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.

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.

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...

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.

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.)

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...

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.

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...

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...