Leiden Law Blog

Kiobel v. Royal Dutch Petroleum: The Second Brief for the United States as Amicus Curiae

Posted on by Cees de Groot in Private Law
Kiobel v. Royal Dutch Petroleum: The Second Brief for the United States as Amicus Curiae

If you are looking for a legislative provision that is intriguing for both its brevity and complexity, you are well served by 28 USC Sec. 1350, also known as the Alien Tort Statute (ATS). The ATS reads: ‘The district courts shall have original jurisdiction of 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’.

The ATS gives U.S. district courts original jurisdiction and U.S. courts of appeals appellate jurisdiction in cases that involve torts that are in violation of ‘the law of nations’ (i.e. international law) or ‘a treaty of the United States’. But the ATS is silent about the parties that can be sued as defendants. Applied in a broad sense, the ATS would allow for universal jurisdiction in the U.S. federal courts system, giving a civil remedy for non-U.S. citizens in claims based on tortious liability against non-U.S. citizens or even corporations for acts committed outside the United States. In fact, the ATS has been applied in this way.

However, now there is now the case of Kiobel v. Royal Dutch Petroleum, decided by the U.S. Court of Appeals for the Second Circuit on 17 September 2010. In this case, a number of Nigerian citizens had brought claims against Royal Dutch Petroleum Co. and Shell Transport and Trading Company PLC. The Court of Appeals has decided that ‘the fact that corporations are liable as juridical persons under domestic law does not mean that they are liable under international law (and, therefore, under the ATS)’, thereby excluding liability of corporations from the scope of the ATS.

The case has been brought before the U.S. Supreme Court. Several interested parties have as amici curiae submitted Briefs to the Supreme Court. In its second Brief of June 2012 the U.S. government proposed an alternative argument against this case being decided under the ATS. It argued that ‘[h]ere, Nigerian plaintiffs are suing Dutch and British corporations for allegedly aiding and abetting the Nigerian military and police forces in committing torture, extrajudicial killing, crimes against humanity, and arbitrary arrest and detention in Nigeria. Especially in these circumstances – where the alleged primary tortfeasor is a foreign sovereign and the defendant is a foreign corporation of a third country – the United States cannot be thought responsible in the eyes of the international community for affording a remedy for the company’s actions, while the nations directly concerned could’. Will this argument convince the Supreme Court? Texts can be found at www.csrandthelaw.com.

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