Response: The ATS and choice of law

The following response in our symposium on Kiobel v. Royal Dutch Petroleum comes from Trey Childress, Associate Professor of Law at the Pepperdine University School of Law and a Visiting Associate Professor of Law at the Washington & Lee University School of Law during the 2012-2013 academic year.  Professor Childress teaches transnational law, civil procedure, conflict of laws, and comparative law.  He has written extensively about transnational law and litigation in U.S. courts and the ways in which domestic substantive and procedural law respond to transnational parties, laws, and conduct.  He is the American co-editor of ConflictofLaws.net.  [Lyle published an introduction to the issues in the case at the start of the symposium.]

Let me begin by thanking SCOTUSBlog, especially Amy, Tom, Lyle, Kali, and Max, and all the contributors for an incredibly fascinating symposium on the Kiobel case.  Before signing off, I wanted to raise a point that has received some passing references in the posts – what relevance is foreign/comparative law to the Court’s analysis?  Besides illustrating, as Professor Hathaway’s post explains, that some countries would assert jurisdiction over ATS-like claims, careful analysis of how other countries resolve ATS-like claims raises another important point that is worthy of discussion:  what should the rule of decision be in ATS cases?  In short, the Court needs to be concerned not just with extraterritoriality but with choice of law in deciding Kiobel.

As Professor Hathaway noted, Chief Justice Roberts, Justice Kennedy, and Justice Alito all expressed some interest in the first Kiobel oral argument in what other countries are doing in ATS-like litigation.  In response to those questions, the petitioners and various amici have sought to demonstrate that many countries – including the United Kingdom, the Netherlands, and Germany – each provide a forum for ATS-like claims.

However, the fact that foreign countries provide a forum for ATS-like claims is only part of the analysis.  As far as I can tell (and I could be wrong as I do not read Dutch), in cases where jurisdiction was found in ATS-like cases by a foreign court, the rule of decision was not international law but generally forum law – that is, U.K, Dutch, or German law.  Indeed, the supplemental brief by South African jurists states that ATS-like cases could be heard under the South African law of delict.  This strikes me as important for two reasons.

First, assuming the ATS survives the Court’s second look in the Kiobel case, what law is to be applied in these cases going forward?  As Meir Feder explained in his post, the courts would be applying federal common law.  However, the lower court response to Sosa illustrates that federal courts, notwithstanding “vigilant doorkeeping,” will come to different conclusions on what federal common law is, and where it should be found, in ATS cases.  Should U.S. courts be bound to the parameters of international law?  Should U.S. courts provide remedies based on international law or domestic law?  As these questions illustrate, another Sosa-like opinion on the rule of decision will mean that the Court will have to review the ATS again in due course.  Federal common law in cases such as these that raise important foreign policy concerns should not be subject to cacophonous lower court analyses.  Notwithstanding judicial minimalism, it strikes me as inefficient for the Court to remain silent on the choice of law question, even though silence or opaqueness would create a boon in law review scholarship.

Second, this question intriguingly brings us back to the Second Circuit’s Filartiga decision, which is the primary case on which the petitioners rely for the proposition that the Supreme Court, in citing that case in Sosa, sanctioned the extraterritorial application of the ATS.  That case itself points to the necessity of determining the choice of law question.  To be sure, the Second Circuit emphasized that it was only speaking to subject matter jurisdiction.  It noted that the defendant argued “that the customary law of nations, as reflected in treaties and declarations that are not self-executing, should not be applied as rules of decision in this case.  In doing so, [the defendant] confuses the question of federal jurisdiction under the Alien Tort Statute, which requires consideration of the law of nations, with the issue of the choice of law to be applied, which will be addressed at a later stage in the proceedings.”  In speaking to the jurisdictional question only, the court left open whether the ATS could provide a private cause of action for a harm under international law, or whether it merely opened the federal courthouse doors to such claims, subject to standard choice of law principles that might choose Paraguayan or some other law as the substantive law to be applied.

All of this is to say that the Court must be sensitive to the litigation that will follow Kiobel.  As I previously discussed, closing federal law to Kiobel-like claims will likely push plaintiffs to plead state and foreign law in federal and state courts, as well as in foreign courts.  Assuming the ATS survives in some way, the questions will now be choice of law – which is why the Rio Tinto PLC v. Sarei case from the Ninth Circuit that has been held pending resolution of Kiobel is the better vehicle for resolving these issues because it presents both extraterritoriality as well as choice of law issues. The Court needs to be sensitive to these issues as well as the extraterritoriality question.  Although, would that require additional briefing?

At bottom, and assuming the ATS survives in some yet-to-be-defined circumstances, the Court needs to focus concretely on the choice of law question and provide lower courts and litigants with clear direction on the law that applies in these cases.  Otherwise, we all can look forward to another SCOTUSBlog symposium in the near future.