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Search: Kiobel

27 Feb

I am participating this week in a discussion on Kiobel v. Royal Dutch Petroleum, the case on corporate liability under the Alien Tort Statute that will be argued tomorrow at the Supreme Court, at the Manhattan Institute’s Point of Law Blog. My interlocutor will be Professor David Weissbrodt of the University of Minnesota. Here is a snippet of my opening salvo: I will use two recent op-eds on the upcoming case to launch our discussion. Each op-ed reflects how the disputants in Kiobel would like to frame their argument to...
27.02.12 | |

03 Jun

A quick reminder to all readers that the American Journal of International Law is looking for submission on “Transnational Human Rights Litigation After Kiobel.” You can see Opinio Juris’ own discussion on the topic here. The June 15th deadline for the AJIL Agora is approaching. Here is the call for submissions, which is also available on the ASIL’s website. Call for AJIL Agora Submissions: Transnational Human Rights Litigation After Kiobel The American Journal of International Law is calling for short submissions (maximum 3000 words, including footnotes) for a forthcoming agora...
03.06.13 | |

23 Dec

it was of the Allied Control Council laws and directives. Whether at the Palace of Justice courthouse in Nuremberg or at the Allied Control Council headquarters in the Kammergericht courthouse in Berlin, the Allied Control Council officials and Allied judges were all applying international law. The erroneous analysis of the Kiobel majority concludes that “[n]o corporation has ever been subject to any form of liability (whether civil, criminal, or otherwise) under the customary international law of human rights.” Kiobel, 621 F.3d at 148. In reaching this decision, the majority narrowly...
23.12.11 | |

03 Oct

[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...
03.10.12 | |

09 Jun

Defendant to Uganda does not add enough to the record to demonstrate that Plaintiff’s claims “touch and concern the territory of the United States . . with sufficient force to displace the presumption against extraterritorial application.” Kiobel, 133 S. Ct. at 1669. What is notable about this case is that the same court and judge refused to dismiss this case on Kiobel grounds back in 2013 with largely the same allegations. The main difference with the result in 2017 seems to be that discovery revealed that Lively, the U.S. pastor,...
09.06.17 | |

29 Apr

...extent that state courts increasingly operate concurrently with federal courts as forums for the litigation of cases with extraterritorial elements, the disparate treatment of extraterritoriality issues under state and federal approaches becomes ever more problematic. And Kiobel seems likely to compound those problems, not only because it pushes another category of foreign-squared or -cubed cases into state court, but because it takes the federal law of extraterritoriality in a direction increasingly incompatible with state conflicts approaches. What do I mean by this? I see two main ways in which Kiobel’s...
29.04.13 | |

03 May

Peter beat me to the punch in commenting on Samuel Moyn’s interesting take on the ATS and Kiobel in Foreign Affairs, but I’m going to add a somewhat different point from Peter’s about what the body of ATS law has meant over the past few decades. I didn’t intervene in the earlier discussion about Kiobel because that discussion seemed to me properly focused mostly on the internal legal aspects of the decision – everything from jurisdiction to state courts, and much else besides. I want to raise something external to...
03.05.13 | |

17 Oct

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,...
17.10.11 | |

05 Mar

Sometimes oral argument really does reflect what is going on in the Justices’ minds. The Supreme Court will hear reargument in Kiobel next term (meaning October or so). The Supreme Court on Monday put over to its next Term a major case on lawsuits against corporations for human rights abuses in foreign countries, and ordered lawyers to come back with an expanded argument on Congress’s power to pass laws that reach overseas. The case of Kiobel v. Royal Dutch Petroleum (docket 10-1491) was heard just last Tuesday, and some of...
05.03.12 | |

18 Sep

...a 12-year-old child soldier who aids-and-abets a war crime during a non-international armed conflict and has no defense for his actions. International law would not permit an international tribunal to prosecute that child soldier, nor is there a general principle of criminal law that permits prosecuting child soldiers that young. But we would not say that the child soldier has not committed a “violation of the law of nations.” He has — he simply cannot be prosecuted for that violation. So how is the situation in Kiobel any different? Readers?...
18.09.10 | |

03 Mar

...think this goes to the heart of the argument that some of the more conservative justices were getting at - their view of the lack of legitimacy if you will with respect to imposing liability on "foreign" corps, for acts done overseas against aliens. Sullivan really picked up on that line of thinking and hammered away. Is there anything you would have added if you were arguing for the pls at the Court regarding the "legitimacy" argument? Benjamin Davis Nice piece on Kiobel by Jordan over at Jurist at http://www.jurist.org/forum/2012/03/jordan-paust-kiobel.php...
03.03.12 | |

17 Apr

...the ATS. As Breyer’s opinion points out, piracy took place on other nations’ ships, and those vessels were clearly considered foreign territory in early Supreme Court case law. Moreover, as Tony D’Amato and I pointed out in our amicus brief in Kiobel, the way Congress overturned application of a judicially imposed presumption against extraterritoriality to U.S. law outlawing piracy was to revise the definition to confer jurisdiction over piracy, “as defined by the law of nations.” That is, Congress explicitly invoked the law of nations—and its jurisdictional principles—to grant universal...
17.04.13 | |