Three nations file amicus brief in Kiobel

Michael P. Tremoglie Feb. 17, 2012, 12:50pm

WASHINGTON (Legal Newsline) - The U.S. Department of State and the governments of Germany, The Netherlands and the United Kingdom are on opposite sides of the issue of corporate liability in the Supreme Court case of Kiobel v. Royal Dutch Petroleum.

The nations filed an amicus brief Feb. 2 opposing corporate liability in Alien Tort Statute cases. The State Department filed an amicus in December favoring corporate liability.

Kiobel concerns the ATS -- which involves violations of the law of nations such as torture, extrajudicial executions or genocide. There are two main issues the Court must determine. One is whether corporate liability under the ATS is a "merits" question or a question of "subject-matter jurisdiction." The other is whether corporations are immune from tort liability for violations of the law of nations committed by foreign governments where they operate or can be held liable under the ATS as any other private party defendant.

What makes these issues important is that if the Court rules corporations are liable then ATS litigation will be new fertile ground for tort lawyers seeking damages in U.S. courts for human rights violations committed by foreign countries. The case is docketed for Feb. 28.

Many amicus briefs have been filed both in favor of the petitioners and for the respondents. Among those filing amicus briefs favoring Kiobel, in addition to the Obama administration, are the AFL-CIO, Brennan Center at NYU, and the United Nations Commissioners for Human Rights. The amicus briefs filed in favor of Royal Dutch, in addition to the U.K., Germany and The Netherlands, include those by the Coca-Cola Company, the National Foreign Trade Council, Professors of International Law, and the U.S. Chamber of Commerce.

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The German brief states, "Congress created a purely jurisdictional statute in enacting the ATS. ... Permitting the broad exercise of subject matter jurisdiction by lower courts without a specific nexus would result in a legal and economic climate that would make it more difficult for corporations to engage in international business. This Court, as one of the world's most influential, should take this opportunity to ensure that the ATS is only used as a last resort for limited causes of action in cases that have no significant nexus to the United States."

The amicus brief of the United Kingdom and The Netherlands was filed jointly. It states, "(United Kingdom and The Netherlands) respectfully urge that this Court look to the recognized international law rules to determine whether a rule of corporate liability exists under customary international law. ...Instead, the (United Kingdom and The Netherlands) agree with the judgment by the Second Circuit Court of Appeals that "in the absence of sources of international law endorsing (or refuting) a norm, the norm cannot be applied in a suit grounded on customary international law under the ATS."

The United Kingdom and The Netherlands further state, "There is no international law consensus about directly imposing liabilities on corporations as a matter of international law, and this is particularly the case in the two areas of international law that are most relevant to ATS claims: international criminal law and international human rights law. In international criminal law, where individuals can be subjected to criminal liability, States have never agreed, and no determination has ever been made, that corporations should be made similarly liable."

Trey Childress is a law professor at Pepperdine University. He is a member of the U.S. Supreme Court bar and specializes in international law and familiar with ATS litigation. He told Legal Newsline the countries have some concerns.

"These foreign countries expressed some concern with the broad reach of U.S. law in this case. They are most concerned with the regulatory overlap between countries--namely, which country's laws should be applied to a given transaction. They urged the Court to be careful in its expansion of U.S. law, which is an argument that has been made in the past by these and other countries in the context of conflicts between U.S. law and foreign law," said Prof. Childress.

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