Marco Simons's blog

In November 2010, Rick and I blogged about the Oklahoma constitutional amendment that would ban state courts from considering foreign law, especially Sharia (Islamic law), as well as international law. As Rick noted at the time, the amendment was very likely unconstitutional.

This week, the U.S. Court of Appeals for the Tenth Circuit, which has jurisdiction over Oklahoma and is generally a fairly conservative court, confirmed that the amendment is unconstitutional. The court's opinion determined that the plaintiff, a Muslim (and U.S. citizen) living in Oklahoma, was stigmatized by the amendment, and that it therefore violated the Constitution's prohibition on religious discrimination.

Interestingly, the court's decision strikes down the amendment, but does not address anything beyond the Sharia ban. The Tenth Circuit didn't consider whether it was permissible to prohibit state courts from considering foreign law generally, or from considering international law.

That means this issue will probably come up again. Similar laws are being considered all over the country, and smart legislators will probably avoid specifically targeting Islamic law in the future. So another court will need to decide whether a general prohibition on considering foreign law or international law is constitutional; Rick and I think it clearly isn't.

On Monday, I wrote about the big news that the Supreme Court will hear the Kiobel case, about whether corporations may be sued for complicity in human rights abuses under the Alien Tort Statute (ATS).

Shortly thereafter, in the Sarei v. Rio Tinto case, the Ninth Circuit Court of Appeals became the third federal appeals court to reject Kiobel, and the fourth appeals court to find that corporations may be sued under the ATS.

The Rio Tinto decision was issued by an "en banc" panel of the Ninth Circuit, which basically means a lot more judges (eleven) than the standard three-judge panel, often used in particularly significant cases. A majority of the court not only found that corporations could be sued, but also rejected a number of other arguments commonly made by corporate defendants (such as that the case interferes with US foreign policy).

As Chimene Kietner blogged over at opinio juris, the decision "reads like a virtual catalog of contested questions surrounding the interpretation and application of" the ATS. Chimene's post may be of interest to those who want more info about the specific issues in play but don't want to read 166 pages of opinions. (The majority opinion is only about 50 pages, though!)

Why would the Ninth Circuit act now when it's already known that the Supreme Court will address the Kiobel issue later this year? Impossible to say for sure, but the judges might have wanted to try to influence the high court.

ERI filed two amicus briefs in the Rio Tinto case, which concerns abuses allegedly associated with a mine in Bougainville, Papua New Guinea.

As Rick noted in his post last week, the big news out of the Supreme Court is that it will decide whether corporations can be sued for human rights violations under the Alien Tort Statute and the Torture Victim Protection Act (TVPA).

The Kiobel case in particular is generating a lot of interest. Last Friday I wrote a guest post for the blog of the American Constitution Society, and on Saturday I joined Terry Collingsworth of International Rights Advocates for a discussion on WZBC radio in Boston (the segment begins at about 12:25 into the audio file).

There is also an ongoing discussion of Kiobel and of Mohamed v. Rajoub, the TVPA case, at SCOTUSblog, the leading website for Supreme Court-watchers. Anyone can join in the discussion, and we'll be checking in periodically as well.

It's a good day for justice against oil company abuses.

We have written several times about Chevron's effort to avoid paying a multi-billion dollar judgment from an Ecuadorian court for polluting the Amazon.  Today, a U.S. federal appeals court handed a significant victory to the Ecuadorians, and lifted an order from a lower court that prohibited any efforts to enforce the Ecuadorian judgment.

Back in March, Chevron convinced a New York federal judge to issue an injunction to stop the Ecuadorian plaintiffs and their lawyers from collecting the judgment, arguing, despite the fact that it was Chevron itself that originally wanted to litigate the case in Ecuador (over the plaintiffs' objection), that they had not gotten a fair trial in Ecuador and that the plaintiffs were conspiring against them.

The Ecuadorians appealed that injunction to the Second Circuit Court of Appeals, and we filed an amicus brief to support their efforts.  (We said that since Chevron had previously argued that the case should be dismissed to Ecuador, and had defended the adequacy of the Ecuadorian judicial system, it should not now be able to attack that judicial system in order to avoid enforcement of a judgment.)

A three-judge panel of the Second Circuit heard the appeal last Friday, and today they issued a brief order lifting the injunction and ordering the district court to stop proceedings on Chevron's lawsuit.  We don't know exactly why yet, but clearly the judges thought that the injunction was so wrong that immediate action was warranted.  (A full opinion will be issued later.)

This summer, ESCR-Net and NYU Law School's Center for Human Rights and Global Justice launched the Business and Human Rights Documentation Project, or B-HRD ("Be Heard").  ERI has long been a member of ESCR-Net, and I'm serving on the advisory board for B-HRD, so this is a pretty exciting development.

The new site includes a database of human rights reports related to business and human rights (including ERI's reports), as well as more detailed information on a few specific campaigns, including a campaign  accountability for private security contractors, which is also a focal point of the International Corporate Accountability Roundtable.

B-HRD also includes a valuable collection of resources for using a variety of tools to combat business-related human rights abuses, including accountability mechanisms ranging from U.S. courts to the OECD Guidelines to the U.N. system.  In recognition of the global impact of business, the site features content in English, Spanish, and French.

Unlike the massive Business & Human Rights Resource Centre site, which is an all-purpose clearinghouse for information relating to business and human rights, the B-HRD site is focused on human rights advocacy.  A growing number of advocates and human rights organizations are working on corporate or business-related human rights issues, and this site begins to bring this community and its resources together.  As corporate accountability is a major part of ERI's work, we look forward to following, supporting, and contributing to this site in the future.

From our friends at Leigh Day & Co., a UK law firm that has pioneered transnational human rights litigation in the English courts, comes news that the Monterrico Metals mining company has agreed to compensate 33 Peruvians who alleged that they were tortured by Peruvian police in retaliation for protesting against a mine run by a Monterrico subsidiary.

The plaintiffs argued that their beatings and torture, in August 2005, was part of a strategy of suppression against community protest and opposition to their activities in Peru, and that mine employees and security contractors participated in the abuse.

The settlement is confidential, but in my experience settlements like this--which involve compensation of the victims, and which are publicized by the plaintiffs--are victories.  Corporations know that the settlement will be perceived as an admission of responsibility (even if no formal admission of guilt is included), and so they won't settle unless there's a pretty good chance they are going to lose.

So congratulations to Leigh Day, and to their partners at the US-based Environmental Defender Law Center and the Peruvian organizations Fedepaz and the Coordinadora Nacional de Derechos Humanos, for achieving this result, another milestone that will help cement transnational corporate accountability in UK law.

Three days after the D.C. Circuit Court of Appeals ruled that corporations could be sued for human rights abuses, the Seventh Circuit Court of Appeals came to the same conclusion, in a decision in Flomo v. Firestone (PDF).  (Unfortunately, the Seventh Circuit also ruled that the plaintiffs did not show that the abuses in that case, involving child labor on rubber plantations in Liberia, actually violated international law.)

This decision is especially significant because it was written by Judge Richard Posner, a prominent legal scholar who is widely respected but generally considered conservative, and who was appointed to the court by President Reagan.  Unlike the D.C. Circuit's opinion in Exxon Mobil, in which a Bush II appointee dissented from an opinion by two Clinton appointees, Posner's opinion was unanimously supported by two other Republican-appointed judges.

The Firestone opinion expressly labels the Kiobel decisions, which found corporate immunity for human rights abuses, an "outlier," which it now certainly is.  Between Exxon Mobil and Firestone, along with Judge Leval's dissent in Kiobel, the reasoning of the Kiobel majority has been thoroughly dismantled.

So far the U.S. Courts of Appeal for the D.C., Seventh, and Eleventh Circuits have expressly found corporate liability for human rights violations; the Ninth Circuit has assumed such liability and may make an express decision on the issue soon, and it is also being considered by the Fourth Circuit. 

Only the Second Circuit, in Kiobel, has found that corporations cannot be sued.  The district court's decision in Firestone was the only opinion that followed Kiobel, and now it has been reversed.

Today, the U.S. Court of Appeals for the D.C. Circuit, often considered one of the most influential courts of appeals, ruled that corporations can be held liable for violations of international human rights law under the Alien Tort Statute (ATS).  The D.C. Circuit's decision in Doe v. Exxon Mobil, in which ERI filed an amicus brief, repudiates the reasoning of the Second Circuit in the Kiobel case.

The Exxon Mobil decision (PDF) is significant because the D.C. Circuit is the first court of appeals to consider corporate liability under the ATS after the Kiobel decision.  Three other appeals courts--the Fourth Circuit, the Seventh Circuit, and the Ninth Circuit--are currently considering this question in appeals that have already been fully briefed and argued.

Exxon Mobil may influence the other courts considering corporate liability, and--hopefully--signals a trend to isolate Kiobel as an outlier decision.  The decision is well-reasoned and points out numerous holes in Kiobel.

The decision is also significant because the court adopted the knowing, substantial assistance standard for aiding and abetting liability.  The Second Circuit rejected this standard in the Talisman case, opting for a higher "purposeful assistance" standard.  The D.C. Circuit correctly found that both U.S. law and international law have long held abettor liable when they knowingly assist abuses, regardless of whether they shared the perpetrator's purpose.

Finally, the Eleventh Circuit Court of Appeals also recently made an important decision on this subject.  Before Exxon Mobil, the Eleventh Circuit was the only court that had expressly ruled that corporations could be sued under the ATS.  After the Kiobel decision, the Drummond coal company, which is being sued in the Eleventh Circuit, asked that court to reconsider its position.

Yesterday, the Eleventh Circuit rejected Drummond's petition, which effectively means that that court is standing behind its earlier rulings that corporations can be sued for human rights violations.

In the past week, the Supreme Court has issued several orders in cases of interest to ERI.  Last Monday, the Court decided American Electric Power v. Connecticut, in which several states sued power companies on a theory of public nuisance under federal law.  Its decision is a loss for the plaintiffs, but one that does not prohibit further climate change litigation.

A longer analysis can be found at the Climate Law Blog; in brief, the court decided that, because the EPA had authority to regulate greenhouse gases, this authority preempted any federal claim for public nuisance.  But the court rejected the idea that the plaintiffs did not have standing to bring the case, or that the case presented a "political question" that could not be litigated.  So further cases that do not involve federal common law claims--including the Connecticut case itself, which also presents state-law nuisance claims--might still proceed.

Today, the Court decided not to hear two significant transnational cases.  In von Saher v. Norton Simon Museum, the Ninth Circuit Court of Appeals struck down a California statute allowing owners of art looted during the Holocaust to file claims in California, reasoning that it interfered with exclusive federal foreign policy powers.  (ERI filed an amicus brief asking the Ninth Circuit to rehear the case.)  In Saleh v. Titan, the D.C. Circuit ruled that a U.S. contractor could not be sued over abuses arising out of the Iraq war, based on a previously unknown "battlefield preemption" doctrine.

I've been following the Kiobel case, in which the U.S. Court of Appeals for the Second Circuit decided corporations could not be sued for violating international human rights law, since the decision was issued last fall.  (See prior posts here, here, here, here, here, and here.)

Although the first court to consider this question after Kiobel similarly rejected corporate liability, in Flomo v. Firestone, victims have been fighting back--and recently they've been getting some help from the courts.

First, on May 18, a federal court in Illinois declined to follow Kiobel.  In a case involving Hungarian Jews who allege theft of their property by Hungarian banks during the Holocaust, the court allowed claims of "[g]enocide by looting and aiding and abetting genocide by looting" to proceed under the Alien Tort Statute (ATS).

Most importantly, the court quotes extensively from Judge Leval's concurring opinion in Kiobel, and "agrees with the concurring opinion in Kiobel that there is a sufficient legal basis to hold corporations liable under the ATS for genocide."  (The opinion is at the bottom of this post.)

Second, the corporate liability issue was argued in the appeal in the Flomo v. Firestone case before the Seventh Circuit last Thursday.  It's always risky to predict the outcome of a case based on the oral argument, but some of the judges on this panel seemed to be pretty dismissive of the reasoning in Kiobel. (Listen to the argument.)