exhaustion only in ATS cases brought exclusively under universal jurisdiction, and not in ATS suits against US companies.  Even in purely universal jurisdiction cases, the Court should respect exceptions to exhaustion recognized by international law. An exhaustion requirement seems likely.  In the Kiobel oral argument on the extraterritorial reach of the ATS, three Justices likely to support extraterritorial reach -- Ginsburg, Kagan and Sotomayor -- asked questions sympathetic to an exhaustion requirement (Tss. at 8, 13-15).  In response, Paul Hoffman, plaintiffs’ counsel, appeared open to an exhaustion requirement (Tss. at 13-14).  No Justice or counsel spoke against an exhaustion requirement; even two Justices generally hostile to the plaintiffs – Alito and Scalia – seemed friendly to an exhaustion requirement (in the event extraterritorial ATS suits are allowed) (Tss. at 15, 31). The most substantial brief on the exhaustion issue, favorably cited by Justice Sotomayor (Tss. at 12-13), is the amicus brief of the European Commission on behalf of the European Union.  The EU brief is generally excellent.  It correctly limits an exhaustion requirement to ATS cases whose exclusive jurisdictional basis under international law is universal jurisdiction (part A below). However, its articulation of the exceptions to exhaustion in universal jurisdiction cases is imprecise (Part B below).  There is a resulting risk that the Court may saddle plaintiffs with a vague and overbroad exhaustion requirement.  This would undermine the very purpose of universal civil jurisdiction – to ensure that grave international crimes do not go unredressed.

Weekday News Wrap: Wednesday, October 3, 2012

Georgia's President Mikhal Saakashvili has conceded defeated in Monday's parliamentary elections. Benjamin Netanyahu appears to have softened his stance on military action against Iran, allowing more space for sanctions to take effect until at least mid-2013. The territorial dispute over the Senkaku/Diaoyu islands is blamed for the decision of major Chinese banks to pull out of the IMF and World Bank Annual Meetings that are...

Into the Deference Weeds in Kiobel

Rather than dwelling further on any prediction of what kind of opinion the Court is likely to produce following oral arguments in Kiobel (FWIW, I thought arguments went better for plaintiffs than I’d anticipated), I wanted to highlight what I thought was a particularly interesting exchange on whether the State Department’s views on the ATS were entitled to some deference by the Court. Background first. I’d read the U.S. Government’s latest brief as arguing for something like a case-by-case approach on the question of which extraterritorial ATS cases might be appropriate for federal adjudication. In the U.S. view, Filartiga (involving Paraguayan parties disputing the legality of conduct in Paraguay) presents a paradigmatic example of the kind of ATS suit that would be permissible, while Kiobel (involving non-U.S. multinational parties disputing the legality of conduct in Nigeria) presents a contrary example. The distinction between the cases, on this view, seems to turn on a combination of factors, including, but not limited to, the defendant’s presence in the United States (favoring jurisdiction in Filartiga), and the nature of the claim of aiding and abetting a foreign sovereign (disfavoring jurisdiction in Kiobel). But central to the justification for all such distinctions, according to the argument, is the interest of the U.S. government in avoiding conflicts in foreign relations, and the superiority of the executive over the courts in any given case in identifying what those foreign relations conflicts might be. (Again FWIW, I didn’t have the impression from yesterday’s arguments that any justice much liked this position.) So here’s the exchange that struck me (between the U.S. Solicitor General and Justice Scalia).

Kiobel Roundtable: Protecting National Interests or Universal Ones?

[Meir Feder heads up the appeals and issues practice at the New York office of Jones Day.] For anyone looking to yesterday’s oral argument to predict how the Court will resolve Kiobel—a dubious exercise in any event, as last Term’s health care case should remind us— yesterday’s argument was a mess. The Justices seemed skeptical of the positions of both parties (and,...

Kiobel Roundtable: What is the Purpose of the ATS? Should That Matter?

I have very much enjoyed our guest commentary on the Kiobel extraterritoriality issue and can't resist adding my two cents.  In short, I am pretty dissatisfied with the arguments made by the petitioners, respondents and the United States government. I am not dissatisfied because the arguments are "wrong", but because none seem to offer a persuasive theory of the purpose of...