{
  "id": "R42925",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R42925",
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  "source": "EveryCRSReport.com, University of North Texas Libraries Government Documents Department",
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      "source": "EveryCRSReport.com",
      "id": 423461,
      "date": "2013-08-19",
      "retrieved": "2016-04-06T21:00:08.020519",
      "title": "Kiobel v. Royal Dutch Petroleum Co.: Extraterritorial Jurisdiction Under the Alien Tort Statute",
      "summary": "The Alien Tort Statute (ATS) was originally drafted as part of the Judiciary Act of 1789 in order to provide foreign plaintiffs with a forum to remedy violations of customary international law. Now codified at 28 U.S.C. \u00a7 1350, the ATS states that \u201cdistrict 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.\u201d After being raised in only a handful of early cases, the ATS lay dormant for almost 200 years until a 1980 case, Filartiga v. Pena-Irala, signaled a new use for the statute as a vehicle for redressing human rights violations. Post-Filartiga, the ATS was used frequently for \u201cforeign cubed\u201d cases, which involve alien plaintiffs and defendants for torts committed on foreign soil. These cases first prompted debate that most recently has centered on the controversial question of whether corporate defendants can be held liable for aiding and abetting human rights violations under the ATS.\nThis was the question originally presented to the Supreme Court in the 2012 case, Kiobel v. Royal Dutch Petroleum Co. A foreign cubed case, Kiobel involved Nigerian plaintiffs suing for human rights violations aided and abetted by Royal Dutch Petroleum Co. (Royal Dutch) and Shell Transport and Trading Co. (Shell), incorporated in the Netherlands and United Kingdom, respectively. After the first round of oral arguments, the Court ordered rebriefing and reargument on a new issue: whether federal courts even have jurisdiction over cases occurring on foreign soil. \nAsking whether and under what circumstances courts may recognize a cause of action under the ATS, for violations of the law of nations occurring within the territory of a foreign sovereign, the Court held that the presumption against extraterritorial application applied to the ATS. Under Morrison v. National Australia Bank, the presumption against extraterritoriality provides that, \u201c[w]hen a statute gives no clear indication of an extraterritorial application, it has none.\u201d The presumption calls for judicial caution in hearing extraterritorial cases over which Congress has not expressly given the courts jurisdiction. The Kiobel court held that nothing in the text, history, or purpose of the ATS overcame the presumption. \nThe Court left a narrow opening for cases arising under the ATS that \u201ctouch and concern the territory of the United States\u201d with \u201csufficient force\u201d to overcome the presumption. Justice Kennedy\u2019s concurrence suggests that there could be an exception for cases involving \u201cserious violations of international law principles,\u201d but the only example provided by the Court was that \u201cmere corporate presence\u201d is insufficient to rebut the presumption. Because the question of extraterritoriality was sufficient to resolve the case, the Court declined to address the question of corporate liability. \nThe decision in Kiobel could reduce the number of human rights cases successfully brought under the ATS. The \u201ctouch and concern\u201d test leaves a small crack in the door for extraterritorial application, but the test is vague, and its contours unknown. While it appears the courts will proceed with caution, Congress is free to either explicitly give the courts extraterritorial jurisdiction, or clarify the limits of that jurisdiction at least in respect to human rights violations, as it did with the Torture Victim Protection Act (TVPA).",
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      "topics": [
        {
          "source": "IBCList",
          "id": 3919,
          "name": "International Law and U.S. Sovereignty"
        }
      ]
    },
    {
      "source": "University of North Texas Libraries Government Documents Department",
      "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc814972/",
      "id": "R42925_2013Jan17",
      "date": "2013-01-17",
      "retrieved": "2016-03-19T13:57:26",
      "title": "Kiobel v. Royal Dutch Petroleum Co.: Corporate Liability and Extraterritoriality Under the Alien Tort Statute",
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    }
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  "topics": [
    "American Law"
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}