Kiobel v. Royal Dutch Petroleum: Beyond the Alien Tort Statute—Broadly Extending the Presumption Against the Extraterritorial Reach of US Law

Since the Second Circuit decided Filártiga v. Pena-Irala in 1980, plaintiffs have deployed the Alien Tort Statute (“ATS”) to great effect against multinational corporations. The statute — which had lain dormant since 1789 — has for the past 30 years allowed non-US plaintiffs to hale non-US and US companies into federal court for alleged wrongs in violation of the “law of nations.” Often involving claims of significant human rights violations, including torture and mass atrocities, these cases posed enormous financial and reputational risk to defendants. With the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, those days now may be over — but with much broader ramifications than many would have imagined.

On April 17, 2013, the Court ruled unanimously that the Kiobel plaintiffs’ claims fell beyond the scope of jurisdiction offered by the ATS. Those plaintiffs, twelve Nigerian citizens who allegedly suffered as a result of the Nigerian government’s repression of anti-oil company protests, had sued Royal Dutch Shell under the ATS for helping the Nigerian government in its crackdown. There were no US defendants, and the conduct at issue occurred entirely abroad. The case arrived at the Supreme Court having been dismissed based on a holding that corporations could not be subject to claims under international law such that no claim could be made against them under the ATS. Although the Supreme Court initially heard argument on that question last year, the Court took the unusual step of ordering new briefing and reargument on a related issue: “Whether and under what circumstances the Alien Tort Statute, 28 USC. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” The Court’s decision focuses exclusively on that question, leaving the issue of corporate liability undecided.

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