Docket No IN THE SUPREME COURT OF THE UNITED STATES. November Term 2011 ZEUDI ARAYA, Petitioner,

Docket No. 10-1776 IN THE SUPREME COURT OF THE UNITED STATES November Term 2011 ZEUDI ARAYA, Petitioner, v. FLUORBURTON CORPORATIONS, an Evans corporation, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL CIRCUIT BRIEF FOR THE RESPONDENTS Team No. 15 Lane Oling & Mark Samartino

QUESTIONS PRESENTED 1. Whether corporate liability for human rights violations exists under the Alien Tort Statute, considering that treaties, tribunals, customary international law, and law common to major legal systems all fail to establish such liability? 2. Whether the Thirteenth Circuit Court of Appeals violated petitioner s Due Process rights when it denied her recusal motion of Chief Judge Garnett considering his interaction with a MOSOPP representative occurred nearly ten years ago and while under other employment? i

STATEMENT REGARDING ORAL ARGUMENT Respondent requests oral argument. Resolution of the issues depends on a proper understanding of Respondent s claims and the relevant case law. Oral argument will aid the court in evaluating this case. ii

TABLE OF CONTENTS QUESTIONS PRESENTED... i STATEMENT REGARDING ORAL ARGUMENT......ii TABLE OF CONTENTS......iii TABLE OF AUTHORITIES......v STATEMENT OF FACTS.....1 SUMMARY OF ARGUMENT...4 ARGUMENT...5 I. CORPORATIONS ARE NOT LIABLE FOR HUMAN RIGHTS VIOLATIONS UNDER THE ALIEN TORT STATUTE.....5 A. Corporate Liability For Human Rights Violations is Not An Internationally Recognized Norm Accepted By The Civilized World and Defined With Requisite Specificity.....6 1. Corporate Liability For Human Rights Violations Is Not Established By Any Major Human Rights Treaty...9 2. Neither Customary International Law Nor Law Common To Major Legal Systems Establish Corporate Liability For Human Rights Violations......12 3. Courts Have Erroneously Applied Sosa When Concluding That Corporate Liability Exists Under The ATS...14 a. Failing To Establish That Corporate Liability For Human Rights Violations Exists As An International Norm Violates Sosa...15 iii

b. Relying On Federal Common Law, Instead Of Analyzing Whether Corporate Liability For Human Rights Violations Is An International Norm, Violates Sosa...17 c. Relying On Unrelated, Non-Binding Treaties And Conventions Fails To Prove That Corporate Liability For Human Rights Violations Is An International Norm...18 d. Sosa Precludes Federal Courts From Establishing Liability Under The ATS When An International Norm Does Not Exist...19 B. Corporate Liability Under The ATS Will Impede Development Of Foreign Nations And Have Negative Foreign Policy Implications..21 1. Multinational Corporations Provide Employment, A Higher Standard Of Living And Incentivize Democratization....22 2. Allowing Courts To Create Corporate Liability Under The ATS Violates The Separation Of Powers Doctrine...23 II. THE THIRTEENTH CIRCUIT COURT OF APPEALS DID NOT VIOLATE MS. ARAYA S DUE PROCESS RIGHTS IN DENYING HER MOTION FOR RECUSAL BECAUSE THE ALLEGED BIAS DOES NOT RISE TO A CONSTITUTIONAL LEVEL..25 CONCLUSION.....29 CERTIFICATE OF COMPLIANCE......29 iv

Table of Authorities UNITED STATES SUPREME COURT CASES Page(s) Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)... 24, 25, 26 Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009)... 24, 25, 27 Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, (1994)... 23 E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244 (1991)... 20, 22 Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)... 7 F. Hoffman-La Roche Ltd. v. Empagran, 543 U.S. 155 (2004)... 20 First Nat. City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972)... 22 FTC. v. Cement Institute, 333 U.S. 683 (1938)... 25 In re Murchison, 349 U.S. 133 (1955)... 24 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)... passim The Paquete Habana, 175 U.S. 677 (1900)... 6, 7, 9, 16 Tumey v. Ohio, 273 U.S. 510 (1927)...24, 25, 26, 27 FEDERAL CIRCUIT COURT CASES Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005)... 17 Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992)....14 v

Doe v. Nestle, 748 F. Supp. 2d 1057 (C.D. Calif. 2010)... passim Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2001)...13, 14, 15, 16 Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011)... passim Kadic v. Karadzic, 70 F.3d 232 (2nd Cir. 1995)....15 Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254 (2nd Cir. 2007)......12, 13, 14, 23 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir. 2010)... passim Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003)... 14, 17, 18 Romero v. Drummond Co., Inc., 552 F.3d 1303 (11th Cir. 2008)...13, 14, 16, 17 Tel-Oren v. Libyan Arab Republic, 722 F.2d 774 (D.C. Cir. 1984)....16 United States v. Krauch, 8 T.W.C. at 1132-33... 12 STATUTES 28 U.S.C. 1350... 2, 5, 7, 15 OTHER AUTHORITIES U.S. Const. art. I, 8, cl. 3, 10, 11, 12... 22 Fed R. Civ. P. 12(b)(6)... 3 Brussels Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, Dec. 17, 1971, 974 U.N.T.S. 255....17 CEDAW, Dec. 18, 1979, 1249 U.N.T.S. 13...... 11 vi

Convention on the Prevention and Punishment of the Crime of Genocide, art. IV, Dec. 9, 1948, 78 U.N.T.S. 277......11 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.......11 G.A. Res. 217 A(III), Dec. 10, 1948...18 International Convention on the Suppression and Punishment of the Crime of Apartheid, art. 3, Nov. 30, 1973, 1015 U.N.T.S. 243.....11 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 4(1), 6(1), 6(3), Dec. 10, 1984, 1465 U.N.T.S. 8...11 Brief of Chamber of Commerce of the United States of American as Amicus Curiae Supporting Appellees, Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011) (No. 10-3675) (2011 WL 2452309)...11, 12, 18 1 Enactments and Approved Papers of the Control Council and Coordinating Committee 131 (1945)... 19 Elliot J. Schrage, Judging Corporate Accountability in the Global Economy, 42 Colum. J. Transnat'l L. 153 (2003)........23 Johnathan Cummings, et al., Growth and Competitiveness in the United States: The Role of its Multinational Corporations http://www.mckinsey.com/mgi/publications/ role_of_us_multinational_companies/pdfs/mgi_us_mncs.pdf... 21 Robert J. Barro, Democracy and Growth, J. ECON. GROWTH. 1 (1996)........21 Quan Li & Adam Resnick, Reversal of Fortunes: Democratic Institutions and Foreign Direct Investment Inflows to Developing Countries, INT L ORG. 175 (2003)........21 vii

STATEMENT OF FACTS Respondent Fluorburton is a United States corporation headquartered in Evans City, Evans. Fluorburton engaged in oil exploration and development in the country of Moesia from 1996 to 2000. R. at 4. Fluorburton contracted with the leader of Moesia, Octavian Carpethea, to extract and refine the country s oil reserves. R. at 3. Fluorburton began its oil exploration shortly after the civil war between Moesia s two major ethnic groups. Id. Moesia gained independence in 1991 following the collapse of the Soviet Union. R. at 3. The country s population is comprised of two ethnic groups, the Praetorians and the Plebeians. These two ethnic groups have a centuries-long history of animosity toward one another. Id. The Praetorians are the majority ethnic group, residing in urban areas. Id. The Plebeians are the minority group, residing in rural areas. Id. Civil war erupted between the Praetorians and the Plebeians when the Soviet Union collapsed. Id. Octavian Carpethea, a member of the Tribulation Force, rose to power in Moesia and ended the civil war in 1995. Id. The Praetorians supported the Tribulation Force and were the impetus behind Carpethea s rise to power. Id. Carpethea sought to stabilize the country and establish financial independence after years of civil war. R. at 3. Carpethea enlisted Fluorburton s help in oil exploration and development in the Pleb region of Moesia because its vast oil reserves had been largely untapped while the country was under Soviet control. R. at 18. Some Plebeians responded to Fluorburton s oil exploration and development in the Pleb region by forming a group called the Movement for Survival of Plebeian People or MOSOPP. R. at 3-4. Petitioner Araya is the president of this organization. R. at 4. MOSOPP 1

blocked roads and created human barriers at drilling sites to hinder exploration and development. Id. Moesian military forces arrived to calm the MOSOPP protests and prevent further delays. R at 4. Ms. Araya alleges that the military s actions went beyond merely quelling the protests. R. 4-5. The Military allegedly beat, raped and unlawfully arrested Plebeians. R. at 5. Ms. Araya further alleges that Fluorburton supported such atrocities by providing the military with food, supplies and vehicles Id. Ms. Araya lived in the Pleb region during the time of the alleged military atrocities. R. at 5. In 1999, Ms. Araya was arrested. R. at 12. In 2000, her family was killed in a military raid. Id. She subsequently filed suit against Fluorburton. Id. Motion for Recusal of Chief Judge Garnett When this case reached the Thirteenth Circuit Court of Appeals, Ms. Araya filed a motion for Chief Judge Garnett s recusal, alleging a probability of bias. R. at 17. Prior to his appoint to the Thirteenth Circuit Court of Appeals, Chief Judge Garnett worked as Undersecretary for Natural Resource Exploration and Development from 1996 to 2006. R. at 21. Then Undersecretary Garnett headed a commission to assess U.S. foreign policy implications of private oil exploration in Asia. Id. This commission was only a small part of Undersecretary Garnett s many responsibilities. R. at 22. In 2002, Undersecretary Garnett and a MOSOPP representative appeared together on a cable television program. R. at 21. The discussion between Undersecretary Garnett and the MOSOPP representative was limited to the commission s report. R. at 22. The report was not related to any of the charges alleged in Ms. Araya s complaint against Fluorburton. Id. Ms. Araya was in no way involved in the discussion. Id. 2

PROCEDURAL BACKGROUND Ms. Araya brought suit pursuant to 28 U.S.C. 1350, the Alien Tort Statute ( ATS ), against Fluorburton for aiding and abetting the Moesian military in committing various human rights violations. R at 8. Ms. Araya brought suit in the United States District Court for the Eastern District of Evans seeking damages in the amount of $50,000,000, as well as court costs and reasonable attorneys fees. Id. Fluorburton filed a motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. R. at 9. Fluorburton argued that the ATS does not provide a private right of action, that the ATS does not extend to corporations, and that the offenses alleged are not recognized by the law of nations. Id. The district court dismissed Ms. Araya s claims for aiding and abetting property destruction, forced exile, extrajudicial killing, and violations of the rights to life, liberty and security. R. at 12. The district court reasoned that customary international law did not define those offenses as violations of the law of nations under the ATS. R. at 18. The district court denied Fluorburton s motion to dismiss with respect to Ms. Araya s claims of aiding and abetting arbitrary arrest and detention, crimes against humanity, and cruel and degrading treatment. Id. The district court rejected Fluorburton s argument that there is no corporate liability, but recognized that there is a significant difference of opinion on this issue and certified this question for immediate appeal. R. at 13. Ms. Araya moved for recusal of Chief Judge Garnett before the Court of Appeals. R. at 21. The Court of Appeals held that it had no authority to question Chief Judge Garnett s denial of the motion for his recusal. Id. The court held that even if it did have authority to question the Chief Judge s decision it would have still found that there was no Due Process violation. Id. 3

The Court of Appeals reversed the district court s decision regarding Ms. Araya s ATS claims, holding that the ATS does not provide a cause of action against a corporate defendant. R at 21. The Court of Appeals held that Congress should grant the express authority to impose ATS liability on corporations. R. at 20. Additionally, the court found that aiding and abetting is not recognized as a violation of international law. Id. The Supreme Court of the United States granted a writ of certiorari to consider 1) whether corporations are subject to ATS liability and 2) whether the Thirteenth Circuit Court of Appeals violated Ms. Araya s Due Process rights in denying her motion to recuse Chief Judge Garnett. R. at 26. SUMMARY OF ARGUMENT Corporations cannot be held liable for human rights violations under the ATS. A claim under the ATS is limited to a violation of the law of nations or a treaty of the United States. Courts identify the law of nations by looking to international norms accepted by the civilized world with requisite specificity. International treaties, tribunals, conventions, customary international law, and law common to major legal systems all fail to establish an international norm of corporate liability for human rights violations. Furthermore, corporate liability for human rights violations under the ATS would have negative foreign policy implications and violate the Separation of Powers doctrine. Therefore, a corporation is not liable for human rights violations under the ATS. Ms. Araya s Due Process rights were not violated when the Court of Appeals denied her recusal motion. Most alleged biases do not rise to a constitutional level. Instead, most allegations of bias are controlled by statute. However, Ms. Araya waived her statutory claim 4

against Chief Judge Garnett and only alleges a Due Process violation. Chief Judge Garnett s conversation with a MOSOPP representative occurred nearly ten years ago. This television appearance does not create a direct, personal, substantial, or pecuniary interest in Ms. Araya s case. In order for a judge to be disqualified, the alleged bias must rise to such an unacceptable level of bias or interest in the outcome of the case that it becomes constitutionally intolerable. Thus, the Thirteenth Circuit did not violate Ms. Araya s Due Process rights when it denied her recusal motion. ARGUMENT I. CORPORATIONS ARE NOT LIABLE FOR HUMAN RIGHTS VIOLATIONS UNDER THE ALIEN TORT STATUTE. This Court should affirm the Thirteenth Circuit Court of Appeals holding that the Alien Tort Statute does not provide a cause of action against corporations for human rights violations. 28 U.S.C. 1350, referred to as the Alien Tort Statute ( ATS ), states, The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. Corporate liability for human rights violations does not exist under the law of nations or a treaty of the United States. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 148-49 (2nd Cir. 2010); Doe v. Nestle, 748 F. Supp. 2d 1057, 1143-44 (C.D. Calif. 2010). Furthermore, corporate liability for human rights violations under the ATS would have negative foreign policy implications and violate the Separation of Powers doctrine. Thus, this Court should hold that the ATS does not provide a cause of action against corporations for human rights violations. 5

A. Corporate Liability For Human Rights Violations Is Not An Internationally Recognized Norm Accepted By The Civilized World And Defined With Requisite Specificity. In enacting the ATS, Congress gave federal courts jurisdiction to hear a limited number of claims defined by the law of nations and recognized at common law. Sosa v. Alvarez- Machain, 542 U.S. 692, 712 (2004). The law of nations originally governed countries behavior toward each other. Sosa, 542 U.S. at 714. The law of nations also regulated mercantile questions including bills of exchange and marine questions relating to freight, average, demurrage, insurances, bottomry... ; [and] in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills. Sosa, 542 U.S. at 715 (citing 4 William Blackstone, Commentaries on the Laws of England 68 (1769)). Additionally, violation of safe conducts, infringement of the rights of ambassadors, and piracy were all considered violations of the law of nations. Id. Although Sosa allowed federal courts to recognize new causes of action under the ATS, it also called for extreme judicial restraint and caution when doing so. Sosa, 542 U.S. at 725. Thus, this Court held that any claim based on the present-day law of nations should rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized. Id. In other words, international law, not federal law, governs whether corporate liability for human rights violations exists under the ATS. See Sosa, 542 U.S. at 725. Accordingly, courts should look to treaties and conventions, customary international law, and law common to major legal systems to determine whether corporate liability exists under the ATS. Sosa, 542 U.S. at 733-34 (citing The Paquete Habana, 175 U.S. 677, 700 (1900)). 6

In Sosa, this Court held that an abduction, false arrest, and detention of less than a day were not actionable under the ATS. 542 U.S. at 738. Sosa involved a Mexican physician who allegedly prolonged a captured United States DEA agent s life to extend his interrogation and torture. Id. at 697. After a federal indictment for murder, the district court issued a warrant for the physician s arrest. Id. DEA agents abducted the physician from his home in Mexico, held him overnight, and brought him to El Paso, Texas, where federal authorities arrested him. Id. at 698. First, this Court concluded that the ATS allowed for a limited number of claims under the law of nations. Sosa, 542 U.S. at 712. This Court recognized such claims under the ATS because torts in violation of the law of nations would have been recognized within the common law of the time. Id. at 714. Again, these violations were limited to those of safe conducts, offenses against ambassadors, and piracy. Id. at 715 (citing 4 William Blackstone, Commentaries on the Laws of England 68 (1769)). Thus, the ATS only allows for a limited number of claims under the law of nations. Id. at 712, 724. Second, this Court held that although Congress has not eliminated federal courts authority to recognize a law of nations claim through a common law lens, federal courts should exercise restrained discretion and judicial caution when considering new causes of action under the ATS. Id. at 725. The Court s concept of common law has changed since the ATS enactment from a court-found, transcendental body of law, to a court-created body of law. Id. Furthermore, watershed cases such as Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), have ushered in a new era of judicial deference to the legislature regarding substantive law. Id. at 726-27. Such precedent, although not decisive to the majority, has even led some like Justice Scalia to 7

conclude that federal courts no longer have the authority to create federal common law under the law of nations. Sosa, 542 U.S. at 745 (Scalia, J., concurring in part and dissenting in part). Finally, courts should exercise restraint in creating new causes of action under the law of nations because of the potential implications to foreign relations. Sosa, 542 U.S. at 727. Courts should only recognize new claims under the law of nations if they rest on international norms that are accepted by civilized nations with the specificity of historical paradigms familiar when section 1350 was enacted. Id. at 732 (citations omitted). Accordingly, courts should look to treaties and conventions, customary international law, and law common to major legal systems to determine whether corporate liability exists under the ATS. Sosa, 542 U.S. at 733-34 (citing The Paquete Habana, 175 U.S. 677, 700 (1900)). Sosa analyzed the plaintiff s claims using the framework laid out above. Sosa, 542 U.S. at 733. The plaintiff claimed that his abduction and false arrest was an arbitrary arrest pursuant to the Universal Declaration of Human Rights ( Declaration ) and the International Covenant on Civil and Political Rights ( Covenant ). Id. at 734 (citations omitted). This Court held that the Declaration does not have the force of international law. Sosa, 542 U.S. at 734. Furthermore, the Covenant did not create obligations enforceable in the federal courts. Id. at 735. Therefore, neither the Declaration nor the Covenant suggested that arbitrary arrests violate a customary international norm. Id. at 735, 737. Additionally, the length of an arbitrary arrest must be defined with specificity equivalent to the original violations under the law of nations. Id. at 737. The plaintiff s broad arbitrary arrest claim did not satisfy this specificity requirement. Id. at 738. Thus, this Court held that the plaintiff s claim under the ATS failed. Id. 8

This Court should affirm the Court of Appeals holding that Fluorburton is not liable for human rights violations under the ATS. Like the plaintiff s arbitrary arrest claim in Sosa, corporate liability for human rights violations is not an international norm accepted by the civilized world with the requisite specificity. See generally Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir. 2010) (citations omitted), reh g denied 642 F.3d 268 (2nd Cir. 2011), en banc reh g denied 642 F.3d 379 (2nd Cir. 2011), cert. denied sub nom. Shell Petroleum N.V. v. Kiobel, 642 F.3d 379 (2011); Doe v. Nestle, 748 F. Supp. 2d 1057 (C.D. Calif. 2010). No major human rights treaty or convention establishes corporate liability for human rights violations with requisite specificity. See, e.g., Kiobel, 621 F.3d at 138-39. Furthermore, corporate liability for human rights violations is neither established by customary international law nor law common to major legal systems. Kiobel, 621, F.3d at 133-37; Nestle, 748 F. Supp. 2d at 1134-36, 1141-42. 1. Corporate Liability For Human Rights Violations Is Not Established By Any Major Human Rights Treaty. As stated above, in Sosa, this Court required that courts look to international law, not federal law, when determining liability under the ATS. 542 U.S. at 725. Proper Sosa analysis entails looking at whether treaties impose liability on corporations for human rights violations. Sosa, 542 U.S. at 733-34 (citing The Paquete Habana, 175 U.S. 677, 700 (1900)). This Court should affirm the Thirteenth Circuit s decision because no human rights treaty has declared that corporations are liable for human rights violations. Kiobel, 621 F.3d at 138-39 (concluding that there is no historical evidence of an existing or even nascent norm of customary international law imposing liability on corporations for violations of human rights. ). 9

Both the Second Circuit s holding in Kiobel and the California District Court s holding in Nestle exemplify proper Sosa analysis. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir. 2010); Doe v. Nestle, 748 F. Supp. 2d 1057 (C.D. Calif. 2010). In Kiobel, residents of the Ogoni Region of Nigeria accused Royal Dutch Petroleum Company ( Royal Dutch ) of aiding and abetting the Nigerian government in human rights violations. Kiobel, 621 F.3d at 123. The plaintiffs formed a group to protest the oil exploration conducted by Royal Dutch s subsidiary. Id. The plaintiffs complained that Royal Dutch enlisted the Nigerian military to stop the protests. Id. The Nigerian military allegedly shot, killed, raped, and arrested residents of the Ogoni region. Id. The plaintiffs brought claims against Royal Dutch under the ATS alleging that Royal Dutch aided and abetted the Nigerian government in committing various human rights violations. Id. The Second Circuit held that Royal Dutch was not liable under the ATS because international law does not recognize corporate liability for human rights violations. Id. at 148-49. The court identified the Sosa requirements and held that international law is the proper authority for determining corporate liability for human rights violations under the ATS. Id. at 125-26 (citing Sosa, 542 U.S. at 725). The court then looked at treaties, conventions, and tribunals to determine whether corporate liability for human rights violations existed as an international norm. See Kiobel, 621 F.3d at 131-49. The court concluded that corporate liability for human rights violations does not exist as an international norm. Kiobel, 621 F.3d at 148-49. Thus, Royal Dutch was not liable for human rights violations under the ATS. Id. Similarly, although not central to the issue before the court, Nestle held that corporations were not liable under the ATS. 748 F. Supp. 2d 1143-44. Nestle involved Malian 10

plaintiffs who were allegedly subjected to forced labor, torture, and cruel, inhuman, and degrading treatment while working on land used for cocoa production. 748 F. Supp. 2d at 1064. The plaintiffs alleged that the defendants aided and abetted those who committed the human rights violations by providing the violators with financial assistance, farming supplies, and training in labor practices. Nestle, 748 F. Supp. 2d at 1064, 1098. The court used the Sosa requirements to determine the proper aiding and abetting standard. Id. at 1098-1111. Using that standard, the court held that the plaintiff s claims failed to prove the elements of aiding and abetting. Id. at 1111. Additionally, the court analyzed whether a corporation could be liable under the ATS for aiding and abetting others in committing human rights violations in anticipation of a forthcoming amended complaint. Id. at 1124. Nestle, like Sosa, determined that examining international treaties, conventions, tribunals, and law common to major foreign legal systems was necessary to establish corporate liability for human rights violations under the ATS. Id. at 1126-27. Using this analysis, Nestle held that corporate liability for human rights violations is not an international norm. Id. at 1143-44. Thus, the ATS does not allow for claims of human rights violations against corporations. Id. In accordance with Sosa, both Kiobel and Nestle looked to treaties and conventions to determine whether corporate liability for human rights violations exists as an international norm. See Kiobel, 621 F.3d at 137-41; Nestle, 748 F. Supp. 2d at 1137-41. By definition, treaties are between States, not private parties. Nestle, 748 F. Supp. 2d at 1137 (quoting Presbyterian Church, 244 F. Supp. 2d at 317). Thus, human rights treaties and conventions most often bind States. Id. Only in limited situations do such treaties and conventions bind natural persons. Id. 11

However, no international treaty or convention holds corporations liable for human rights violations. 1 See Kiobel, 621 F.3d at 139; Nestle, 748 F. Supp. 2d at 1139. Thus, Ms. Araya cannot establish that there is an international norm of corporate liability for human rights violations. 2. Neither Customary International Law Nor Law Common To Major Legal Systems Establish Corporate Liability For Human Rights Violations. This Court should affirm the Court of Appeals decision because neither customary international law nor law common to major legal systems establish corporate liability for human rights violations. See Kiobel, 621, F.3d at 133-37; Nestle, 748 F. Supp. 2d at 1134-36, 1141-42. Along with analyzing treaties and conventions to determine whether corporate liability for human rights violations is an international norm, the Kiobel and Nestle courts looked to customary international law and law common to major legal systems. Id. Courts often look to the Nuremburg Tribunals for international law precedent. See Kiobel, 621, F.3d at 133-37; Nestle, 748 F. Supp. 2d at 1134-36, 1141-42. The London Charter, which established the Nuremburg Tribunal, recognized criminal organizations but only enabled liability for individuals within that organization, not the organization itself. Nestle, 748 F. Supp. 2d at 1135; Kiobel, 621 F.3d at 132-33. Post-Nuremburg tribunals have continued to refrain from holding corporations 1 The Brief of Chamber of Commerce of the United States of America as Amicus Curaie supporting the Appellee in Flomo v. Firestone Natural Rubber Co., also concludes that none of the major human rights treaties create corporate liability. 643 F.3d 1013 (7th Cir. 2011) (No. 10-3675) (2011 WL 2452309) ( See Convention on the Prevention and Punishment of the Crime of Genocide, art. IV, Dec. 9, 1948, 78 U.N.T.S. 277 ( Persons committing genocide or any other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals. (emphasis added)); United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 4(1), 6(1), 6(3), Dec. 10, 1984, 1465 U.N.T.S. 85; International Convention on the Suppression and Punishment of the Crime of Apartheid, art. 3, Nov. 30, 1973, 1015 U.N.T.S. 243 (U.S. not a party) ( International criminal responsibility shall apply... to individuals, members of organizations and institutions [,] and representatives of the State. (emphasis added)); see generally CEDAW, Dec. 18, 1979, 1249 U.N.T.S. 13 (U.S. not a party) (obligations directed to States Parties); Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 (U.S. not a party) (same). ). 12

liable under international law. See Kiobel, 621 F.3d at 136 (surveying post-nuremburg tribunals and concluding that they have only exercised jurisdiction over natural persons). Furthermore, tribunals that specifically discuss corporations have held that only individuals within the corporation may be held liable for violating international law. Nestle, 748 F. Supp. 2d at 1135-36 (citing United States v. Krauch, 8 T.W.C. at 1132-33, 1153 (references to corporations were tribunal s shorthand for individuals)). Finally, nations have not exhibited, in practice or judicial decisions, the intent to hold corporations liable under international law, much less for international human rights violations. See Brief of Chamber of Commerce of the United States of American as Amicus Curaie Supporting Appellees, Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011) (No. 10-3675) (2011 WL 2452309). The 1998 Rome Statute of the International Criminal Court exemplifies the lack of international consensus on corporate liability. Nestle, 748 F. Supp. 2d at 1139-40; Khulumani, 504 F.3d at 322-23 (Korman, J., dissenting). Initial Rome Statute drafts allowed for corporate liability but the final version omitted such provisions. Nestle, 748 F. Supp. 2d at 1140 (citation omitted). Many major nations opposed the corporate liability provision or expressed reluctance because of the lack of uniform practices among nations. Nestle, 748 F. Supp. 2d at 1140 (noting, among others, China s, Sweden s, Mexico s, and Greece s opposition, and the United States, Australia s, and Korea s reluctance). This lack of support by major nations was the chief reason for the provision s deletion. Nestle, 748 F. Supp. 2d at 1140; Khulumani, 504 F.3d at 323 (Korman, J., dissenting). Both the lack of treaties declaring corporate liability for human rights violations and the affirmative evidence of disapproval for corporate liability in international law, such as the Rome Statute, prove that an international 13

norm enabling corporate liability for human rights violations does not exist. See Kiobel, 621 F.3d at 136-41; Nestle, 748 F. Supp. 2d at 1137-41. Thus, this Court should affirm the appellate court s decision that corporations cannot be held liable under the ATS. This Court, in Sosa, required courts to seek restraint and act with great caution when determining proper causes of action under the ATS and the law of nations. Sosa, 542 U.S. at 727. As a result, any claim based on the present-day law of nations should rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized. Sosa, 542 U.S. at 725. Ms. Araya cannot show, through human rights treaties and conventions, international tribunals, or international judicial decisions from civilized nations that an international norm of corporate liability for human rights violations exists. Thus, this Court should affirm the Court of Appeals' holding that corporations are not liable under the ATS for human rights violations. 3. Courts Have Erroneously Applied Sosa When Concluding That Corporate Liability Exists Under The ATS. Courts have erroneously applied Sosa when concluding that corporate liability exists under the ATS. Nestle noted, *D+omestic courts have almost uniformly concluded that corporations may be held liable for violations of international law. Nestle, 748 F. Supp. 2d. at 1128-29 (citations omitted); see, e.g., Doe v. Unocal Corp., 395 F.3d 932, 962-63 (9th Cir. 2001); Romero v. Drummond Co., Inc., 552 F.3d 1303, 1315 (11th Cir. 2008) (citation omitted); Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254, 282 (2nd Cir. 2007) (Katzmann, J., concurring); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 316-17 (S.D.N.Y. 2003). However, courts have erroneously based such holdings on precedent, non- 14

binding, unrelated treaties, or assumptions of corporate liability without proper analysis. See, e.g., Unocal, 395 F.3d at 965 (assumed corporate liability existed without analysis); Romero, 552 F.3d at 1315 (bound by precedent); Presbyterian Church, 244 F. Supp. 2d at 317 (nonbinding treaties proved corporate liability). Such analysis is unacceptable under Sosa. a. Failing To Establish That Corporate Liability For Human Rights Violations Is An International Norm Violates Sosa. Failing to establish that corporate liability for human rights violations is an international norm violates Sosa. For example, Unocal, which was decided before Sosa, failed to adequately address whether corporate liability for human rights violations is an international norm when it established such a cause of action under the ATS. Unocal involved an American oil company s (Unocal) drilling for oil and gas in Myanmar. 395 F.3d at 937. The Myanmar military provided Unocal a range of services for the project, including security. Unocal, 395 F.3d at 937-38. Plaintiffs were villagers in the area affected by the gas and oil production and distribution. Id. at 942-43. They alleged that Unocal aided and abetted the Myanmar military in raping, torturing, and murdering villagers, in addition to subjecting them to forced labor. Id. at 943. Plaintiffs brought these claims under the ATS as violations of the law of nations. Id. at 944. The Ninth Circuit Court of Appeals reversed the district court s order in part but affirmed the district court s order granting defendant s summary judgment on the torture claims. Id. at 962. First, the court determined that torture, murder, and slavery are jus cogens 2 violations. 2 Unocal defines jus cogens norms as norms of international law that are binding on nations even if they do not agree to them. 395 F.3d at 945 n. 14 (citing Blake v. Republic of Argentina, 965 F.2d 699, 714-15 (9th Cir. 1992)). 3 Unocal did in fact cite to the Universal Declaration of Human Rights and the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal to support its conclusion the forced labor is a jus cogens violation. 395 F.3d at 945. Even assuming these 15

Therefore, forced labor, murder, and rape are violations of the law of nations. 3 Id. at 945 (citing federal case law that defines murder and rape as forms of torture). Second, the court held that private actors who did not engage in state action could still be held liable for some crimes under 28 U.S.C. 1350. 395 F.3d at 945-46 (citing Kadic v. Karadzic, 70 F.3d 232, 242-43 (2nd Cir. 1995) (determining that private individuals can be held liable under section 1350 by analyzing treaties and conventions)). The court held that genocide and war crimes do not require state action for liability to attach to an individual. 395 F.3d at 946, 954. Third, the court looked to treaties and international tribunals and concluded that aiding and abetting another in murdering, raping, and torturing are valid offenses in international law. Id. at 950. Finally, the court held that there were disputed material facts as to whether the defendant aided and abetted the Myanmar military in the rape, murder, and forced labor of villagers. However, there was no material factual dispute regarding the torture claims. Id. at 962. Thus, the court reversed the district court s decision to grant summary judgment for the defendants regarding the rape, murder, and forced labor claims but affirmed the decision to grant summary judgment for the defendants regarding the torture claim. Id. The court s analysis in Unocal is flawed. First, the court conflated corporate liability and individual liability in its determination that private actors could be held liable under the ATS. Notably, in holding that private actors could be liable under section 1350 without engaging in international treaties and tribunals support Unocal s contention, they only support Unocal s holding that forced labor is a jus cogens violation, not murder and rape. Although murder and rape may be jus cogens violations, Unocal does not analyze any international authority to support such a conclusion. 16

state action, the court stated, while most crimes require state action for... liability to attach, there are a handful of crimes, including slave trading, to which the law of nations attributes individual liability, such that state action is not required. Unocal, 395 F.3d at 946 (citing Tel- Oren v. Libyan Arab Republic, 722 F.2d 774, 794-95 (D.C. Cir. 1984) (Edwards, J., concurring)) (emphasis added by the Ninth Circuit). Individual liability of a corporation is much different from individual liability of a person. Without further analysis of treaties, customary international law, and law common to major civilized nations, the court could not properly assert that both corporations and people could be held liable under the ATS. See Sosa, 542 U.S. at 733-34 (citing The Paquete Habana, 175 U.S. 677, 700 (1900)). Second, the court s failure to distinguish between persons and corporations tainted its discussion of aiding and abetting crimes under the law of nations. Determining that the crime of aiding and abetting exists in the realm of international law is very different from determining that States, people, and corporations can all specifically be held liable for aiding and abetting under international law. Such analysis fails this Court s specificity requirement in recognizing new violations of the law of nations. Sosa, 542 U.S. at 732 (citations omitted). b. Relying On Federal Common Law, Instead Of Analyzing Whether Corporate Liability For Human Rights Violations Is An International Norm, Violates Sosa. Relying on federal common law instead of international law violates Sosa. For example, Romero violated the Sosa requirements by relying on federal common law instead of international norms. See 552 F.3d at 1315. Romero involved an Alabama coal mining company that allegedly hired operatives to kill Colombian trade union leaders. Romero, 552 F.3d at 1308-1309. The Eleventh Circuit Court of Appeals determined that corporations could be held liable 17

under the ATS because the ATS provides no exemptions for corporations. Id. at 1315. Previous circuit court rulings allowing corporate liability under the ATS also bound the court. Id. This Court should reject Romero s analysis because it fails to apply the Sosa requirements correctly. Compare Romero, 552 F.3d at 1315; with Sosa, 542 U.S. at 732 (citations omitted). The Romero court failed to cite any international document or body in concluding that corporate liability exists under the ATS. Furthermore, the precedent the court cited also fails to analyze any international body or document before it simply assumes corporate liability exists under the ATS. See Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005). Thus, the Eleventh Circuit Court of Appeals lack of international law analysis fails under Sosa. c. Relying On Unrelated, Non-Binding Treaties And Conventions Fails To Prove That Corporate Liability For Human Rights Violations Is An International Norm. Courts must rely on relevant treaties and conventions when determining whether an international norm exists. See Kiobel, 621 F.3d at 137-38. Presbyterian Church is an example where a court erroneously held that corporate liability existed under the ATS by looking to nonbinding and unrelated treaties. Nestle, 748 F. Supp. 2d at 1129 (citing Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y 2003)). In making its decision, the district court identified a number of treaties that allow for corporate liability. See, e.g., Presbyterian Church, 244 F. Supp. 2d at 317 (citing the Brussels Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, Dec. 17, 1971, 974 U.N.T.S. 255). However, these treaties provide little support for concluding that international norms allow corporate liability for human rights violations. Nestle, 748 F. Supp. 2d at 1137. At most, these 18

treaties show that the international community shows concern for limiting the impact of oil spills and nuclear disasters. Id. Moreover, the treaties mentioned in Presbyterian Church have not been ratified by the United States or other major nations that would be most affected by the treaties terms. Kiobel, 621 F.3d at 138. Thus, these treaties fail to show an international norm enabling corporate liability for human rights abuses. Id.; Nestle, 748 F. Supp. 2d at 1138. Furthermore, the court s use of the Declaration as evidence for international support of corporate liability for human rights violations is also erroneous. Nestle, 748 F. Supp. 2d at1138; See Sosa, 542 U.S. at 734-35. The court in Presbyterian Church held that the Declaration includes corporations by using all-inclusive language of every individual and every organ of society. 244 F. Supp. 2d at 318 (quoting G.A. Res. 217 A(III), Dec. 10, 1948). However, this Court rejected using the Declaration because it is non-binding on the international community. Sosa, 542 U.S. at 734-35 (citations omitted); Nestle, 748 F. Supp. 2d at 1138. In fact, numerous courts and interested parties have surveyed major human rights treaties and concluded that no human rights treaty imposes liability on corporations. See, e.g., Nestle, 748 F. Supp. 2d at 1137-39; Kiobel, 621 F.3d at 138-40; Brief of Chamber of Commerce of the United States of American as Amicus Curiae Supporting Appellees, Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011) (No. 10-3675) (2011 WL 2452309) (citations omitted). Therefore, this Court should affirm the Court of Appeals decision because there is no treaty or convention that establishes an international norm of corporate liability for human rights violations. d. Sosa Precludes Federal Courts From Establishing Liability Under The ATS When An International Norm Does Not Exist. Sosa states that any new cause of action under the ATS must rest on international norms accepted by the civilized world and defined with requisite specificity. 542 U.S. at 725. 19

Recently, the Seventh Circuit has criticized the Second Circuit s holding in Kiobel. See Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011). The Seventh Circuit held that Kiobel s premise was flawed. Flomo, 643 F.3d at 1017. The court thought that the dissolution of Nazi corporations after World War II proved that an international norm of corporate liability exists. Id. (citing 1 Enactments and Approved Papers of the Control Council and Coordinating Committee 131 (1945)). Furthermore, even supposing no corporation had ever been punished for violating customary international law[,] [t]here is always a first time for litigation to enforce a norm; there has to be. Flomo, 643 F.3d at 1017 (emphasis in original). This Court should reject the Seventh Circuit s reasoning because it violates this Court s holding in Sosa. See 542 U.S. at 715. The dissolution of Nazi corporations that had assisted in the Nazi war effort can easily be seen as a sanction against the State and Nazi party rather than the corporations. See Control Council Law No. 2, art. I reprinted in 1 Enactments and Approved Papers of the Control Council and Coordinating Committee 131 (1945) ( The Nationalist Socialist German Labour Party, its formations, affiliated associations and supervised agencies, including para-military organizations and all other Nazi institutions established as instruments of party domination are hereby abolished and declared illegal. ) (emphasis added). Contrary to the court s holding in Flomo, the Control Council cites no international norm that establishes corporate liability. Rather, the Control Council was focused on crushing the Nazi Regime. See 1 Enactments 2 (1945) ( It is our inflexible purpose to destroy German militarism and Nazism and to ensure that Germany will never again be able to disturb the peace of the world. ). Furthermore, even assuming the dissolution of Nazi corporations was a form of corporate liability, as the Seventh Circuit suggests, this single instance falls woefully short of 20

establishing an international norm of corporate liability for human rights violations. Additionally, the Allied Forces agreement to dissolve all remnants of the Nazi Regime took place outside the realm of the judicial system. As stated above, the Nuremberg Tribunals were the only judicial bodies established to impose liability for the war crimes committed in World War II and these tribunals only held individuals responsible, not corporations. Nestle, 748 F. Supp. 2d at 1135; Kiobel, 621 F.3d at 132-33. The Seventh Circuit s suggestion that courts can still hold corporations liable under the ATS because *t+here is always a first time for litigation to enforce a norm, is also flawed. Flomo, 643 F.3d at 1017. An international norm of corporate liability for human rights violations, by definition, cannot exist if never litigated. In effect, the Seventh Circuit is sanctioning the creation of such norms by federal courts. Sosa effectively eliminates the federal courts authority to do so. See 542 U.S. at 725. Courts must defer to the international community when determining the law of nations, not the other way around. See id. Thus, this Court should reject Flomo because it fails to establish an international norm of corporate liability for human rights violations. B. Corporate Liability Under The ATS Will Impede Development Of Foreign Nations And Have Negative Foreign Policy Implications. Not only is corporate liability nonexistent under international law, corporate liability for human rights violations under the ATS would have negative foreign policy implications and violate the Separation of Powers Doctrine. Unless expressly stated otherwise, there is a strong presumption that Congress does not intend to extend its laws to foreign nations. E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991). This strong presumption serves to protect against unintended clashes between our laws and those of other nations which could result in 21

international discord. Id. Further, this presumption prevents the serious risk of interference with a foreign nation s ability independently to regulate its own commercial affairs. F. Hoffman-La Roche Ltd. v. Empagran, 543 U.S. 155, 165 (2004). Thus, this court should avoid international conflict and hold that a corporation cannot be held liable under the ATS for human rights violations committed by a foreign nation. 1. Multinational Corporations Provide Employment, A Higher Standard of Living And Incentivize Democratization. Multinational corporations provide practical improvements in their host countries. Multinational corporations provide employment to host countries and raise the standard of living for the nation s citizens. Johnathan Cummings, et al., Growth and Competitiveness in the United States: The Role of its Multinational Corporations, MCKINSEY GLOBAL INSTITUTE (June 2010) http://www.mckinsey.com/mgi/publications/role_of_us_multinational_companies/pdfs/mgi_ US_MNCs.pdf. Thus, it is important to provide incentives to corporations to expand internationally. Studies have shown that the stability of a nation has a positive linear relationship with the amount of foreign investment in that nation. Quan Li & Adam Resnick, Reversal of Fortunes: Democratic Institutions and Foreign Direct Investment Inflows to Developing Countries, INT L ORG. 175, 202 (2003). Because multinational corporations often choose to develop in more stable countries, there is an incentive for the country to become more democratized. Id. The democratization of a nation usually means an increase in the standard of living. Robert J. Barro, Democracy and Growth, J. ECON. GROWTH. 1, 15 (1996). Allowing corporate liability under the ATS for a foreign military s alleged crimes creates disincentives for corporations to spur growth and democratization in foreign lands. 22

2. Allowing Courts To Create Corporate Liability Under The ATS Violates The Separation Of Powers Doctrine. The potential implications for the foreign relations of the United States of recognizing [liability of corporations under the ATS] should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs. Sosa, 542 U.S. at 727. This Court has recognized the primacy of the Executive in the conduct of foreign relations. First Nat. City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 767 (1972)(emphasis added). Similarly, the Constitution vests Congress with the power to create policy that affects foreign relations including declaring war, maintaining a military, regulating commerce and defining offenses against the law of nations. U.S. Const. art. I, 8, cl. 3, 10, 11, 12. There is a sound principle that on occasion individual litigants may have to forgo decision on the merits of their claims because the involvement of the courts in such a decision might frustrate the conduct of the Nation's foreign policy. First Nat. City Bank, 406 U.S. at 769. This sound principle is applicable to the present case. If this Court were to extend liability to Fluorburton under the ATS it would be acting as the Executive and the Legislature, as both the manager of foreign affairs and the policymaker. Allowing corporate liability under the ATS for human rights violations would be inconsistent with the well-established presumption that Congress does not intend to apply this type of liability extraterritorially. See, E.E.O.C., 499 U.S. at 248. Such lawsuits would create tension between the United States and other nations when the United States is not a party to the lawsuit. If this Court allows corporate liability under the ATS, it would be acting in opposition to the ATS s purpose and the Court s previous admonishment to use great caution in extending liability under ATS. Sosa, 542 U.S. at 728. Sosa provides no support for such a 23