May 8, 2013, 1:00 pm – 2:00 pm (E.D.T.)

On April 17, 2013, the Supreme Court held in Kiobel v. Royal Dutch Petroleum Co. that the Alien Tort Statute (ATS), which allows suits in federal courts for violations of international law (including international human rights law), is subject to the presumption against extraterritoriality. Chief Justice Roberts’s five-justice majority dismissed the Kiobel case, ruling that cases under the ATS must “touch and concern” the United States, and that the “mere corporate presence” of a foreign multinational was insufficient to allow the presumption to be rebutted. The Kiobel case involved allegations that Royal Dutch/Shell, a Dutch/British conglomerate, was complicit in crimes against humanity and other abuses in Nigeria in the 1990s; although the lower courts had found that Shell was sufficiently present in the U.S. to be subject to personal jurisdiction, the Supreme Court ruled that this was not enough to proceed under the ATS. Justice Kennedy’s brief concurrence, however, suggested that many questions remain open after this decision, indicating that the majority opinion may not automatically be read to extend beyond the facts presented. A concurrence by Justice Alito and Justice Thomas argued that ATS suits should only be allowed where conduct within the United States violates international law, but the majority did not go this far. A separate concurrence in the judgment by Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, argued that the presumption against extraterritoriality should not apply, but that nonetheless some international law basis for jurisdiction needed to be present, and that it was lacking here. The Court declined to address the original question certified – whether corporations were subject to suit under the ATS.
Join Paul L. Hoffman, a partner at Schonbrun DeSimone Seplow Harris Hoffman & Harrison, LLP, who argued the case before the Second Circuit and the Supreme Court on behalf of the Kiobel plaintiffs, and Marco Simons, Legal Director of EarthRights International, which submitted several amicus briefs at all stages of the Kiobel case, as they discuss the case and its implications, including:

• What is the status of corporate liability for ATS suits after Kiobel
• What sorts of cases might meet the new “touch and concern” test, i.e., cases involving U.S. defendants, defendants residing in the U.S., substantial conduct within the U.S., or cases that would go forward in the U.S. regardless of ATS claims
• What other avenues for bringing suits to remedy international human rights violations remain

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