On February 28, in proceedings that were both closely watched and anxiously anticipated, the U.S. Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum. For the first time, the question of whether corporations are proper defendants in Alien Tort Statute ("ATS") cases is squarely before the Court. Petitioners had sought Supreme Court review of a decision by the Second Circuit Court of Appeals finding that corporations are not proper defendants under the ATS.
Corporate Liability: Defined by International Law or a Question of Domestic Enforcement?
A preliminary transcript of the oral arguments is available here (.pdf). The transcript reflects that, on several fundamental points, Petitioners' counsel, Paul Hoffman, faced a skeptical bench. The hearing had barely begun when Justice Kennedy challenged Mr. Hoffman with the argument that "international law does not explicitly recognize corporate responsibility for the alleged offenses."
Justice Kennedy's opening challenge encapsulates the fundamental question at issue in this case: must international law explicitly provide for corporate liability in order for corporations to be proper ATS defendants, or is the question of corporate liability a question of enforcement (or remedy) that can be properly decided by domestic courts?
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