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What next for the Alien Tort Statute?

2018 Roberts Court

Credit: Fred Schilling, Collection of the Supreme Court of the United States

The US Supreme Court is considering whether to hear yet another case concerning the question of corporate liability for torts in violation of the law of nations under the Alien Tort Statute.

The petitions for writs of certiorari were filed by Nestle USA Inc and Cargill Inc against a decision from the 9thCircuit in a case concerning allegations of aiding and abetting child slavery on cocoa farms in the Ivory Coast.

In the Kiobel decision in 2013, the Supreme Court held that the Alien Tort Statute is presumed not to apply to overseas events. In the Jesner decision in 2018, it held the foreign corporations cannot be sued.

The position in relation to American corporations was seemingly left hanging.

The 9th Circuit held subsequently that long-running claims against American corporations could proceed despite the decisions in Kiobel and Jesner and the approach adopted by other Circuits.

The vexed question now presented to the Supreme Court is whether American corporations can still be sued, and the degree of connection between “general corporate activity” in the United States and the overseas harm.

On January 2020, the Supreme Court indicated that it might hear the case when it invited the Solicitor General (Noel Francisco) to file a brief to set out the US Government’s position.

It will be interesting to see the position that the US Government now adopts. In Jesner, the Trump administration adopted the position that civil actions against corporations under the Alien Tort Statute could be premised on a tort in violation of the law of nations.