April 17, 2013

Supreme Court Decides Kiobel v. Royal Dutch Petroleum Co.

On April 17, 2013, the U.S. Supreme Court decided Kiobel v. Royal Dutch Petroleum Co. (No. 10-1491), holding that the presumption against extraterritoriality applies to claims under the Alien Tort Statute, and nothing in the statute's text or historical context rebuts that presumption.

Nigerian nationals, now residing in the United States, filed a complaint in federal court against certain Dutch, British and Nigerian corporations arising from activities that occurred in Nigeria. Plaintiffs alleged jurisdiction under the Alien Tort Statute, 28 U. S. C. §1350. Plaintiffs asserted that the corporations aided and abetted the Nigerian government in committing violations of the law of nations, including extrajudicial killings, crimes against humanity, torture and cruel treatment, arbitrary arrest and detention, violations of the rights to life, liberty, security, and association, forced exile, and property destruction. Defendants moved to dismiss. The district court dismissed four of the claims for failure to state claims under the law of nations, denied the motion as to the remaining claims, and certified its order for interlocutory appeal. The Second Circuit dismissed all the claims on the ground that the law of nations does not recognize corporate liability.

The Supreme Court affirmed, addressing whether claims brought under the Alien Tort Statute could reach conduct that occurred in the territory of a foreign sovereign. The Court noted a canon of statutory interpretation: when a statute gives no clear indication of an extraterritorial application, it has none. The Court concluded that even though the Alien Tort Statute is "strictly jurisdictional," the extraterritorial presumption still applies.

The Court then considered whether the text of Alien Tort Statute rebutted the extraterritorial application presumption and concluded that it did not. The Court also considered the historical background of the statute's enactment, including piracy and "notorious episodes" that occurred in the United States shortly before its passage, and concluded that this background did not rebut the presumption either. Finally, the Court found "no indication" that the statute was "passed to make the United States a uniquely hospitable forum for the enforcement of international norms."

Chief Justice Roberts delivered the Court's opinion, which was joined by Justices Scalia, Kennedy, Thomas and Alito. Justice Kennedy filed a concurring opinion, in which Justice Thomas joined. Justice Breyer filed an opinion concurring in the judgment, in which Justices Ginsburg, Sotomayor and Kagan joined.

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