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SCOTUS Asks for More Briefing, Reargument in Kiobel

By Robyn Hagan Cain on March 06, 2012 | Last updated on March 21, 2019

When the Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum last week, we thought the years-long debate of corporate liability under the Alien Tort Statute was finally winding down.

We were wrong.

On Monday, the Supreme Court sent the case back to the parties for briefing on additional issues. Now, the Court is asking whether American courts should ever hear disputes under the ATS for human rights abuses abroad, regardless of whether a defendant is a corporation, reports The New York Times.

Adopted by Congress in 1789, the ATS permits aliens to bring claims in federal courts for certain alleged international-law violations. It has rarely been used over the last 210 years, according to The Wall Street Journal.

Most U.S. appellate courts have interpreted the ATS to give aliens standing to sue corporations in U.S. courts for human rights offenses committed overseas. The D.C. Circuit, (John Doe VIII et al v. Exxon Mobil Corp et al), the Ninth Circuit, (Sarei v. Rio Tinto), and the Seventh Circuit, (Flomo v. Firestone Natural Rubber Co.), have all ruled that aliens have standing to sue under the ATS.

So far, only the Second Circuit -- the appellate court that decided Kiobel -- has ruled that aliens cannot bring ATS claims against U.S. companies doing business overseas.

In Monday's orders, the Court directed the litigants to file supplemental briefs on "whether and under what circumstances the Alien Tort Statute ... allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." All briefing is to be completed by June 29. The Court will schedule Kiobel v. Royal Dutch Petroleum for reargument in the October 2012 term.

Requests for reargument can indicate "major" decisions from the Court, according to The New York Times. The last big decision to get a second round of briefings and arguments before the Nine? Citizens United v. FEC.

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