Supreme Court Agrees To Resolve Deep Circuit Split and Decide If Alien Tort Statute Permits Actions against Corporations

By Louis M. Solomon

We have followed the development of federal Circuit law on whether the Alien Tort Statute, 28 U.S.C. § 1350, and specifically the Torture Victim Protection Act, 28 U.S.C. § 1350 note § 2(a), create rights of action against corporations.   The Supreme Court has agreed to decide the issue.  The issue presents a growing and important part of international litigation and dispute resolution, including whether and to what extent U.S. law will be found to apply extraterritorially.

Section 1350 provides:

"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."

Interpreting that statute, first came Kiobel, et al. v. Royal Dutch Petroleum Co., et al., 06-4800-cv, 06-4876-cv (2d Cir. 9/17/10) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], which we discussed here, among other places.   In that case the U.S. Court of Appeals for the Second Circuit majority (Cabranes, Jacobs, JJ.)  presented an exhaustive discussion of the history of the ATS, more modern incarnations including the sources of law underpinning the Nuremberg trials and other modern treaties, and the entire subject of corporate liability for alleged violations of human rights in the international, extraterritorial context. 

The other Circuits to weigh in on the subject disagreed.  We posted on the different conclusion reached by the D.C. Circuit, for example, in Doe v. Exxon Mobil, 654 F.3d 11 (D.C. Cir. 2011) [enhanced version  / unenhanced version ], holding that federal courts have jurisdiction to hear alien tort claims brought against corporations. In that case, plaintiffs alleged that the security forces of Exxon Mobil subsidiaries committed human rights violations in Indonesia.  Similar conclusions were reached by the Seventh and Eleventh Circuits (see our discussion here).

Last week, the Supreme Court agreed to hear two cases, with the question presented being phrased as:

Whether the Torture Victim Protection Act, 28 U.S.C. § 1350 note § 2(a), permits actions against defendants which are not natural persons.

The docket sheets for Kiobel cert granted are here.

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