The Supreme Court issued its Opinion in Kiobel v. Royal Dutch Petroleum this morning. Chief Justice Roberts writing the Opinion of the Court:
We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.
. . .
On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.
The Wall St Journal informs that:
The court unanimously concluded that the allegations, which Shell denies, are too remote from the U.S. to provide federal-court jurisdiction. The only American connections are that the refugees received asylum in the U.S. and that Shell, an Anglo-Dutch company, does business in the U.S.
The justices split 5-4 along their conservative-liberal divide over how high a bar to raise against future lawsuits under the Alien Tort Statute, one of the earliest and most enigmatic federal laws still on the books.
The majority opinion, by Chief Justice John Roberts, presumes that the statute covers only violations of international law occurring within the U.S. Still, the majority opinion left open the theoretical possibility that some acts abroad could so significantly "touch and concern the territory of the United States" to "displace the presumption" against the statute's use. In a concurring opinion, Justice Anthony Kennedy emphasized that future cases could provide "further elaboration and explanation" of that exception.
The court's liberal wing, led by Justice Stephen Breyer, contended the law should remain available for violations that significantly affect U.S. interests, which he said included punishing torturers seeking refuge in the U.S. ...
Shell persuaded a federal appeals court in New York to dismiss the suit, on grounds that international law doesn't permit liability for corporations, as opposed to individuals. The Supreme Court heard the Nigerian refugees' appeal in February 2012, but instead of ruling on the corporate-liability question, ordered reargument over whether the statute applies at all to conduct outside the U.S.
I had retained slim hopes that the cort would address the corporate liability issue, about which I had blogged back when the Second Circuit ruling came down. As far as I can tell, however, the SCOTUS result leaves the Second Circuit ruling on that issue intact for possible adoption at a later date.
