Kiobel v. Royal Dutch Petroleum Co.

litigants	Kiobel v. Royal Dutch Petroleum Co.
arguedate	February 28
argueyear	2012
rearguedate	October 1
reargueyear	2012
decidedate	April 17
decideyear	2013
fullname	Kiobel, Individually and on behalf of her late husband Kiobel, et al. v. Royal Dutch Petroleum Co. et al.
usvol	569
uspage	108
parallelcitations	133 S. Ct. 1659; 185 L. Ed. 2d 671; 2013 U.S. LEXIS 3159; 81 U.S.L.W. 4241
docket	10-1491
oralargument	https://www.oyez.org/cases/2010-2019/2011/2011_10_1491
oralreargument	https://www.oyez.org/cases/2010-2019/2011/2011_10_1491
prior	Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457 (S.D.N.Y. 2006); affirmed in part, reversed in part, 621 F.3d 111 (2d Cir. 2010); rehearing en banc denied, 642 F.3d 379 (2d Cir. 2011); certiorari granted,.
holding	The presumption against extraterritoriality applies to claims under the Alien Tort Statute.
majority	Roberts
joinmajority	Scalia, Kennedy, Thomas, Alito
concurrence	Kennedy
concurrence2	Alito
joinconcurrence2	Thomas
concurrence3	Breyer (in judgment)
joinconcurrence3	Ginsburg, Sotomayor, Kagan
lawsapplied	Alien Tort Statute,

Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), was a United States Supreme Court decision in which the court found that the presumption against extraterritoriality applies to claims under the Alien Tort Statute (ATS). According to the Court's majority opinion, "it would reach too far to say that mere corporate presence suffices" to displace the presumption against extraterritoriality when all the alleged wrongful conduct takes place outside the United States.[1]

The Court did not rule out the possibility of corporate liability if the presumption against extraterritoriality could be overcome by acts that sufficiently "touch and concern" the United States. Lower court decisions were divided.[2] After the Supreme Court's 2018 decision in Jesner v. Arab Bank, PLC ruled out an ATS cause of action against foreign corporate defendants, the significance of the "touch and concern" test remains unclear.[3]

Kiobel is considered a 'foreign cubed' case in which foreign plaintiffs made a claim against a foreign company for human rights violations overseas.[4]

Background

Decision

The Court, in an opinion joined by five justices, held that the presumption against extraterritoriality applies to claims under the ATS, and nothing in the statute rebuts that presumption. The presumption against extraterritoriality is a canon of statutory interpretation that provides there is no extraterritorial application of a statute unless there is a clear indication otherwise.

Writing for the Court, Chief Justice Roberts observed that while the presumption applies to merits questions and the ATS is strictly jurisdictional, the presumption against extraterritoriality should still apply to the statute because of the danger of judicial interference in foreign policy.[13]

The Court further reasoned that nothing in the text, history or purposes of the ATS rebuts the presumption. The common law transitory torts doctrine, which holds that causes based on a transitory action arising abroad may be considered as happening domestically, helps rebut the presumption, as the statute may have other meanings.[14]

The Court also disregarded a 1795 opinion by Attorney General William Bradford that "there can be no doubt" of tort liability for American citizens who had been plundering inside Sierra Leone.[15] The Bradford Opinion was a response to British complaints about US citizens who violated a treaty between the United States and Britain by joining a French privateer fleet to attack a British Colony, in spite of an official US policy of neutrality. The Court said the opinion "defies a definitive reading and...hardly suffices to counter the weighty concerns underlying the presumption against extraterritoriality".[16][17][18]

Finally, the Court found it would be implausible to suppose that the First Congress wanted to make the United States a "uniquely hospitable forum for the enforcement of international norms."[19] The Court noted that all conduct at issue in the case took place outside the United States and that "it would reach too far to say that mere corporate presence suffices" to displace the presumption against extraterritoriality, unless Congress determines otherwise in a statute more specific than the ATS.

Concurrences

Justice Kennedy separately wrote a one-paragraph concurrence noting that the presumption against extraterritorial application "may require some further elaboration and explanation."

Justice Alito, joined by Justice Thomas, agreed that the statute does not apply extraterritorially and argued that it should be read to apply to only the international law violations that had been identified by William Blackstone in 1769: violation of safe conducts, infringement of the rights of ambassadors, and piracy.[20]

Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, concurred with the judgment but rejected the Court's reasoning. The four justices did not believe that the presumption against extraterritoriality applies to the ATS.[21] Instead, the concurrence sees ATS jurisdiction as limited to when the tort occurs on American soil, the defendant is an American national, or when there is an important American national interest like not providing safe harbor to hostis humani generis, or the common enemy of mankind.[22]

Breyer first attacks the majority's view that the presumption is not rebutted.

Kiobel v. Royal Dutch Petroleum Co.

Background

Decision

Concurrences

Post-Kiobel cases

See also

Further reading

External links

References