Alien Tort Statute

Jesner v. Arab Bank

Issues

Can foreign plaintiffs sue corporations in the United States under the Alien Tort Statute?

Under the Alien Tort Statute (“ATS”), foreign victims of torts that violate international law may sue foreign perpetrators in United States courts if the case touches and concerns the United States. The Court must now determine whether the ATS contemplates suits against foreign corporations. Jesner et al.––survivors of terrorist attacks in the Middle East and the families of such victims––allege that Arab Bank (“the Bank”), headquartered in Jordan, financed terrorist organizations through its New York branch, and should therefore be within the purview of the ATS. The Bank denies these allegations, and maintains that, because corporate liability is not a universal international norm, United States courts do not have jurisdiction over foreign corporations under the ATS. Jesner argues that denying corporate liability will eliminate a significant deterrent against terrorism financing and create international discord, while the Bank counters that corporate liability would actually hinder counterterrorism efforts and damage the United States’ alliance with Jordan. 

Questions as Framed for the Court by the Parties

Whether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.

Petitioners, Joseph Jesner, et al. (“Jesner”), are non-residents of the United States who were injured by terrorists in the Middle East. In re Arab Bank, PLC Alien Tort Statute Litigation, 808 F.3d 144, 147 (2d Cir. 2015 ). Respondent, Arab Bank, PLC (the “Bank”), is a global bank headquartered in Jordan, with a branch in New York.

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Kiobel v. Royal Dutch Petroleum

Issues

Whether an American federal court can hear a claim under the Alien Tort statute, when that claim arose out of conduct in a foreign country.

 

Petitioner Esther Kiobel, representing a group of individuals from the Ogoni region in Nigeria, filed a class action lawsuit against Respondents, the Royal Dutch Petroleum Co., Shell Transport and Trading Company PLC, and Shell Petroleum Development Company of Nigeria, LTD (“Royal Dutch”) under the Alien Tort Statute (“ATS”). The ATS grants jurisdiction to some federal courts for certain violations of international law. Petitioners allege that Royal Dutch aided the Nigerian government in committing various acts of violence against protestors of the oil exploration projects in the Ogoni region.  Petitioners claim that they have standing to sue under the ATS because the history, text, and purpose of the statute support the application of the ATS to actions in foreign countries. Petitioner also contends that previous court decisions interpreted the ATS to extend beyond U.S. territory. In response, Royal Dutch argues that the ATS is not an exception to the presumption that U.S. law does not apply extraterritorially, and should not be applicable to actions outside of the U.S. The Court's decision in this case will clarify the reach of the U.S. federal courts' jurisdiction over certain extraterritorial tort claims. 

Questions as Framed for the Court by the Parties

Whether the issue of corporate civil tort liability under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.

Esther Kiobel represents a class of citizens from the Ogoni region in Nigeria who filed a class action suit against the respondents Royal Dutch Petroleum, Shell Transport and Trading Company and Shell Petroleum Development Company of Nigeria (“Royal Dutch Petroleum”) in the United States District Court for

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Nestlé USA, Inc. v. Doe

Issues

Under the Alien Tort Statute, can domestic corporations be held liable for aiding and abetting human rights abuses—specifically, child slavery—in a foreign country, when the aiding and abetting allegedly occurred on U.S. soil?

This case asks the Court to determine whether domestic corporations may be held liable for aiding and abetting human rights violations committed in foreign countries. Petitioners Nestlé and Cargill contracted for exclusive buyer-seller contracts with cocoa plantations on the Ivory Coast; Respondents John Doe et. al. were child slaves on those farms. John Doe alleges that Nestlé and Cargill aided and abetted the farmers from headquarters in the United States by providing monetary support while aware of the widespread use of child slavery on those farms, thus making them liable under the Alien Tort Statute. Nestlé and Cargill counter that the harm inflicted upon John Doe occurred exclusively on foreign soil, making the case impermissibly extraterritorial; furthermore, they argue recent Court cases determined that corporations were immune from liability under the Alien Tort Statute. The Court’s decision in this case will implicate political questions of foreign policy and foreign affairs, corporate incentives to invest in developing countries, and the United States’ support for human rights.

Questions as Framed for the Court by the Parties

(1) Whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute may overcome the extraterritoriality bar where the claim is based on allegations of general corporate activity in the United States and where the plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity; and (2) whether the judiciary has the authority under the Alien Tort Statute to impose liability on domestic corporations.

In the Ivory Coast, cocoa plantations utilize child slaves to produce cheap cocoa. Doe I v.

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Acknowledgments

The authors would like to thank Professor Muna Ndulo for his guidance and insights into this case. The authors would like to thank Professor Muna Ndulo for his guidance and insights into this case.

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Samantar v. Yousuf

Issues

Whether the Foreign Sovereign Immunities Act applies to government officials acting in their official capacities, and if so, whether the individual retains that immunity after he or she is no longer an official of a foreign state.

 

Numerous plaintiffs filed claims against Mohamed Ali Samantar, the former Prime Minister and Minister of Defense of Somalia, alleging that he was personally liable for a systematic use of torture and killing of civilians by Somali intelligence agencies during the 1980s. The district court found that Samantar was immune to these charges under the Foreign Sovereign Immunities Act (“FSIA”) and dismissed the case. The Fourth Circuit Court of Appeals reversed, holding that the statutory language of FSIA does not cover either current or former government officials. In determining the scope of the FSIA as it relates to individuals, the Supreme Court will have an opportunity to clarify the language of the statute and resolve ambiguities between the FSIA and other immunity statutes. The decision could have a major impact on United States international relations by altering the immunity enjoyed by U.S. officials abroad and influencing the number of international claims in U.S. courts.

Questions as Framed for the Court by the Parties

1. Whether a foreign state's immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state. ??

2. Whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual's former capacity as an official acting on behalf of a foreign state. ?

Somali government agents, including the National Security Service (“NSS”) and the military police, allegedly subjected disfavored Somali clans and government opponents to widespread, systematic use of torture, arbitrary detention, and extrajudicial killing. See Yousuf v. Samantar, 552 F.3d 371, 373–74 (4th Cir.

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Acknowledgments

We would like to thank Professor Jens Ohlin for his time and helpful insight on this case.

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