Subject Matter Jurisdiction


Alien Tort Statute provides no jurisdiction against corporations under customary international law, Second Circuit holds


Various Dutch, British, and Nigerian corporations, through the subsidiary Shell Petroleum Development Company of Nigeria, Ltd. (SPDC), had been engaged in oil exploration and production in the Ogoni region of Nigeria since 1958. In response, residents of the region organized to protest the environmental impacts and, in 2004, filed a putative class action complaint under the Alien Tort Statute, 28 U.S.C. § 1350 (ATS). The complaint alleged SPDC had aided and abetted the Nigerian government in suppressing the resistance by committing violations of the law of nations, including extrajudicial killing; crimes against humanity; torture or cruel, inhuman, and degrading treatment; arbitrary arrest and detention; violation of the rights to life, liberty, security, and association; forced exile; and property destruction.

The U.S. District Court for the Southern District of New York dismissed the claims against corporate defendants in part and certified the entire order for interlocutory appeal. The parties cross-appealed. The U.S. Court of Appeals for the Second Circuit dismisses the complaint for lack of subject matter jurisdiction.

The issue is whether the ATS provides jurisdiction against corporations under customary international law. Quoting its own Filartiga v. Pena- Irala, 630 F.2d 876, 890 (2d Cir. 1980), the Second Circuit notes that the statute provides jurisdiction over “(1) tort actions, (2) brought by aliens (only), (3) for violations of the law of nations (also called ‘customary international law’ FN3) including, as a general matter, war crimes and crimes against humanity—crimes in which the perpetrator can be called ‘hostis humani generis, an enemy of all mankind.’” [149]. Although precedent has held that the ATS holds sway over natural persons and even over individual members of a corporation, it is a case of first impression whether the statute can subject a juridical person such as a corporation to its jurisdiction.

The Second Circuit takes a two-step approach in reaching its decision, considering, first, whether international or domestic law governs the case and, second, whether corporations are subject to liability for violations of customary international law. Based on international law, the Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), and its own precedents that international law does govern, the Court addresses the first issue:

“Looking to international law, we find a jurisprudence, first set forth in...

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