Author: Chris Gant, Associate Member, University of Cincinnati Law Review
In Ogoniland, Nigeria, environmentally concerned protestors were beaten, raped, and killed for demonstrations opposing aggressive oil development in the Ogoni Niger River Delta. Nigerian nationals brought suit under the Alien Tort Statute (ATS) in the Southern District of New York, alleging that foreign corporations that do business in the United States aided and abetted these atrocities. In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that foreign corporations are not subject to liability in the United States for tortious acts outside of the United States. However, because Kiobel dealt with a foreign corporation, the opinion left open the question of whether a United States corporation could be liable for tortious acts outside of the country, and the open question resulted in a circuit split. The Fourth Circuit has held that American corporations can be sued for acts committed outside of the United States, while the Eleventh Circuit has expanded Kiobel and stated that American courts lack jurisdiction over these claims, thus barring them in that circuit. The Fourth Circuit’s reasoning is a better analysis of claims brought under the Alien Tort Statute (ATS) because the statute was intended to provide a remedy for foreigners injured by Americans. As such, the United States has an obligation to provide a forum for noncitizens to receive compensation for torts committed by Americans in other countries. Furthermore, the ATS was created to regulate an American citizen’s conduct outside of the United States. Without a court enforcing this obligation, corporations have little concrete incentive to monitor employees’ potential tortious activities abroad.