Human Rights after Kiobel: Choice of Law and the Rise of Transnational Tort Litigation

Abstract

The Supreme Court in Kiobel v. Royal Dutch Petroleum Co. held that the presumption against extraterritoriality applied to the Alien Tort Statute. As such, international human rights litigation as currently practiced in the United States is dead. The demise of the ATS will signal the rise of transnational tort litigation. Virtually every complaint pleading a human rights violation could allege a traditional domestic or foreign tort violation. With transnational tort claims, there is no presumption against extraterritoriality. Instead, courts apply state or foreign tort laws based on traditional choice-of-law principles.

The purpose of this Article is to outline the future of human rights litigation in the United States by reframing human rights as international wrongs resolved through transnational tort litigation. This Article analyzes Kiobel’s impact on the future of human rights litigation and introduces transnational tort litigation as a viable alternative, with particular focus on the competing choice-of-law approaches. It then describes how these choice-of-law approaches have been applied in the international terrorism context and likely would be applied in the human rights context. This Article concludes with a detailed analysis of the virtues of transnational tort litigation, with specific emphasis on extraterritoriality, universality, liability thresholds, corporate liability, damages, notice pleading, forum non conveniens, and preemption.

Keywords: Human Rights, Choice of Law, Torts, Kiobel, Alien Tort Statute

JEL Classification: K13, K33