June 24, 2013 Articles

Fighting "Today's Pirates": Kiobel and the Future of ATS Claims

The Supreme Court's decision represents a serious missed opportunity to settle the question of whether corporations can be subject to liability under the Alien Tort Statute.

By Morgen Morrissette – June 24, 2013

In the long anticipated ruling for Kiobel v. Royal Dutch Petroleum, the Supreme Court closed a major avenue to corporate tort liability and significantly limited the scope of the Alien Tort Statute (ATS). Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1661 (2013). The Court unanimously declined to decide whether corporations could be held liable under the ATS, holding instead that a presumption against extraterritoriality bars suits from being brought under the ATS for torts committed abroad unless the claim will “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application.” The parameters of the “touch and concern” requirement are not addressed by the majority, but there is some guidance in the concurring opinions of Justice Alito and Justice Breyer.

The statute that was the center of the suit is simple; the text of the ATS reads, in its entirety: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Plaintiffs had successfully sued for extraterritorial torts under the ATS in the past, and it seemed a forgone conclusion that the statute provided jurisdiction over such cases. In fact, the issue was not fully briefed at the time the Supreme Court first held oral arguments in the case, and the case had to be re-argued in the next term to allow the parties to develop arguments on the extraterritoriality question.

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