Sunday, October 3, 2010

Commentary on Recent Decisions in the Second Circuit Related to International Matters

Kiobel v. Royal Dutch Petroleum - the Second Circuit looks at whether a corporation can be held liable under the Alien Tort Statute (ATS).  Circuit Judge Jose Cabranes in his decision asked "whether a plaintiff bringing an ATS suit against a corporation has alleged a violation of customary international law."  He holds "[t]he concept of corporate liability for violations of customary international law has not achieved universal recognition or acceptance as a norm in the relations of States with each other. Inasmuch as plaintiffs assert claims against corporations only, their complaint must be dismissed for lack of subject matter jurisdiction." (citation omitted).  Circuit Judge Leval, authoring a concurring opinion, agreed that the "claims pleaded against the Appellants must be dismissed," but noted that he could not join "the majority’s creation of an unprecedented concept of international law that exempts juridical persons from compliance with its rules. The majority’s rule conflicts with two centuries of federal precedent on the ATS, and deals a blow to the efforts of international law to protect human rights."

Commentary - One has to wonder whether this case can be used to show why corporate criminal liability should be treated differently on occasion from individual liability?

Norex Petroleum v. Acess Industries -  the Second Circuit looks at "whether a United States federal court can properly hear a claim under the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1961 et seq, arising from allegations of a conspiracy which primarily involves foreign actors and foreign acts."  The court refers to the recent decision in Morrison v. National Australian Bank Ltd., 130 S. Ct. 2869 (2010) and holds, "that absent an express intention by Congress of extraterritorial effect, a statute applies only domestically."  The court notes that "RICO 'is silent as to any extraterritorial application.'" The court states that "Morrison wholeheartedly embraces application of the presumption against extraterritoriality, finding that 'unless there is the affirmative intention of the Congress clearly expressed to give a statute extraterritorial effect, we must presume it is primarily concerned with domestic conditions.'" (citations omitted).

Commentary - As RICO is both a criminal and civil statute, will this mean that prosecutors can not apply RICO extraterritorially? 

(esp) 

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