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Search: Kiobel

24 Jan

jurisdictional statute suddenly applied extraterritorially by congressional mandate, would the underlying federal common law claims be cognizable for extraterritorial conduct and injury? If the answer to that question is yes, then does it also follow that the only extraterritorial limitation that Kiobel recognized was with respect to the statute, not the underlying federal common law claims? Reading Kiobel in light of Sosa presents the following possible syllogism: if (1) there is a limited category of federal common law claims actionable for violations of the law of nations; and (2) the...
24.01.14 | |

03 Oct

[Thomas H. Lee is Leitner Professor of Law at Fordham University School of Law. He is currently a visiting professor of law at Harvard.] I agree with Meir that piracy is a “red herring” and am writing to elaborate on his thoughtful remarks. The thing that troubles me most about how the Court is thinking about this case is that it continues to accept the Sosa statement that the ATS is 2/3 about piracy and ambassadorial infringements, but not thinking at all about the 1/3 nebulous “safe conduct”...
03.10.12 | |

05 Nov

...new hope for those disappointed by Kiobel? Sincerely I cannot imagine Italy becoming the new right forum in which claim for alien torts or even Markovic reinstate its claims in Italy. Giacomo Dear Nicola, thank you for specifying what doctrine the Court used. I am more a proceduralist than a constitutional or public international law scholar, and interpreted it as a Kelsenian exercise (still, it looks a bit Kelsenian to me anyway). Jean Paul, my reference to Kiobel is due to the consideration that the Italian Court adds its voice...
05.11.14 | |

17 Apr

Chris Whytock I agree that a big question going forward will be the circumstances in which the presumption might be rebutted—especially because the presumption is unlike the presumption in Morrison. As the Court concedes in Part II of its Kiobel opinion, its application of the presumption against extraterritoriality to ATS claims is novel. In previous cases, it applied the presumption “to discern whether an Act of Congress regulating conduct applies abroad” (p. 5). In Kiobel, it has extended the application of the presumption—or at least “the principles underlying” the presumption,...
17.04.13 | |

17 Jul

this will arise quite quickly in some case in which a US corporation continues to assert in court the proposition that Kiobel did not finally address – corporate liability and aiding and abetting liability. I don’t see how the Court will avoid finally having to address this. In addition, there is the consideration that OJ’s Kiobel discussions have raised several times – a shift in these claims from Federal to state court. The twists and turns of extraterritoriality are not over. (I’m writing on Kiobel for the Cato Supreme Court...
17.07.13 | |

18 Apr

...a lower court within that circuit, the district court should have been bound to follow that court’s 2010 opinion Kiobel v. Royal Dutch Shell, which held that corporations cannot be sued under the ATS. The lower court judge, Shira Scheindlin, decided that since the Supreme Court had ended up dismissing the Kiobel plaintiffs on other grounds (e.g. extraterritoriality), the Court had sub silentio reversed the original Kiobel decision’s ruling on corporate liability. That is quite a stretch, and appears based almost solely on the Supreme Court’s reference to “mere corporate...
18.04.14 | |

08 Dec

in Kiobel, not least because the Exxon judgment operates as a kind of Kiobel rehearing, in that the Exxon plaintiffs relied on a number of amicus briefs that were filed in support of the petition for rehearing en banc in Kiobel, which the Second Circuit had denied. The Exxon majority opinion, authored by Judge Rogers, begins by recognizing that ‘corporate liability differs fundamentally from the conduct-governing norms at issue in Sosa’.[1] Whereas ‘Sosa instructs us that the substantive content of the common law cause of action that courts recognize in...
08.12.11 | |

01 Jul

...claims under the ATS, and that nothing in the statute rebuts that presumption.” Kiobel, however, did not apply the presumption against extraterritoriality to the ATS itself—a statute the Court characterized as “strictly jurisdictional”—but rather to the implied federal-common-law cause of action under the ATS. On page 9 of the slip opinion, RJR accurately describes Kiobel as a case where “we concluded that principles supporting the presumption should ‘similarly constrain courts considering causes of action that may be brought under the ATS.’” And again on page 19, RJR correctly characterizes Kiobel...
01.07.16 | |

28 Jan

United States.] The Supreme Court held in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), that the presumption against extraterritoriality applies to suits brought under the Alien Tort Statute (ATS). In a recent post, Roger Alford asks whether a federal court sitting in diversity or a state court of general jurisdiction may still hear the federal common law claims for torts in violation of the law of nations that the Court recognized in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The answer depends on whether Kiobel applied...
28.01.14 | |

13 Apr

[ William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs filed by the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.] In Kiobel...
13.04.15 | |

08 Dec

Pitts that the rumours of the death of corporate liability under the ATS are greatly exaggerated. The courts in Flomo and Exxon also criticise the majority in Kiobel for failing to distinguish between the norm of international law relevant to establishing the requisite conduct and the rules of remedy (determined by US federal common law). It is this conflation that leads the majority in Kiobel down the proverbial garden path to denying corporate liability under the ATS. As a number of cases currently before other United States circuits are based...
08.12.11 | |

27 Apr

This week on Opinio Juris, we continued last week‘s Kiobel Insta-Symposium. Quoting from his and John Yoo’s Forbes contribution, Julian argued that the rejection of universal civil jurisdiction is common sense because it leaves the decision on foreign policy consequences of extraterritoriality to the political branches. He also drew our attention to two positive assessments of the opinion, by John Bellinger and Eugene Kontorovich. Austen Parrish offered an alternative narrative about the meaning of Kiobel, seeing it as a welcome retreat from US unilateralism towards more multilateralism. The many unanswered...
27.04.13 | |