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20 Apr

This week on Opinio Juris, it was hard to miss our insta-symposium on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. Ken beat Julian to the punch to break the news and link to the opinions. The core part of Chief Justice Roberts’ opinion for the Court, on the insufficiency of “mere corporate presence” to displace the presumption against extraterritoriality, can be found in this post by Julian. Roger read this to require that the ATS can only apply to conduct that at least partly takes place within...
20.04.13 | |

15 Mar

We had a busy week on the blog, so if you haven’t been able to keep track of it all, here is a summary of what happened. We continued the Ukraine Insta-symposium with posts by Remy Jorritsma on the application of IHL to the conflict between Russia and Ukraine and by Sina Etezazian on Russia’s right to protect its citizens in the Crimea and Ukraine’s right to use of force in self-defence. A post by Greg Fox and one by Tali Kolesov Har-Oz and Ori Pomson discussed the limits of...
15.03.14 | |

28 Sep

...do seem to be trending toward applying it strictly (i.e., booting out cases). I don’t know if I think that will continue in the lower courts, however. In the splendid Insta-Symposium here at OJ on Kiobel, commentators raised various ways, several of them ingenious, in which a district court judge could march ahead with ATS suits. Whether Roberts or Breyer’s approach to the question of jurisdiction, in other words, each still suffers from Sosa’s “Delphic oracle” problem: a judge wanting to find grounds to kick out the case could do...
28.09.13 | |

01 Jul

Anthony Colangelo Bill, I'm naturally with you that the presumption does not or should not apply to jurisdictional statutes https://opiniojuris.org/2013/05/10/kiobel-insta-symposium-kiobel-contradicts-morrison/. But what are we to make of Kiobel's interrogation of the ATS proper to determine the cause of action question, e.g., “to rebut the presumption, the ATS would need to evince a clear indication of extraterritoriality” and that "nothing in the statute rebuts that presumption." That looks a lot like applying the presumption to a jurisdictional statute. Am I correct to assume that you would say the ATS is somehow...
01.07.16 | |

24 Jan

...of outrageous error or intential mistatement! At least the dissent pointed out how the majority completely misunderstood (or intentionally mistated) the early ATS cases as well as piracy. Shocking, incompetent, and perhaps result-oriented judicial out-of-control activism! Daniel Professor Alford, I seem to recall that this topic was discussed vigorously in the comments to the OJ Insta-Symposium. One of the thoughts that came up at that time was a distinction between two ways an international norm becomes part of common law. One is the traditional English view that customary international law...
24.01.14 | |