Wednesday, December 21, 2011

Breaking News: USG Brief in Favor of Kiobel Plaintiffs

The United States has weighed in on the side of the plaintiffs in the Kiobel case, arguing that it is for the federal courts exercising their "residual" common law powers to determine when corporate liability is appropriate. (IntLawGrrls' many prior posts on this case available here.)
In other words, it is not necessary for international law to provide specifically for corporate liability. In any case, the brief notes, international law norms do not identify whether they apply to natural or to legal persons and corporations can be liable for those international law violations that apply to other non-state actors.
This Brief of the United States, available here, follows in the great tradition of Solicitor General briefs filed in defense of Alien Tort Statute litigation starting with Filartiga.
Importantly, the brief is submitted not only by Donald B. Verrilli, Jr., Solicitor General, and Harold Hongju Koh, Legal Adviser to the State Department, but also by Cameron F. Kerry, General Counsel To The Department Of Commerce. The executive summary of the brief speaks for itself:

The merits question before this Court is narrow: whether a corporation can be held liable in a federal common law action based on the ATS. Although there are a number of other issues in the background of this case (e.g., aiding-and-abetting liability,e extraterritoriality, etc.), those issues were not decided by the court of appeals here. This Court therefore should address only the corporate-liability issue. On that issue, the court of appeals’ holding is categorical and applies to all suits under the ATS,regardless of the theory of liability, the locus of the acts, the involvement of a foreign sovereign, or the character of the international-law norm at issue.


A corporation’s liability in a suit under the ATS does not depend on the existence of a generally accepted and well-defined international law norm of corporate liability for law-of-nations violations. The particular limitation this Court found dispositive in Sosa v.Alvarez-Machain, 542 U.S. 692 (2004) — that any claim under the ATS must at least “rest on a norm of international character accepted by the civilized world and defined with” sufficient “specificity,” id. at725—pertains to the international-law norm itself and not to whether (or how)that norm should be enforced in a suit under the ATS. The latter question is a matter to be determined by federal courts cautiously exercising their “residual common law discretion.” Id. at 738. International law informs, but does not control, the exercise of that discretion.
At the present time, the United States is not aware of any international-law norm of the sort identified in Sosathat distinguishes between natural and juridical persons. Corporations (or agents acting on their behalf) can violate those norms just as natural persons can.Whether corporations should be held accountable for those violations in private tort suits under the ATS is a question of federal common law.
Courts may recognize corporate liability in actions under the ATS as a matter of federal common law. The text and history of the ATS itself provide no basis for distinguishing between natural and juridical persons. Corporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our “legal culture.” Pet. App. A8. Sosa’s cautionary admonitions provide no reason to depart from the common law on this issue. International law does not counsel otherwise. Although no international tribunal has been created for the purpose of holding corporations civilly liable for violations of international law, the same is true for natural persons. And while international criminal tribunals have, thus far, been limited to the prosecution of natural persons, that appears to be because of matters unique to criminal punishment. Notably, several countries that have incorporated international criminal offenses into their domestic law apply those offenses to corporations.
Kudos to the SG for doing the right thing!


1 comment:

Stephanie Farrior said...

Thanks so much for sharing this breaking news, Beth.

The spirit of Joan Fitzpatrick, who co-authored the Justice Department brief in Filartiga, lives on!