Supreme Court Sharply Limits Claims Under the Alien Tort Statute
April 19, 2013
In April 17th decision in Kiobel v. Royal Dutch Petroleum, the Supreme Court limited the availability of the Alien Tort Statute (“ATS”) to bring claims in the United States. The ATS provides jurisdiction in United States federal courts for claims brought by aliens alleging a tort committed in violation of the law of nations.
The Court held yesterday that claims under the ATS are subject to a presumption against the application of United States law to conduct that occurred solely within the territory of a foreign sovereign. Applying this rule to the conduct in Kiobel – alleged aiding and abetting of human rights violations in Nigeria – the Court held that because all the acts took place in Nigeria, and in the absence of any connection to the United States sufficient to displace the presumption, the plaintiffs’ efforts to found jurisdiction on the ATS failed. As to a United States nexus, the Court held that “mere corporate presence” of the foreign corporate defendants in the United States – premised on NYSE share trading and an office in New York City – is insufficient to overcome the presumption the Court applied.
The Supreme Court originally took this case to decide whether the ATS provides jurisdiction over claims for corporate liability, but ultimately chose to decide the case on the broader presumption against extraterritorial application, without needing to reach the issue of corporate liability. In doing so, the decision effectively calls into question most cases that have been brought under the ATS since the use of the statute was revived several decades ago, since such cases have typically alleged that private parties acted in complicity with foreign governments to commit alleged human rights violations in foreign states. Because of Kiobel, it will be very difficult to bring such cases in the future, in light of their focus and dependence on acts committed within the territory of foreign sovereigns.
