SUPREME COURT EXPERT WITNESSES

Kiobel v. Royal Dutch Petroleum was a landmark case before the U.S. Supreme Court, involving questions of international law, jurisdiction and legal fora, and what attorneys should expect, when international human rights issues against corporations are adjudicated in U.S. courts.  The Supreme Court, in a unanimous opinion, discussed the issues at hand and, in so doing, helped put both American plaintiff and defense attorneys on notice, as to what to expect and how to best plan for cases involving corporate governance and international law.  See, e.g., Rich Stamp, “Supreme Court Observations: Kiobel v. Royal Dutch Petroleum & the Future of Alien Tort Litigation,” Forbes (Apr. 18, 2013).

Why Kiobel Matters and the Questions Arising in International Law

When the Supreme Court granted cert. to hear the Kiobel case, it overturned a ruling by the Second Circuit Court of Appeals, holding that because Kiobel involved allegations of human rights violations, which occurred in a foreign country AND with foreign plaintiffs and defendants, U.S. courts were inappropriate places to determine the international legal questions.  See Vincent Warren, “Supreme Court holds U.S. rights legacy in the balance,” CNN Wire (Sept. 27, 2012).  The claims advanced in Kiobel involved potential application of the Alien Tort Statute (ATS), which was passed by the first Congress in 1789, and Kiobel marked only the second time in 200 years that the Supreme Court would consider an international human rights case about corporate governance and the ATS.  Id. What then, do the arguments and plurality from the Supreme Court (the decision was unanimous, but the grounds and arguments were not) mean for corporations and plaintiffs, seeking or protesting potential redress for alleged international rights violations in U.S. courts?

The questions Kiobel posed and continues to pose are as follows, as articulated by Trey Childress, international legal scholar and professor of law:

  1. Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and

(2) [W]hether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide or may instead be sued in the same manner as any other private party defendant under the ATS for such…violations.  “United States Supreme Court to Again Consider the Alien Tort Statute,” Conflict of Laws .Net, http://conflictoflaws.net/2011/united-states-supreme-court-to-again-consider-the-alien-tort-statute/ (Oct. 17, 2011).

What attorneys need to be aware of, in terms of Kiobel’s implications, is that the Supreme Court did not address the initial questions raised by the plaintiffs: if and when corporations can be held liable, for human rights violations, under the ATS or because of Customary International Law doctrines.  See “US Court Ruling Curbs Aceh Exxon Human Rights Suit,” The Jakarta Globe (Apr. 18, 2013).  The justices spoke only to issues of extraterritoriality in the case before them and, moreover, indicated that international legal claims by foreign plaintiffs against multinational corporations are not dead in the water; there merely needs to be a showing of substantial ties to the U.S., whether in the form of conduct, residency, or other jurisdictional factors.  Additionally, many plaintiffs have recently prevailed in cases against multinational corporations, by making common or federal law claims in state courts, so both plaintiffs and defendants should be on notice that the trend of suits being filed and heard in the United States, by arguably foreign actors and/or conduct, is likely to continue.

The implications of Kiobel are clear: Both plaintiffs and defendants should be aware that there will always be jurisdictional questions in international law cases of this type, but that there are courts and judges within the U.S. who are willing to hear those cases, under various theories.  Because the Kiobel ruling was much more tailored to the facts, potential litigants on both sides should be equipped to address prospective claims and, in so doing, all attorneys should know the types of expert witnesses they will require and the questions that may arise.

Experts and Answers: How to Prepare for Corporate Governance Cases that have an International Component

Corporate Attorneys, even the most seasoned litigators, may be used to addressing torts, albeit primarily ones concerning domestic actors and/or behaviors.  Likewise, many plaintiffs, from the Executive Branch (the Obama Administration filed an amicus brief on the petitioners’ behalf), to non-profit agencies, must prepare their cases, using Kiobel as a guideline of sorts, to avoid having their claims thrown out on jurisdictional grounds.

Both plaintiffs and potential defendants should retain specific experts early and as continuously as possible.  First, international legal experts are a must, as they can interpret particular statutes, treaties, Customary International Law, and the like.  Even attorneys who consider themselves to be specialists in international law may be, without the help of appropriate experts, unprepared for the rulings of a given state or federal court.  There are so many issues on the table, from U.S. obligations arising out of the Geneva Convention, to whether the famous Citizens United case means that corporate rights entail concomitant corporate duties.  International legal experts are aware of the history of U.S. human rights law as well as the nuances in myriad treaties or protocols, and their knowledge is of critical import.

Another type of expert who is essential, though perhaps not obvious to litigators is an individual whose knowledge base centers on federal courts.  Subject matter jurisdication, forum non-conveniens, and extraterritorial application are just a few of the issues that have arisen and will continue to be raised in international legal battles that concern corporate social responsibilities.  Aside from what a particular international protocol may state, attorneys need the help of experts who know and can give qualified opinions as to what the Federal Rules of Civil Procedure mean, both in terms of intent and applicability.  Though perhaps not evident on the surface, “domestic” experts are needed just as much as international ones, because an individual who is truly knowledgeable about and experienced in matters of where and whether jurisdiction is appropriate will have saved both attorneys and clients time and effort, without even having to consider the substantive international legal questions.  If, for example, a court determines that it does not have personal jurisdiction over a given party, the “substance” of the international arguments become moot, and attorneys would behoove themselves to have experts on board who can parse these technical matters out in a compelling and knowledgeable manner.

Additionally experts, for either side, will be needed whose expertise covers human rights violations and corporate governance, as well as corporate law in general.  While such experts are somewhat akin to international legal experts, their specialty is narrower but equally essential.  There are so many components of international law, from property issues to children’s rights.  Experts who are not merely general international specialists, but whose qualifications are more specifically geared towards human rights and what those rights imply for corporations, are crucial for both sets of litigants.  Those with substantial expertise in corporate law and governance are also of great import, as the issues in cases such as Kiobel can and will range from the procedural, to the corporate, to the international.  An attorney who overlooks the need for experts in each of these realms may, inadvertently, cost their clients a case that could have had a much different result.

In conclusion, while Kiobel set certain legal precedents, it primarily should have opened the eyes of the legal community to two important factors: (1) Claims arising in U.S. courts, based upon international law and against corporations, are by no means a thing of the past, and (2) Attorneys who avail themselves of the lessons from Kiobel and the experts discussed herein should find themselves in very favorable positions, regardless of the complexity of the myriad issues that may arise.

By: Kat Hatziavramidis, Attorney-at-Law