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Search: Kiobel

25 Nov

...objections. In the interests of space, I respond to several briefly here in bullet form, without I hope seeming dismissive of important questions that require far greater discussion than I can deliver presently: Ratner suggests that my article is a “response to the demise of the ATS vehicle.” Actually, this research spans eight years and would still hold true if the US Supreme Court had reached the diametrically opposite conclusion in Kiobel. Mostly, it is a reply to the experience of investigating atrocities in Africa, not a response to the...
25.11.14 | |

01 Jan

...find the posts related to them. Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013. As for a major highway, we had 33 posts that mentioned Kiobel this year (as well as many earlier posts, totaling 136 as of this writing) including an extensive symposium focused on the decision. A mid-stream round-up of the symposium is here. Roger also wrote about the subsequent interpretation of Kiobel by lower courts and Ken wrote on Kiobel and Bauman v...
01.01.14 | |

01 Mar

Anton Metlitsky, an attorney that is defending Rio Tinto from a similar ATS lawsuit as Kiobel’s, drops me this useful reminder about another hurdle facing the Kiobel plaintiffs. In a recent post, you say that “the only way plaintiffs will prevail is if they convince a majority of the Court (meaning Justice Kennedy), that the question of corporate liability is really a question of remedies, and that is a matter left to the domestic common law of the U.S.” I think there is a strong argument that plaintiffs should lose...
01.03.12 | |

17 Apr

[Apologies for all the random short posts, I think what make blogging interesting, sometimes, is that one can think out loud online. Dangerous, I know, but fun too!] Here is one quick take: As Deborah noted below, the Supreme Court voted 9-0 that the Kiobel plaintiffs should be dismissed because their claims against a foreign corporation for actions in a foreign jurisdiction did not belong within the jurisdictional ambit of the ATS. Five justices (including the sometimes squishy Justice Kennedy) voted to apply the presumption against extraterritoriality, an interpretive rule,...
17.04.13 | |

06 Mar

...in this area. This may all sound a bit academic. But, it is not. The Supreme Court’s order yesterday setting Kiobel for reargument and requesting supplemental briefing on the question whether the ATS can be applied to torts committed in a foreign sovereign’s territory may presage a very limited role for the ATS for extraterritorial torts. If the Court finds that the ATS is limited to torts committed on the high seas, like piracy, and to torts committed in the United States, (and thus not to torts in a foreign...
06.03.12 | |

06 Mar

Yesterday was a busy day in International-Foreign-Relations-Law-Land, between the Eric Holder speech on national security and targeted killing at Northwestern University and the quite unexpected announcement that the Alien Tort Statute case of Kiobel will be re-argued in the Supreme Court. Let me add a comment from former DOS Legal Adviser John Bellinger at Lawfare:   The Court’s order may reflect that a majority or plurality of the justices would like to decide the case on the larger issue of whether the Alien Tort Statute even applies to torts committed...
06.03.12 | |

08 Oct

...no legal reason why a US court should decline jurisdiction on that basis. Of course, there are policy reasons, to which US courts appear more and more careful these days. JordanPaust Response... Kiobel was in serious error regarding rights and duties of corporations under international law. Readers should know that Kiobel ignored at least TWENTY U.S. Supreme Court cases to the contrary as well as many other U.S. and foreign judicial decisions recognizing that corporations and companies can have rights and duties under treaty-based and customary international law. See, e.g....
08.10.11 | |

19 May

...the courts – on the other hand, even if it does so, the inconsistency with the Bush administration may undermine the deference accorded the government. Chief Justice Roberts and Justice Scalia made exactly that point in the Kiobel oral argument (at 43-45) and the issue is discussed in more detail in my forthcoming article The Supreme Court and the Alien Tort Statute: Kiobel v. Royal Dutch Petroleum. In any event, the article mentioned above, Pinochet’s Legacy Reassessed, 106 AJIL 731 (2012), analyzes a large number of cases often cited to...
19.05.13 | |

14 Nov

...crimes fills the vacuum left after Kiobel. In fact, it may even outperform its near moribund predecessor. In a forthcoming piece entitled The Competitive Advantage of Corporate Criminal Responsibility for International Crimes: Atrocity, Commerce and Accountability after Kiobel, I point to several upsides that result from reprocessing ATS cases within a criminal framework. First, international crimes in national legal systems usually apply extraterritorially, bypassing the issue that ultimately proved the ATS’s undoing. Second, cases like Argor-Heraeus involve states asserting criminal jurisdiction over their own corporate nationals, thereby transcending the controversies...
14.11.13 | |

14 Mar

...course, I can say that this sort of analysis seems much closer to how federal common law has traditionally been conceived than the old “modern position” view about the automatic incorporation of customary international law into federal law. Perhaps the Supreme Court’s upcoming decision in Kiobel will provide additional guidance relating to this issue. 6. As Mark Weisburd points out, there are a variety of uncertainties about how to identify rules of customary international law, such as the extent to which treaties should serve as evidence of such rules. Mark...
14.03.13 | |

05 Feb

As we wait with bated breath for the Supreme Court’s decision in Kiobel, it is worth remembering that there are viable alternatives to ATS litigation. That was particularly evident last week when The Hague District Court in the case of Akpan/Royal Dutch Shell. Here’s the Judicial Press Release (translated by Pieter Bekker): Four Nigerian farmers and fishermen, together with Milieudefensie, commenced the lawsuits in The Netherlands, because they hold four entities within the Shell group, with its headquarters in The Hague, accountable for the damage resulting from four specific oil...
05.02.13 | |

18 Apr

In case you missed it, the US Supreme Court ruled on Kiobel v. Royal Dutch Petroleum affirming the Second Circuit Court of Appeals’ dismissal. We have an insta-symposium (scroll down to related links to see all posts so far) going on with contributions from many prominent voices. As Roger noted yesterday, if you’d like to post on Kiobel, please contact us. SCOTUS Blog also has a nice roundup. A Pakistani court has ordered the arrest of former president Pervez Musharraf connected to allegations of treason in 2007. North Korea has...
18.04.13 | |