Kiobel V. Royal Dutch Petroleum Co. on:
[Wikipedia]
[Google]
[Amazon]
''Kiobel v. Royal Dutch Petroleum Co.'', 569 U.S. 108 (2013), was a
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
decision in which the court found that the presumption against
extraterritoriality
In international law, extraterritoriality or exterritoriality is the state of being exempted from the jurisdiction of local law, usually as the result of diplomatic negotiations.
Historically, this primarily applied to individuals, as jurisdict ...
applies to claims under the
Alien Tort Claims Act
The Alien Tort Statute ( codified in 1948 as ; ATS), also called the Alien Tort Claims Act (ATCA), is a section in the United States Code that gives federal courts jurisdiction over lawsuits filed by foreign nationals for torts committed in vio ...
. 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.
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.
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.
''Kiobel'' is considered a 'foreign cubed' case in which foreign plaintiffs made a claim against a foreign company for human rights violations overseas.
Background
The plaintiffs in ''Kiobel'' were citizens of
Nigeria
Nigeria, officially the Federal Republic of Nigeria, is a country in West Africa. It is situated between the Sahel to the north and the Gulf of Guinea in the Atlantic Ocean to the south. It covers an area of . With Demographics of Nigeria, ...
who claimed that Dutch, British, and Nigerian oil-exploration corporations aided and abetted the Nigerian government in the 1990s to commit violations of
customary international law
Customary international law consists of international legal obligations arising from established or usual international practices, which are less formal customary expectations of behavior often unwritten as opposed to formal written treaties or c ...
.
[''Kiobel v. Royal Dutch Petroleum'', 621 F.3d 111 (2d Cir. 2010).]
/ref> The plaintiffs claimed that Royal Dutch Shell
Shell plc is a British multinational oil and gas company, headquartered in London, England. Shell is a public limited company with a primary listing on the London Stock Exchange (LSE) and secondary listings on Euronext Amsterdam and the New ...
compelled Shell Nigeria
Shell Nigeria is the common name for Shell plc's Nigerian operations carried out through four subsidiaries—primarily Shell Petroleum Development Company of Nigeria Limited (SPDC). Royal Dutch Shell's joint ventures account for more than 21% of ...
its Nigerian subsidiary, in cooperation with the Nigerian government
The federal government of Nigeria is composed of three distinct branches: the executive, the legislative, and the judicial, whose powers are vested and bestowed upon by the Constitution of the Federal Republic of Nigeria. One of the primary f ...
, in a brutal crushing of peaceful resistance to aggressive oil development in the Ogoni Niger River Delta
The Niger Delta is the delta of the Niger River sitting directly on the Gulf of Guinea on the Atlantic Ocean in Nigeria. It is located within nine coastal southern Nigerian states, which include: all six states from the South South geopolitic ...
.[Suffolk Transnational Law Review
Suffolk University Law School (also known as Suffolk Law School) is the private, non-sectarian law school of Suffolk University located in downtown Boston, across the street from the Boston Common and the Freedom Trail, two blocks from the Mass ...]
">
Plaintiffs sought damages under the ATS. The defendants moved to dismiss based on a two-pronged argument. Firstly, they argued that customary international law itself provides the rules to decide whether conduct violates the law of nations where non-state actors are alleged to have committed the wrong in question. Second, they contended that no norm has ever existed between nations that imposes liability upon corporate actors.
On September 29, 2006, the district court dismissed the plaintiffs' claims for aiding and abetting property destruction; forced exile;
extrajudicial killing
An extrajudicial killing (also known as an extrajudicial execution or an extralegal killing) is the deliberate killing of a person without the lawful authority granted by a judicial proceeding. It typically refers to government authorities, ...
; and violation of the rights to life, liberty, security, and association. It reasoned that customary international law did not define the violations with sufficient particularity. The court denied the defendants' motion to dismiss with respect to the remaining claims of aiding and abetting
arbitrary arrest and detention
Arbitrary arrest and detention is the arrest and detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law or order. ...
; crimes against humanity; and torture or cruel,
inhuman, and degrading treatment. The district court then certified its entire order for interlocutory appeal to the Second Circuit based on the serious nature of the questions at issue.
In a 2–1 decision issued on September 17, 2010, the U.S. Court of Appeals for the Second Circuit held that corporations cannot be held liable for violations of customary international law:
*Under both U.S. Supreme Court and Second Circuit precedents over the previous 30 years that address ATS suits alleging violations of customary international law, the scope of liability is determined by customary international law itself.
*Under Supreme Court precedent, the ATS requires courts to apply norms of international law, not domestic law, to the scope of defendants' liabilities. The norms must be "specific, universal and obligatory".
*Under international law, "corporate liability is not a discernible—much less a universally recognized—norm of customary international law,"
and the court could apply to the ATS. Also, the plaintiffs' ATS claims should indeed be dismissed for lack of subject matter jurisdiction.
Kiobel petitioned the Supreme Court for review of the Second Circuit's decision. It was granted on October 17, 2011. Oral arguments were held on February 28, 2012, with
Kathleen Sullivan arguing for Shell and Deputy Solicitor General
Edwin Kneedler
Edwin S. Kneedler (born January 4, 1946) is an American lawyer who was appointed to serve as acting United States Solicitor General by President George W. Bush on the day of President Obama's inauguration, Jan 20, 2009, served until March 19, 20 ...
arguing as a friend to Kiobel.
The arguments received considerable attention in the legal community.
Unexpectedly, the Supreme Court announced, on March 5, 2012, that it would hold additional argument on the case during the October 2012 term. It directed the parties to file new briefs on the 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."
Reargument of the case occurred on October 1, 2012, with Sullivan reappearing for Shell and the
United States Solicitor General
The solicitor general of the United States (USSG or SG), is the fourth-highest-ranking official within the United States Department of Justice (DOJ), and represents the federal government in cases before the Supreme Court of the United States. ...
Donald Verrilli
Donald Beaton Verrilli Jr. (born June 29, 1957) is an American lawyer who served as the solicitor general of the United States from 2011 to 2016. President Barack Obama nominated Verrilli to the post on January 26, 2011. On June 6, the United Sta ...
now arguing as a friend to Kiobel.
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
John Glover Roberts Jr. (born January 27, 1955) is an American jurist serving since 2005 as the 17th chief justice of the United States. He has been described as having a moderate conservative judicial philosophy, though he is primarily an ...
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.
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.
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
Sierra Leone, officially the Republic of Sierra Leone, is a country on the southwest coast of West Africa. It is bordered to the southeast by Liberia and by Guinea to the north. Sierra Leone's land area is . It has a tropical climate and envi ...
. 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".
[Kiobel, Slip Op at 12.]
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."
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
Anthony McLeod Kennedy (born July 23, 1936) is an American attorney and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Pres ...
separately wrote a one-paragraph concurrence noting that the presumption against extraterritorial application "may require some further elaboration and explanation."
Justice Alito
Samuel Anthony Alito Jr. ( ; born April 1, 1950) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated to the high court by President George W. Bush on October 31, 2005, and has ser ...
, 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
Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, Justice (title), justice, and Tory (British political party), Tory politician most noted for his ''Commentaries on the Laws of England'', which became the best-k ...
in 1769: violation of safe conducts, infringement of the rights of ambassadors, and piracy.
Justice Breyer
Stephen Gerald Breyer ( ; born August 15, 1938) is an American lawyer and retired jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and re ...
, 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. 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 , or the common enemy of mankind.
Breyer first attacks the majority's view that the presumption is not rebutted. He notes that while the majority sees the ATS as applying to piracy on the
high seas
The terms international waters or transboundary waters apply where any of the following types of bodies of water (or their drainage basins) transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regiona ...
, piracy necessarily occurs aboard a ship and so is considered to occur within the territory of the ship's
flag state
The flag state of a merchant vessel is the jurisdiction under whose laws the vessel is Ship registration, registered or licensed, and is deemed the nationality of the vessel. A merchant vessel must be registered and can only be registered in one j ...
. He then outlines the long history of an international duty to not provide safe harbor to hostis humani generis, or the common enemy of mankind. He then reviews thirty years of U.S. Court of Appeals cases holding for extraterritorial application of the ATS. The concurrence takes issue with the majority's characterization of the ATS as "uniquely hospitable" by noting that many countries permit extraterritorial suits, citing Dutch, English,
International Court of Justice
The International Court of Justice (ICJ; , CIJ), or colloquially the World Court, is the only international court that Adjudication, adjudicates general disputes between nations, and gives advisory opinions on International law, internation ...
, and
European Commission
The European Commission (EC) is the primary Executive (government), executive arm of the European Union (EU). It operates as a cabinet government, with a number of European Commissioner, members of the Commission (directorial system, informall ...
sources. The Court's concern on unwarranted judicial interference in the conduct of foreign affairs is rejected by Breyer, who notes US obligations under the
Convention Against Torture, the
third Geneva Convention
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. The Geneva Convention relative to the Treatment of Prisoners of War was first adopted in 1929, but significantl ...
, the
, and several other treaties.
Ultimately, however, the concurrence agrees with the Court's judgment, as the mere corporate presence of a foreign defendant does not invoke a national interest in denying safe harbor to a common enemy of mankind.
[Kiobel, (Breyer, J., concurring in judgment), Slip Op. at 16.]
Post-Kiobel cases
Lower courts have been left to answer which ATS claims "touch and concern the territory of the United States ... with sufficient force" to overcome the presumption against extraterritoriality, and this has been the subject of most post-Kiobel litigation in the lower courts.
Some of these cases are:
*''
Mastafa v. Chevron Corp'', 770 F.3d 170 (2d Cir. 2014)
*''
Al Shimari v. Caci Premier Technology'', 758 F.3d 516 (4th Cir. 2014),
*''
Doe v. Nestle S.A.'' 906 F.3d 1120 (9th Cir. 2018), reversed by
Nestlé USA, Inc. v. Doe
''Nestlé USA, Inc. v. Doe'', 593 U. S. 628 (2021), is a United States Supreme Court decision regarding the Alien Tort Statute (ATS), which provides federal courts jurisdiction over claims brought by foreign nationals for violations of internatio ...
(2021)
*''
Baloco v. Drummond Co. Inc'', 767 F.3d 1229 (11th Cir. 2014)
*''
Mujica v. AirScan Inc'', 771 F.3d 580 (9th Cir. 2014)
*''
Cardona v. Chiquita Brands Int'l, Inc.'', 760 F.3d 1185 (11th Cir. 2014), Cert. Denied
Supreme Court Docket Files No. 14-777
/ref>
See also
* '' Bowoto v. Chevron Corp.''
* ''Wiwa v. Royal Dutch Shell Co.
The Wiwa family lawsuits against Royal Dutch Shell were three separate lawsuits brought in 1996 by the family of Ken Saro-Wiwa against Royal Dutch Shell, its subsidiary Shell Nigeria and the subsidiary's CEO Brian Anderson. Charges included huma ...
''
* '' Jesner v. Arab Bank, PLC''
References
Further reading
*
External links
* {{caselaw source
, case = ''Kiobel v. Royal Dutch Petroleum Co.'', {{ussc, 569, 108, 2013, el=no
, courtlistener =https://www.courtlistener.com/opinion/858289/kiobel-v-royal-dutch-petroleum-co/
, googlescholar = https://scholar.google.com/scholar_case?case=15509503170515180438
, justia =https://supreme.justia.com/cases/federal/us/569/108/
, oyez =https://www.oyez.org/cases/2011/10-1491
, other_source1 = Supreme Court (slip opinion) (archived)
, other_url1 =https://web.archive.org/web/0/https://www.supremecourt.gov/opinions/12pdf/10-1491_l6gn.pdf
SCOTUSblog links to the opinion and numerous discussions of the case by legal analysts, April 17, 2013.
with Paul L. Hoffman, who represented the plaintiffs, on the ''World Socialist Web Site
The World Socialist Web Site (WSWS) is the website of the International Committee of the Fourth International (ICFI). It describes itself as an "online newspaper of the international Trotskyist movement".
About
The WSWS was established on Fe ...
''
United States Supreme Court cases of the Roberts Court
2013 in United States case law
United States Supreme Court cases
Royal Dutch Shell litigation
Nigeria–United States relations
Alien Tort Statute case law