Melbourne Journal of International Law Publishes article on Kiobel

From the abstract (full article PDF):

This article explores the Court’s reasoning and the ramifications of the decision, highlighting the ways in which the Kiobel judgment departs from both Supreme Court and Second Circuit precedent. The authors take to task the critical failure of the majority in Kiobel to distinguish between the requirements of legal responsibility at international law and that which is necessary to invoke ATS jurisdiction in the US District Courts.

The conclusion highlights the fact that Kiobel and ATCA/ATS exist at a very politically-charged intersection of business, law and politics:

Concerns about comity and interfering with the political branches of
government are all legitimate concerns, but they can be addressed within the scope of judicial discretion to hear a common law cause of action under the ATS, or considered within the scope of recognised doctrines such as the political question doctrine or forum non conveniens. But to take such political policy considerations such as the burden of ATS suits on foreign corporations and the risk of ‘judicial imperialism’, and cloak them in an analysis of whether there is a norm of corporate liability at customary international law, is to engage in the kind of political decision making that Chief Judge Jacobs himself counsels should be left to the political branches of government … To eviscerate even this extent of jurisdictional reach on the policy grounds that it is an encumbrance on corporations, courts and government alike, and by way of legal argument that is fundamentally flawed, is not a path the Supreme Court should countenance.

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About Charles Donefer

I am an attorney in New York City.
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