Remarks by Ingrid Wuerth
My remarks will focus on the extraterritorial application of the Alien Tort Statute (ATS). This aspect of the statute is especially controversial as a policy matter, and it is the issue on which the Court ordered additional briefing when it re-listed Kiobel v. Royal Dutch Petroleum Company for next term. Although they are not generally described this way, the legal arguments about the extraterritorial application of the ATS fall into four general groupings. First, does the general presumption employed by U.S. courts against the extraterritorial application of statutes apply to the ATS? Second, as originally understood when it was enacted, would the ATS have applied to violations of the law of nations that take place in another country? Third, does international law prevent the extraterritorial application of the ATS, and should this inform the courts' interpretation of the statute under the Charming Bets), canon? Fourth, are there constitutional limitations under Article I on Congress's power to legislate extraterritorially? The last argument, which I do not address further, has been the least significant to date, in part because the courts have shown little interest in potential constitutional limits on Congress's power to regulate conduct outside the United States. (1) I. It is a "longstanding principle of American law 'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States."' (2) The Court recently applied a muscular version of this presumption against extraterritoriality in Morrison v. National Australia Bank Ltd. (3) The government argued in Sosa v. Alvarez-Machain and other ATS cases during the Bush administration that the presumption applies in ATS cases, (4) but the current administration has not done so (at least not yet) in Kiobel. Respondent Royal Dutch Petroleum has advanced it in the Kiobel briefing, arguing that the statute does not reach the alleged conduct in Nigeria. (5) There are several problems with applying the presumption here, however. The subject matter of the statute, which permits aliens to sue for violations of the law of nations (customary international law), suggests that Congress was not legislating solely with domestic problems or conduct in mind. Consistent with this observation, the Sosa opinion read the ATS to include piracy, which is conduct that takes place outside the territorial jurisdiction of the United States. (6) The presumption does not generally apply to jurisdictional statutes, and the ATS is jurisdictional. Finally, applying the presumption might invalidate a great deal of ATS litigation, inconsistent with the Court's general approach in Sosa, and with Filartiga, a case that the Sosa opinion seemed to preserve. In the ATS context, the presumption is often mentioned along with the concern about creating friction with other countries. But dismissing cases that might cause friction with other governments is different from applying the presumption, which would apply to noncontroversial cases (such as those in which foreign governments do not oppose application of the ATS or those brought against U.S. defendants who act abroad). Note, as well, the difficulties associated with any kind of "friction with foreign countries" test. The South African government, for example, has changed its position on whether it supports or opposes ATS cases for apartheid-related conduct. The better approach is not to presume that the statute does not apply extraterritorially, but instead to ask whether it should be interpreted to apply to conduct that takes place abroad. II. Perhaps the ATS applies only to certain kinds of offenses, which may limit its applicability to conduct that takes place outside the United States. Some have argued, for example, that the ATS was intended to compensate aliens for torts committed by U.S. citizens. (7) This is consistent with a general concern in the 1780s and 1790s with keeping the United States from violating international law and out of war. …
The Alien Tort Statute and Federal Common Law: A New Approach
Federal courts faced with Alien Tort Statute cases have applied customary international law to some issues and federal common law to others. This binary approach is analogous in certain respects to a Bivens action, with federal common law creating the cause of action and international law providing the conduct regulating norms. A better approach, advanced and defended in this symposium article, is to view federal common law as applying to virtually all aspects of Alien Tort Statute litigation, although for some issues federal common law is tightly linked to the content of customary international law. This article defends a federal common law approach on descriptive, doctrinal, and normative grounds. It also applies this approach to aiding and abetting and corporate liability, and briefly addresses prescriptive jurisdiction issues that arise in Alien Tort Statute litigation. It concludes that the Alien Tort Statute is best understood to extend liability to corporations, based on both congressional intent and the unsettled state of international law, that a knowledge rather than purpose standard should be applied to aiding and abetting claims, in part because international has frequently delegated the mens rea issue to domestic law or to development by courts. On both questions, however, some deference to the executive branch is appropriate. Finally, prescriptive jurisdiction limitations apply in ATS cases, and limit the types of claims that can go forward.
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.