In a September 2010 ruling in Kiobel v. Royal Dutch Petroleum Co., the Second Circuit became the first and only appellate court to reject the proposition that corporations may be held liable for torts in violation of international law under the ATS. Subsequent decisions by the D.C. Circuit in Doe v. Exxon and the Seventh Circuit in Flomo v. Firestone explicitly rejected the Second Circuit’s reasoning. In October 2010, counsel for the plaintiffs filed a petition for rehearing. The Clinic submitted an amicus curiaebrief in support of the petition on behalf of professors of legal history. The brief argues that the history and purpose of the ATS support what the text explicitly provides: that jurisdiction extends to all causes in which an alien sues for a tort in violation of the law of nations, including cases against corporate defendants. The plaintiffs filed a second petition for rehearing in February 2011 after the first petition for rehearing was denied. Following the denial of the second petition for rehearing, the plaintiffs filed petition for certiorari to the U.S. Supreme Court in June 2011. The Clinic filed an amicus brief on behalf of professors of legal history in support of that petition.
The Kiobel case was filed by Nigerian plaintiffs and brings claims for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention. The plaintiffs allege that the company collaborated with the Nigerian government to commit these violations to suppress their lawful protests against oil exploration.
The petition for certiorari was granted by the U.S. Supreme Court on October 17, 2011. Oral argument took place on February 28, 2012. A week later, on March 6, the Court requested supplemental briefing on the question of whether the statute encompasses violations committed outside the territory of the United States. Supplemental briefs were filed with the Court in the summer of 2012, and re-argument took place on Oct. 1, 2012.
On April 17, 2013, the Supreme Court issued its decision. The Court held that a presumption against extraterritorial application of the ATS applied to the facts of the Kiobel, and affirmed the judgment of the Second Circuit court of appeals.
You can find comprehensive coverage of the decision on SCOTUSblog and Opinio Juris, among other sites.
Legal Documents
U.S. Supreme Court Decision in Kiobel v. Royal Dutch Petroleum Co. (April 17, 2013)
Supplemental Briefing to the U.S. Supreme Court on the Issue of Extraterritoriality
Petitioners’ Supplemental Reply Brief
Defendants’ Supplemental Opening Brief
Petitioners’ Supplemental Opening Brief
Supplemental Amicus Briefs in Support of Respondents to the U.S. Supreme Court on the Issue of Extraterritoriality:
Former State Department Legal Advisors
National Foreign Trade Council
Professors Anthony J. Belia Jr. and Bradford R. Clark
Professors of International Law, Foreign Relations, and Federal Jurisdiction
Caterpillar, Conoco Phillips, GE, Honeywell, International Business Machines, and Monsanto
Chevron Corp, Dole Food Co., DowChemical, Glaxosmithkline, P & G
Washington Legal Foundation and Allied Educational Foundation
Supplemental Amicus Briefs in Support of Petitioners:
American Civil Liberties Union
Association of the Bar of the City of New York
Eleven Jewish Former Residents
Former U.S. Government Counterterrorism and Human Rights Experts
German Institute for Human Rights
Government of the Argentine Republic
International Human Rights Organizations
Professors of Civil Procedure and Federal Courts
Rutgers Law School Constitutional Litigation Clinic
Victims of the Hungarian Holocaust
Volker Beck and Christoph Strasser, Members of Parliament of the Federal Republic of Germany
Yale Law School Center for Global Legal Challenges
Supplemental Amicus Briefs in Support of Neither Party on the Issue of Extraterritoriality
Certain Plaintiffs in In Re: Terrorist Attacks on September 11, 2001
European Commission on Behalf of the European Union
Briefing to the U.S. Supreme Court on the Issue of Corporate Liability
Amicus Briefs in Support of Petitioners to the U.S. Supreme Court on the Issue of Corporate Liability:
Former US Government Counterterrorism and Human Rights Officials
Law Professors of Civil Liberties and 42 USC Section 1983
International Human Rights Organizations and International Law Experts
Nuremberg Historians and International Lawyers
Dr. Juan Romagoza Arce, Cecilia Santos Moran, Ken Wiwa
Former US Senator Arlen Specter, Human Rights First, and the Anti-Defamanation League
Prof. Juan Mendez, UN Special Rapporteur on Torture
Navi Pillay, the UN High Commissioner for Human Rights
Brennan Center for Justice at NYU
Yale Law School Center for Global Legal Challenges
Respondents’ Amicus Briefs on the Issue of Corporate Liability:
BP America
Professors of International Law
Law Professors of Constitutional and Federal Civil Procedure Law
National Foreign Trade Council, et al
Product Liability Advisory Council
Association of German Chambers of Industry and Commerce, et al
The Clearing House Association
The Federal Republic of Germany
The Governments of the United Kingdom and The Netherlands
Rio Tinto Group and Occidental Petro Corp
Briefs in Support of Neither Party:
Nuremberg Historians and International Lawyers
Certiorari to the U.S. Supreme Court:
Petitioners Reply to Opposition Brief
Amicus Brief of International Law Scholars
Amicus Brief of International Human Rights NGOs
Amicus Brief of Professors of Legal History
Amicus Brief of David J. Scheffer
Petitions for Rehearing En Banc in the Second Circuit:
Opposition to Petition for Rehearing
Amicus Briefs in Support of Petition for Rehearing En Banc on Behalf of:
Human Rights and Labor Organizations
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