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Some Quick Thoughts on Transnational Human Rights Litigation in American Courts After Kiobel

By: Professor Burt Neuborne [*]

The hope that the ATS would permit entrepreneurial lawyers to choreograph international human rights cases involving: (1) alien plaintiffs; (2) alien corporate defendants; and (3) acts wholly occurring abroad into an American court in an effort to take advantage of American discovery rules, Rule 23 class actions, and an independent judiciary is now history. All nine Justices in Kiobel slammed that door, which was probably a pipe dream in the first place. Chief Justice Roberts, writing for five Justices, including the maddeningly vague Justice Kennedy, ruled that the presumption against extraterritorial legislation blocked use of the ATS as a source of federal jurisdiction when neither the plaintiffs, nor the defendants, nor the operative facts had a significant link with the territorial United States. Mere corporate presence for the purposes of general jurisdiction over the defendant could not, ruled the Chief Justice, constitute the significant link to the territorial United States needed to rebut the presumption against extraterritorial legislation.

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Earlier Supreme Court Jurisprudence Shows Hope Not Lost for Those Seeking Corporate Accountability in U.S. Courts

By: Carey Shenkman[*]

Wednesday, the U.S. Supreme Court set a deeply alarming precedent in its decision in Kiobel v. Royal Dutch Petroleum, holding in substance 5-4 that the presumption against extraterritoriality defends corporations from being held accountable for human rights abuses like torture, rape, and murder committed in other countries. For years, U.S. courts were the only recourse for victims from countries with powerless, dysfunctional, or corrupt judicial systems. Their cases were a rare check on the conduct of our companies and their subsidiaries abroad.

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R.I.P. A.T.S.? How much of the Alien Tort Statute survives the Supreme Court’s Kiobel Decision?

This morning, the Supreme Court dismissed the human rights claims of a group of Nigerian nationals against Royal Dutch Petroleum (Shell) under the Alien Tort Statute (A.T.S.) in a 9-0 decision, though the justices split 5-4 as to the reasoning. For the original opinion, see: Kiobel v. Royal Dutch Petroleum Co., 569 U.S. ___ (2013)

Justice Roberts delivered the opinion of the Court on behalf of 5 justices. First, the Court held that the presumption against extraterritoriality, explained with force in Morrison v. National Australia Bank, 561 U.S. ___ (2010), applies to the statute and the federal common law cause of action under the statute. Second, the court found nothing in the statute’s language or history to rebut the presumption. Third, there are no facts to rebut the presumption in the instant case. Fourth and finally, the Court justifies its solution as preventing the ‘diplomatic strife’ that may arise from judicial interference in foreign policy, an area that is traditionally reserved to the political branches. The Court implied that even if the primary norm that created the cause of action might not cause strife, the judicial search for secondary rules (such as corporate liability) may still do so.

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Fate of the Unilateral Option Clause Finally Decided in Russia

By: Yelena E. Archiyan[*]

For years, arbitration courts in Russia have upheld over and over again the validity of the so called unilateral option clause (“UOC”). But everything changed on June 19, 2012, when the Presidium[1] of the highest arbitration court of the Russian Federation[2] held in Russian Telephone Company v. Sony Ericsson Mobile Communications Rus that such clauses are invalid and unenforceable.[3] In 2009, Russian Telephone Company (“RTC”) entered into an agreement with the Russian subsidiary of Sony Ericsson, Sony Ericsson Mobile Communications Rus (“Sony Ericsson”) for the distribution of Sony Ericsson phones.

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Opinio Juris Online Symposium for Vol. 45, No. 1

The NYU Journal of International Law and Politics is proud to once again partner with Opinio Juris for an online symposium around Jenia Iontcheva Turner’s article, Policing International Prosecutors. Over the next two days, a number of scholars will be responding to Professor Turner’s article that was published in our Volume 45, No. 1 issue.

To follow that dialogue, please visit to Opinio Juris.

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Arbitration and Right of Access to Justice: Tips for a Successful Marriage

The arbitration, a form of private justice paid by the parties, and the right of access to justice regardless the financial obstacles guaranteed by the European Convention of Human Rights are predetermined to have a difficult relationship. Nevertheless, their “marriage”…

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JILP Achievement in Marden Competition

Congratulations to JILP Managing Editing Harold Williford for outstanding success in the Orison S. Marden Moot Court Competition.  Based on his combined brief and oral argument score, he will be among the twelve competitors advancing to the Spring Semi-Final Round.  In addition, Harold is…

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FDI Moot Team Achieves Success with JILP Members

NYU reached the semi-finals at the 2012 Foreign Direct Investment International Arbitration Moot in Boston, Massachusetts.  The Journal of International Law & Politics had four members on the team with Wonjoo Choe, Matthew Delja, Benjamin Guthrie, and Rebecca Shieh participating.  Matthew received…

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