Amicus Brief in Presbyterian Church of Sudan v. Talisman Energy
EarthRights International submitted several amicus briefs in Presbyterian Church of Sudan v. Talisman Energy, a case involving human rights abuses in the oilfields of southern Sudan.
From 1998 until 2003, the Canadian oil company Talisman Energy was a major operator in the oilfields of southern Sudan, which was then in a long-running civil conflict. As part of that conflict, Sudanese government forces and their allies committed well-documented human rights abuses, bombing and strafing villages with gunships, and engaging in raids on civilian populations perceived to be sympathetic to rebel militias. According to this lawsuit, as part of an effort to secure the oilfields and continue its production, Talisman assisting the Sudanese government forces in their illegal operations, including providing airstrips for government bombers and other forms of support. Talisman is accused of aiding and abetting crimes against humanity, among other things.
In 2006, the district court dismissed the case, partly because of its conclusion that Talisman was insulated from liability by its corporate structure. It rejected the plaintiffs’ arguments that Talisman could be held liable on theories of parent-subsidiary liability, agency liability, and joint venture liability. One of the problems with the decision, however, is that it relied on a variety of different sources of law–including the law of New York, the United Kingdom, Canada, the Sudan, and even Mauritius, where one of the corporate subsidiaries was incorporated–to determine Talisman’s liability. On March 7, 2007, ERI submitted its first amicus brief in this case, arguing that uniform standards should apply to determine liability for violations of international law under the Alien Tort Statute.
In October 2009, a panel of the Second Circuit Court of Appeals affirmed the district court’s dismissal of the case, ruling that Talisman could not be held liable for aiding and abetting the abuses, because the plaintiffs had not shown that Talisman acted with the purpose of assisting human rights abuses. (The court found it unnecessarily to address the agency and joint venture issues that ERI’s first brief addressed.) On October 28, 2009, ERI submitted another amicus brief to support the plaintiffs’ petition for rehearing, which asked the full Court of Appeals to review the case. That brief argued that the issue of aiding and abetting liability should be determined by federal common law, which allowed aiding and abetting liability for those who knowingly assist abuses, regardless of their purpose. The Second Circuit denied rehearing.
The plaintiffs then petitioned the Supreme Court to hear the case. On May 20, 2010, ERI filed an amicus brief in support of this petition, again arguing that aiding and abetting liability should be determined according to federal common law rules. On October 4, 2010, however, the Supreme Court denied review.