•  
  •  
 

Brigham Young University Prelaw Review

Keywords

Kiobel v. Royal Dutch Petroleum Co. (2013), Alien Tort Statute (ATS), transnational corporate accountability, international human rights law, minimum-contacts doctrine, foreign-cubed, foreign-squared, extraterritoriality, touch and concern, Al Shimari v. CACI Premier Technology Inc. (2014), Jane Doe 8 v. Chiquita Brands International (2022), Baloco v. Drummond Co. (2014)

Abstract

In 2013, the Supreme Court severely limited the extent to which U.S. courts could adjudicate on international human-rights violations with their ruling in the landmark case Kiobel v. Royal Dutch Petroleum Co. (2013). This change has led to strong divisions among lower courts about how to determine whether a foreign-based tort may “touch and concern” the territory of the United States with sufficient force to allow the case to have standing. This is especially true for foreign-based torts brought against corporations. This division has had a substantial impact on the ability of foreign citizens to find legal redress for human rights violations. Furthermore, it has spurred confusion regarding how courts should interpret the Alien Tort Statute (ATS). This Article proposes a three-prong test which evaluates (1) the corporation’s headquartering and licensing, (2) the nature of decision leading to the human rights violation, and (3) whether the alleged tortious conduct is a direct result of the decision. This test is intended to provide clarity to the vague questions surrounding the Kiobel doctrine. Legal scholars like Oona Hathaway have discussed the ambiguity surrounding Kiobel. However, these discussions have yet to provide a solution to the crisis. This Article proposes a solution to mitigate this ambiguity and provide a uniform standard for lower courts when determining the justiciability of foreign-based torts.

Download

Included in

Law Commons

Share

COinS