Tuesday, October 18, 2011

US Supreme Court to decide whether non-natural persons may be liable under ATS and TPVA

The US Supreme Court granted certiorari in two cases yesterday involving international law issues. The first is Kiobel v Royal Dutch Petroleum in which the Second Circuit Court of Appeals held that corporations are not liable for torts in violation of international law within the meaning of the Alien Tort Statute (ATS). Since that decision, two other federal circuits courts of appeal have issued decisions disagreeing with the Second Circuit-the DC Circuit in Doe and the Seventh Circuit in Flomo. The Supreme Court will now resolve this circuit split of authority.

The second case is Mohamad v Rajoub, a DC Circuit Court of Appeals decision which held that the Torture Victim Protection Act (TPVA) does not permit suits against non-natural persons. That case involves a suit by the family of a US citizen against a political organization, the Palestinian Liberation Organization (PLO), for torture allegedly committed by a PLO officer that resulted in the death of the US citizen.

The DC Court's decision to exclude liability for non-natural persons under the TPVA is on stronger ground than the Second Circuit's decision excluding corporate liability under the ATS just based on the text of the two statutes. The ATS permits suits by an alien for a tort in violation of international law. It says nothing about a proper or improper defendant. By contrast, the TPVA only permits suits against individuals who engage in torture or extrajudicial killing while acting under color of law. The use of the word individual can more easily be read to exclude non-natural persons such as political organizations or corporations. In addition, the ATS potentially covers a much broader range of tortious behavior where corporate liability may fit more easily than it does with respect to torture or extrajudicial killing.



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