Royal Dutch Petroleum Can’t Be Sued Under Alien Tort Statute, Justices Rule
By David Stout | April 17, 2013 2:09 pm

In a ruling eagerly awaited by multinational companies and human rights lawyers, the Supreme Court set a high barrier on Wednesday for foreign victims of abuse who hope to use American courts to recover damages for their suffering.

The justices ruled unanimously that a suit brought by Nigerian nationals living in the United States against Royal Dutch Petroleum and other oil entities could not go forward. In so ruling, the justices upheld the U.S. Court of Appeals for the 2nd Circuit, which had dismissed the lawsuit in its entirety after a lower court allowed part of it to stand.

The plaintiffs accuse Royal Dutch, the Shell Transport and Trading Company and their joint Nigerian subsidy of allowing, indeed encouraging, atrocities by the Nigerian military against people who were protesting environmental damage caused by drilling in the Niger Delta in the 1990s. The companies were complicit in beatings, rapes and mass arrests by paying the soldiers, feeding them and allowing them to use oil company property as staging areas for their attacks, the plaintiffs maintain.

At issue was the application of the Alien Tort Statute, enacted in 1789, that gives United States courts jurisdiction over civil actions brought by aliens alleging torts committed in violation of United States treaties or international law. The seldom-used ATS was enacted partly in response to piracy on the high seas. The Nigerian plaintiffs, now legal residents of the United States, tried to use it in a present-day context.

And that they cannot do, Chief Justice John G. Roberts Jr. wrote, declaring that there is a built-in presumption that the ATS does not apply to violations of law in the territory of a sovereign other than the United States. Moreover, the chief justice wrote, applying the ATS too broadly would run the risk of a court dangerously dabbling in foreign policy.

“Finally,” Roberts wrote, “there is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.”

While a disappointment to the Nigerian plaintiffs, the ruling was bound to be greeted with relief by multinational oil and mining companies who have been sued in recent years after the suppression of protests in Nigeria, Indonesia and other countries. At least two important lawsuits, one involving Siemens AG in Argentina, the other involving rival mobile phone companies in South Africa, have been on hold until the high court’s ruling. The Nigeria case is Kiobel v. Royal Dutch Petroleum Co.

Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the chief justice’s opinion.  The other justices, while concurring in the finding, differed somewhat with the reasoning.

Justice Stephen G. Breyer wrote that the defendants’ “minimal and indirect presence” in the United States was not enough to give American courts jurisdiction over the case. But he stopped short of declaring that similar cases should never end up in American courts if the abuse at issue “adversely affects an important American national interest.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed with him.

As Adam Liptak noted in hisaccount for The New York Times, a 2004 Supreme Court ruling left the door open to some claims under the ATS involving violations of international norms with “definite content and acceptance among civilized nations.” And Justice Kennedy wrote briefly to observe that application of the 1789 ATS “may require some further elaboration and explanation” in future cases.

The ruling was cause for celebration at Arnold & Porter LLP and Bancroft PLLC, which teamed up to write amicus briefs arguing for the conclusion the Supreme Court reached. The Court originally was asked to consider only whether corporations, as opposed to natural persons, may be held liable for violations of international law under the statute.

But the Arnold & Porter-Bancroft team urged the justices to broaden the scope of the argument, to consider whether the ATS applied to acts in the territory of a sovereign other than the United States. The court did just that.

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