In 2010, the Second Circuit decided Kiobel v. Royal Dutch Petroleum, holding that corporations are not proper defendants under the Alien Tort Statute. Invoking Sosa v. Alvarez-Machain, the Second Circuit found that human rights abuses committed by corporations were not sufficiently definite under international law to warrant jurisdiction in United States courts. Several other circuits have explicitly disagreed with the Second Circuit, however, and on October 17, 2011, the Supreme Court granted cert in Kiobel. Professor Farbstein and Professor Giannini argue that Kiobel is an outlier, comparing the logic and strength of its arguments to those in the Seventh and D.C. Circuits as well as the dissenting opinions in both the original decision and the Second Circuit’s 5-5 decision to deny rehearing en banc. Professor Arend expands their argument by highlighting two particular failings of the Second Circuit’s position. First, he argues that Kiobel misinterprets Sosa, relying on a distinction between state and non-state actors to find that there are different classes of defendants under the Alien Tort Statute. Second, Arend concurs with Farbstein’s and Giannini’s analysis that corporations have historically been found capable of violating international law.
Volume 160 Issue 1 2012 Debate