Human Rights After Kiobel: Choice of Law and the Rise of Transnational Tort Litigation

• Publication year: 2014

Human Rights After Kiobel: Choice of Law and the Rise of Transnational Tort Litigation

Roger P. Alford

HUMAN RIGHTS AFTER KIOBEL: CHOICE OF LAW AND THE RISE OF TRANSNATIONAL TORT LITIGATION

Roger P. Alford^*

Abstract

The Supreme Court in Kiobel v. Royal Dutch Petroleum Co. held that the presumption against extraterritoriality applied to the Alien Tort Statute. As such, international human rights litigation as currently practiced in the United States is dead. The demise of the ATS will signal the rise of transnational tort litigation. Virtually every complaint pleading a human rights violation could allege a traditional domestic or foreign tort violation. With transnational tort claims, there is no presumption against extraterritoriality. Instead, courts apply state or foreign tort laws based on traditional choice-of-law principles.

The purpose of this Article is to outline the future of human rights litigation in the United States by reframing human rights as international wrongs resolved through transnational tort litigation. This Article analyzes Kiobel's impact on the future of human rights litigation and introduces transnational tort litigation as a viable alternative, with particular focus on the competing choice-of-law approaches. It then describes how these choice-of-law approaches have been applied in the international terrorism context and likely would be applied in the human rights context. This Article concludes with a detailed analysis of the virtues of transnational tort litigation, with specific emphasis on extraterritoriality, universality, liability thresholds, corporate liability, damages, notice pleading, forum non conveniens, and preemption.

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Introduction............................................................................................ 1091

I. Kiobel and the Demise of the Alien Tort Statute................. 1095
II. The Choice-of-Law Maze ............................................................ 1100

A. Majority Approach: Most Significant Relationship.................. 1102
B. First Minority Approach: Lex Loci Delicti.............................. 1104
C. Second Minority Approach: Governmental Interests............... 1105
D. Third Minority Approach: The Better Law............................... 1108
E. Fourth Minority Approach: Eclecticism................................... 1109

III. Terrorist Attacks as Transnational Torts........................... 1111

A. Terrorism and the Governmental Interest Analysis.................. 1111
B. Terrorism and the Eclectic Approach ...................................... 1119
C. Terrorism and Various Other Approaches............................... 1122

IV. Human Rights Violations as Transnational Torts.............. 1124

A. Human Rights Test Cases......................................................... 1125
B. Human Rights and the Most Significant Relationship Approach .................................................................................. 1128
C. Applying the Lex Loci Delicti Approach.................................. 1133
D. Applying the Governmental Interest Approach........................ 1134
E. Applying the "Better Law" Approach...................................... 1138
F. Applying the Eclectic Approach ............................................... 1142
G. Summary of the Competing Approaches .................................. 1144

V. The Virtues of Transnational Tort Litigation..................... 1146

A. Extraterritorial Application...................................................... 1147
B. Universal Norms....................................................................... 1149
C. Lower Liability Thresholds ....................................................... 1150
D. Corporate Liability ................................................................... 1152
E. Damages ................................................................................... 1153
F. Notice Pleading........................................................................ 1155
G. Forum Non Conveniens ............................................................ 1157
H. Preemption ............................................................................... 1158

Conclusion................................................................................................ 1160

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Introduction

Human rights violations are transnational torts. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. Federal law concedes as much, vesting federal courts with jurisdiction over "any civil action by an alien for . . . tort[s] only, committed in violation of the law of nations or a treaty of the United States."¹ Until the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co.,² foreigners could rely on this statute—commonly known as the Alien Tort Statute (ATS)³ —to sue individuals or entities for human rights violations that occurred anywhere in the world. The Supreme Court's decision in Kiobel applied the presumption against extraterritoriality to severely limit the territorial reach of the ATS,⁴ the most important human rights statute in the United States. Henceforth, the only claims that may go forward under the ATS are those that touch and concern the territory of the United States with sufficient force to displace the presumption against extraterritoriality.⁵ The overwhelming majority of ATS claims will not satisfy this test. As such, human rights litigation as currently practiced in the United States is dead.

The demise of the ATS will signal the rise of transnational tort litigation. When one compares facts and considers remedies, virtually every complaint pleading an ATS violation could allege a traditional domestic or foreign tort violation. It is perhaps unseemly to treat grave human rights abuses as garden-variety torts.⁶ But with the Supreme Court's recent decision in Kiobel, reframing human rights violations as transnational torts may be the only viable alternative for redressing international wrongs through U.S. litigation. In the quest to provide relief for victims of grave abuse, international human rights violations should be reframed as transnational torts. With common law tort claims, there is no presumption against extraterritoriality. Instead, there is a decision to apply state or foreign tort law based on choice-of-law principles.

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Reframing human rights as transnational torts is not novel in practice, but it has been ignored by the legal academy. In the terrorism context, plaintiffs have used this tactic to secure billions of dollars in judgments against state sponsors of terrorism.⁷ They typically have done so by invoking choice-of-law principles to apply domestic tort laws to redress foreign terrorist attacks.⁸ The United States' interest in combatting international terrorism has been the decisive factor leading to the application of domestic law, which typically results in the application of state tort law of the plaintiffs' domicile.⁹

A similar approach could be undertaken with respect to other human rights violations. Rather than pursuing claims for wrongful conduct under the ATS, those same victims could plead violations of domestic or foreign tort laws. Courts seized with such claims would apply choice-of-law principles to assess the appropriate tort law to resolve the dispute. If the United States has a paramount interest in addressing the human rights violation, then that likely will result in the application of domestic tort law. Otherwise, traditional choice-of-law analysis applied in the international human rights context will often result in the application of foreign tort law.

As a practical matter, transnational tort litigation allows state and federal courts to continue to adjudicate international human rights claims. Kiobel's territorial limitations will result in the dismissal of most ATS claims. But claims based on the same facts can continue in state and federal courts pursuant to either state or foreign tort laws. Accordingly, human rights litigation will survive the demise of the ATS by reframing the facts, pleading tort violations, and applying either state or foreign tort laws.

As a normative matter, transnational tort litigation is preferable to human rights litigation because it avoids the uncertainties and concerns typically raised about ATS litigation.¹⁰ With human rights litigation in the United States, courts will favor the commonplace over the exotic. Even prior to Kiobel, courts were skeptical of ATS litigation,¹¹ but routinely employed choice-of-law rules

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to resolve cross-border tort claims.¹² Courts' familiarity with choice-of-law analysis is one of its greatest virtues. It is also familiar to the relevant stakeholders in transnational tort litigation. Choice-of-law analysis accommodates the interests of other nations, the expectations of the parties, and the needs of the interstate system. It applies the law one would expect: the law that advances legitimate governmental interests and that has the closest connection to the dispute and the parties. As such, the routine application of choice of law in the transnational torts context avoids many of the controversial questions raised by ATS litigation. For plaintiffs, transnational tort litigation in state courts has many virtues when compared to ATS litigation in federal courts, including the extraterritorial application of common law tort claims, lower pleading standards and liability thresholds, corporate responsibility for tortious conduct, fewer dismissals on the basis of preemption or forum non conveniens, and universal acceptance of a private right of action for intentional torts.

The purpose of this Article is to outline the future of human rights litigation in the United States by reframing human rights as international wrongs resolved through transnational tort litigation. Choice of law will feature as the key question for the future of...