The Supreme Court has held Kiobel v. Royal Dutch Petroleum over to the 2012-13 Term and ask the parties to brief additional questions. Lyle Denniston has a great work up of the posture of the case and implications of the Court's non-decision. Apparently, the narrow question of whether corporations are proper subjects of international law is to be subsumed into the broader question of whether US law can even deal with extraterritorial torts.
Friend of PB (FOPB, for short) Tony Arend says: "Interesting. This was not what I was expecting at all." Tony expected the court to rule on the narrow question and to hold that:
... there is ample evidence to support the proposition that international law clearly recognizes that juridical persons, such as corporations, can violate international law. ...
But at the end of the day, whether corporate violations of international law can be punished in domestic courts through the remedy provided by a civil suit is a question that international law leaves to individual states. It does not matter whether there is an international law “standard” for civil liability for such violations....
In short, ... I believe that the Supreme Court will, in fact, reject the majority’s conclusion in the divided panel in Kiobel and hold that there is civil liability under the ATS for corporations that commit torts in violation of the law of nations.
As I've said many times, I have great respect for Tony's well-known expertise in international law and his analysis makes a lot of sense. But, as a policy matter, I still think that the ATS results mainly in “Lawsuits that benefit only lawyers”.
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