Friday, September 17, 2010
Court of Appeals for Second Circuit issues a tremendously important opinion on the Alien Tort Statute
Just a few days ago, I posted a comment about a new decision under the Alien Tort Statute (see here). Today, the Court of Appeals for the Second Circuit has just issued a new opinion eliminating the right of plaintiffs to use the ATS against corporations. This is a tremendously significant shift in the interpretation and application of the ATS, which was enacted in 1789 and is codified in 28 U.S.C. §1350 and which provides jurisdiction to federal district courts over claims filed by aliens for injuries caused by conduct that constitutes a violation of the law of nations. In recent years, the statute became a very important source of support for litigation seeking compensation for the role played by corporations that helped others commit acts in violation of international law. (Go here and scroll down for posts on some of those recent developments.) It was based on this type of theory that in recent years plaintiffs supported their claims against Chevron for alleged human rights violations in Nigeria, against Pfizer for allegedly testing drugs without consent on African children, against Ford, General Motors, IBM, UBS and others for alleged crimes committed by the apartheid regime in South Africa and against Talisman Energy for allegedly providing substantial assistance to the Government of the Sudan. For comments on these cases go here and scroll down. This type of claims may have seen its end today. According to Wall Street Journal law blog, in an opinion issued today called Kiobel v. Royal Dutch Petroleum (available here), the Court of Appeals for the Second Circuit decided that US courts have jurisdiction only over alien-tort suits against individuals, not companies. Judge Leval issued an 88 page long concurring opinion in which he agreed the case should have been dismissed but in which he concluded he could not join "the majority’s creation of an unprecedented concept of international law that exempts juridical persons from compliance with its rules." I have not read the opinions yet, so I am just reporting what others are reporting: Go here for the WSJ article and here for a Bloomberg report.