The 2nd Circuit’s September 2010 holding in Kiobel v. Royal Dutch Petroleum broke ground when it threw into question whether plaintiffs could use the Alien Tort Statute (ATS) to bring civil claims against corporations—the paradigm modern-day use of the law. However, in the Supreme Court’s May 2013 judgment in Kiobel the court did not even reach a conclusion on that question, the one that led it to take the case. The 2nd Circuit had dismissed the claims on grounds that international law doesn’t provide for corporate civil liability, and the Supreme Court granted certiorari in the case in October 2011.
In March 2012, however, just after oral arguments, the high court directed the parties to file supplemental briefs on the question of the basis and the limits of the Alien Tort Statute’s extraterritorial reach. Specifically, the court asked them to consider “Whether and under what circumstances the Alien Tort Statute … allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”
It’s a limitation that “could and very likely will” spill over into other areas, says Owen Pell, a partner at White & Case.