April marked the two-year anniversary of the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013). Kiobel further restricted the district court’s ability to recognize common law causes of action under the Alien Tort Statute (ATS) and articulated a new “touch and concern” test for determining when it is permissible for an ATS claimant to seek the extraterritorial application of federal law. Although it did not bar all extraterritorial claims, the majority opinion by Chief Justice John Roberts shut the door to most ATS suits brought by foreign plaintiffs against foreign defendants for conduct occurring on foreign soil. But as to how courts should confront claims not involving Kiobel’s “foreign-cubed” fact pattern, the legal community continues to debate. Recent rulings from the federal bench offer a fresh opportunity to assess what remains of the ATS and suggest an emerging circuit split.
Kiobel involved claims brought against a foreign corporation for the actions of its foreign-incorporated joint subsidiary under a 1789 law that permits non-U.S. citizens to pursue particular cases in U.S. courts over violations of international law. A majority of the court applied a canon of statutory interpretation known as the “presumption against extraterritorial application” to the ATS. And in a crisp closing paragraph, Roberts used a rather fusty phrase from real property law to note that a tort committed outside the United States may be actionable “where the claims touch and concern the territory of the United States…with sufficient force to displace the presumption against extraterritorial application.”
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