United States: Supreme Court Limits Tort Claims for Violating the Law of Nations

Last Updated: April 20 2013
Article by Benjamin E. Haglund and Barbara M. Yu

The Supreme Court ruled unanimously yesterday in Kiobel v. Royal Dutch Petroleum, No. 10-1491, 2013 U.S. LEXIS 3159 (Apr. 17, 2013), that a claim under the Alien Tort Statute (ATS), which relates to civil actions by foreign citizens for violations of the "law of nations," does not extend to conduct that occurred on foreign soil. This ruling upheld the U.S. Court of Appeals for the Second Circuit in its dismissal of an ATS suit originally filed in the Southern District of New York by Nigerian plaintiffs against Netherlands-based Royal Dutch Shell PLC (Shell Oil). The suit alleged complicity in human rights violations committed against Nigerian civilians in Nigeria's oil-rich Ogoni region. Specifically, the Supreme Court held that a canon of statutory interpretation - the "presumption against extraterritoriality" - applies to claims asserted under the ATS and that nothing in the statute's text, history or purpose rebuts that presumption.

The Court emphasized that a finding of extraterritorial ATS reach could constitute "unwarranted judicial interference in the conduct of foreign policy" and failed to find any indication the statute was passed to make the United States a forum to enforce international norms. The Court also noted that a finding of extraterritorial jurisdiction under the ATS could provide a reciprocal basis for other nations to hale U.S. citizens into their courts for conduct occurring anywhere in the world, including conduct occurring in the United States.

Chief Justice Roberts authored the majority opinion, which was joined by Justices Scalia, Kennedy, Thomas and Alito. Justices Kennedy and Alito filed concurring opinions noting the narrow scope of the Court's holding. Justice Thomas joined in Justice Alito's opinion. Justice Breyer filed an opinion concurring in the judgment but indicated he would not have relied upon the presumption of extraterritoriality. Justice Breyer also argued for a broader statutory interpretation that would allow for the protection of U.S. citizens and U.S. interests. Justices Ginsburg, Sotomayor and Kagan joined in Justice Breyer's concurrence.

The Court's opinion and the concurring opinions can be found here.


Originally enacted as part of the Judiciary Act of 1789, the ATS allows foreign citizens to bring civil actions "committed in violation of the law of nations or a treaty of the United States" in U.S. district courts. The first significant ATS case was heard by the Second Circuit in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). In Filartiga, the court held that a foreign national could bring a suit against another foreign national living in the United States for torture that occurred abroad. In 2004, the Supreme Court determined in its first - and until Kiobel, only - ATS case that the ATS confers jurisdiction over lawsuits for certain limited, serious violations of international law. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Notably, the Sosa holding did not address whether the ATS applies if the violations of international law occur in another country.

In Kiobel, novel questions were raised regarding the proper interpretation of the ATS in the context of corporate tort liability and customary international law. The Southern District of New York had initially ruled in 2006 that customary international law did not define the violations claimed by the Nigerian plaintiffs with the particularity required by Sosa. On appeal, the Second Circuit found that corporations cannot be sued in the same manner as any other private-party defendant under the ATS.

The Supreme Court granted certiorari in October 2011 to consider certain questions related to whether the ATS applied to corporations. In March 2012, the Court ordered a rare second hearing and supplemental briefing to ponder the issue of whether and under what circumstances the ATS would allow courts to recognize a cause of action at all for violations of the law of nations that occur overseas. Reargument before the Court took place on October 1, 2012, and yesterday's decision has been much anticipated.

Looking Ahead

The Court's ruling in Kiobel has significant implications for U.S. corporations that do business on foreign soil. Mining companies, oil companies, pharmaceutical companies, manufacturers and financial institutions have all been the subject of ATS claims. Due to the nature of the allegations in a typical ATS case, the potential damages sought have historically been quite substantial. The determination that the ATS does not have extraterritorial reach indicates that, for the time being, corporations will not likely face the same level of potential liability from their overseas activities under this statute as they have in the recent past. However, the narrow holding, the issues raised in the concurring opinions and the submission of voluminous amicus briefs to the Court all suggest a strong likelihood of continued legal challenges regarding overseas violations of international law. U.S. individuals and companies that are considering initiating overseas operations or those already engaged in overseas operations would be well served to carefully monitor their overseas operations to be certain that they are not running afoul of other similar U.S. laws and that they are in compliance with any foreign laws that might subject them to the same sort of tort liability that, until yesterday, has been vigorously pursued in the United States under the ATS.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions