Alien Tort Statute Today

2011-02-28T20:36:00.000-08:00

Human rights law can be used in clergy sex abuse suit, judge rules
St. Paul lawyer's attacks on church show increasingly international reach

By Annysa Johnson of the Journal Sentinel

Feb. 28, 2011

A federal law that allows U.S. courts to hear lawsuits involving human rights violations in other nations can be used in a case involving Catholic clergy sex abuse, a federal judge in Los Angeles ruled on Monday.

The decision by U.S. District Judge Josephine S. Tucker appears to be the first time the 200-year-old Alien Tort Statute has been used to pursue a sex abuse claim against the Catholic Church. And it illustrates the increasing international reach of victims attorney Jeffrey Anderson of St. Paul, Minn., who is suing the Vatican and has opened a practice in London to pursue cases in the United Kingdom. Anderson represents a number of victims in civil fraud cases against the Archdiocese of Milwaukee.

"This is huge, very significant," said Anderson, who filed the case on behalf of a Mexican boy after seeing the law used to bring cases involving Japanese women conscripted as sex slaves in World War II.

Attorneys and a spokesman for retired Los Angeles Cardinal Roger Mahony did not immediately return calls.

In her ruling Monday, Tucker denied a motion to dismiss by lawyers for Mahony, arguing that the federal court did not have jurisdiction. The lawsuit also names as defendants Mexico City Cardinal Norberto Rivera and Father Nicholas Aguilar Rivera.

Aguilar is accused of molesting 60 children in Mexico before he was sent to Los Angeles, where he is accused of molesting 26 others. He returned to Mexico, where he allegedly molested four more children - including Juan Doe 1 named in the Alien Tort Statute case - and his whereabouts are unknown, Anderson said.

[See April 2010 ATS Today post about this case here and here.]
[See also The Huffington Post.]

2011-02-22T21:39:00.000-08:00

Pfizer Settles Lawsuits Over Drug Trials on Children in Nigeria

Nearly 15 years after its controversial drug trial on 200 children with meningitis in Nigeria, Pfizer Inc. and all plaintiffs in the cases related to the trial announced today that they have reached a global settlement.

In a joint statement, the parties said, "Under the terms of the settlement agreement, the plaintiffs will join the ongoing Healthcare/Meningitis Trust Fund process, which is being managed by an independent Board of Trustees in Kano, Nigeria.

"The cases have been amicably resolved after many years of litigation. The settlement will bring an end to all litigation pertaining to Trovan in the United States and Nigeria and allow for just compensation for participants in the study and their families."

Bradley Lerman, Pfizer senior vice president and associate general counsel, said in a statement: "The settlement of the cases pertaining to Trovan clears the way for the board to finalize its work in Nigeria to determine claimants' eligibility. We are pleased that this agreement moves us one step closer to providing compensation to those for whom the fund was intended. Putting an end to all litigation related to Trovan will allow Pfizer to focus all its attention on bringing health care solutions to benefit all the people of Nigeria."

Pfizer spokesman Christopher Loder said the trust fund can pay a maximum of $175,000 per child to those able to prove death or permanent disability due to the 1996 trial of Trovan. The antibiotic has since been restricted to adult emergency care in America because of its damaging side effects.

Loder said the settlement is confidential and he could not discuss if there were any other terms. Plaintiffs' lawyer Peter Safirstein of Milberg also declined comment beyond the statement.

Both parties agreed to pay their own court costs, according to a stipulation order posted today in U.S. District Court in Manhattan. That's where families of the children first filed suit in 2001 under the Alien Tort Statute.

The suit accused Pfizer of using the experimental drug without the consent of the parents, and of not telling the families that another acceptable drug was available and was being used by Doctors Without Borders in Nigeria to treat the epidemic. Pfizer denied their allegations.

The families battled Pfizer all the way to the U.S. Supreme Court and back after U.S. District Judge William H. Pauley, III, had dismissed the suit in 2005. As of a hearing on Friday, the case was still in the pre-trial motion stage.

But earlier this month the plaintiffs' cause took a bleak turn when the 2nd Circuit Court of Appeals ruled en banc in a different case that claims against a corporation cannot be brought under the Alien Tort Statute. Rather than risk another dismissal and another appeal that was destined to lose at the next level, the plaintiffs agreed on Friday to settle all claims both in the U.S. and Nigeria.

Pfizer established the $35 million Healthcare/Meningitis Trust Fund as part of settling a suit in 2007 brought by the Kano state government, where the drug trial took place. That settlement also is confidential.

Until now, the trust fund money has been tied up in legal battles in Nigeria, where some families opposed taking a DNA test.

2011-02-05T11:13:00.000-08:00

Kiobel: Second Circuit rejects en banc review: upholds key ruling in Kiobel

* Split in federal courts could go to U.S. Supreme Court

By Jonathan Stempel

NEW YORK, Feb 4 (Reuters) - A U.S. appeals court refused to reconsider a lawsuit that accused Royal Dutch Shell Plc (RDSa.L) of helping Nigerian authorities violently suppress protests against oil exploration in the 1990s.

In a divided vote [5 to 5] that prompted a bitter debate among some of its judges, the court left intact what some legal experts call a landmark ruling in September that companies cannot be liable[under the ATS] in U.S. courts for violations of international human rights law.

more...

2011-01-07T20:14:00.000-08:00

Herrera v. Toth, Case No. 08-4167, Third Circuit:
Opinion filed: January 6, 2011

"Jesus Alberto Mejia Herrera appeals from an order of the District Court of the Virgin Islands, which dismissed his complaint. We will affirm, albeit on a different basis."
...
"Herrera . . . sought to raise claims pursuant to the Alien Tort Statute. We noted in McPherson that a ten-year limitations period extends to such claims. Herrera's complaint, filed in 2008, was several years too late [claims arose in 1993]. We further agree with the Government that even if equitable tolling could be applied, it is highly unlikely that Herrera could "show that he has exercised reasonable diligence in pursuing or investigating his claim" in order to warrant equitable tolling of the limitation periods. Government Response at 4; see McAleese v. Brennan, 483 F.3d 206, 219 (3d Cir. 2007) (person seeking equitable tolling must show he diligently pursued rights and extraordinary circumstances stood in his way)."

2011-01-04T07:37:00.000-08:00

M. Anderson Berry's Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute was republsihed in the Immigration and Nationality Law Review, Vol. 30, Issue 1 (2009), pp. 111-176 in late 2010.

"Berry discusses the seemingly minor linguistic change by Congress that substantially altered the class of individuals to whom the Alien Tort Statute is available."

2010-12-29T07:17:00.000-08:00

Jonathan Drimmer, a partner at Steptoe & Johnson LLP in Washington, D.C., discusses Kiobel:

Excerpt: "Throughout this era, courts repeatedly have concluded, relying on U.S. domestic law, that corporations - like individuals - could be viable defendants under the ATS." "Without question, Kiobel, breaking with 20 years of federal court decisions on the ATS, is a significant decision. Some 30% of all corporate ATS cases to date have been brought in the Second Circuit, more than any other. Should the decision stand, it is a near certainty that federal courts in addition to Flomo, Viera, and Nestle will follow suit. However, the practical impact of the decision, in the end, may be more limited than some commentators have declared." "For companies and in-house counsel, that of course necessitates continued care in overseeing, and close scrutiny of, overseas operations to avoid potential ATS and other human rights lawsuits against corporate officers and the company itself. Specifically, that includes meaningful stakeholder engagement, a suite of related corporate policies and controls focusing on human rights-related issues and norms, and an effective corporate compliance programs that at a minimum includes training, reporting mechanisms, due diligence of third parties, and investigatory resources related to human rights principles."

Subscribers can access the complete commentary on lexis.com here. Additional fees may be incurred. (approx. 7 pages)

2010-12-29T07:07:00.000-08:00

"It's primarily about justice for the victims, even if they're not going to be compensated in the end."

U.S. [ATS] Suits Against Pakistani Spy Chief Face Hurdles
by The Associated Press

The plaintiffs in two U.S. lawsuits accusing Pakistan's spy chief of nurturing terrorists involved in the 2008 Mumbai attacks are hoping for a historic outcome recalling the Lockerbie settlement, but they would have to overcome serious legal obstacles first, lawyers and experts say.

The civil complaints naming Gen. Ahmed Shuja Pasha and his Inter-Services Intelligence agency as defendants are like past lawsuits filed in federal courts against overseas figures with alleged links to terrorist attacks and other atrocities. More...

Pakistan Spy Chief to Ignore U.S. Summons
By SALMAN MASOOD (NYT)

Pakistan — Prime Minister Yusuf Raza Gilani of Pakistan said Thursday that there was no possibility that the head of the country’s powerful spy organization, the Inter-Services Intelligence Directorate, would obey a summons requesting his appearance before a court in the United States relating to the 2008 Mumbai terrorist attacks. More...

2010-12-29T06:57:00.000-08:00

New paper by David A. Dana (Northwestern University – School of Law) & Michael Barsa (Northwestern University – School of Law): Three Obstacles to the Promotion of Corporate Social Responsibility by Means of the Alien Tort Claims Act: the Sosa Court’s Incoherent Conception of the Law of Nations, the ‘Purposive’ Action Requirement for Aiding and Abetting, and the State Action Requirement for Primary Liability

Abstract: “The ATCA could be a powerful tool to promote corporate CSR, especially in developing countries where local legal restraints are weak. But despite the good normative reasons why the ATCA should be used in this way, serious obstacles remain. The Supreme Court’s ahistorical and incoherent formulation of the law of nations fails to promote the development of the ATCA in ways that would cover even serious environmental harm. Also, the federal courts’ confused jurisprudence concerning aiding and abetting and state action creates too many loopholes through which egregious corporate behavior may slip unpunished. In order to overcome these obstacles, we argue that the law of nations should not be read so restrictively, that a purposive aiding and abetting standard should be adopted, and that the requirement of state action be minimized or eliminated altogether (oh boy...). These steps would go a long way toward promoting the very CSR considerations that many corporations involved in ATCA litigation have already espoused.”

2010-12-17T10:11:00.000-08:00

TODAY - Panel:
Kiobel: The Uncertain Future of Alien Tort Statute Litigation

Presented by the The International Law Section of the Barristers Club: December 17, 2010
12:00 pm - 1:00 pm / MCLE Credits - 1 H (Event flyer)

In September the Second Circuit held that the Alien Tort Statute ("ATS") does not confer jurisdiction over claims against corporations. Plaintiffs sued sued Royal Dutch Petroleum Company, among others, alleging that they aided and abetted the Nigerian dictatorship’s suppression of protests against oil exploration/development in the Niger Delta. Without reaching the merits, the majority of a divided Second Circuit panel dismissed plaintiffs claims, holding that the Court lacked jurisdiction because claims against corporations are not cognizable under the ATS. While concurring in the judgment on other grounds, Judge Leval vigorously dissented from the majority's holding regarding corporate liability. This case has attracted much attention because it has profound implications for the future of ATS litigation. Claims against corporations have been at the center of ATS litigation for the past fifteen years. However, Kiobel was the first Court of Appeals decision to substantively analyze whether such claims are cognizable. If the panel's decision stands, corporations will no longer be subject to suit under the ATS in the Second Circuit, or in any circuit that adopts its reasoning. Thus, the stakes in Kiobel are enormous. The plaintiffs have already filed a petition for rehearing en banc, and whatever the ultimate outcome in the Second Circuit, one party or the other will almost certainly seek Supreme Court review.

Go here for more info.

2010-12-13T10:56:00.000-08:00

UPDATE: Mohamed v. Jeppesen Dataplan, Inc., 08-15693

Mohamed v. Jeppesen Dataplan is undoubtedly heading to the Supreme Court. In a nutshell, this case deals with plaintiffs who were former CIA detainees who were allegedly tortured by various CIA operatives overseas. Jeppesen Dataplan apparently is a subsidiary of Boeing and was responsible for the private jets that were used to transport these prisoners from country to country. At the heart of this controversy was the following issue: Does the States Secrecy doctrine of the Executive Branch of the Federal Government trump an individual's right to have his day in court?

Three-Judge Panel Opinion: 563 F.3d 992 (9th Cir. 2009)
Order Taking Case En Banc: 586 F.3d 1108 (9th Cir. 2009)
Date of Order Taking Case En Banc: October 27, 2009
En Banc Order: 614 F.3d 1070 (9th Cir. 2010)
Date of En Banc Order: September 8, 2010.
Mandate issued November 2, 2010.

Status: Affirmed district court's dismissal of action brought under the Alien Tort Statute.

Members of En Banc Court: Alex Kozinski, Mary M. Schroeder, William C. Canby, Michael Daly Hawkins, Sidney R. Thomas, Raymond C. Fisher, Richard A. Paez, Richard C. Tallman, Johnnie B. Rawlinson, Consuelo M. Callahan, Carlos T. Bea

Subject Matter: Appeal of district court's dismissal of Alien Tort Statute action by foreign nationals allegedly transferred in secret to foreign countries for detention and interrogation pursuant to the extraordinary rendition program operated by the Central Intelligence Agency.

Holding: The United States government's valid assertion of the state secrets privilege warranted dismissal of the litigation under United States v. Reynolds, 345 U.S. 1, 11 (1953), because there was no feasible way to litigate defendant's alleged liability without creating an unjustifiable risk of divulging state secrets.

2010-12-13T10:42:00.000-08:00

New York District Court Clarifies the Jurisdictional Scope of the Alien Tort Claims Act and Torture Victim Protection Act

December 2010

In a decision issued in late November, the Eastern District of New York confirmed the limited scope of jurisdiction under the Alien Tort Claims Act (ATCA) and further defined the scope of liability under the Torture Victim Protection Act (TVPA). Velez v. Sanchez, No. 04-CV-4797, 2010 U.S. Dist. LEXIS 126586 (Nov. 30, 2010). Although the decision arises from facts uncommon to multinational companies, the decision nonetheless serves as further clarification on the jurisdictional interrelation between ATCA and TVPA and is an example of how courts continue to interpret ATCA and TVPA claims.
...
Clarifying ATCA and TVPA's Jurisdiction

"Velez pled her claims of human trafficking and forced labor under ATCA. Although the defendants did not challenge the jurisdictional basis of these claims, the court exercised its authority to do so. The court agreed that human trafficking and forced labor violate "specific, universal and obligatory" international norms so as to fall within ATCA's jurisdiction, but ruled that other jurisdictional defects in Velez's ATCA claims mandated dismissal.

Acknowledging that Velez's ATCA claims were a matter of first impression, the court initially noted that all of Velez's allegations involved actions that had occurred within the United States (i.e., domestic actions). Although the court found no case law holding that ATCA claims must only involve actions occurring abroad, the court nonetheless held that Velez's claims of human trafficking and forced labor were not within the Supreme Court's conception of ATCA jurisdiction. Moreover, the court called Velez's foreign national status "pure happenstance," dismissing it as irrelevant to the establishment of ATCA jurisdiction.

Secondly, the court held that although Velez's allegations fell within ATCA's ambit, such jurisdiction has already been 'implicitly withdrawn' by the enactment of TVPA. Finding that TVPA created a cause of action 'for any individual who is a victim of a violation of the federal criminal laws prohibiting human trafficking and forced labor,' the court held (again as a matter of first impression) that Congress intended for TVPA to limit ATCA's jurisdiction in the area of civil remedies for human trafficking and forced labor.

The court declined, however, to decide whether TVPA provides a remedy only for domestic violations of the criminal laws against human trafficking and forced labor, which, if true, would leave the scope of ATCA "undiminished." Noting a lack of guiding authority or consensus among the courts, the Velez court tabled that issue, explaining that it would not resolve the question at this time, especially since all of Velez's claims arose in the United States. The court further reasoned that even if TVPA applied to both domestic and foreign actions, ATCA would still remain viable for those claims by aliens alleging 'any other violation of the law of nations or . . . treaty of the United States.'"
... More...

2010-12-09T09:12:00.000-08:00

Colombia’s Álvaro Uribe Faces Scrutiny In Washington Over Lawsuit Alleging Drummond Supported Paramilitaries

The ATS case against Drummond was brought by the heirs to 113 Colombians allegedly murdered by the United Self-Defense Forces of Colombia (AUC). The AUC was Colombia’s largest rightwing paramilitary group, but had been largely demobilized by 2006, lured by government offers of light prison sentences in exchange for testifying about the group’s crimes. Based largely on the testimony of demobilized paramilitary leaders, the complaint by controversial "human rights" attorney Terry Collingsworth and others (174-page complaint) alleges that by 1999 Drummond began colluding with the AUC after leftist guerrillas targeted the company’s mining and transportation operations. Key witnesses include former paramilitary leaders Salvatore Mancuso, Rodrigo “Jorge 40” Tovar, Jhon Jairo Equivel Cuadrado, as well as Rafael García, a former official of Colombia’s intelligence service, known as the DAS.

2010-12-09T08:42:00.000-08:00

Outline of the Al-Aulaqi Opinion for Those in a Rush…
by Robert Chesney

Don’t have time to read the 83-page opinion in Al-Aulaqi? Click here! Or here... And see "Some Thoughts on Judge Bates’ Decision" by Benjamin Wittes.

2010-12-02T20:34:00.000-08:00

Corporate Executives: Get Ready for a Billion Dollar Lawsuit [?]

Huffington Post: "Kiobel does nothing to deter the trend described above. On the contrary, the Second Circuit guides plaintiffs to their new -- yet very old and once familiar -- targets of choice: individual directors, officers, managers, and employees of those same corporations. Corporate executives and general counsel must institute proactive policies based on a detailed understanding of the ATS and relevant precedent in order to keep their companies far from suspicion while doing business abroad -- and thereby keeping themselves from being named as individual defendants in lengthy cases with devastating costs."

More...

2010-11-25T14:18:00.000-08:00

Panel: Kiobel: The Uncertain Future of Alien Tort Statute Litigation

Presented by the The International Law Section of the Barristers Club: December 17, 2010

12:00 pm - 1:00 pm

MCLE Credits - 1 H (Event flyer)

In September the Second Circuit held that the Alien Tort Statute ("ATS") does not confer jurisdiction over claims against corporations. Plaintiffs sued sued Royal Dutch Petroleum Company, among others, alleging that they aided and abetted the Nigerian dictatorship’s suppression of protests against oil exploration/development in the Niger Delta. Without reaching the merits, the majority of a divided Second Circuit panel dismissed plaintiffs claims, holding that the Court lacked jurisdiction because claims against corporations are not cognizable under the ATS. While concurring in the judgment on other grounds, Judge Leval vigorously dissented from the majority's holding regarding corporate liability. This case has attracted much attention because it has profound implications for the future of ATS litigation. Claims against corporations have been at the center of ATS litigation for the past fifteen years. However, Kiobel was the first Court of Appeals decision to substantively analyze whether such claims are cognizable. If the panel's decision stands, corporations will no longer be subject to suit under the ATS in the Second Circuit, or in any circuit that adopts its reasoning. Thus, the stakes in Kiobel are enormous. The plaintiffs have already filed a petition for rehearing en banc, and whatever the ultimate outcome in the Second Circuit, one party or the other will almost certainly seek Supreme Court review.

Speakers:
Chimène Keitner: Associate Professor of Law, U.C. Hastings

Kristin Linsley Myles: Munger, Tolles & Olson LLP

David L. Wallach: Jones Day

Natalie Bridgeman Fields: Executive Director, Accountability Counsel

Moderator: Yuval Miller: Chair, Barristers International Practice Section

Topics:
•The reasoning behind the Second Circuit's holding and Judge Leval's dissent;

•The current state of the ATS and the related Torture Victim Protection Act ("TVPA") in the Ninth Circuit

•Alternatives under the ATS and other methods of holding corporations liable for alleged extraterritorial actions

•The likelihood of en banc review by the Second Circuit, Supreme Court review, or Congressional intervention.

Go here for more info.

2010-11-24T11:16:00.000-08:00

Supreme Court next? Courts of appeals rule corporations not liable under alien tort, torture victim statutes
Joseph G. Finnerty III; Anthony Paul Coles; Barbara L. Seniawski

Two US appellate courts have addressed whether corporations may be named as defendants under the Alien Tort Statute and the Torture Victims Protection Act. Each court determined that corporations cannot be held liable under the statutes, a significant narrowing of the scope of claims that plaintiffs can assert both directly and on vicarious liability theories.

The Alien Tort Statute provides alien plaintiffs subject matter jurisdiction in federal courts to sue defendants for violations of the “law of nations” – essentially, egregious human rights abuses – or violations of a treaty of the United States. The Torture Victims Protection Act provides a cause of action for any plaintiff for torture and extrajudicial killing, but does not grant subject matter or personal jurisdiction.

Kiobel v. Royal Dutch Petroleum Co. (2nd Cir. Sept. 17, 2010)

In this case, the Second Circuit limited jurisdiction to suits against individuals, not corporations, under the Alien Tort Statute, 28 U.S.C. § 1350 (ATS). Nigerian residents living in that country’s Ogoni region sued Royal Dutch Petroleum Company, alleging that the company had aided and abetted human rights abuses against them in 1993 and 1994. According to plaintiffs, Royal Dutch enlisted the Nigerian military forces to suppress Ogoni resistance to Royal Dutch’s activities in the region. The military suppression is alleged to have included extrajudicial killings, beatings, rapes and arrests of residents.

The Second Circuit held that “insofar as plaintiffs in this action seek to hold only corporations liable for their conduct in Nigeria (as opposed to individuals within those corporations), and only under the ATS, their claims must be dismissed for lack of subject matter jurisdiction.” However, recourse may be sought against the individual persons who allegedly perpetrated abuses in violation of the law of nations, including corporate employees, managers, officers and directors, each of whom clearly is within the jurisdiction of the ATS.

Bowoto v. Chevron Corp. (9th Cir. Sept. 10, 2010)

In this case, the Ninth Circuit has held that individuals, but not corporations, can be held liable under the Torture Victims Protection Act, 28 U.S.C. § 1350 (TVPA). The case arose from violence inflicted by the Nigerian Government Security Forces (GSF) after a group of Nigerians took over the Parabe oil platform to protest Chevron Nigeria Limited’s alleged destruction of the environment and its refusal to employ the local population. On the fourth day of the protest, Chevron asked the GSF to end the protest. During those efforts, the GSF fired into the group of protestors, killing two.

Nigerian citizens then sued Chevron in California District Court, alleging violations of the TVPA, Nigerian law and California law. Regarding the TVPA claim, the court held that Chevron could not be held liable under the TVPA because it is a corporation. The court affirmed the district court’s holding and stated “[e]ven assuming the TVPA permits some form of vicarious liability, the text limits such liability to individuals, meaning in this statute, natural persons. The language of the statute thus does not permit corporate liability under any theory.” This decision does not impair a plaintiff’s established right to allege a TVPA claim against natural persons, as opposed to juridical entities, including corporate employees, managers, officers and directors.

Contrast among circuits foretells Supreme Court review

In contrast, case law in the Eleventh Circuit (the only other circuit-level court to address the issue of corporate liability) holds that corporations may be held liable under each of the ATS and TVPA. Because the recent decisions conflict with Eleventh Circuit law, the issue of corporate liability under either of the ATS and TVPA is ripe for Supreme Court review.

2010-11-22T11:54:00.000-08:00

Nokia Siemens lawsuit dropped by Iranian plaintiffs

Last Wednesday, the attorney for two Iranians who had sued Nokia Siemens Networks in an American federal court withdrew their lawsuit.

In the case, the plantiffs Isa Saharkhiz and Mehdi Saharkhiz had alleged that the sale of Nokia Siemens Networks mobile phone surveillance technology led to the arrest and torture of Isa Saharkhiz in Iran over a year ago.

"This was purely a legal and strategic decision," attorney Ali Herischi told Deutsche Welle. Herischi is representing the plaintiffs and hopes to bring the case again later.

"The only reason we dropped the case at the moment was to keep it alive and viable," Herischi added.

Mehdi Saharkhiz has said previously that his father, a well-known Iranian journalist, remains in custody. The son, Mehdi, now lives in New Jersey in the United States, where he is well-known for being an online Iranian human rights activist.

In late June 2009, in an election widely viewed as fraudulent, Mahmoud Ahmadinejad was re-elected as president of Iran. As protests raged in the election's aftermath, the Iranian government cracked down on communications technologies, shutting down mobile phone access and limiting Internet access.

In the weeks that followed, it was revealed that Nokia Siemens Networks had sold mobile phone surveillance equipment to Iran. Many Iranian dissidents blamed the company for aiding a regime that they said was oppressive. More...

2010-11-16T10:03:00.000-08:00

On googlebooks.

Corporate Responsibility Under the Alien Tort Statute: Enforcement of International Law Through US Torts Law (2009):

In his book, Michael Koebele examines the potential liability of transnational corporations under the Alien Tort Statute for violations of international law in connection with their operations and investments worldwide.

Koebele's practice focuses on antitrust, international trade and regulatory affairs. Based in the Brussels office, he is a member of Crowell & Moring's Antitrust Group as well as International Trade Group.

2010-11-16T09:55:00.000-08:00

Andrei Mamolea (Duke University School of Law student) just posted a naïve article, The Future of Corporate Aiding and Abetting Liability Under the Alien Tort Statute: A Roadmap (Santa Clara L. Review, Vol. 51, p. 79, 2011), on SSRN. Mamolea's article allegedly offers a roadmap for the Supreme Court to follow in resolving the most pressing issues in Alien Tort Statute litigation. It attempts, but fails, to answer the questions: Are corporations liable under the Alien Tort Statute? Does corporate liability under the ATS conflict with international law? What body of substantive law should courts apply, especially when adjudicating alien tort claims arising under the aiding and abetting theory of liability? What are the policy implications of ATS litigation? (Mamolea and the SCLR eds should read this before final edits.)

2010-11-13T13:51:00.000-08:00

In the latest issue of The American Society of International Law Insights (Vol. 14, Issue 30), Chimene Keitner, Kiobel v. Royal Dutch Petroleum: Another Round in the Fight over Corporate Liability Under the Alien Tort Statute.

On September 17, 2010, the Second Circuit dismissed a putative class action brought by Esther Kiobel, the wife of a member of the “Ogoni Nine” who was executed by hanging in 1995 along with Nigerian author and environmentalist Ken Saro-Wiwa.[1] The plaintiffs alleged that Royal Dutch Petroleum Company and Shell Transport and Trading Company, acting through a Nigerian subsidiary, aided and abetted the Nigerian dictatorship’s violent suppression of protests against oil exploration and development activities in the Ogoni region of the Niger Delta. The Kiobel dismissal has garnered attention because of its broad holding that corporations are not subject to suit under the Alien Tort Statute. Absent action by the Second Circuit en banc, the U.S. Supreme Court, or Congress, corporations will no longer be subject to suit under the Alien Tort Statute in the Second Circuit, or in any circuit that adopts the Second Circuit’s reasoning. More...

2010-11-13T13:42:00.000-08:00

In the latest issue of the Stanford Journal of International Law (Vol. 46, no. 1, Summer 2010): David Wallach, The Alien Tort Statute and the Limits of Individual Accountability in International Law.

Abstract
Under the original understanding of the ATS, as well as the modern construction set forth by the Supreme Court in Sosa v. Alvarez-Machain, ATS claims can be properly based only on the small number of norms for which international law recognizes personal accountability. Thus, when confronted with a putative ATS claim, courts should analyze whether the international norm on which the claim is based recognizes a potential for personal liability, rather than exclusive State liability.

International human rights law does not carry a potential for personal liability. The language and structure of the major human rights conventions establish that they are intended to impose obligations and liabilities only on sovereign State entities. This is confirmed by the practice and holdings of the international human rights tribunals and committees charged with enforcing these conventions. It is further confirmed by the Restatement (Third) of Foreign Relations and the views of scholars.

Unlike international human rights law, international criminal law imposes individual accountability. However, the history of the development of international criminal law shows that States have been extremely careful in limiting the principle of individual accountability. The concept of crimes against humanity was developed precisely to define the circumstances in which internal human rights violations rise to the level of international crimes, thereby attracting personal accountability under international law. As such, it confirms that human rights violations which do not rise to the level of crimes against humanity remain within the exclusive jurisdiction of municipal law insofar as individual liability is concerned.

Thus, courts should recognize common law causes of action under the ATS only for claims predicated on violations of international criminal law, not international human rights law. This would go a long way towards bringing ATS litigation in line with international law by limiting the United States’ exercise of extraterritorial prescriptive jurisdiction to the small number of cases in which universal jurisdiction is permitted. It also would bring the modern ATS in line with its original purpose. The ATS was intended to provide tort remedies not for all violations of the law of nations as it existed in 1789, but only for conduct defined as criminal by the law of nations. Further, the ATS was intended to reach such conduct, not because it was particularly egregious, but because it “threaten[ed] serious consequences in international affairs.” Violations of international criminal law such as crimes against humanity and genocide threaten serious consequences for international affairs. Isolated human rights abuses do not.

There is no doubt that many ATS advocates will find it highly objectionable to limit ATS causes of action to violations of international criminal law. It is important to keep in mind, however, that restricting the scope of the ATS does not mean that lesser abuses will not be cognizable in United States courts. It means only that, in general, such claims will be governed by rules of decision derived from municipal law in accordance with normal conflict of law principles.

2010-11-12T14:13:00.000-08:00

Will Federal Court's Kiobel Ruling End Second Wave Of Alien Tort Statute Suits?

By John B. Bellinger III

Human rights lawsuits against multinational corporations in U.S. federal courts under the so-called "Alien Tort Statute" (ATS) may soon be coming to an end. In an important and unexpected decision in late September, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled in Kiobel v. Royal Dutch Petroleum that corporations -- in contrast to individuals -- may not be held liable under the ATS for violations of international law. The plaintiffs have sought en banc review by the Second Circuit, and the ruling is likely to be appealed in any event to the Supreme Court. If the Supreme Court ultimately grants certiorari and upholds the Second Circuit's ruling (and there are good reasons to think it might), corporations themselves will no longer face the prospect of costly, protracted, and reputation-damaging ATS lawsuits. Future human rights plaintiffs, however, will continue to bring suits against foreign government officials and may shift their focus from corporations to individual corporate officers and directors. More...

2010-11-09T08:58:00.000-08:00

Ten Years and Counting: Ninth Circuit Refers Sarei v. Rio Tinto to a Mediator

Posted on November 2, 2010 by Sarah A. Altschuller

Ten years ago today, plaintiffs filed an Alien Tort Statute (“ATS”) suit against Rio Tinto Plc alleging that they were the victims of numerous violations of international law as the result of Rio Tinto’s mining operations on the island of Bougainville, Papua New Guinea. Almost ten years later, on October 26, an en banc panel of the Ninth Circuit Court of Appeals referred the proposed class action, Sarei v. Rio Tinto, to a mediator “to explore the possibility of mediation.” Sarei v. Rio Tinto, 02-cv-56256 (9th Cir. October 26, 2010) (.pdf).

The selected mediator is scheduled to report before the end of November whether the case will proceed to mediation or whether it should be returned to the en banc panel of the Ninth Circuit for further consideration. More...

2010-10-27T12:59:00.000-07:00

Sarei v. Rio Tinto (9th Cir. en banc) - UPDATE

On October 26, 2010, the en banc panel's order read: "This case is referred to Judge Edward Leavy to explore the possibility of mediation. Judge Leavy is requested to report to the en banc court within twenty-eight (28) days as to whether mediation should proceed or whether this case should be returned to the en banc court."

Judge Kleinfeld's dissent has a great point: "It is risible to think that the first Congress wrote the Alien Tort Statute intending to enable federal courts to adjudicate claims of war crimes committed abroad. Were it otherwise, a French aristocrat who had escaped the guillotine and fled to Philadelphia could have sued French defendants in our newly organized federal courts, perhaps even Robespierre himself, and obtained an injunction commanding the bloody French revolutionaries to stop immediately. Perhaps we should have mediated the French Revolution, or issued a preliminary injunction to maintain the status quo while we decided whether we had jurisdiction? This silly hypothetical would be analogous to our adjudicating or mediating the class action claims in this case. The point of the Alien Tort Statute was to keep us out of international disputes, not to inject us into them." Read it here.

2010-10-25T17:58:00.000-07:00

Harvard Law School’s International Human Rights Clinic submitted an amicus curiae brief to the Second Circuit in support of a petition for rehearing en banc in a major corporate Alien Tort Statute (“ATS”) case, Kiobel, et al. v. Royal Dutch Petroleum Co., et al.