Monday, October 17, 2011

Cert Granted in Kiobel

An update from SCOTUS - the court granted certiorari in the Kiobel v. Royal Dutch Petroleum, et (2d Cir.), which presents the question of whether corporations can be sued for torts "committed in violation of the law of nations or a treaty of the United States," the terse text of the Alien Tort Statute (ATS). (See our prior and extensive coverage here; Scotus blog recap here).
With Kiobel, the Court will also here Mohamad v. Rajoub, et al. (D.C. Cir.), which presents the related question of whether liability exists under the Torture Victim Protection Act (TVPA) for legal persons, in this case the Palestinian Authority and the Palestine Liberation Organization. Mohamad squarely presents a question of statutory interpretation, because the TVPA speaks of the liability of "individuals," which many (indeed, most) courts have interpreted to mean natural persons. The Kiobel case will also require a searching inquiry into whether international law recognizes corporate liability for human rights violations, assuming of course that the courts should look to international law -- rather than domestic law -- to answer this question vis-a-vis the ATS. For this, the Court will have to provide more insight into its enigmatic footnote 20 in Sosa v. Alvarez Machain, in which the Court noted, almost in passing but clearly with several extant cases in mind, that:

A related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual. Compare Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791—795 (CADC 1984) (Edwards, J., concurring) (insufficient consensus in 1984 that torture by private actors violates international law), with Kadic v. Karadzic, 70 F.3d 232, 239—241 (CA2 1995) (sufficient consensus in 1995 that genocide by private actors violates international law).

Stay tuned...

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