International Law

Supreme Court Grants Cert in Kiobel

By John Bellinger
Monday, October 17, 2011, 12:18 PM

The Supreme Court has granted cert in the Kiobel case, in which the Second Circuit held last fall that corporations may not be held liable for violations of the "law of nations" under the Alien Tort Statute.  As I have noted in previous posts here and here, there is now a decisive circuit split on the issue of corporate liability, with the DC Circuit and the Seventh Circuit ruling earlier this year that corporations are subject to liability under the ATS for violations of international law.  The Eleventh Circuit had also previously held that corporations may be held liable under the ATS.  In its seminal 2004 opinion in Sosa, the Supreme Court had specifically left open the question of whether the ATS applies to non-state actors, such as corporations.

The Supreme Court also granted cert in the Mohamad v. Rajoub, in which the DC Circuit held (joining most other circuits) that the Torture Victims Protection Act applies only to offenses perpetrated by individuals, not by other entities.  The two cases will be argued together, likely next spring.

The Kiobel case will be closely monitored by human rights groups and by foreign governments.  Foreign governments have objected strenuously to the State Department about the extraterritorial application of the Alien Tort Statute to the activities of their corporations outside the United States, arguing that this is contrary to international law.

Two other points are worth mentioning at this point: First, it appears that no justices will have to recuse themselves because they hold stock in corporations affected by the case (as happened in 2008 when the South African Apartheid ATS case was originally pending cert before the Supreme Court); and second, although the Court did not ask the Solicitor General for his views, the Administration will likely decide to file a brief.  It will be interesting to see whether the Obama Administration will decide to support liability for corporations, especially in an election year.