JURIST Guest Columnist Patrick Borchers of the Creighton University School of Law says that the Supreme Court’s opinion in Kiobel v. Royal Dutch Petroleum overlooks recent relevant developments in the conflict of laws and may have unintended effects on future cases…

The US Supreme Court’s already-strange extraterritoriality jurisprudence just got a lot stranger with its April 17 decision in Kiobel v. Royal Dutch Petroleum. Because my academic specialty is the conflict of laws, I tend to see these decisions through the lens of my discipline. So viewed, Kiobel appears to be part of an ongoing campaign to roll the clock back to the 1950s or even earlier.

The facts in Kiobel are well-known to anyone who has followed the case and I will not dwell long on them. The plaintiffs were Nigerian nationals now living in the US. They alleged — and at the pleading stage it must be accepted as true — that various Dutch, British and Nigerian oil corporations (though the corporate defendants were alleged to have some physical presence in the US) conspired with the Nigerian government to commit grotesque human rights violations against locals who were protesting the environmental effects of the corporate defendants’ activities.

The plaintiffs brought suit in a New York federal court under a funny little law called the Alien Tort Statute (ATS). That statute, which dates back to the original Judiciary Act of 1789, provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The ATS was apparently enacted [PDF] in response to two notorious episodes in the 1780’s. One involved a 1784 assault in Philadelphia on the Secretary of the French Foreign Legion. The other came three years later when a New York constable entered the Dutch Ambassador’s house and arrested one of his servants.

In the 1980’s the statute was rediscovered. In the famous US Court of Appeals for the Second Circuit case of Filartiga v. Pena-Irala, the plaintiffs claimed that their 17-year-old son was tortured to death in Paraguay by the defendant — a police official — in reprisal for the family’s political views. Jurisdiction over the defendant was obtained by personal service of process while the defendant was in New York. The Second Circuit ruled that the ATS was an appropriate vehicle for relief because conduct of this sort violated the law of nations, even when committed by a government official against one of this own nationals.

The Supreme Court eventually waded into the debate in 2004 in Sosa v. Alvarez-Machain. The Court held that the ATS did provide a federal forum for torts that transgressed a well-established norm of international law. The Court said that the norm had to be well enough established that it corresponded to the norms that Sir William Blackstone listed around the time of the ATS’s passage — violation of safe conducts, infringements of the rights of ambassadors and piracy. Holding that the facts of Sosa did not rise to that level, the Court held that no relief could lie.

In Kiobel, the Supreme Court took the case apparently to resolve a circuit split as to whether corporations could be liable for the torts imported through the ATS. The Second Circuit had said no while the US Courts of Appeal for the Seventh, Ninth, and District of Columbia Circuits had said yes. Oral argument, however, quickly shifted to the question of whether, given the slender connections to the US, the arm of the relief in a federal forum could reach the case.

The Court ordered more briefing and another round of argument. Unanimously in result, though not in rationale, the Court said no.

The Court said that the ATS contained no clear expression that it was intended to apply “extraterritorially.” Relying heavily on its fairly recent decision in Morrison v. National Australia Bank Ltd. — which held that federal securities fraud laws applied only to securities traded in the US — the Court held that the “presumption against extraterritoriality” was not overcome.

So why all the fuss? One factor, of course, is the gruesome facts of Kiobel and the practical consequence that the ATS will now apply to only a very small fraction of cases of the sort in which it has been used recently. Essentially, the majority opinion of Chief Justice John Roberts seemed to say that if the liability-creating facts occurred outside the US, relief under the ATS could not be had. One can imagine such cases (for instance, persons in the US issuing directives that lead to human rights violations), but such cases will be hard to find and harder yet to prove.

But there are deep tensions in the Court’s rationale. The Court in this line of cases spanning Morrison and Kiobel is fixated on the physical location of the liability-creating events. We conflicts types recognize this as the old lex loci delicti (place of wrong) rule. Yet there is at least one other line of cases (which the Court pretended not to notice both in Morrison and Kiobel) in which the Court has taken a much broader view of the scope of application of federal law. In 1993 in the case of Hartford Fire Ins. Co. v. California, the Supreme Court held that the Sherman Act applied to London reinsurers alleged to have — in a meeting held in London — strong-armed US primary insurers into writing policies less favorable to policyholders. A majority of the Court held that the predictable and substantial effects of the activities were enough to allow application of the US antitrust laws. More recently (2008) and spectacularly, the Court applied a “functional” test in Boumediene v. Bush to hold that the right of habeas corpus to foreign detainees held at Guantanamo Bay.

We conflicts types recognize the Court’s approach in Hartford and Boumediene as being a species of interest analysis or one of the other modern conflict-of-laws approaches. Yet each time the Court sets its mind to apply a territorial approach (as it did in Kiobel and Morrison) it simply pretends as if the other line of cases does not exist. Essentially the heart of Justice Stephen Breyer’s concurrence in the judgment (though not expressed in so many words) is that the ATS ought to be evaluated by one of those more flexible methodologies. The majority simply ignored Hartford and Boumediene, and while Breyer did not cite those cases, he did at least cite to the provisions of the Third Restatement of Foreign Relations, upon which Hartford rested. Breyer and the three that joined him thought that there simply were not enough contacts in Kiobel to justify application of the ATS, even under their standard.

Forced to choose, I surely would have signed Breyer’s opinion. But the whole debate leaves me cold because, I believe, the Court was asking and attempting to answer the wrong question. The ATS tells the reader what its scope of application is: it applies to cases filed in federal court. Surely nobody contended that the plaintiffs could have filed the case in Nigeria and relied upon the ATS.

But to the extent that the ATS imports relatively universal norms of international law, it imports them precisely because they are universal and lacking in territorial boundaries. Roberts’s opinion had relatively little difficulty dealing with two of Blackstone’s three categories — safe conducts and offenses against ambassadors. But, oh that nagging piracy category. Roberts attempted to dispose of that example on the grounds that such offenses occur on the high seas, so interference with other sovereigns was unlikely to occur. But Breyer caught Roberts on this point. The offenses are not committed by pirates swimming around on the ocean; they occur on ships, which — of course — fly flags and thus (for some purposes at least) take on the characteristics of sovereign territory.

Oh had Breyer had recognized the full implications of this. Breyer used that insight to argue for his more flexible test, but even that does not really get to the heart of the matter. The concept of universal jurisdiction for, at least, criminal jurisdiction in human rights cases is well known. At first blush it seems to me that the most sensible reading of the ATS (at least as refracted through the lens of Sosa) is that the ATS was meant to provide a federal forum for civil enforcement of universal norms.

Unless Congress steps in to fix the problem, the ATS is now close to a dead letter. Meanwhile, the Supreme Court’s effort to return its extraterroriality jurisprudence to the bygone days of “vested rights” is certain to leave huge gaps in the civil enforcement of all sorts of regulatory norms. As Laurel and Hardy would have said in the 1930’s (coincidentally the high water mark for the vested rights theory of conflicts), it’s another fine mess.

Patrick Borchers is a Professor of Law at the University of Creighton School of Law, where he also serves as the Vice-President for Academic Affairs. His scholarly research focuses on civil procedure, choice of law and the conflict of laws. Prior to his academic career, Professor Borchers clerked for the Hon. Anthony Kennedy on the US Court of Appeals for the Ninth Circuit, shortly before Kennedy’s nomination to the US Supreme Court.

Suggested citation: Patrick Borchers, Kiobel and the Conflict of Laws, JURIST – Forum, Apr. 19, 2013, http://jurist.org/forum/2013/04/patrick-borchers-kiobel-conflict-laws.php