by Brittany Prelogar, Laura Ardito and Jeanne
Kiobel v. Royal Dutch Petroleum
Co. is before the U.S. Supreme Court. At issue is whether corporations can be
held liable under the Alien Tort Statute which permits aliens to file suit in
U.S. federal courts for violations of customary international law for acts
committed outside the U.S. At oral argument the focus was on the law's
extraterritorial reach with an another round of briefs on this requested. A
decision is anticipated next term.
Excerpt (case and statute links below
accessible by lexis.com subscribers):
At issue in Kiobel v. Royal
Dutch Petroleum, Co., currently pending before the U.S. Supreme Court, is
whether corporations can be held liable under the Alien Tort Statute
("ATS"), a provision that permits aliens to file lawsuits in U.S.
federal courts for violations of customary international law. 621
F.3d 111 (2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct.
17, 2011) (No. 10-1491). During oral argument on February 28, 2012, several
Justices focused their questioning on a separate issue concerning the statute's
extraterritorial reach, and the Court has since instructed the parties to
submit an additional round of briefing on this issue later this year. The
Supreme Court's consideration of these issues is drawing intense interest from
corporations, governments, academics, trade associations, and human rights
advocates, which have filed more than 35 amicus curiae briefs in Kiobel
to date. The Court's decision, now anticipated next term, will be significant
for multinational companies, which have been named as defendants in more than
180 ATS cases.
Background on the ATS
The ATS was enacted by the First Congress in 1789. It permits foreign
plaintiffs to file civil tort actions in U.S. federal courts for violations of
the "law of nations or a treaty of the United States." 28
U.S.C. § 1350 (2006). The ATS was rarely used to bring human rights-related
claims before 1980, when Paraguayan citizens successfully used the statute to
bring a claim in New York against a Paraguayan police official for torture and
murder committed in Paraguay. See Filartiga
v. Pena--Irala, 630 F.2d 876 (2d Cir. 1980). Since then, plaintiffs
have increasingly used the ATS as a vehicle for asserting claims against
foreign officials and multinational companies for alleged human rights
violations, with cases producing damage awards in some instances exceeding $100
million. See Mehinovic
v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002) ($140 million); Mushikiwabo
v. Barayagwiza, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. Apr. 8, 1996)
The Supreme Court previously interpreted the ATS in Sosa v. Alvarez-Machain,
in which it limited ATS claims to a narrow set of violations of international
law norms that are "specific, universal, and obligatory." 542
U.S. 692, 732, 748 (2004) (quoting In
re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th
Cir. 1994)). In other words, to support a cause of action under the ATS,
international law norms must be accepted universally and "defined with a
specificity" comparable to the offenses the ATS was designed to redress at
the time it was enacted, specifically piracy, violations of safe passage, and
assaults on ambassadors. 542
U.S. at 725. In addition, Sosa instructed the lower courts to
consider the "practical consequences" of allowing the cause of action
to be litigated in federal court. Id.
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Brittany Prelogar (email@example.com) is a Partner, and Laura Ardito (firstname.lastname@example.org) and Jeanne
are associates, in the Washington, DC office of Steptoe & Johnson LLP (www.steptoe.com). All are
members of the firm's Business and Human Rights practice, which advises and
represents corporations on issues related to Corporate Social Responsibility,
Alien Tort Statute compliance, and human rights-related matters. Ms. Prelogar
received her J.D. from Harvard Law School. Mss. Ardito and Cook received their
J.D.s from American University Washington College of Law.