Corporate_Liability_Under_The_Alien_Tort_Sta - Page 1 12 of...

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Page 1 12 of 987 DOCUMENTS Mondaq September 15, 2011 Thursday 3:22 PM EST Corporate Liability Under The Alien Tort Statute LENGTH: 3265 words On July 8, 2011 and July 11, 2011, the Courts of Appeals for the District of Columbia Circuit and the Seventh Circuit, respectively, handed down decisions concerning the scope of liability under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, a federal statute that grants district courts jurisdiction to entertain suits sounding in torts committed in violation of international law. The implications of the Courts' rulings are significant, and have deepened a split among the federal appellate courts by holding that corporations are subject to civil liability under the ATS on the ground that they "aided and abetted" violations of customary international law undertaken by third parties in the nations where they were operating. By so ruling, the Courts' signaled their disagreement with the Second Circuit's recent ruling in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), which held that corporations could not be held liable under the ATS.1 The ATS The ATS was adopted by the First Congress in 1789 as part of the original Judiciary Act. The statute simply provides that "[t]he district courts shall have original jurisdiction over any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."2 At the time of its passage, the ATS was thought to cover only three specific offenses against the law of nations: violations of the right of safe passage, interference with ambassadors, and piracy.
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The statute was seldom invoked in the first 200 years following its adoption, and while the Supreme Court has only addressed the statute once, its ruling in that case appears to have encouraged plaintiffs to attempt to expand dramatically the standards of international law for which it may be invoked. Specifically, in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court held that in "accepting a cause of action subject to jurisdiction under [the ATS]," a court "should not recognize private claims for violations of any international law with less definite content and acceptance among civilized nations than the historical paradigms familiar when [ATS] was enacted."3 Despite this, and while cautioning that federal courts should exercise restraint in considering new causes of action under the ATS, the Supreme Court held in Sosa that the question of what constitutes customary international law must be determined with reference to the "present day law of nations," a standard that necessarily, if implicitly, recognizes that the international law standards upon which the statute may be invoked will evolve over time.4 Corporate Liability Sosa did not address the categories of defendants who may be held liable under the ATS, and the Courts of Appeals have been left to determine whether customary international law allows for the imposition of liability
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