By: Maria Florencia Librizzi[*]
The Supreme Court will soon decide the fate of litigation seeking to hold U.S. corporations accountable under the Alien Tort Statute (ATS) for aiding and abetting human rights abuses overseas. In September 2010, the Second Circuit held in Kiobel v. Royal Dutch Petroleum that the statute did not apply to corporations. Since then, several other circuits have ruled otherwise, leading the Supreme Court to grant certiorari in Kiobel in October 2011. Oral argument is scheduled for Tuesday, February 28.
The outcome of this case will be profoundly important. If the Court affirms the Second Circuit’s majority opinion, alien victims will no longer be able to sue corporations under the ATS. In many cases corporations will be free to profit from overseas human rights violations, while safeguarding their assets against compensation claims.
Looking ahead to the Court’s decision, I summarize below the evolving jurisprudence of the ATS, including the circuit split over the statute’s applicability to corporations and the mens rea standard for aiding and abetting liability. If the Court limits itself to the Questions Presented in the certiorari petition, it will decide only whether the ATS applies to corporations. However, the Court may also resolve other points of contention among the circuits, including the mens rea standard for aiding and abetting liability. After reviewing the case law, I conclude with several arguments—instrumental, descriptive, and policy—in favor of recognizing corporate liability under the ATS.