Blog: Doe v. Exxon

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July 2, 2014

Fourth Circuit’s Post-Kiobel Ruling Revives ATS Claims Against U.S. Corporation for Violations Committed Abroad

Posted by Tyler Giannini and Susan Farbstein

On Monday, the Fourth Circuit Court of Appeals ruled that the presumption against extraterritoriality in Alien Tort Statute (ATS) cases, established by the April 2013 U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum, Co., does not bar claims against a U.S. contractor for torture and mistreatment of foreign nationals in Iraq.

The Al Shimari v. CACI ruling is a major decision in the ongoing battle over the meaning and interpretation of Kiobel. Kiobel  held that there is a presumption against extraterritoriality in ATS cases unless the “claims touch and concern the territory of the United States with sufficient force,” in which case the presumption can be displaced. In Kiobel, the Supreme Court found the “mere corporate presence” of the defendant in the United States did not overcome the presumption.

The Fourth Circuit compared the factual circumstances in Kiobel with those in Al Shimari, and concluded that the corporate defendant had a much more significant connection to the United States than mere presence. In so ruling, it became the first appellate court to hold that the plaintiffs’ claims sufficiently “touch and concern” U.S. territory to displace the presumption.

In the wake of the Kiobel decision, lower courts across the country have wrestled with how to interpret the new “touch and concern” standard given the limited guidance provided by the Supreme Court. Some courts have avoided the complexities of the Kiobel presumption altogether. However, the Fourth Circuit embraced the challenge:

Although the “touch and concern” language in Kiobel may be explained in greater detail in future Supreme Court decisions, we conclude that this language provides current guidance to federal courts when ATS claims involve substantial ties to United States territory. We have such a case before us now, and we cannot decline to consider the Supreme Court’s guidance simply because it does not state a precise formula for our analysis. Continue Reading…

June 14, 2012

History Shows That Those Who Commit International Law Violations Outside the United States Can Be Held Liable in U.S. Courts

PRESS RELEASE

Clinic files amicus curiae brief with U.S. Supreme Court on behalf of legal historians in major Alien Tort Statute case

June 14, 2012, Cambridge, MA—Harvard Law School’s International Human Rights Clinic has submitted a supplemental amicus curiae brief to the U.S. Supreme Court in support of petitioners in a major Alien Tort Statute (“ATS”) case, Kiobel v. Royal Dutch Petroleum Co. Nine eminent legal historians joined the brief as amici: William R. Casto, Charles Donahue, Robert W. Gordon, Nasser Hussain, Stanley N. Katz, Michael Lobban, Jenny S. Martinez, and Anne-Marie Slaughter.

Clinical Directors Susan Farbstein and Tyler Giannini served as counsel for the amici, who argue that Congress, when enacting the statute, did not intend to restrict its territorial reach. Rather, the ATS was passed to address universally-condemned violations of the law of nations, such as piracy.

“This statute was clearly designed to open U.S. courts to those who suffered egregious violations of international law, wherever they are committed,” said Tyler Giannini, Clinical Professor of Law at Harvard Law School. “The framers had in mind abuses like piracy, which necessarily takes place outside the United States.”

The U.S. Supreme Court heard oral arguments in Kiobel in late February and a week later requested supplemental briefing on the question of whether the statute encompasses violations committed outside the territory of the United States. The case, which has attracted international attention, involves claims for human rights abuses committed in Nigeria.

“Kiobel is one of the most significant human rights cases to come before the U.S. Supreme Court in years,” said Susan Farbstein, Assistant Clinical Professor of Law at Harvard Law School. “As a team, we felt honored to do the work of clarifying the historical record on how the courts have traditionally interpreted the ATS and the legal doctrines it embodies.”

Historical documents unearthed by the Clinic’s research team in British and American archives confirm that, from the outset, survivors could bring ATS claims for violations of international law occurring outside the United States. In one of the earliest interpretations of the statute, dating to 1795, the U.S. Attorney General opined that individuals harmed in a raid in British Sierra Leone could use the ATS to seek redress in U.S. courts.

“It’s been gratifying to see the principles of justice are transcendent throughout history,” said Russell Kornblith, JD ’12, who was a key member of the project team.

In addition to Kornblith, clinical students Poppy Alexander, JD ’12, Yonina Alexander, JD ’12, and Daniel Saver, JD ’12, contributed countless hours towards the brief, working in close collaboration with the amici. The Harvard team was supported by international researchers, including students from the School of Oriental and African Studies under the supervision of Deval Desai, LLM ’09.

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