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Search: Kiobel

14 Jul

...in favor of constraining judicial lawmaking powers unattractive. To be sure, he genuflects to a new argument proffered by plaintiffs, claiming that because the post-WWII tribunals acted to dissolve some Nazi-supporting companies, the Nuremberg and associated tribunals provides authority for holding corporations liable under customary international law. But that is not all that important to Posner’s argument, and he only devotes a single paragraph to that precedent. Why does Posner ultimately reject the Kiobel no-corporate liability argument? Although he is a bit unclear, I think his argument ultimately boils down...
14.07.11 | |

16 May

Armenian-American groups are up in arms over the U.S. government’s decision to file an amicus brief against a California law allowing claims against insurance companies by “Armenian genocide victims.” But they shouldn’t be. The law really involves an ongoing constitutional powers debate between the states and the federal government over foreign affairs, and the U.S. government is siding (not surprisingly) with its own powers. What is more interesting about this case, in the wake of Kiobel, is how human rights groups will increasingly support state autonomy in foreign affairs (to...
16.05.13 | |

11 Apr

...Court in Kiobel v. Royal Dutch Shell: the fact that other countries do not permit similar civil suits does not mean the United States should also close its courthouse doors. In fact, it is a good reason to keep them open. But I found Judge Leval’s advice for foreign countries that might enact their own version of the ATS most interesting and revealing. Human rights advocates should try to allay predictable objections to countries’ opening their courts. They should start by drafting proposed legislation with modest and realistic goals, building...
11.04.13 | |

24 Nov

[Samuel Moyn is professor of law and history at Harvard University. He is on Twitter at @peiresc.] During the absorbing litigation that led to the death of Alien Tort Statute litigation a couple of years ago, one of the most fascinating moments occurred late, and it has not been mentioned since. In the Second Circuit phase of Kiobel v. Royal Dutch Petroleum, Judge José Cabranes had contended that the International Military Tribunal at Nuremberg proved there was no norm in customary international law of corporate civil liability. If so, he...
24.11.14 | |

26 Nov

...limits his call for criminal prosecutions to those filed against local corporations. Claims against domestic corporations may survive Kiobel, which left open the possibility that some claims might “touch and concern the United States with sufficient force” to overcome the presumption against extraterritoriality. It is not yet clear what degree of domestic conduct by a U.S. corporation is sufficient to trigger ATS jurisdiction. Most inexplicably, Stewart ignores the role of the ATS as part of a global accountability movement that views criminal prosecutions as a key option. He criticizes (unnamed)...
26.11.14 | |

01 May

...National courts rarely if ever address such issues, and thus the decision is important both for its rarity and for what it says. In this post, I’ll address issues relevant to the substance – Israel’s presence in the West Bank. In the next post I’ll deal with the “Kiobel” issues raised by the case – corporate liability, the value of American ATS cases, and so forth. I should note at the outset that what follows is based on a rough translation of the opinion and my vague French; I would...
01.05.13 | |

17 Apr

Interestingly, the four liberal justices would have also dismissed the Kiobel plaintiffs on a different theory: that this case (involving actions by a foreign corporation against foreign plaintiffs in a foreign sovereign’s territory) does not “substantially or adversely affect an important American national interest…” In other words, Justice Breyer seems to want to graft the “protective” principle of prescriptive jurisdiction onto the ATS, rather than the universality principle that I would have expected. Here is a summary of Justice Breyer’s proposed reading of the ATS. … I would find jurisdiction...
17.04.13 | |

05 Dec

This week on Opinio Juris, Roger commented on Joel Trachtman’s article on customary international law, which attracted a lot of debate from our readers in the comments. Kevin lamented US Courts’ insufficient understanding of IHL and wondered if Paddington would prefer Australia’s Christmas Island. He also responded to Ryan Vogel’s post on Lawfare on the OTP’s Afghanistan’s investigation. Julian explained why he does not fully agree with Eric Posner’s view on international human rights law clinics and asked whether the Supreme Court implicitly reversed Kiobel’s corporate liability holding. Finally, Jessica...
05.12.14 | |

10 Mar

If you have not been able to keep up with the stream of posts on Opinio Juris this week, we are pleased to offer you a weekend roundup. Three topics and a symposium fought for your attention. First, the US Supreme Court hearings in Kiobel v. Royal Dutch Petroleum continued to provide food for thought, particularly after the Court’s order on Monday to re-open the argument on the specific issue of extra-territoriality. Following up on discussions last week, Julian Ku pointed to the importance of Sosa. Ken Anderson argued that...
10.03.12 | |

27 Feb

...not reflect a “deeper reason”—indeed, one of us (Oona Hathaway) is counsel of record in a brief in Kiobel (to be argued before the Supreme Court on February 28) arguing that the Alien Tort Statute and Torture Victims Protection Act provide for civil liability for corporations for violations of specific prohibitory norms of international law. Fourth, and finally, Steve Vladeck’s response is fascinating. His comments place the shift that we identify in treaty law enforcement into broader context. His observation that it has become far more difficult for courts to...
27.02.12 | |

20 Feb

...the broadest possible grounds so as to preserve executive flexibility to the greatest extend possible.” After the executive branch takes a position in the context of litigation, that interpretation can be quite difficult to change. I witnessed this dynamic first hand when I served as Harold’s Counselor on International Law at the State Department and participated in the interagency process that produced the two amicus briefs for the United States in Kiobel v. Royal Dutch Petroleum. With respect to the question of corporate liability for human rights violations, which posed...
20.02.18 | |

16 Jul

[Zachary Clopton is the Public Law Fellow at the University of Chicago Law School.] For decades, scholars and practitioners of international law in the United States have focused on the federal courts. The combination of diversity, alienage, federal question, and Alien Tort Statute (ATS) jurisdiction largely justified this focus. But in the wake of decisions such as Morrison and Kiobel, some of these scholars and practitioners have turned to state courts and state law to vindicate international norms (1, 2). To give one example, New York state courts are adjudicating...
16.07.14 | |