News & Insights

Washington DC – The National Foreign Trade Council (NFTC) and USA*Engage on Friday filed two amicus briefs with the U.S. Supreme Court in major Alien Tort Statute (ATS) cases, one in support of the defendant in Kiobel v. Royal Dutch Petroleum, and the other supporting a petition for certiorari in the case of Rio Tinto v. Alexis Holyweek Sarei. Joining in the Kiobel brief were the American Petroleum Institute (API), the National Association of Manufacturers (NAM), the U.S. Council for International Business (USCIB), the Organization for International Investment (OFII) and the American Insurance Association. API, OFII and the National Mining Organization joined the Rio Tinto brief.

With a conflict among Circuit Courts on corporate liability and the standard for finding liability under the ATS, the Kiobel brief endorses the Second Circuit’s ruling on corporate liability and further argues that “even if the Court were to reject that contention, the judgment should be affirmed on the alternative ground that establishing aiding and abetting liability requires pleading and proving purpose to facilitate the direct violator’s unlawful conduct, not mere knowledge of the conduct.” The Kiobel brief also argues that the ATS can create friction with other countries because by asserting “the extraterritorial jurisdiction by U.S. courts over such conduct could provoke discord, not promote harmony, within the international community.”

In addition, the brief in the Rio Tinto case supports the defendants brief for a re-hearing en banc of a panel’s ruling that Rio Tinto had failed to exhaust domestic remedies in the case. As corporate liability is under review by the Supreme Court in the Kiobel case, the cert petition in this case asks the Court to address whether U.S. courts should recognize a claim under federal common law based on aiding and abetting liability and whether the defendant acted purposefully to aid the violations. The cert petition points out the deep divisions among circuits over whether liability requires mere knowledge of a violation or purposeful assistance of a violation, and urges the Court to limit liability to a finding of purpose. The brief concludes that the case should be dismissed under a standard of purpose by citing the dissent of Ninth Circuit Court Judge McKeown that “the complaint fails to allege the necessary purpose to survive the motion to dismiss.”

The argument in both the Kiobel and Rio Tinto briefs is centrally important to the U.S. business community because virtually all corporate ATS cases have been lodged on the ground that companies aided and abetted violations committed by the governments of countries in which they have operations.
 

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About USA*Engage
USA*Engage (www.usaengage.org) is a coalition of small and large businesses, agriculture groups and trade associations working to seek alternatives to the proliferation of unilateral U.S. foreign policy sanctions and to promote the benefits of U.S. engagement abroad. Established in 1997 and organized under the National Foreign Trade Council (www.nftc.org), USA*Engage leads a campaign to inform policymakers, opinion leaders, and the public about the counterproductive nature of unilateral sanctions, the importance of exports and overseas investment for American competitiveness and jobs, and the role of American companies in promoting human rights and democracy worldwide.

About the NFTC
Advancing Global Commerce for Nearly A Century- The National Foreign Trade Council (www.nftc.org) is a leading business organization advocating an open, rules-based global trading system. Founded in 1914 by a broad-based group of American companies, the NFTC now serves hundreds of member companies through its offices in Washington and New York.
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