Corporate Liability For Human Rights Abuses By Foreign Operatives? U.S. Supreme Court To Consider If Victims Can Recover Damages From Corporations

On October 18, 2011, the Supreme Court of the United States agreed to consider whether corporations can be sued in U.S. courts for acts that take place outside of the country. Kiobel v. Royal Dutch Petroleum, S. Ct. Dkt. No. 10-1491. The Supreme Court arguments will most likely be heard in early 2012, followed by the Court's written decision sometime before the Court's term ends in June 2012.

Kiobel involves the Alien Tort Statute, 28 U.S.C. § 1350, a law enacted in 1789 which allows U.S. courts to adjudicate tort claims based on violations of "the law of nations" or international treaties. In 1980, the Supreme Court clarified that the "law of nations" means customary international law. Since then, victims of heinous international human rights abuses — including torture, war crimes, and genocide — have recovered damages from foreign individuals in U.S. courts.

The plaintiffs in Kiobel are Nigerian residents; the defendants are Dutch, British, and Nigerian corporations involved in oil exploration and production. The plaintiffs argue that the defendants were complicit in human rights violations committed by Nigerian government personnel. Specifically, members of the Nigerian police/army were allegedly called upon to protect the defendants' facilities, were reimbursed by the defendants, and subsequently assaulted and abused the plaintiffs. The acts allegedly occurred in the delta region of the Niger River in violation of United Nations codes of fundamental human rights. Factually similar claims have been made against corporations relating to alleged acts in Liberia, Indonesia, and Papua New Guinea.

The primary issue presented in the Kiobel case is whether corporations are subject to civil tort liability under the Alien Tort Statute. The U.S. Court of Appeals for the 2nd Circuit dismissed the plaintiffs' claims in a split decision. Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010). Other U.S. Circuit Courts (the 7th Circuit, the 9th Circuit, the 11th Circuit, and the D.C. Circuit) have applied the Alien Tort Statute to corporations. The 2nd...