Summary of Remarks by Ramon Marks

Article excerpt

Mr. Marks offered reflections on his experience in litigating ATS cases. He highlighted the issues of extraterritoriality and diplomatic friction raised by ATS cases, which are explored more fully in an amicus brief he co-authored on behalf of BP America, Caterpillar, Conoco Philipps, General Electric, Honeywell, and International Business Machines in support of the respondents in Kiobel v. Royal Dutch Petroleum, which is available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/10-- 149l_respondentamcubpamerica.authcheckdam.pdf.

DISCUSSION

The moderator, Chimene Keitner, framed some of the key points from the discussion as follows:

(1) Is the exercise of jurisdiction under the Alien Tort Statute an exercise of prescriptive or adjudicatory jurisdiction, and does this matter? Some take the position that it is purely an exercise of adjudicatory jurisdiction (with U.S. courts applying international law), which might be less objectionable than an exercise of prescriptive jurisdiction (with U.S. courts applying judge-made federal common law, even if the underlying conduct-regulating norms being enforced are based on international law).

(2) How do various jurisdictional principles and abstention doctrines work together to determine which cases will proceed to adjudication on the merits? …