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
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."
In a recent decision characterizing precedent as a seven decade "aberration," the Supreme Court of California permitted plaintiff loan borrowers to introduce against a defendant banking institution parol evidence directly contradicting the very terms of the parties’ written loan agreement.