Kiobel's New Focus on Extraterritoriality under the Alien Tort Statute Could Put Resolution of the Corporate Liability Issue Indefinitely out of Reach

Erb, Nicole, Pell, Owen, Georgetown Journal of International Law

A large part of White & Case LLP's litigation practice lies in the representation of foreign interests sued in U.S. courts. Foreign corporations are concerned about their ability to anticipate their U.S. litigation and regulatory enforcement risk, which necessarily requires clear legal parameters. The Alien Tort Statute (ATS) (1) presents unique challenges in this regard.

The U.S. Supreme Court in Sosa v. Alvarez-Machain left "the door ... ajar" for U.S. courts effectively to discover new actionable violations of the "law of nations" as a matter of federal common law, thus creating significant uncertainty about the scope of potential liability under the ATS. (2) A number of key issues under the ATS are not well-settled. Apart from the questions of corporate liability and extraterritorial jurisdiction currently before the Court in Kiobel v. Royal Dutch Petroleum Co., (3) these issues include whether secondary liability exists under the ATS and, if so, what degree of knowledge or intent would be required to support such claims; whether and to what extent state action must be shown for various causes of action; and whether plaintiffs should be required to exhaust local remedies.

If the Supreme Court in Kiobel …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Kiobel's New Focus on Extraterritoriality under the Alien Tort Statute Could Put Resolution of the Corporate Liability Issue Indefinitely out of Reach. Contributors: Erb, Nicole - Author, Pell, Owen - Author. Journal title: Georgetown Journal of International Law. Volume: 43. Issue: 4 Publication date: Summer 2012. Page number: 1073+. © 2008 Georgetown University Law Center. COPYRIGHT 2012 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.