Corporate Civil Liability under ATCA

• Author: François Larocque
• Profession: University of Ottawa Faculty of Law
• Pages: 323-329

POSTSCRIPT

Corporate

CíVil

Liability

under

ATCA

“

For

those

who

believe

the

Filártiga-Sosa

line

represents

a

meaningful

advance

in

the

protection

of

human

rights,

the

majority

’

s

decision

here

marks

a

very

bad

day.

”

—

Judge

Leval

1

During

the

final

phases

of

this

book

’

s

production,

the

Court

of

Ap



peals

for

the

Second

Circuit

handed

down

a

decision

too

important

to

be

left

out.

Kiobel

v.

Royal

Dutch

Petroleum

is

a

class

action

by

Niger



ian

plaintiffs

against

the

Royal

Dutch

Petroleum

Company

and

the

Shell

Transport

and

Trading

Company

in

which

it

is

alleged

that

the

defendant

corporations,

acting

through

a

Nigerian

subsidiary,

aided

and

abetted

Nigeria

’

s

abusive

suppression

of

environmental

protests

against

development

in

the

Ogoni

region

of

the

Niger

Delta.

The

Court

of

Appeals

for

the

Second

Circuit

granted

the

defendants

’

motion

to

dismiss

for

failing

to

state

an

actionable

claim,

holding

somewhat

sur



prisingly

that

ATCA

does

not

apply

to

corporate

defendants

because

“

corporate

liability

is

not

a

discernable

—

much

less

universally

recog



nized

—

norm

of

customary

international

law.

”

2

The

decision

is

surpris



ing

and

significant

for

several

reasons.

First,

as

a

decision

emanating

from

the

same

court

that

first

rehabilitated

the

200-year-old

ATCA

in

Filártiga

(1982)

and

then

later

expanded

its

application

to

non-state

actors

in

Kadic

(1995),

it

is

likely

to

have

a

significant

impact

on

the

1

Kiobel

v

Royal

Dutch

Petroleum,

2010

U.S.

App.

LEXIS

19382

at

116

(2d

Cir.

2010)

[Kiobel],

2

Ibid,

at

1.

323