Lawfare

The Obama Administration filed an amicus curiae brief today with the Supreme Court in support of the Nigerian petitioners in the Kiobel case (which was brought against Shell Oil, relating to its activities in Nigeria), arguing that corporations may be held liable for violations of international law under the Alien Tort Statute.  The brief –signed by State Department Legal Adviser Harold Koh and (somewhat surprisingly) by Commerce General Counsel Cameron Kerry in addition to Solicitor General Don Verrilli – argues that the question of corporate liability under the Alien Tort Statute is governed by federal common law, not by international law, although international law “informs” the issue.  And the brief goes on to argue that under federal common law, corporations may be held liable for violations of both domestic and international law: “[C]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”  The brief states that the United States is not aware of any international law “norm” that would prohibit corporations from being sued for violations of international law.  The brief acknowledges that there are a number of other issues “in the background” of the case (such as aiding-and-abetting liability and extraterritoriality) but urges the Court to address only the corporate liability issue.