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US court dismisses Alien Tort case against Occidental & AirScan over alleged complicity in Colombian bombing

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25 November 2014

Standard behind US Court dismissal of Alien Tort case against Occidental & AirScan “sufficiently vague for corporations to hide behind”, says journalist

Author: Siddhartha Mahanta, Foreign Policy (USA)

"Suing companies for atrocities has never been harder. Thanks, Supreme Court!", 18 Nov 2014 [Subscription required]

On Nov. 12 [2014], the 9th U.S. Circuit Court of Appeals…ruled…in Mujica v. AirScan that the families of the victims of a…1998, cluster bomb attack on…Santo Domingo, Colombia, could not make claims against two American companies...Occidental Petroleum and AirScan...allegedly complicit in the attack...The Colombian helicopters that bombed Santo Domingo did so to protect the Caño-Limón pipeline, owned by Occidental, according to the plaintiffs. Occidental allegedly provided financial support to the Colombian military, [and gave] it office space to plan the…raid, the plaintiffs said…[I]n Kiobel vs. Royal Dutch Petroleum Co...Chief Justice John Roberts...[said]..."even where the claims touch and concern the territory of the United States...they must do so with sufficient force to displace the presumption against extraterritorial application."...Now, that "touch and concern" standard has returned...[Judge] Bybee wrote that the [Alien Tort Statute] didn't apply [in this case] because the…claims…failed to "touch and concern" the [US] with sufficient force...Relying on a standard as ill-defined as touch and concern, it seems, creates language sufficiently vague for corporations to hide behind. [Also refers to Exxon Mobil, Cisco, Shell]

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12 November 2014

Mujica v. AirScan and Occidental Petroleum - Opinion

Author: US Court of Appeals for the 9th Circuit

We hold that Plaintiffs lack a valid claim under either the Torture Victim Protection Act (TVPA) or the Alien Tort Statute (ATS). We affirm the district court’s judgment of dismissal with respect to Plaintiffs’ state-law claims, but we do so on the ground of international comity. Although the district court rejected dismissal on that ground, we conclude that the district court abused its discretion by applying the incorrect legal standard in its comity analysis, specifically by concluding erroneously that a “true conflict” between domestic and foreign law is required for the application of international comity in all circumstances.

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12 November 2014

U.S. court refuses to hold Occidental liable in Colombia bombing

Author: Jonathan Stempel, Reuters

A divided federal appeals court…refused to hold Occidental Petroleum Corp and a security contractor legally responsible for alleged complicity in a 1998 military bombing of a Colombian village that killed 17 people…The 9th U.S. Circuit Court of Appeals…said victims' families could not pursue claims against Occidental and…AirScan Inc under two U.S. human rights laws, the Alien Tort Statute (ATS) and Torture Victims Protection Act. Writing for a 2-1 majority, Circuit Judge Jay Bybee cited [the]…Kiobel v Royal Dutch Petroleum Co [decision] in finding that the ATS did not apply…U.S. District Judge Thomas Zilly…dissented from [the] decision…He said the majority "needlessly announces novel standards that will thwart the ability of not only these plaintiffs, but also of every other alien who seeks to hold a U.S. corporation accountable for atrocities committed abroad."

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