The World in U.S. Courts: Summer 2013 - Alien Tort Statute
In a recent landmark decision, the U.S. Supreme Court held that, where a dispute is between foreign nationals that occurred on foreign ground, the ATS cannot be used to establish jurisdiction in a U.S. court except where the claims “touch and concern the territory of the United States” with “sufficient force” to displace the presumption against the extraterritorial application of the ATS. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013).
The court in Mwani is believed to be the first to find that the “sufficient force” exception had been met. Kenyan nationals filed the case against Usama Bin Laden and al Qaeda, asserting ATS claims arising out of the al Qaeda attack on the U.S. Embassy in Nairobi, Kenya. The district court found that the case touched and concerned the United States with sufficient force to overcome the presumption against extraterritorial application of ATS because, among other reasons, the terrorist attack was plotted in part within the United States and was directed at a U.S. Embassy and its employees. Because the decision involved a controlling question of law as to which there may be a substantial difference of opinion, the district court ordered that the decision be immediately appealed to the court of appeals.