Tony Arend discusses the recent decision in Kiobel:

"The methodology the court uses for determining the existence of a rule of customary international law is consistent with what I believe to be the correct, positivist understanding of international law. (An approach that I have elaborated upon in more detail here.) In order for a rule of custom to exist there must be both state practice and a belief by states that the practice is obligatory, opinio juris. What the court avoids is assuming the existence of a rule of custom because it might seem logical for such rule to exist. In other words, the court will admit that a rule of custom exists if, and only if, it can demonstrate that state practice created such a rule. I think this is the correct method for evaluating the existence of a rule of custom.

[On the merits,] I find the arguments advanced by Judge Carbranes quite persuasive. That is, the court does seem to demonstrate that states have not created a specific rule of custom establishing corporate liability."

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University. On July 1, 2008, he became the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

It's a Bad Time to be an ATS plaintiff: Goodbye ATS!

John Doe I v. Nestle, CV 05-5133 SVW (C.Cal. Sept. 8, 2010):

"Having thoroughly considered the question of corporate liability under the Alien Tort Statute, the Court concludes that the existing authorities fail to show that corporate liability is sufficiently well-defined and universal to satisfy Sosa."

See also: Koibel, Bowoto.

Goodbye Alien Torts? Second Circuit Blows Hole in 1789 Law

LAW.COM  - Nathan Koppel

Companies in recent years have faced a rising threat from alien-tort suits, which often allege that a company has aided a foreign government in committing human-rights abuses overseas.

But Corporate America can breath a whole lot easier today, following a potentially landmark Second Circuit ruling that US courts have jurisdiction only over alien-tort suits against individuals, not companies.

Click here for a Bloomberg report on the ruling, which involved a suit against Royal Dutch Petroleum and Shell Transport alleging that they aided the Nigerian government in torturing and murdering Nigerian dissidents in the 1990s.

A 2-1 panel of the court dismissed the suit, brought by a group of Nigerians.

“The principle of individual liability for violations of international law has been limited to natural persons — not ‘juridical’ persons such as corporations — because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an ‘international crime’ has rested solely with the individual men and women who have perpetrated it,” Judge Jose Cabranes wrote on behalf of the majority.

Judge Pierre Leval concurred in the dismissal of the case, but expressed concern about the scope of the ruling. “The majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights,” he wrote. “According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims’ claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form.”

The case is Kiobel v. Royal Dutch Petroleum, Docket Nos. 06-4800-cv, 06-4876-cv (2d. Cir. Sept. 17, 2010)

[NOTE: The 9th Circuit ruling in Bowoto (below) held that corps cannot be liable under the TVPA]

Courthouse News Service

Nigerian Protesters [Pirates] Lose Round in Chevron Case

By ELIZABETH BANICKI

LINK TO OPINION

(CN) - Nigerian ["]protesters["] lost their bid in the 9th Circuit to revive wrongful death and battery claims against Chevron over a 1998 protest on an oil platform that turned deadly.
...
A jury ruled for Chevron on the claims brought under federal, California and Nigerian law.

On appeal, the protesters and their families argued that a jury instruction on Chevron's evidence had been unfair, and that the company should be held responsible for its violent reaction to a peaceful protest.

However, the 9th Circuit upheld the trial judge's finding that the Death on the High Seas Act pre-empts survival claims under the Alien Tort Statute. It also backed the lower court's ruling that Congress did not intend the Torture Victim Protection Act to apply to corporations.

"We find no error with any of the jury instructions," Judge Mary Schroeder wrote for the three-judge panel in San Francisco. She said the court "cannot accept Plaintiffs' argument that the experienced trial judge in this case overlooked the Federal Rules of Evidence."

In a brief concurring opinion, U.S. District Judge Owen Panner patted Schroeder on the back for her "excellent, well-reasoned opinion."

Courthouse News Service

Chevron Prevails on Nigerian Appeal (9th Circuit)

Bowoto v. Chevron, 09-15641.

SAN FRANCISCO (Reuters) - Chevron Corp successfully beat back an attempt by Nigerian villagers to hold it liable for a deadly clash on an oil platform in Nigeria, a federal appeals court ruled on Friday.  In 2008 a Northern California jury decided Chevron did not have to pay compensation to a group of plaintiffs for a clash a decade earlier between Nigerian state forces and protesters on Chevron's Parabe oil platform, 9 miles (14 km) off Nigeria's coast. The 9th Circuit U.S. Court of Appeals refused on Friday to disturb that verdict, according to its ruling. The appeals court also found that the Torture Victim Protection Act, passed by Congress in 1992, does not apply to corporations. The case in the 9th Circuit is Bowoto v. Chevron Corp, 09-15641.

NOTE: Corporate Liability under the TVPA:  The Court found that corporations cannot be held liable under the TVPA.  It found that the plain language imposes liability only on "individuals" and the ordinary meaning of this term excludes corporations.  Nothing in the legislative history rebuts this presumption.  On the contrary, "the legislative history demonstrates that Congress rejected the notion of corporate liability."  The Court also rejected plaintiffs' "alternative argument that they may sue Chevron under the TVPA upon a theory of 'aiding and abetting.' . . .  The TVPA, however, does not contemplate such liability.  It limits liability to '[a] individual' who subjects another to torture.  Even assuming the TVPA permits some form of vicarious liability, the text limits such liability to individuals."

DOHSA Preemption of ATS Claims: The Court declined to decide whether DOHSA preempts wrongful death claims under the ATS ("We do not necessarily agree with the district court's determination that [Supreme Court decisions] foreclose the possibility of there ever being a cognizable ATS claim . . . to recover for a death on the high seas"), finding that the issue was moot because the jury "squarely rejected a wrongful death claim brought under Nigerian law that was nearly identical."  "[A]ny difference in the burden of proof between the ATS, preponderance, and Nigerian law, beyond a reasonable doubt standards, is immaterial under the circumstances of this case. The jury rejected a total of 20 common law claims brought by Plaintiffs under a variety of burdens of proof. There is no reason to believe the jury would have found a summary execution claim meritorious under any standard."

Challenges to Jury Instructions: The Court found that the Nigerian law battery instruction was correct in placing the burden on plaintiffs to prove that force was unreasonable.  It rejected plaintiffs' reliance on Ashley because English cases have only persuasive value in Nigeria.  It found the cited Nigerian cases "more authoritative" - which hold that the burden of proof for a civil battery claim is the same as under Nigerian criminal law, and the criminal law requires the prosecution to prove unreasonable force.

The Court found that the affirmative defenses instructions were correct, and refused to consider plaintiffs' challenge to the California law battery instruction on the merits because plaintiffs failed to preserve it in the district court.

Evidentiary Challenges: The Court found that (1) plaintiffs' waived their challenge to the tug boat kidnapping evidence by referring to the incident in their opening argument; (2) the machete photograph was relevant to counter plaintiffs claim that they were peaceful and did not have weapons; (3) Stapleton and Hervey's testimony about what they were told about the violence of the ongoing takeover was relevant because it was conveyed to and considered by the Crisis Management Team; (4) the evidence of prior kidnappings by the Ilaje was relevant to establish the reasonableness of Chevron employee's view that negotiations had failed; and (5) Judge Illston's Rule 403 balancing was properly documented.