Kiobel v. Royal Dutch Petroleum : cert granted

The U.S. Supreme Court agreed today to review Kiobel v. Royal Dutch Petroleum. In this case arising from alleged collusion between the Nigerian military and Shell Oil the Second Circuit Court of Appeals held that corporations are immune under the Alien Tort Claims Act for human rights violations. For earlier commentary see this and this. - GWC

Issue: (1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

Kiobel v. Royal Dutch Petroleum : SCOTUSblog:

'via Blog this'

Kiobel: Corporations can be human rights violators, plaintiffs say in appeal to SCOTUScase at Court : SCOTUSblog

Major new corporate case at Court : SCOTUSblog: "A new appeal challenges the Second Circuit Court’s deeply divided ruling that foreign corporations cannot be sued in U.S. courts, under a 1789 law, for war crimes or human rights abuses.
Lawyers for 12 individuals seeking to hold major oil companies legally responsible for human rights abuses in Nigeria in the 1990s have asked the Supreme Court to overturn a federal appeals court’s ruling that corporations are immune to such claims in U.S. courts. The new petition, in the high visibility case of Kiobel, et al., v Royal Dutch Petroleum, et al., raises what may be the hottest international law issue now affecting business firms.
In essence, the case is a kind of ultimate test of what Congress meant when, as part of the first federal courts law in 1789, it gave U.S. courts the authority to hear claims by foreign nationals that they were harmed by violations of international law. The case also seeks to test what the Supreme Court understood the law to mean in its ruling seven years ago in Sosa v. Alvarez-Machain, an international abduction case."

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.