A Test By Any Other Name: The Influence of Justice Breyer's Concurrence in Kiobel v. Royal Dutch Petroleum Co.
In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application to the Alien Tort Statute (“ATS”). In doing so, the Court undermined the generally accepted view of the ATS: that it could apply to actions abroad. Applying this presumption severely limited the factual circumstances that could produce a viable ATS claim. The majority opinion carved an exception, permitting extraterritorial ATS claims that “touch and concern” the United States, but declined to set more specific guidelines. In the absence of such guidelines, lower courts have applied the presumption in an overbroad fashion, barring claims that the Court might have intended to fall within its exception. However, concurring in Kiobel, Justice Breyer offered an alternative three-pronged test to determine jurisdiction. Though Justice Breyer reached the same conclusion as the Court—that jurisdiction did not lie—his test is more specific than the majority’s and also provides lower courts with a proper means of assessing ATS extraterritoriality. This Note first extensively discusses the rich and colorful history of the ATS, tracking its outgrowth from the Articles of Confederation to its use in the eighteenth century to bring pirates to justice. It then discusses the modern line of ATS cases, including the various procedural elements that courts have read into the Statute. Turning to Kiobel, it examines the impact of the Court’s reversal of precedent by applying a presumption against extraterritorial application to the ATS, specifically focusing on the majority standard’s lack of clarity. This
The Alien Tort Statute: A Vehicle for Implementing the United Nations Guiding Principles for Business and Human Rights and Promoting Corporate Social Responsibility
IN 2005, PROFESSOR JOHN RUGGIE of the Harvard Kennedy School, an eminent authority on corporate citizenship and responsibility, received a United Nations (“U.N.”) mandate to propose measures aimed at strengthening the human rights performance of transnational corporations.1 His task was a difficult one. Global governance has historically been carried out through a Westphalian-type, state-centered system;2 however, the rapid growth of transnational corporations—largely spurred by globalization—has transformed the traditional state-dominated social order. This transformation highlights the need for an international framework that would guide and regulate the activities of transnational corporations.3 In the context of an emerging sentiment that human rights standards should be relevant among non-state actors,4 Ruggie embarked
La inseguridad jurídica en normas de contratación estatal
It is established by different studies that the issue of government procurement has been marred by several factors, the test objective to publicize these factors, we take as starting point the constant conflict between the branches of government to try and organize this subject; will collect and analyze diverse regulatory and case material in order to achieve evidence and demonstrate the different concepts of constant change that produces excessive regulation of the subject procurement and is in turn causing rapid changes that result in legal uncertainty for our law on the Contract Status.