By Louis M. Solomon
We have followed the development of federal
Circuit law on whether the Alien Tort Statute, 28 U.S.C. § 1350, and specifically
the Torture Victim Protection Act, 28 U.S.C. § 1350 note § 2(a), create rights of
action against corporations. The Supreme Court has agreed to decide
the issue. The issue presents a growing and important part of international
litigation and dispute resolution, including whether and to what extent U.S. law
will be found to apply extraterritorially.
Section 1350 provides:
"The district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation
of the law of nations or a treaty of the United States."
that statute, first came Kiobel, et al. v. Royal
Dutch Petroleum Co., et al.,
06-4800-cv, 06-4876-cv (2d Cir. 9/17/10) [enhanced
version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], which we discussed here, among other places. In that case the
U.S. Court of Appeals for the Second Circuit majority (Cabranes, Jacobs, JJ.) presented
an exhaustive discussion of the history of the ATS, more modern incarnations including
the sources of law underpinning the Nuremberg trials and other modern treaties,
and the entire subject of corporate liability for alleged violations of human rights
in the international, extraterritorial context.
The other Circuits
to weigh in on the subject disagreed. We posted on the different conclusion reached by the D.C. Circuit, for example,
in Doe v. Exxon Mobil, 654 F.3d 11 (D.C. Cir. 2011) [enhanced version / unenhanced version ], holding that federal courts have jurisdiction to hear alien
tort claims brought against corporations. In that case, plaintiffs alleged that
the security forces of Exxon Mobil subsidiaries committed human rights violations
in Indonesia. Similar conclusions were reached by the Seventh and Eleventh
Circuits (see our discussion here).
Last week, the Supreme Court agreed to
hear two cases, with the question presented being phrased as:
Whether the Torture Victim Protection
Act, 28 U.S.C. § 1350 note § 2(a), permits actions against defendants which are
not natural persons.
The docket sheets for Kiobel cert
granted are here.
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