It is emphatically the province of the courts to “say what the law is.” A corollary to that principle is that litigants have a right to know what the law is, once a court has spoken. Yet, on the question of corporate liability under the Alien Tort Statute (ATS) in the U.S. Court of Appeals for the Second Circuit, no one really knows. Not the district judges, not the Second Circuit itself, and certainly not the litigants who continue to expend significant resources addressing the question. Given the continued state of uncertainty surrounding this important question, it may well be time for the Second Circuit to address the question head-on, and say what the law is in this circuit once and for all.
‘Kiobel’ Shockwave
The quagmire began with Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010). Kiobel involved a suit by Nigerian nationals against three foreign corporations engaged in oil exploration and production for allegedly aiding and abetting human rights abuses of the Nigerian government under the ATS, which provides federal jurisdiction for “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
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