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Nonjusticiability Issues

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Chapter Summary

This chapter analyzes whether and if yes, to what extent, nonjusticiability doctrines may be raised by transnational corporations (TNCs) as a defense in Alien Tort Statute (ATS) litigation. It presents the early status and application of the doctrines in ATS litigation. The chapter explores some categories in which the defence of nonjusticiability may succeed. It examines what guidance the Supreme Court gave in Sosa v. Alvarez-Machain regarding the future application of non-justiciability doctrines. From a practical point of view, after the Supreme Court affirmed the Second Circuit’s decision in Filártiga v. Peña-Irala in Sosa and recognized a federal court’s power to acknowledge new claims based on current-day international law, nonjusticiability issues pose the biggest threat to TNC litigation today.

Keywords: Alien Tort Statute (ATS) litigation; Nonjusticiability Issues; Sosa



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