Post-Kiobel, Are We All Ready to Move On From the ATS?

by Julian Ku

The American Journal of International Law has posted electronic excerpts from its “Agora: Reflections on Kiobel”, which will be published in its next issue.  As a contributor to the AJIL Agora myself, I was fascinated to see the different takes that everyone had on the decision.  For the most part, contributors seem to read Kiobel the same way: as sharply cutting back or even eliminating the vast majority of Alien Tort Statute claims that are based on overseas conduct.  In general, the Agora seems to signify that the international legal academy is ready to move on from the ATS: to other jurisdictions like the Netherlands or Europe, to new statutory amendments to the ATS, to other non-litigation based mechanisms, or perhaps to state courts in the U.S.

As for my contribution, I was more interested in taking apart Kiobel’s resounding, unanimous, and surprising rejection of universal civil jurisdiction under the ATS.  I am in partial sympathy with the take of Professor David Moore, another Agora contributor who is more focused on US domestic law aspects of the ATS.  I think scholars and advocates have underestimated the importance of plain-vanilla separation of powers concerns in leading to the Court’s refusal to read the ATS as granting universal jurisdiction to federal courts.  Here is the opening from my essay (and make sure you check out the whole Agora):

The U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. has not ended future debate about the scope and impact of the Alien Tort Statute (ATS).2 But the Kiobel Court did resolve at least one issue with surprising unanimity: both the opinion for the Court by Chief Justice John Roberts and the main concurring opinion by Justice Stephen Breyer refused to interpret the ATS as authorizing universal jurisdiction. All nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that the ATS excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law.

In this short essay, I argue that the surprising death of universal jurisdiction reflects the triumph of the “separation of powers” critique of the ATS, which casts a skeptical eye on giving federal courts an independent role in the administration of both ATS lawsuits and cases involving international law more generally. I argue that this separation of powers critique of the ATS, which has found relatively little academic support, is a crucial reason why the Court unanimously rejected universal jurisdiction in Kiobel and why the Court may further restrict the ATS in future cases.

Supreme Court to Review Bauman v. DaimlerChrysler

by Kenneth Anderson

About the same time (April 2013) that the US Supreme Court released its opinion in Kiobel v. Royal Dutch Petroleum, the Court also granted review of a Ninth Circuit case, Bauman v. DaimlerChrysler. Just ahead of the July 4th weekend, the Obama administration submitted what John Bellinger, in a lucid post over at Lawfare, describes as a “remarkably strong” amicus brief urging the Court to

reverse the Ninth Circuit’s decision in Bauman v. DaimlerChrysler.  The Justice Department argued that the Ninth Circuit’s 2011 decision finding personal jurisdiction in California over Daimler AG, a German company, for the actions of a subsidiary in Argentina, was “seriously flawed” and contrary to the Supreme Court’s subsequent 2011 decision in Goodyear.  The brief faults the Ninth Circuit for trying to hold a foreign corporation with few contacts to California to “answer in that State for any claim against it, arising anytime, anywhere in the world.”

The background to Bauman v. DaimlerChrysler, Bellinger explains, is that in May 2011 a Ninth Circuit panel

held that that Daimler AG, a German parent company with no operations or employees in the United States, could be sued under the Alien Tort Statute and the Torture Victim Protection Act  (as well as common law and state law) by a group of Argentine nationals for human rights abuses allegedly committed by an Argentine subsidiary in collaborating with the Argentine government during the “Dirty War” in the 1970s, solely on the basis that a different U.S. subsidiary now distributes Mercedes Benz vehicles in the United States.  Applying an agency theory, the panel concluded that Daimler AG had sufficient contacts with the state of California by virtue of the actions of its subsidiary Mercedes Benz USA to give California personal jurisdiction over the German parent , even though Mercedes Benz USA had no involvement with the alleged facts in Argentina.

I agree with Bellinger that the likelihood, following Kiobel, is that the Court is moving to restrain jurisdictional assertions by Federal courts, and is pushing back toward stricter grounding in the traditional bases of jurisdiction by national courts.  My own larger, political view is that this is connected to a perception that although broad assertions of US jurisdiction through such vehicles as the Alien Tort Statute over foreign parties for acts on foreign territory can certainly be framed as enforcing universal international law through national courts, it is better understood as assertions of something quite different – what I’ve sometimes called the “law of the hegemon.”  That is an increasingly contested position as a matter of international politics spilling over into international law, and between the rise of new great powers and the Obama administration’s political embrace of decline, it seems to me unsurprising that the Obama administration would embrace a more traditional, much more restrictive understanding of jurisdiction.

But it also seems the Court is also generally on board with this pull-back.  As Bellinger says, many observers (me included) believe that

the Court would not have accepted the case unless it plans to reverse the Ninth Circuit.  Conservative justices are loathe to miss an opportunity to try to curb the Ninth Circuit’s consistent efforts to be a world court, and the more liberal justices may have wanted to demonstrate (as Justice Breyer argued in his concurrence in Kiobel) that the extraterritorial reach of the Alien Tort Statute can be limited by other jurisdictional restrictions.

I agree.  Despite the obvious clash of approaches between the Roberts majority and the Breyer minority in Kiobel, they do have an important common ground – an intention to limit extraterritorial jurisdiction through a stricter application of the traditional bases of jurisdiction. (more…)

Parsing the Oral Arguments in Kiobel and Mohamad

by Chimene Keitner

[Chimène Keitner is an Associate Professor of Law at the University of California, Hastings College of the Law.]

The oral arguments in Kiobel and Mohamed will doubtless generate a new round of commentary on these cases. A “quick response” panel is planned for Thursday, followed by a Georgetown Law symposium on March 27 and an ASIL annual meeting panel on March 31.

Since I have written on the choice of law question under the ATS, I predictably agree with Kathleen Sullivan’s statement that “The crucial question that is at the threshold is which law determines whether corporations are liable.” (Tr. at 32.) However, I disagree with her argument that “corporate liability” is a “substantive norm,” and that the question of whether a natural person’s conduct can be attributed to a corporation for the purpose of imposing civil liability is necessarily governed by the same source of law as the standard for aiding and abetting, or the state action requirement addressed in footnote 20 of the Sosa opinion. Sullivan argued that all three of these questions (corporate liability, aiding and abetting, and state action) are “substantive questions answered by international law.” (Tr. at 37.) Elsewhere in the argument, she suggested that the proper source of law for theories of attribution, at least in a common law action, would be “the place of misconduct or the place where the corporation is headquartered.” (Tr. at 39.) Punitive damages, by contrast, she would categorize as a remedial matter properly governed by U.S. domestic law. (Tr. at 39.) Paul Hoffman argued on behalf of Petitioners that domestic law applies to the corporate liability question because “international law, from the time of the Founders to today, uses domestic tribunals, domestic courts and domestic legislation, as the primary engines to enforce international law” (Tr. at 6), and that in any event the substantive international legal norms at issue in this case do apply to corporations, as argued more fully by Opinio Juris contributor Oona Hathaway in an amicus brief.

In general, the Justices appeared to endorse a dichotomy between “substantive” rules and rules relating to “enforcement”—a dichotomy advocated by Ed Kneedler in his argument on behalf of the U.S. Government. Justice Kagan articulated this as the dichotomy between the law governing “who has an obligation” vs. “who can be sued.” (Tr. at 37-38.) As I suggested in my 2008 article, following Bill Casto, and in a shorter 2011 symposium piece,  it seems to me that the most coherent approach to the choice of law question distinguishes between “conduct-regulating” and “non-conduct-regulating” rules. Under the ATS, conduct-regulating norms are supplied by international law. Since entities inevitably act through natural persons, these norms govern the conduct of natural persons, but that does not mean that other organizations or entities cannot also bear the legal consequences of natural persons’ conduct in a variety of circumstances. (The reverse is also true—for example, foreign officials generally do not bear the legal consequences of commercial transactions that they enter into on behalf of the foreign state.) Paul Hoffman indicated some sympathy for this view in his final response to Justice Scalia’s question about what source of law he would apply to the standard for aiding and abetting liability (an issue not presented for review in this case), when he responded that “I think that—that aiding and abetting could be viewed as a conduct regulating norm, that it actually applies to the things that can be done to violate the norm. And therefore, international law would apply to that.” (Tr. at 56.) However, the same answer does not necessarily hold true for the corporate liability question presented in Kiobel, because rules of attribution are not conduct-regulating.

As a general matter, I abstain from making predictions in cases. However, in a slight break from my own tradition, I will hazard a guess that there will be at least one opinion supporting corporate liability (on the principle that corporations are routinely held liable for the torts of their agents), one opinion opposing corporate liability and also challenging the ATS’s grant of jurisdiction over extraterritorial conduct and over suits between aliens, and one opinion (perhaps a concurrence) opining on how ATS suits fit (or not) into the evolving global landscape of domestic adjudication of international law violations (whether these are denominated violations of international law, common law, or domestic statutes that codify international law norms).

Kiobel and Mohamad Oral Argument Transcripts

by Kenneth Anderson

… from this morning’s hearing:  Kiobel and Mohamad.  I would be curious as to readers’ prognostications of how the Justices will rule based on the oral arguments today. (Thanks for comments, interested in more.  For example, where did this extraterritoriality question suddenly materialize from and does it portend something different from what was originally thought?  You can also see John Bellinger’s take on the argument at Lawfare.)

Update: Reading the transcripts more carefully, as well as Chimene Keitner’s thoughtful post above, I recall that in some blog post somewhere a few year ago – my old blog, OJ, Volokh, I don’t even remember – I said that the problem of corporate liability and that ATS was that in order to get the international law predicate going, “you needed not just a what but a who.”  I assumed that this would be an issue in the oral argument; like lots of other folks, I didn’t anticipate that extraterritoriality would figure in any significant way.