Kiobel Insta-Symposium: The Death of the ATS and the Rise of Transnational Tort Litigation

by Roger Alford

The ATS as we know it is dead. I predicted as much in October, but I was uncertain whether the Supreme Court would deliver a mortal blow and by what means it would deliver it. Now we know. The presumption against extraterritoriality, combined with a narrow interpretation of territoriality, means that the Filartiga human rights revolution is essentially over. Other posts this week will discuss whether the ATS has a future after Kiobel, but that is simply a search for a silver lining in what is, for plaintiffs, otherwise a dark and ominous thunderstorm that has destroyed an entire cottage industry.

What now? Obviously there is the Torture Victim Protection Act (TVPA), which may be sufficient for some causes of action. But per Mohamed v. Palestinian Authority, such causes of action are only available against natural persons. No corporate claims may be brought under the TVPA, and claims against corporate officers will struggle to overcome the Iqbal/Twombly pleading standards.

Others will argue that the ATS survives as long as there is some territorial nexus. This may mean that the old American Banana and Sisal Sales standard applied in the antitrust context is now applicable to human rights litigation. The search is on for some constituent act that occurred within the forum to satisfy the territorial nexus. But if territoriality is the new standard, why rely on international law instead of a panoply of more favorable domestic laws that capture the same conduct? And if Alito’s standard for territoriality is required, then the constituent territorial act must violate an international law norm. Good luck finding that conduct.

More promising than these options is transnational tort litigation. As I discuss in a forthcoming article (now more relevant than ever) and as Trey Childress discusses here and a recent Irvine Law Review symposium features here, the future of human rights in domestic courts is transnational tort litigation. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. In the quest to provide relief for victims of grave abuse, international human rights violations will now be reframed as transnational torts. Virtually every complaint pleading an ATS violation could allege a traditional domestic or foreign tort. Indeed, many complaints routinely add pendent state tort claims. In the Kiobel oral argument, both Kathleen Sullivan and Paul Hoffman concede the availability of state tort claims in lieu of ATS litigation.

What does this mean in practice? Now more than ever, human rights lawyers must become experts on choice of law and comparative tort law. It is a trend that already has been applied for over a decade in the terrorism context, but no one has been paying attention. Pursuant to the FSIA’s Flatow amendment, victims of international terrorism have secured billions (yes billions) of dollars in judgments against state sponsors of terrorism. They typically have done so by invoking choice of law principles to apply domestic tort laws to redress foreign terrorist attacks. In most cases the state tort law of the decedents’ domiciliary has controlled. Thus, when a suicide bomber kills Americans in Israel, or Lebanon, or Nigeria, it is Illinois, Louisiana, or Nebraska law that is applied to hold the perpetrators accountable.

Going forward, human rights lawyers must consider whether choice-of-law standards of the several states will authorize recourse to state or foreign tort laws. That means forum shopping with an eye toward choice of law. Is it better to sue in a “most significant relationship” jurisdiction (e.g., Texas, Florida), a “government interest” jurisdiction (e.g., District of Columbia, California), a lex fori jurisdiction (e.g., Michigan, Kentucky), a lex loci delicti jurisdiction (e.g., Virginia, Maryland), a “better law” jurisdiction (e.g., Minnesota, New Hampshire), or a jurisdiction that adopts an eclectic approach (e.g., New York, Pennsylvania). Who knows, for it will depend on the facts of each case. In some cases (i.e., terrorist attacks in Israel), foreign tort laws may be preferable to state tort laws. In other cases (i.e., torture and killings in Burma), domestic tort laws will be far preferable to foreign laws. If I were a law student who aspired to become a human rights lawyer, after today I would be enrolling in courses that teach conflict of laws and comparative torts.

What does a choice-of-law analysis for human rights abuses typically mean? More often than not, it means the application of foreign tort laws. That is to say, if one analyzes the major choice-of-law approaches and applies them to the facts of prominent human rights cases, courts will typically apply foreign tort laws to resolve claims alleging foreign conduct that causes foreign injuries. Under the specific facts of Kiobel, for example, a state court would apply Nigerian, English, or Dutch law under every choice-of-law approach.

Lest one think that transnational tort litigation is a poor second to ATS litigation, it is fairly clear that this option has numerous advantages over the alternatives. First, tort laws are almost universal. According to the International Commission of Jurists, “[i]n every jurisdiction, despite differences in terminology and approach, an actor may be held liable under the law of civil remedies if through negligent or intentional conduct it causes harm to someone else.” Assuming a fair and impartial adjudicator, remedies for harm to life and liberty are part of public and private laws throughout the civilized world. To the extent a foreign country does not have effective tort laws, then a choice of law public policy exception may result in the application of domestic tort laws.

Second, transnational torts have much lower thresholds than the standards applied under international law, allowing claims to be brought for intentional torts, simple negligence, strict products liability, or any other harmful or offensive conduct that constitutes a legal wrong. Human rights litigation is about grave public wrongs; transnational tort litigation is about redressing simple private wrongs. If the choice is between proving simple negligence instead of a paradigmatic international law violation with a territorial nexus, which would you prefer? For most plaintiffs, it’s not a hard choice.

Third, corporate accessorial liability for aiding and abetting human rights abuse is largely irrelevant when pursuing claims for transnational torts (a question left unresolved in Kiobel with respect to international law). Establishing that a corporate defendant aided and abetted government abuse with the requisite intent is likewise irrelevant. What matters is whether the defendant knew or should have known that its conduct would cause harm. If so, under most jurisdictions of the world a corporation is liable.

Fourth, pleading a violation of transnational torts in most state courts may avoid heightened federal pleading standards. The notice pleading standard applied in the majority of state courts is that a complaint should not be dismissed for failure to state a claim unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Pursuing state law tort claims in state courts is more likely to overcome a motion to dismiss than if the same claim were filed in federal court. Thus, plaintiffs struggling with the heightened federal pleading standard of Iqbal and Twombly may wish to pursue state tort law claims in state court, and file in the defendant’s home state to avoid removal to federal court on diversity grounds.

Fifth, forum non conveniens does not have the same force or favor in state courts as in federal courts. Moreover, after the $18 billion Chevron debacle in Ecuador and Chevron’s huge victory in Bowoto, it is unclear whether corporations will remain as enthusiastic about foreign court litigation or as skittish about domestic court litigation as they have in the past. Many defendants may surmise that it is better to fight in state court rather than gamble with the vagaries and corruption common in many foreign courts.

Sixth, under almost every choice-of-law approach, concerns for international comity and foreign sovereign interests are built into the analysis. For example, under the approach adopted by most states, the needs of the international system and the policies of other interested states are part and parcel of the choice-of-law determination. The sovereignty concerns expressed in Kiobel are built into the system, and often result in the application of foreign laws.

Seventh, state tort laws may apply extraterritorially. As noted, typically this is done on a case-by-case basis after the full implications for such application are taken into account. Thus, virtually every terrorism case pursuant to the Flatow amendment did just that, with the paramount government interest in combatting terrorism trumping foreign interests. Think back to the major foreign terrorism events of recent decades: Khobar Towers, Beirut barracks, USS Cole, Jerusalem bus bombings, African embassy bombings. All resulted in the application of domestic wrongful death tort laws based on the domicile of the decedent victim.

There’s more I could say, but you get the idea. Transnational tort litigation cannot replace the old version of ATS litigation. But after Kiobel, human rights lawyers have precious few alternatives. If there is a silver lining to Kiobel, it is that human rights lawyers will wake up to what transnational tort litigation has to offer.

Kiobel Insta-Symposium: An Extraterritorial Cause of Action

by Anthony Colangelo

[Anthony J. Colangelo is Associate Professor of Law at SMU Dedman School of Law.]

I’ll start with a few brief points about why I believe Justice Breyer’s opinion provides a sounder approach and is more legally accurate than the Court’s opinion.

Then I will critique the Court’s opinion and, in particular, its extension of a presumption against extraterritoriality to causes of action (as opposed to conduct regulating rules).

First, I must say I’m sorry to see Justice Breyer’s view that “just as we have looked to established international substantive norms to help determine the statute’s substantive reach, so we should look to international jurisdictional norms to help determine the statute’s jurisdictional scope” did not command a majority. This is more or less the argument I laid out in an article in the Virginia Law Review in 2011, where I argued “when Congress enacts a statute silent on geographic scope designed to implement international substantive law, courts should construe that statute in line with international jurisdictional law, including attendant principles of extraterritorial jurisdiction.”

History and precedent support this view as to the ATS. As Breyer’s opinion points out, piracy took place on other nations’ ships, and those vessels were clearly considered foreign territory in early Supreme Court case law. Moreover, as Tony D’Amato and I pointed out in our amicus brief in Kiobel, the way Congress overturned application of a judicially imposed presumption against extraterritoriality to U.S. law outlawing piracy was to revise the definition to confer jurisdiction over piracy, “as defined by the law of nations.” That is, Congress explicitly invoked the law of nations—and its jurisdictional principles—to grant universal jurisdiction over, and to reject a judicially imposed presumption against extraterritoriality to, piracy on foreign ships (which, again, were considered the territories of foreign nations). The ATS contains this same invocation of “the law of nations,” which comprises both substantive and jurisdictional components. That ought to be enough to dispose of the presumption given this precedent.

It is also worth mentioning that the Kiobel Court’s assurances that Congress would have included a “clear indication of extraterritoriality” had it wanted the ATS to apply to causes of action arising abroad simply makes no sense in light of the fact that the statute was enacted in 1789, and the earliest manifestation of a judicially invented presumption against extraterritoriality came about in 1818—and in a piracy case no less!—United States v. Palmer.

Next, I want to critique what seems to me a strange move in extending the presumption against extraterritoriality to causes of action. The Court begins by noting that the presumption typically applies to conduct regulating rules, then acknowledges that the ATS “does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” But the Court then extends the presumption to “constrain courts considering causes of action that may be brought under the ATS.” This is weird.

To begin with, as the Court acknowledges, the presumption has traditionally applied to U.S. prescriptive jurisdiction, or jurisdiction to prescribe rules of conduct. But that rationale can’t apply to the ATS, since the conduct regulating rule is international law, and whether that conduct regulating rule is deemed the direct or indirect application of international law via common law doesn’t matter. All that matters from a prescriptive jurisdiction perspective is that the rule applied accurately reflects substantive international law, including as to liability. If it does, there is no concern about extraterritoriality, as the Court seems to accept: “The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.”

Thus the Court seizes upon the cause of action as the relevant creature of U.S. law to which the presumption applies. The problem is that under longstanding principles of private international law—which is, and has been since the founding, part of “the law of nations”—causes of action are creatures of forum law, or the lex fori. A presumption against extraterritoriality doesn’t apply to causes of action because, simply put, they aren’t extraterritorial. This is the whole basis for the traditional approach to conflict of laws under which the forum crafts causes of action to allow foreigners to sue under foreign laws. It may be true that, generally speaking, the forum will not create a cause of action if there is no cause of action under the law of the place of the tort. And here the Court in Kiobel cites Justice Holmes’ opinion in Cuba R. Co. v. Crosby. But at the very least, this would require some evaluation of whether the lex loci delicti provides a cause of action for, among other things, extrajudicial killing, crimes against humanity, torture, and arbitrary arrest and detention. At most, we might even take Holmes’ opinion in Crosby at its word. There, the Court explained that when dealing with torts that “are likely to impose an obligation in all civilized countries . . . [U.S.] courts would assume a liability to exist if nothing to the contrary appeared.” Thus in such cases, the burden is on the defendant to show no liability under the law of the place of the harm. And if nothing else, universal jurisdiction stands for the proposition that there are some acts that “impose an obligation in all civilized countries.”

In sum, the Court’s extension of the presumption against extraterritoriality to causes of action is both conceptually mistaken and doctrinally unsupported under longstanding principles of the law of nations.

Kiobel Insta-Symposium: When Can the Presumption Against Extraterritoriality Be Rebutted?

by Thomas Lee

[Thomas H. Lee is the Leitner Family Professor of Law at Fordham Law School and a Visiting Professor of Law at Harvard Law School in 2012-13.]

Based on my quick read through the opinions, it seems that it’s a win for corporations and a loss for international human rights groups seeking to use the US federal district courts to vindicate claims of customary international law violations outside of the United States, in other foreign sovereign territories.  The principal rationale was that there was not enough here to rebut the presumption against extraterritoriality, most recently articulated in Morrison v. National Australia Bank.

The big question going forward will be the circumstances in which the presumption might be rebutted. One possibility clued in by the majority’s discussion of the 1794 Bradford opinion (page 12) is where there is a treaty provision in play which the US has ratified, even though that treaty might not be viewed as “self executing.”  For instance, torture under the Torture Convention brought by an alien, as opposed to a US citizen under the TVPA.

Another might be an instance where there is US sovereign complicity in the violation outside of the territorial United States, for instance, where a US or alien subcontractor, acting under U.S. governmental authority or authorization, has violated specific, universal, and obligatory customary international law norms (e.g., Common Article III) by enhanced interrogation techniques employed against an alien plaintiff in a foreign sovereign territory.

Finally, perhaps, as with piracy on the high seas, ATS claims may be possible in terra nullius circumstances, such as where acts have occurred in failed states.

Kiobel Insta-Symposium

by Roger Alford

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the Supreme Court’s decision in Kiobel. We also are going to try something new and invite young academics to submit guests posts for possible publication. We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new voices. So if you want to write a guest post for Opinio Juris about Kiobel of approximately 500 to 1500 words, please do so in the next couple days and send it to Jessica Dorsey and An Hertogen (their emails are linked to the right). Our editorial team will review the posts and publish as many as we deem appropriate.

The Death of Universal Civil Jurisdiction Under the ATS

by Julian Ku

One idea that Kiobel has put to rest (at least here in US courts) is the idea that the ATS could be fairly read as a grant of universal civil jurisdiction.  On this theory, the ATS could be applied to overseas activities if the nature of the alleged action was so heinous as to rise to the level of a universally proscribable crime (see here for Donald Donovan and Anthea Roberts’ take on this).   The Court seemed to take this idea pretty seriously in Sosa v. Alvarez-Machain.  At least, Justice Breyer seemed to do so in his concurrence to that decision.

That concurrence hinted that Justice Breyer was untroubled by ATS cases which satisfied the international standards of universal jurisdiction because such cases would be unlikely to cause friction with foreign governments. Here is Justice Breyer back in 2004.

…[R]ecognition of universal jurisdiction in respect to a limited set of norms is consistent with principles of international comity. That is, allowing every nation’s courts to adjudicate foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity principles seek to protect. That consensus concerns criminal jurisdiction, but consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. Cf. Restatement §404, Comment b. That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. [citation omitted] Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well. 

Indeed, Sosa could have been read as a universal civil jurisdiction decision, although it was grounded in U.S. historical analysis that seemed to coincide with universal civil jurisdiction.  Still, as I noted before, Justice Breyer did not build on the Sosa concurrence in today’s Kiobel opinion.  Instead, he revived the quite rarely invoked “protective” principle to justify the ATS’ extraterritorial reach.  He then added that preventing war criminals from winning a “safe harbor” in the U.S. was within the protective principle (that’s a somewhat dubious interpretation to me).  This is a much narrower approach than I would have expected from his Sosa concurrence.

Indeed, I am somewhat surprised that this narrower Breyer approach, which would still have knocked out most ATS corporate lawsuits, did not manage to win Justice Kennedy’s vote. It certainly looks like it was designed to do so.  But having lost Kennedy, I guess Breyer figured he would simply go forward anyway with his narrower concurrence.  But this also means that the idea of “universal civil jurisdiction” under the ATS, both as a matter of law but also as a matter of justifying the ATS on policy grounds, is dead.  The heinousness of the crime alleged is not as important as identifying a distinctly American interest in the case. This really shifts the ground in the ATS public relations wars, and will be much harder for the ATS advocates to overcome.

Human Rights Will Survive Kiobel

by Peter Spiro

This is a tough loss for the human rights advocacy community, ending an era that began with the Second Circuit’s rediscovery of the Alien Tort Statute in its 1980 decision in Filartiga v. Pena. As Julian highlights below, Justice Kennedy may have left the door ajar to future claims, but only barely. Even Breyer’s concurrence — the rejection of the claim was unanimous, which must make it hurt a little more — sets a bar of a “distinctly American interest”, which may translate in the days of compartmentalized multinationals to the presence of US citizen victims. Lots of claims are going to get thrown out in Kiobel’s wake.

Does this mean that corporations can turn a blind eye to human rights? Not a chance.

Human rights is now a core component of corporate social responsibility, which, at least among major transnational corporations, is no longer optional. The United Nations is moving to bring human rights directly to bear on corporations through such initiatives as the U.N. Global Compact and the Guiding Principles on Business and Human Rights (see John Ruggie’s important new book on the latter). Accountants, shareholders, NGOs, and other private standard-setters are increasingly vigilant to human rights compliance (think Apple and Foxconn to highlight only one recent example). Human rights is being internalized in the corporate psyche, a process not contingent on the survival of the ATS.

There may even be alternative legal avenues. State tort law presents some promising possibilities. Kent Greenfield suggests reviving corporate “ultra vires” doctrine as another possible entry point for human rights. The ATS helped police and facilitate corporate compliance with international law, but other forms of discipline will work to help fill the gap created by its eclipse.

SCOTUS Votes 9-0 that Corporations Cannot Be Sued Under ATS for Extraterritorial Acts Without U.S. Interest At Stake

by Julian Ku

[Apologies for all the random short posts, I think what make blogging interesting, sometimes, is that one can think out loud online.  Dangerous, I know, but fun too!]

Here is one quick take:  As Deborah noted below, the Supreme Court voted 9-0 that the Kiobel plaintiffs should be dismissed because their claims against a foreign corporation for actions in a foreign jurisdiction did not belong within the jurisdictional ambit of the ATS.

Five justices (including the sometimes squishy Justice Kennedy) voted to apply the presumption against extraterritoriality, an interpretive rule, to the ATS.  Although the language is a little mushy here and there, the court’s opinion makes very clear that the rule announced in Morrison v. National Australia Bank applies to the ATS.  In Morrison, the Court held that there is a broad presumption that congressional statutes are not meant to regulate extraterritorial activity unless there is a clear statement in the statutory text.  This presumption cannot be overcome simply because there is some minimal connection to the U.S, like being listed on the U.S. stock exchange or even doing business here.  The exact contours of this rule are a little fuzzy, for instance, it is somewhat uncertain what the rule would be if the defendant was a U.S. corporation, but it seems clear to me that most of the corporate ATS defendants will win dismissals from their ATS lawsuits after this decision.  Almost all of them are being sued for foreign conduct, and often through actions of foreign subsidiaries, and rarely with any action by the corporate actors based in the U.S.

It is also worth noting that the four justices who did not join the opinion, nevertheless would have voted to dismiss the case against Shell anyway because of the lack of a territorial nexus or connection to the national interest of the U.S. While the concurrers would have included preventing the U.S. from being a safe harbor for war criminals within the U.S. national interest, they would not have found that punishing corporations for their complicity with war crimes and torture abroad was enough to satisfy their test.

So this means that the ATS wars over corporate liability are almost over. I say almost because under the majority opinion, U.S. corporations might still be sued for domestic conduct and, perhaps, for foreign conduct if that conduct was also deeply connected with domestic acts.  This seems unlikely in most ATS cases, and it is worth noting that the severity of the crime that the corporation was alleged to have committed does not change the analysis, even under the Breyer concurrence.  A theory that the ATS can be justified in universal civil jurisdiction cases has been rejected, 9-0.

Bottom line: Corporate general counsels!  Rest easy, your long, transnational ATS nightmare is over!

Justice Breyer’s Concurrence Would Have Limited ATS Suits to Cases Where U.S. Could Invoke Protective Principle

by Julian Ku

Interestingly, the four liberal justices would have also dismissed the Kiobel plaintiffs on a different theory: that this case (involving actions by a foreign corporation against foreign plaintiffs in a foreign sovereign’s territory) does not “substantially or adversely affect an important American national interest…”  In other words, Justice Breyer seems to want to graft the “protective” principle of prescriptive jurisdiction onto the ATS, rather than the universality principle that I would have expected.  Here is a summary of Justice Breyer’s proposed reading of the ATS.

… I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.

Justice Kennedy’s One-Paragraph Concurrence

by Deborah Pearlstein

Would’ve been helpful if he’d said a wee bit more. For now, we’ll have to comb through the majority opinion in search of the questions he has in mind. In the meantime, worth noting the Court was 9-0 in affirming the Second Circuit’s decision to dismiss the ATS complaint in this case.

JUSTICE KENNEDY, concurring.
The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U. S. C. §1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.

UPDATE: In the annals of amusing moments in OJ history, looks like Julian and I had much the same thought at the same moment.

The Concurrence That Leaves the Candle Flickering for ATS Supporters

by Julian Ku

It is worth noting that Justice Kennedy offered a very short concurrence. Here is the complete text of his concurrence, which should hearten ATS supporters that there is some room for future extraterritorial ATS cases (a very small room, I guess).

The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U. S. C. §1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.

US Corporations Sued For Acts in Foreign Jurisdictions Are (Probably) Now Free from ATS Liability

by Julian Ku

Here is the bottom line of the Roberts’ opinion, which makes it sound like this whole ATS thing is really a simple application of Morrison v. National Australia Bank.

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.

It also makes clear that “mere corporate presence” would not be enough to trigger US territorial jurisdiction under the ATS.  I sense a new litigation front opening up.

Goodbye ATS? U.S. Supreme Court Imposes Presumption Against Extraterroriality on ATS Claims

by Julian Ku

(UPDATE: Whoops, Ken beat me to the punch. Still, look here for more comments soon.) Here is the opinion. I am just going through it now, but it looks like the ATS is going to be severely restricted on territoriality grounds for the near future.  More from all of us later on today.