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Search: Kiobel

23 Sep

It’s been over five months since the Supreme Court rendered its landmark decision in Kiobel v. Royal Dutch Petroleum. A quick review of lower court decisions suggests that Kiobel marks the end of the Filartiga revolution in the United States. The most significant lower court ruling to date is Balintulo v. Daimler AG where the Second Circuit rejected plaintiffs’ argument that Kiobel did not preclude claims based on foreign conduct when the defendants are Americans. Nor did the claims “touch and concern” the territory of the United States based on...
23.09.13 | |

10 May

[Anthony J. Colangelo is Associate Professor of Law at SMU Dedman School of Law.] I explained in a previous post why I think extending the presumption against extraterritoriality to causes of action crafted by forum law is strange. But there may be another (bigger?) problem with Kiobel’s application of the presumption to the Alien Tort Statute—namely, it appears to contradict Morrison v. National Australia Bank—the very case on which Kiobel overwhelmingly relies for both its reasoning and its result. As readers will recall, Morrison applied the presumption against extraterritoriality to...
10.05.13 | |

18 Apr

furtherance [of a bribery scheme.” Here again, because the FCPA is explicit, the need for the canon of statutory interpretation at issue in Kiobel is negated. Just because the canon of statutory interpretation at issue in Kiobel is not directly applicable to the FCPA, it does not follow that Kiobel will not have an impact on FCPA enforcement. To the contrary, the logic and rationale of many justices in Kiobel has direct bearing on certain aspects of FCPA enforcement, and indeed can be viewed as Supreme Court disapproval of certain...
18.04.13 | |

22 Aug

mere corporate nationality in the U.S. would be enough to overcome the Kiobel bar. Here is a key passage (emphasis mine). The Supreme Court’s Kiobel decision, the plaintiffs assert, “adopted a new presumption that ATS claims must ‘touch and concern’ the United States with ‘sufficient force’ to state a cause of action.” Plaintiffs Letter Br. 6 (quoting Kiobel, 133 S. Ct. at 1669). The plaintiffs read the opinion of the Court as holding only that “mere corporate presence” in the United States is insufficient for a claim to “touch and...
22.08.13 | |

02 Oct

...for a case like Kiobel, where the United States has no responsibility for the alleged tort, and where applying the statute raises extraterritoriality concerns. Supporters of broad ATS litigation have responded that this line of argumentation is “purposive” and improperly neglects the ATS’s plain language. One problem with this critique is that the plain language of the ATS provides no support for any federal cause of action, let alone an extraterritorial one. As a result, supporters of broad ATS litigation do not, in fact, rely simply on the text of...
02.10.12 | |

24 Apr

[Milan Markovic is an Associate Professor of Law at Texas Wesleyan University School of Law.] When the Supreme Court originally granted certiorari in Kiobel, many feared that it would bar ATS suits against corporations entirely. The Supreme Court’s actual decision bars ATS claims that do not “touch and concern” United States territory. I tend to agree with Marty Lederman that there are at least three categories of ATS cases that might survive Kiobel, but even if Kiobel requires substantial conduct on U.S. territory, the decision should not alter the playing...
24.04.13 | |

18 Apr

At first glance, the Court’s decision in Kiobel appears to portend a significant restriction on Alien Tort Statute jurisdiction—even for suits that allege torture, genocide, or another of what the Court in Sosa called the “modest number of international law violations” cognizable under the ATS, those with “definite content and acceptance among civilized nations” equal to that of the “historical paradigms” (such as piracy and violation of safe conducts) familiar in 1789. And perhaps that will, indeed, be Kiobel’s legacy. But perhaps not. What’s most striking about the collected opinions...
18.04.13 | |

23 Apr

extraterritoriality position, and there are many parts of the Sosa opinion that only make sense on the assumption that the ATS applies to conduct abroad. Undaunted, the Bush Administration continued to press the extraterritoriality argument in nine nearly identical briefs filed between 2004 and 2008. Not a single appellate court adopted the argument—and many expressly rejected it. Not a single appellate court, that is, until the Supreme Court in Kiobel. But upon reflection, there is also less to the victory of the Bush Administration’s position in Kiobel than meets the...
23.04.13 | |

18 Apr

[Christopher A. Whytock is a Professor of Law and Political Science at UC Irvine School of Law] I do not think the Court’s opinion in Kiobel means that ATS litigation in federal courts is going away any time soon. First, make no mistake, the “presumption against extraterritoriality” applied by the Court in Kiobel is a new creation that is likely to give rise to further litigation. In at least three ways, the new presumption is different from the Morrison-style presumption used by the Court to determine whether a federal statute...
18.04.13 | |

04 Dec

Way back in 2010, the U.S. Court of Appeals in the Second Circuit held that corporations cannot be held liable under customary international law in ATS lawsuits. That decision, which was the original basis for the Supreme Court’s consideration of the Kiobel case, has remained the law of the Second Circuit (New York, Connecticut, Vermont) though no other circuit court in the U.S. has followed it. The Supreme Court was initially going to review that original Kiobel decision, but then decided Kiobel on other grounds, namely, that the presumption against...
04.12.14 | |

08 Dec

of Filartiga in 1980, and which has adjudicated some of the most significant ATS cases, against both private individuals and corporate actors. Kiobel is also notable for the way in which this restrictive ruling is openly predicated on the majority judges’ strong policy objections to the ATS, as demonstrated especially strongly in the judgment denying panel rehearing of 4 February 2011. Of the many difficult questions raised by the ATS and its operation, one that has featured prominently in the jurisprudence (and was decisive in Kiobel) is the question of...
08.12.11 | |

13 Jun

[Dr. Elizabeth A. Wilson is Assistant Professor at the School of Diplomacy and International Relations at Seton Hall University.] In the “Insta-Symposium” conducted here after the Supreme Court’s Kiobel decision, Peter Spiro linked to a piece by Samuel Moyn about Kiobel posted on the Foreign Affairs website and said he was “sympathetic” with Moyn’s conclusion that “human rights advocates would be better served to abandon the ATS, even to the extent that Kiobel leaves the door open.” Not willing to go quite so far as Moyn in celebrating the ATS’s...
13.06.13 | |