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Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel


Odette Murray


University of Sydney - Faculty of Law

David Kinley


University of Sydney - Faculty of Law

Chip Pitts


Stanford Law School

August 15, 2011

Melbourne Journal of International Law, Vol. 12, No. 1, pp. 57-94, 2011
Sydney Law School Research Paper No. 11/48

Abstract:     
Over the past 15 years or so, we have become accustomed to assuming that corporations are proper subjects of litigation for alleged infringements of the ‘law of nations’ under the Alien Tort Statute (‘ATS’). But, in a dramatic reversal of this line of reasoning, the United States Court of Appeals for the Second Circuit in Kiobel v Royal Dutch Petroleum 2010 (‘Kiobel’), has dismissed this assumption and concluded that corporations cannot be sued under the ATS. 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. In the context of the maturing debates over the human rights responsibilities of corporations, the authors point to the political as well as legal policy implications of Kiobel and underscore the reasons why the case has already attracted such intense interest and will continue to excite attention as a US Supreme Court challenge looms.

Number of Pages in PDF File: 39

Keywords: corporations, international law, human rights, US Alien Tort Statute, US Supreme Court, US District Courts

JEL Classification: K10, K22, K30, K33

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Date posted: August 15, 2011  

Suggested Citation

Murray, Odette and Kinley, David and Pitts, Chip, Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel (August 15, 2011). Melbourne Journal of International Law, Vol. 12, No. 1, pp. 57-94, 2011; Sydney Law School Research Paper No. 11/48. Available at SSRN: http://ssrn.com/abstract=1909683

Contact Information

Odette Murray
University of Sydney - Faculty of Law ( email )
Faculty of Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
David Kinley (Contact Author)
University of Sydney - Faculty of Law ( email )
Faculty of Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
Chip Pitts
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
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