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European Governments File Supreme Court Amicus Briefs in Kiobel

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Wednesday, February 8, 2012 at 4:55 PM

The Governments of Germany, the United Kingdom, and the Netherlands have filed amicus briefs in support of Shell Oil in the Kiobel case, in which the Supreme Court will decide whether corporations may be held liable under the Alien Tort Statute for violations of international law.  The foreign governments’ intervention could have a significant effect on the case, given concerns previously expressed by the Court in Sosa v Alvarez-Machain about the implications of ATS litigation for US foreign relations and international comity.

The foreign government briefs were among 16 amicus briefs filed last Friday supporting Shell by U.S. and European trade associations, corporations, and law professors.  Nineteen more amicus briefs supporting the plaintiffs were filed in December.  The case has attracted 36 amicus briefs, totaling more than 1500 additional pages beyond those submitted by the parties.  (An incomplete list, with links to most of the briefs, is at the ABA website here; the UK-Netherlands brief is not posted.)[UPDATE:  I have learned that a complete list and links to all briefs are available here.]   The case is scheduled for oral argument on February 28.

In their joint brief, the United Kingdom and the Netherlands agree with the Second Circuit’s holding that international law does not impose liability on corporations; they also argue that application of the ATS to foreign nationals for actions in foreign countries with no nexus to the United States violates international law.  Germany similarly urges the Court “to instruct the lower courts that the power to adjudicate should only be exercised in ATS cases brought by foreign plaintiffs against foreign corporate defendants concerning foreign activities where there is no possibility for the foreign plaintiff to pursue the matter in another jurisdiction with a greater nexus.”

All three governments had filed briefs and diplomatic protests in previous ATS cases, as I describe in an amicus brief I filed last Friday, together with former Solicitor General Paul Clement.  We describe the significant diplomatic friction caused by extraterritorial application of the ATS and catalog and quote from 22 diplomatic protests filed by eleven countries during the last decade.  (In its brief arguing in favor of corporate liability under the ATS, the Obama Administration makes no mention of these past protests and does not address their contention that ATS lawsuits violate international law.)  We argue that the ATS was never intended by its drafters to apply, and does not apply as a matter of U.S. law, to torts in other countries and that extraterritorial application violates international law.  Lawfare’s Jack Goldsmith also submitted a brief arguing that most modern ATS litigation violates widely accepted international law rules on jurisdiction.

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