Monday, March 5, 2012

Supreme Court puts off decision in Kiobel and orders re-argument

I did not see this coming!  The Supreme Court just announced that it will put over Kiobel to its next term and ordered lawyers to come back with an expanded argument on Congress’s power to pass laws that reach overseas.  Go here and here for more details.  The order states, in part, as follows:
This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” The supplemental brief of petitioners is due on or before Thursday, May 3, 2012. The supplemental brief of respondents is due on or before Monday, June 4, 2012. The reply brief is due on or before Friday, June 29, 2012. The time to file amicus curiae briefs is as provided for by Rule 37.3(a). . . .
What is interesting about this is that the issue of extraterritoriality of the law was not one raised by Kiobel but by another case which I have discussed in some detail here.  The case is Sarei v. Rio Tinto, PLC, a case that has been going up and down from the district court to the court of appeals (of the 9th circuit) for years. In the most recent decision in the case, the Ninth Circuit voted (en banc) 7-4 to permit an ATS suit to proceed against a mining company accused of aiding and abetting the government of Papua New Guinea in violating the human rights of residents of the island of Bougainville.

On the issue of extraterritoriality, as I have said in the past, the Supreme Court's decision could result in the end of the ATS as we know it.

The issue of extraterritoriality is not new and last year, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011), Judge Posner concluded that there is no basis for the argument that the statute has no extraterritorial application. As Judge Posner points out, "Courts have been applying the statute extraterritorially . . . since the beginning; no court to our knowledge has ever held that it doesn’t apply extraterritorially; and Sosa [the only case on the ATS decided by the Supreme Court] was a case of nonmaritime extraterritorial conduct yet no Justice suggested that therefore it couldn’t be maintained. Deny extraterritorial application, and the statute would be superfluous . . ."

In the end, however, as I have stated before, I think it is likely that the Supreme Court will decide in favor of those arguing against corporate liability under the ATS.

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