Update: Alberto Bernabe has collected commentary on the ATS argument at his Torts Blog
Kiobel v. Royal Dutch Shell was re-argued today. The result could immunize corporations which aid tyrannies from liability under the Alien Tort Statute (ATS). In fact it could render the ATS a nullity for non-citizens harmed in other countries despite the law's broad protecive language. The plaintiff's Alien Tort Statute case in Kiobel v. Royal Dutch Shell appears to be in grave jeopardy. There was not much support today at re-argument in the Supreme Court for this claim by a foreign national against a foreign corporation for conduct that occurred entirely outside the United States. Sonia Sotomayor appeared to embrace the approach urged by the European Commission: that the U.S. courts should provide a "forum by necessity" where there was no remedy where the rights violation occurred. - gwc
Argument recap: In search of an ATS compromise : SCOTUSblog:
by Lyle DennistonPaul L. Hoffman, a California lawyer representing Nigerian nationals claiming killing and torture in their homeland, faced claims that his approach would mean no limits on a worldwide pursuit of human rights justice, potentially disrupting diplomatic relations generally. Kathleen M. Sullivan, a New York lawyer for the big foreign oil companies sued in the case and seeking to head off almost all ATS claims, encountered suggestions that her view would cut back even on ATS claims that the Court has already allowed. And U.S. Solicitor General Donald B. Verrilli, Jr., arguing against the Kiobel claim but pleading to keep the courts open to at least some ATS cases, ran up against arguments that he was switching away unpersuasively from the more clear-cut position taken by the government in the past...