Sunday, February 27, 2011

Kiobel: Second Petition for Rehearing En Banc Filed | IHRC Blog

 Last October in Kiobel v. Royal Dutch Petroleum  the 2d Circuit federal appeals court rejected a claim by Nigerian citizens that Royal Dutch Shell aided their government in the denial of human rights.  A corporation cannot be sued for human rights violations, the majority held, a conclusion vigorously disputed by Judge Pierre Leval who declared  
"[t]he majority's interpretation of international law, which accords to corporations a free pass to act in contravention of international law's norms, conflicts with the humanitarian objectives of that body of law."  
The plaintiffs' petition for en banc review was denied 5 -5 on February 4.  That occasioned passionate concurrences and dissents.  Chief Judge Dennis Jacobs denounced the proposition that foreign corporations (rather than individuals) could be sued under the ATS - saying it would be an occasion to "extort" settlements.  His language seems to indict our entire system of litigation.  Courts, he argues cannot effectively weed out frivolous claims, leading corporations to pay extortionate settlements in baseless cases.  

The case has been the subject of wide debate.  This week the New Jersey Law Journal Editorial Board added is voice to those of the critics, calling on the Supreme Court to reverse Kiobel.  But now another option has appeared: the plaintiffs have filed a second petition for rehearing en banc.  Because the first petition for en banc review was denied 5 -5 , the intervening addition of a new judge may tip the balance in favor of review.


The Harvard Law School International Human Rights Clinic is much involved with Alien Tort Statute claims. Their blog has the story and the documents.  

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