Obama Administration Calls For Significant Restrictions On The Application Of The Alien Tort Statute

Author:Ms Sarah Altschuller
Profession:Foley Hoag LLP

The Obama Administration has filed a supplemental amicus brief with the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum arguing for significant limitations on the application of the Alien Tort Statute ("ATS") to conduct outside the United States.

In its March order scheduling Kiobel for rehearing, the Supreme Court directed the parties to focus a new round of briefs on the following question:

Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

In addressing this question, the Administration urges the Court not to adopt a "categorical rule" precluding application of the ATS to conduct that occurred in a foreign country. In the circumstances of the Kiobel litigation, however, the Administration argues that the Court:

should not create a cause of action that challenges the actions of a foreign sovereign in its own territory, where the defendant is a foreign corporation of a third country that allegedly aided and abetted the foreign sovereign's conduct.

Somewhat limiting the breadth of its argument, the Administration then states,

[t]he Court need not decide whether a cause of action should be created in other circumstances, such as where the defendant is a U.S. national or corporation, or where the alleged conduct of a foreign sovereign occurred outside its territory, or where the conduct by others occurred within the U.S. or on the high seas.

The Administration's arguments are very tied to the factual circumstances of the Kiobel litigation: the defendants are British and Dutch corporations who are alleged to have aided and abetted human rights abuses by the Government of Nigeria.

While noting that the defendants have sufficient contacts with the United States to establish personal jurisdiction, the Administration observes that the defendants are not "exclusively present" in the United States, and suggests that, in such circumstances, other forums, such as the defendants' principal place of business or country of incorporation, may provide "more appropriate means of redress." Strikingly, the Administration then concludes:

if foreign nations with a more direction connection to the alleged offense or the alleged perpetrator choose not to provide a judicial remedy, the United States could not be faulted by the international community for declining to...

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