Emerging Issues In Alien Tort Statute Litigation
By JAMES BERGER & CHARLENE SUN
On October 17, 2011, the United States Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum,1 a significant decision by the Court of Appeals for the Second Circuit concerning the Alien Tort Statute (ATS),2 a sweeping, if little-known, statute that permits non-U.S. nationals to sue in U.S. courts for violations of international law.3 In Kiobel, the Second Circuit held that corporations are not subject to suit under the ATS; the ruling, which when issued created a split among the federal circuits on the question of corporate liability under the ATS, has ignited a storm of controversy and comment within the U.S. legal profession concerning the scope and breadth of potential liability under international law that has seldom, if ever, been seen or heard outside the halls of the State Department and law school faculty lounges.
As if prompted by the Second Circuits decision in Kiobel, the federal courts issued a number of significant ATS decisions in 2011. Several of these decisions addressed the question of corporate liability, while others focused on other key jurisdictional issues that U.S. courts had not previously confronted with, such as whether international law contemplates aiding and abetting liability, the applicability of the political question and act of state doctrine, the nature of ATS jurisdiction, and the statutes extraterritorial effect. This article discusses several recent decisions addressing these issues, which evidence a struggle by the U.S. courts to construe the meaning and purpose of this centuries-old statute in the context of the modern day, and which suggest that the Supreme Court, having only decided a single case involving the ATS in the 220 years since its adoption by the First Congress, may need to turn its attention to the statute with greater frequency in coming years.