In Kiobel v Royal Dutch Petroleum Co, the US Supreme Court held that the presumption against extraterritorial application of US laws applies to claims under the Alien Tort Statute (ATS). The Supreme Court left open the possibility of ATS claims which “touch upon and concern” US territory, provided that they “do so with sufficient force to displace the presumption against extraterritorial application“. However, they provided limited guidance as to how that standard should be interpreted.
The circumstances in which the presumption against extraterritorial application will be displaced have recently been considered by courts in the Second, Fourth, Ninth and Eleventh Circuits in the cases of In re: South African Apartheid Litigation, Al Shimari v CACI Premier Technology Inc., Doe v Cisco Systems Inc., and Cardona v Chiquita Brands International Inc. Following these decisions, it appears that in order to establish jurisdiction under the ATS it will be necessary to show that some conduct which contributed to the alleged harm has taken place on US soil.
In a much-anticipated decision concerning the reach of the Alien Tort Claims Act (“ATS”) to foreign actors, the US Supreme Court has concluded that ATS claims alleging a violation of international law “occurring outside the United States” are “barred.” Kiobel v. Royal Dutch Petroleum Co. — U.S. —, No. 10–1491, slip op. at 14 (Apr. 17, 2013). Applying the presumption against extraterritorial application of US laws, a five-justice majority held that foreign nationals could not sue Dutch, British, and Nigerian-based corporations in US federal court based on claims of aiding and abetting human rights violations committed in Nigeria.
On 1 October 2012, the United States Supreme Court will hear further arguments in the case of Kiobel v Royal Dutch Petroleum Co, bringing the issue of business and human rights to the fore and raising the question of how businesses can protect themselves against allegations of complicity in governmental human rights abuses in connection with their operations.
The case of Kiobel concerns a claim by a group of Nigerian citizens that Shell aided and abetted the commission of gross human rights violations by the Nigerian military dictatorship in the 1990s in order to suppress lawful protests against the exploitation of oil in the Niger Delta. The claim is brought under the Alien Tort Statute (“ATS“), a law from 1789, which allows foreign nationals to bring a civil claim for violations of international law in US courts. The Court was initially concerned with the issue of whether the liability of a corporation for human rights violations can be founded under the ATS. The Court however broadened the question and the arguments on 1 October will concern the extraterritorial application of the ATS.