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 provide a remedy under U.S. law.
The Administration’s brief is notably focused on the potential for "international friction" in cases that involve the alleged actions of foreign sovereigns. While prior briefing in Kiobel had focused on the question of whether corporations are proper defendants in ATS cases, the Administration’s latest brief is focused on the potential foreign policy implications of ATS judgments.
Specifically, the Administration cautions that "although petitioners’ suit is against private corporations," "adjudication of the suit would necessarily entail a determination about whether the Nigerian Government or its agents have transgressed limits imposed by international law." The Administration then argues that "recognizing a federal common-law cause of action" in such circumstances "has the inherent potential to provoke the international friction the ATS was designed to prevent."
Finally, the Administration argues that prudential doctrines, including, but not limited to, exhaustion and forum non conveniens, should be applied "at the outset of the litigation and with special force" in ATS cases. The Administration states that courts should apply these doctrines "in as expeditious a manner as possible" in ATS cases "to ensure that foreign defendants are not subject to protracted legal proceedings in cases that are better litigated abroad."
The amicus brief has attracted considerable attention not only for the content of its arguments, but also for the identity of its signatories. Despite the brief’s focus on foreign policy concerns, the Department of State did not sign on to the brief, which was prepared and filed by the Department of Justice.
Both the Department of State and the Department of Commerce had signed an earlier amicus brief filed in Kiobel, in which the Administration argued that corporations are proper defendants in ATS cases. Notably, the latest brief concludes with the statement that corporations are proper defendants in ATS cases, but this final note will be of limited comfort to advocates for corporate liability under the ATS in light of the very restrictive view of the statute’s reach that has been put forward by the Administration.