Commentary on the Alien Tort Statute

 A few days ago I reported that the US Supreme Court heard oral arguments on a case about the Alien Tort Statute.  Dorf on Law has now published a comment and analysis of the issues here.

Supreme Court hears oral arguments on Alien Tort Statute

Today the US Supreme Court heard oral arguments on a case called Cisco Systems, Inc. v. Doe which raises the issue of whether the Alien Tort Statute (ATS) or the Torture Victim Protection Act (TVPA) allows lawsuits against parties for aiding and abetting violations of international law.  

LawFare has a long preview of the case here.  SCOTUSblog has a discussion of the oral argument here.

 

Supreme Court rules that Alien Tort Statute can't be used against defendants for conduct that happens overseas

Long time readers of this blog know I have followed the cases on the Alien Tort Statute (ATS) for some time.  For my posts on this topic, go here and scroll down.

The last time I posted something about the ATS was back in November of 2019, when I reported on a case against Nestle and Cargill alleging that the defendants aided and abetted in human rights violations by farmers in the Ivory Coast.  Back then the Court of Appeals for the Ninth Circuit held that a lawsuit filed by citizens of Mali who, as children, worked on Ivory Coast cocoa farms should be permitted to go forward under the Alien Tort Statute (ATS).  You can read that post here.

That case was appealed to the Supreme Court and the Court issued its opinion just a few days ago reversing the Circuit Court, by a vote of 8-1, because the lawsuit was based on conduct that occurred overseas. 

Evidently, the decision was a victory for the defendants, but it was not what the business community and the Washington Legal Foundation really wanted because the opinion left open for another day the question of whether the federal law at the heart of the case allows lawsuits against U.S. corporations to begin with.  (I comment on the WLF position in my post linked above.)  

You can read more about the case and the Court's opinion on the SCOTUS blog, Politico, and Howe on the Court.

Ninth Circuit upholds right to sue under the Alien Tort Statute; Washington Legal Foundation asks Supreme Court to overturn

Long time readers of this blog know I have followed the cases on the Alien Tort Statute (ATS) for some time.  For my posts on this topic, go here and scroll down.

I had not heard of any new developments in ATS case law in quite a while now.... until just a few days ago, when I read that the Court of Appeals for the Ninth Circuit held that a lawsuit filed by citizens of Mali who, as children, worked on Ivory Coast cocoa farms should be permitted to go forward under the Alien Tort Statute (ATS).  The plaintiffs allege that cocoa processors and chocolate manufacturers aided and abetted in human rights violations by farmers in the Ivory Coast.  

Not surprisingly, the Washington Legal Foundation (WLF), an American "public interest law firm" (and, essentially a right wing think tank), quickly filed an amicus brief asking the U.S. Supreme Court to review (and ultimately overturn) the decision of the appeals court.  You can read the brief here.

Among other things, the WLF argues that the apparent purpose of the lawsuit is to assist with a human-rights campaign being waged in the press and before legislatures, not to seriously pursue claims against those who purchase products from farmers who engage in abusive labor practices.

Supreme Court Holds Foreign Corporations Cannot Be Held Liable Under Alien Tort Statute

Long time readers of this blog know I have followed the cases on the Alien Tort Statute for some time.  For my posts on this topic, go here and scroll down.

But for those new to the subject, here is a very short update:  Back in 2012, the Supreme Court heard oral argument in a case called Kiobel v. Royal Dutch Petroleum which challenged the applicability of the Alien Tort Statute to corporate defendants. However, after that issue was argued before the Supreme Court, the Court asked the parties to brief and prepare for argument on a different issue: whether the ATS can be applied extraterritorially. This was surprising since the issue had not been raised by the parties because, before the Supreme Court brought it up, there probably was little disagreement about that question.  Yet, the Court expressed more interest in that question and eventually decided the case based on it.   Again, go to the link above and scroll down for a lot more information and links.

So the original issue presented by Kiobel was left undecided until the Court agreed to hear Jesner v. Arab Bank which asked the court to address it.  For a short explanation of the issues in the case go here.

And so, a few weeks ago, the Court finally issued its decision in which it holds that foreign corporations can not be held liable in American courts under the Alien Torts Statue.  NPR has the news here.

In a dissenting opinion joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan, Justice Sonia Sotomayor said the court’s decision absolves corporations for responsibility under the law for “conscience-shocking behavior” and that she disagreed “both with the court’s conclusion and its analytic approach.”

You can read the (very long) opinion here.

Needless to say, the opinion has generated quite a bit of commentary.  Here are links to articles from different perspectives:

The SCotUS blog has an analysis of the opinion here.

Politico has an article here there argues, among other things, that "[t]he ruling appears to be a part of a pro-corporate pattern when it comes to the court’s view of its global role..."

Conservative think tank Washington Legal Foundation has a comment here in which it implies that the case was a wasted opportunity to go even further. It sees the opinion as part of a good trend that attempts to rein in human rights activists’ efforts to police private businesses’ overseas conduct but laments that the Court "once again failed to shut the door entirely on human rights activists" because the ruling said nothing about the many ATS claims pending against American corporations.

Two new short articles on the Alien Tort Statute (and the case pending before the US Supreme Court)

As I mentioned a few days ago, the Supreme Court will be addressing the issue it was supposed to decide but didn't in  Kiobel v. Royal Dutch Petroleum : whether corporations can be held liable under the ATS in a case called Jesner v. Arab Bank.  [For background history and the discussion surrounding Kiobel, go here, and scroll down.  There are two or three pages of posts, dating back to 2010.]

In anticipation of the decision in Jesner, which will be argued before the Court on October 11, the SCotUS blog has published two short articles on the issue presented by the case.  Both are written by people who also authored amicus briefs in the case.

The first one, available here, is written by the lawyer who represents the Chamber of Commerce.  Not surprisingly argues that the Court should rule for the defendants and hold the ATS bars claims against corporations.  It concludes that

ATS suits against corporations, in short, not only flout clearly enacted congressional policy, but also carry heightened risks of the very foreign-policy and other practical consequences that the Supreme Court has warned federal courts to avoid in fashioning federal common law and that the ATS itself was enacted to prevent. The Supreme Court should hold in Jesner that the federal-common-law cause of action authorized by the ATS does not extend to suits against corporations to enforce modern human-rights norms.

The second article, available here, is written by the lawyer for financial regulation scholars and former government officials who filed a brief in support of the plaintiffs, argues that the Court should hold that the statute does not ban claims against banks.  It concludes that

...Allowing liability for banks would be consistent with the broader policy goal of ensuring a safe and terrorist-financing-free financial system. Considering the importance of anti-terrorist financing and anti-money laundering to the stability and integrity of the U.S. financial system, banks should be held liable under the ATS for knowing and willful activity allowing terrorist groups access to U.S. dollar clearing. Indeed, creating a loophole for dollar clearing of terrorist financing would be exactly contrary to U.S. anti-terrorism policy. Establishing a hostile environment for terrorist financing is a longstanding and fundamental policy goal of the United States, and using private suits to find banks liable for knowing and willful illicit clearing will directly promote that goal.

Both articles have links to the amicus briefs, and all the documents in the case, as well as links to the articles and updates are available here.

Summary of the latest case on the Alien Tort Statute before the Supreme Court

Over at SCotUS blog, Amy Howe has published a good summary of the latest case on the Alien Tort Statute before the Supreme Court.  You can read it here.  The case is Jesner v. Arab Bank which addresses the question the Supreme Court was supposed to decide but didn't in  Kiobel v. Royal Dutch Petroleum :  whether corporations can be held liable under the ATS.

For my comments on Kiobel and other issues related to the Alien Tort Statute, go here and scroll down.

US Supreme Court agrees to hear case on the Alien Tort Statute to decide whether Corporations can be liable

It has been more than two years since I have posted anything related to the Alien Tort Statute because, well, with the 2013 US Supreme Court decision in Kiobel v Royal Dutch Petroleum the court pretty much made the statute irrelevant.  That case raised the issue of whether the statute could be used to support claims against corporations. However, in a surprising move, the Court asked the parties to brief a different issue (extraterritoriality), and eventually decided the case based only on that issue.  For all the background stories, go to the Alien Tort Statute section of the blog here.

In 2014, the Court of Appeals for the 9th Circuit decided one case on the ATS holding that  holding that corporations, and not just state actors, can face liability for violations of universal norms under the Alien Tort Statute.  At the time, I thought that case would open the door for a renewed discussion of the issue, but the case did not reach the Supreme Court.

But now the wait is apparently over.  Just a few days ago, the U.S. Supreme Court agreed to hear a case in which the issue is precisely whether corporations can be liable under the Alien Tort Statute.  Stay tuned!

For more information and some links on the case (Jesner v. Arab Bank) go here.  For up to date coverage and access to all the documents related to the case go to the SCotUS blog here.

Court of Appeals for the 9th Circuit reopens Alien Tort Statute case

It has been more than a year since I have posted anything related to the Alien Tort Statute because, well, with the US Supreme Court decision in Kiobel v Royal Dutch Petroleum the court pretty much made the statute irrelevant.  Back then, in a long series of posts, I wrote that I was surprised the court decided the case on the issue of extraterritoriality, when the real issue was whether the statute could be used against corporations.  For all the background stories, go to the Alien Tort Statute section of the blog here.

Now it appears that, just to keep things interesting, the Court of Appeals for the 9th Circuit has opened the door for another round of debates over the use of the statute against corporations.

As reported by the ABA Journal online, the court of appeals issued an opinion last Thursday holding that corporations, and not just state actors, can face liability for violations of universal norms under the Alien Tort Statute.  You can find the opinion here.

The case involves a complaint filed against Nestle, Archer Daniels Midland and Cargill by former child slaves who claim the three corporations aided Ivory Coast cocoa farmers who kept children in captivity.

It is not clear why the case should not be dismissed given the Supreme Court's opinion in Kiobel.  The Court of Appeals simply said it would give the plaintiffs the opportunity to amend their complaint in light of Kiobel.

New comment on Kiobel: The United States Can’t Be the World’s Courthouse by Eric Posner

Eric Posner, a professor at the University of Chicago Law School, has written an essay on the Supreme Court's decision in Kiobel v Royal Dutch Petroleum in which he argues the Court made the right decision.  It starts as follows:

...Last week’s 9-0 Supreme Court ruling in Kiobel v. Royal Dutch Petroleum has finally put an end to [litigation in which foreigners bring suits in U.S. courts against other foreigners, for human rights violations in foreign countries.] Human rights groups complain that the decision means that foreign governments and corporations will be able to violate human rights with impunity. But cases like Kiobel, in which a group of Nigerians sued a Nigerian corporation and its Dutch and British corporate parents over their role in human rights abuses in Nigeria, never led to real human rights enforcement. In more than 30 years of litigation involving hundreds of cases, hardly any money went to victims. The Supreme Court got rid of a popular but unworkable idea that U.S. courts can be used to police behavior around the world.

 You can read the full article here.

Supreme Court decides Kiobel v. Royal Dutch Petroleum, holding Alien Tort Statute can't be applied extraterritorially

Long time readers of this blog probably remember that I have been following the decisions in Kiobel v. Royal Dutch Petroleum closely for almost two years.  (Go here and scroll down for all my posts).  This is the case that challenged the applicability of the Alien Tort Statute to corporate defendants.  After that issue was argued before the Supreme Court last term, the Court asked the parties to brief and prepare for argument on a different issue:  whether the ATS can be applied extraterritorially.  This was surprising since the issue had not been raised by the parties because, before the Supreme Court brought it up, there probably was little disagreement about that question.  For more than thirty years, since the Second Circuit’s 1980 decision in Filartiga v. Pena-Irala and the 2004 Supreme Court decision in Sosa v. Alvarez-Machain, courts have interpreted the ATS as giving rise to a remedy in US courts for international law violations.

When the Supreme Court asked the parties to prepare to argue the issue I suspected that it would decide the statute can't be applied extraterritorially thus essentially ending the ATS as we know it. In its decision, the Supreme Court rejected what was seemingly the entrenched understanding of the ATS.

Needless to say, the opinion has generated a tremendous amount of commentary, some praising it, some criticizing it.  Because I have been away from my office for days I have not had a chance to read the actual opinion, so for now I will only give you links to comments and to the opinion itself so you can reach your own conclusions.

The SCotUS blog has published a series of comments about the opinion here.  Scroll down and you will find links to a summary of the opinion and to at least five separate comments (plus articles published before the opinion was issued). 

In addition you can find articles about the opinion in Jurist (here and here), PrawfBlog (here and here), The Washington Legal Foundation (here) and the New York Times (here), which laments the opinion constitutes "a giant setback for human rights."

I agree.  Under the previous interpretation of the statute, it allowed the US federal courts to operate as an international civil tribunal where victims of international rights violations could bring their claims for damages.  No so anymore.  One of the comments published in SCotUS blog suggests the door is still open - very slightly open - for such a claim, though.  The NYT editorial suggests the opening comes from Justice Breyer' concurring opinion which said suits under the law should be allowed when “the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”  Reportedly, however, the majority opinion essentially eviscerated the statute and made it much more difficult to vindicate that interest, and, according to one author, the opinion "is wildly out of step with the rest of the federal judiciary, the direction of American law, and the concerns of the American people."

But you (and I) will have to read the opinion itself to decide for ourselves.  You can find it here.

Harvard International Human Rights Clinic argues in favor of recognizing causes of action against corporations under Alien Tort Statute

It has been a while since I last posted something on the case pending before the Supreme Court on whether corporations can be sued under the Alien Tort Statute.  So, here is a link to a short article in which the Harvard Law School's International Human Rights Clinic argues the ATS does apply to corporations.  To catch up with my previous posts on the subject go here and scroll down...

Thanks to How Appealing for the link.

Oral argument in Kiobel is now available

The audio of the oral argument in Kiobel v Royal Dutch Petroleum is now available.  For the original argument from last term go here; for the re-argument from last week go here.  Both links are available at Oyez.

More links on Kiobel and the Alien Tort Statute

As expected, yestereday's oral argument in Kiobel v Royal Petroleum continues to generate a lot of attention.  Yesterday, I posted these links on the oral argument: New York Times, the Associated Press, Thomson-Reuters, Bloomberg, Slate, ABC news, The Pop Tort and Washington Legal Foundation.

 Here are some new links:

What will the Court do with the Alien Tort Statute? (Prawfs Blawg)

Supreme Court Appears Ready to Limit Reach of Alien Tort Law (ABA Journal.com)

Supreme Court rehears arguments in corporate liability case from last term (Jurist)

Supreme Court ponders U.S. lawsuits over corporate abuses committed abroad (Washington Post)

Yesterday at the Court: Photos from the Plaza after Kiobel (SCotUS blog)

Was Hitler a pirate? Answer may shape SCOTUS Kiobel decision (Thomson Reuters)

Supreme Court opens new term with re-hearing on case that could determine the future of the Alien Tort Statute

As you probably remember, last year the Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum in which the Court was asked to decide whether corporations (or other entities) could be liable under the Alien Tort Statute.  After hearing oral arguments, however, the Court surprisingly set the case for a rehearing and asked the parties to prepare briefs on an issue that had not been presented to the Court - whether the Alien Tort Statute could apply extraterritorialy.

That new oral argument was held today, the first day of the Court's new term.

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, and it does not help that the U.S. Justice Department switched sides on the issue.  Go here and here for some of my original comments.  As stated by Judge Posner last year, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011),  courts have been applying the statute extraterritorially since the beginning; no court has ever held that it doesn’t apply extraterritorially.  In fact, the only case on the ATS decided by the Supreme Court involved the application of the statute extraterritorially. If you eliminate the possible extraterritorial application of the statute, the statute will be useless.

This is an extremely important case that has generated a tremendous amount of literature.  Simply stated, a decision for the defendants will essentially eliminate the ATS as a possible source of redress for human rights violations.  For more, see Kiobel v. Royal Dutch Petroleum: What’s at stake, and for whom?.

The SCotUS blog has a recap of the oral argument here. The actual transcript of the argument is available here.  The audio will probably be available on Friday. I will post a link to it then.

For more recent comments and information on the oral argument you can go to the New York Times, the Associated Press, Thomson-Reuters, Bloomberg, Slate, ABC news, The Pop Tort and Washington Legal Foundation.

I have been following the developments around the issue since the case was decided by the court of appeals and you can catch up with all the links by going here and scrolling down.  There about a zillion posts, all with about another zillion links to cases, articles, op-ed pieces and debates. 

Update on the symposium on the Alien Tort Statute

Now that all the articles in the ongoing symposium on the Alien Torts Statute are in, some of the authors are posting responses to some of the other articles.  The original articles are available here.  Here are the responses so far:

A response to Colangelo, Feder, and Ramsey

Response to symposium contributions

Response: International law supplies the conduct rules and domestic law governs enforcement 

Response: Adjudicative versus prescriptive jurisdiction, translating historical intent, and a brief universal jurisdiction rejoinder

Response: Plain text, stare decisis, and déjà vu all over again

Response: The ATS and choice of law

Response: New federal piracy case confirms limits on universal jurisdiction

Response: Memo to Navy – no universal jurisdiction

I will continue to add links to other responses as they become available.

The symposium on the Alien Torts Statute continues

Now that all the articles in the ongoing symposium on the Alien Torts Statute are in, some of the authors are posting responses to some of the other articles.  The original articles are available here.  Here are the first four responses: 

A response to Colangelo, Feder, and Ramsey

Response to symposium contributions

Response: International law supplies the conduct rules and domestic law governs enforcement 

Response: Adjudicative versus prescriptive jurisdiction, translating historical intent, and a brief universal jurisdiction rejoinder

Response: Plain text, stare decisis, and déjà vu all over again

Response: The ATS and choice of law


I will continue to add links to other responses as they become available.

Articles on whether corporations can be sued under the Alien Tort Statute and related issues

Last week I posted (here) an announcement of an upcoming on line symposium on Kiobel v Royal Dutch Petroleum, the case currently pending before the Supreme Court on whether a corporation can be sued under the Alien Tort Statute.  All the contributions to the symposium are now available.  Here are links to all of them:

The Alien Tort Statute and the law of nations

Precedents, pirates, and the presumption against extraterritoriality

The Alien Tort Statute, Kiobel, and standard tools of statutory interpretation

Kiobel, “vigilant doorkeeping,” and the parochial purposes of the Alien Tort Statute

International law and Alien Tort Statute litigation

Kiobel and the original meaning of the Alien Tort Statute

A brave new world of transnational human rights litigation

The Alien Tort Statute and the foreign relations fallacy

The Alien Tort Statute as a species of extraterritorial U.S. law

The ATS is in good company

The Alien Tort Statute and the importance of historical evidence

For ATS claims, universal jurisdiction isn’t the answer

New twist on Kiobel: Obama administration sides with the defendants on the issue of extraterritoriality

As you probably remember in Kiobel v. Royal Dutch Petroleum the issue before the Supreme Court was whether corporations (or other entities) could be liable under the Alien Tort Statute.  After hearing oral arguments, however, the Court surprisingly set the case for a rehearing and asked the parties to prepare briefs on an issue that had not been presented to the Court - whether the Alien Tort Statute could apply extraterritorialy.  Go here for all the background information and previous posts. Go here for my comments specifically on the question of extraterritoriality, which I think can essentially kill the ATS forever.

But now for today's news:  Alison Frankel is reporting (here) that while in Kiobel's first trip to the Supreme Court, the U.S. government sided with the plaintiffs, when the justices sent the case back to the parties for briefing on whether the statute applies to conduct outside the United States, the Justice Department switched sides. The government's amicus brief, filed last month, argues tepidly that the ATS is not appropriate in this particular case, though it stops short of advocating for an absolute bar on ATS cases stemming from overseas conduct. Interestingly, the State Department, which had joined the Justice Department in signing the first Kiobel amicus brief, did not sign the second one.  Go here for the full report and analysis.

In addition, go here for links to all the articles in the recent symposium on Kiobel sponsored by the SCotUS blog.

More articles in the symposium on whether corporations can be sued under the Alien Tort Statute

Last week I posted (here) an announcement of an upcoming on line symposium on Kiobel v Royal Dutch Petroleum, the case currently pending before the Supreme Court on whether a corporation can be sued under the Alien Tort Statute.  The symposium is currently underway and the first few articles are now available.

The first article is available here.

The second one is here.

The third one is here.

I will continue to post links to all future articles published as part of the symposium as they become available.