Master U.S. Supreme Court held that foreign corporations cannot be sued under the Alien Tort Statute. with this comprehensive case brief.
Jesner v. Arab Bank is a landmark U.S. Supreme Court decision that significantly narrows the scope of human-rights litigation under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. The ATS, a sparse and centuries-old jurisdictional grant, had been used for modern transnational tort litigation alleging violations of international law norms. After Sosa v. Alvarez-Machain and Kiobel v. Royal Dutch Petroleum, the Court had already imposed substantial constraints on the types of claims cognizable under the ATS and their extraterritorial reach. Jesner adds a further restriction by foreclosing suits against foreign corporations altogether.
For law students, Jesner illuminates the federal courts' role in recognizing implied causes of action under the ATS and the separation-of-powers and foreign-relations concerns that shape such recognition. The decision crystallizes the Court's "caution" directive from Sosa, emphasizing that Congress—not the judiciary—should decide whether to impose civil liability on foreign corporate defendants for violations of international law, given the risk of diplomatic friction and the availability of alternative statutory schemes.
Jesner v. Arab Bank, PLC, 584 U.S. ___, 138 S. Ct. 1386, 200 L. Ed. 2d 612 (2018) (U.S. Supreme Court)
Victims of terrorist attacks in Israel, the West Bank, and Gaza—including many foreign nationals and some U.S. citizens—sued Arab Bank, PLC, a foreign bank headquartered in Jordan with a New York branch. Plaintiffs alleged that Arab Bank maintained accounts, processed payments, and provided financial services to entities such as Hamas, Hezbollah, and the Palestinian Islamic Jihad, and helped route so-called "martyr" payments to the families of suicide bombers via front organizations, thereby facilitating terrorist activity in violation of international law. Some of the alleged transactions were cleared in U.S. dollars through the bank's New York branch. The non-U.S.-citizen plaintiffs asserted claims under the Alien Tort Statute (ATS), while U.S.-citizen plaintiffs pursued claims under the Anti-Terrorism Act (ATA). The district court, bound by Second Circuit precedent holding that corporations are not proper ATS defendants, dismissed the ATS claims. The Second Circuit affirmed. The Supreme Court granted certiorari to resolve whether corporations, and specifically foreign corporations, can be sued under the ATS.
Does the Alien Tort Statute permit suits against foreign corporations for alleged violations of international law?
The ATS is a jurisdictional statute that allows federal courts to hear a narrow class of claims for violations of specific, universal, and obligatory international norms, but courts must exercise great caution before recognizing new private causes of action or categories of defendants, particularly where foreign-relations and separation-of-powers concerns are implicated. Absent clear authorization from Congress, courts should not expand ATS liability to foreign corporate defendants; any decision to impose such liability is for Congress, not the judiciary.
No. The ATS does not permit suits against foreign corporations. The Court declined to extend ATS liability to foreign corporate defendants in light of separation-of-powers principles, foreign-policy considerations, and the absence of a clearly established international-law norm of corporate liability. The judgment of the Second Circuit was affirmed.
1) Nature and history of the ATS: The Court reiterated that the ATS, enacted in 1789, is primarily jurisdictional and was designed to avoid diplomatic incidents by providing a forum for a small set of well-understood international-law violations (e.g., violations of safe conducts, infringement of the rights of ambassadors, and piracy). In Sosa v. Alvarez-Machain, the Court held that federal courts may recognize a narrow set of modern claims analogous in specificity and universality to the historical paradigms, but must proceed with caution and consider separation-of-powers and foreign-relations concerns. 2) Corporate liability under international law: The plurality explained that international law primarily imposes obligations on states and, in some instances, on individuals, but does not clearly establish a universal, specific, and obligatory norm imposing liability on corporations as such. Historical examples, including post–World War II tribunals, targeted individuals, not corporate entities. Given the lack of consensus about corporate liability under customary international law, the Court declined to recognize foreign corporation liability as a matter of federal common law under the ATS. 3) Separation of powers and foreign-relations concerns: The Court emphasized that extending ATS liability to foreign corporations risks significant diplomatic friction—exactly the type of policy-sensitive choice that belongs to Congress. Arab Bank is a major Jordanian financial institution, and the Kingdom of Jordan—an important U.S. ally—filed an amicus brief warning that such litigation could harm diplomatic relations and financial stability. In the Court's view, creating new ATS causes of action against foreign corporate defendants would effectively "create new federal common law" with substantial foreign-policy ramifications, contrary to Sosa's cautionary rule. 4) Statutory context and alternatives: Congress has legislated in adjacent areas. The Torture Victim Protection Act (TVPA) provides a cause of action only against natural persons, evidencing Congress's careful calibration when authorizing human-rights suits. Separately, Congress provided targeted remedies for terrorism-related harms in the Anti-Terrorism Act (ATA) and, later, the Justice Against Sponsors of Terrorism Act (JASTA). These statutes reflect congressional primacy in designing liability schemes implicating foreign affairs. In light of these choices, the Court concluded that any decision to impose liability on foreign corporations belongs with Congress. 5) Scope of decision and separate opinions: The plurality's rule categorically bars ATS suits against foreign corporations. Concurring opinions underscored Sosa's caution and Kiobel's presumption against extraterritorial application. The dissent (Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan) argued that international law supplies substantive norms that domestic law may enforce against any defendant, including corporations, and that drawing a foreign-corporation exception lacks doctrinal support. The Court, however, left open whether domestic corporations may be sued under the ATS.
Jesner substantially limits ATS litigation by erecting a categorical bar against suits targeting foreign corporations, even when some conduct touches the United States (e.g., dollar-clearing through New York). Together with Sosa and Kiobel, Jesner narrows the ATS from a once-expansive vehicle for transnational human-rights claims into a tightly confined doctrine that courts will not expand absent explicit congressional action. For students of federal courts and international law, Jesner illustrates the modern Court's restrained approach to judicially created causes of action, the influence of foreign-relations considerations on justiciability and remedies, and the strategic redirection of human-rights and anti-terrorism plaintiffs toward congressionally authorized avenues such as the ATA/JASTA and the TVPA (the latter limited to natural-person defendants).
No. Jesner holds that foreign corporations cannot be defendants in ATS suits. The Court expressly left open whether domestic (U.S.) corporations may be sued under the ATS. Subsequent cases, including Nestlé USA, Inc. v. Doe (2021), did not resolve that question, focusing instead on extraterritoriality. Thus, the availability of ATS claims against U.S. corporations remains unsettled at the Supreme Court level and can vary by circuit.
Potentially yes. Jesner concerns corporate entities, not natural persons. Suits against individuals may proceed under the ATS if they satisfy Sosa's stringent criteria (specific, universal, and obligatory norms), overcome Kiobel's presumption against extraterritorial application by showing adequate domestic conduct, and otherwise avoid foreign-relations and prudential barriers. In addition, the Torture Victim Protection Act allows suits against natural persons for torture and extrajudicial killing.
Kiobel holds that the ATS generally does not apply extraterritorially unless claims "touch and concern" the United States with sufficient force. Jesner adds a separate, categorical bar: even if a claim has adequate domestic contact under Kiobel, it still cannot proceed against a foreign corporate defendant. Plaintiffs must therefore clear both hurdles—exterritoriality limits and the identity of the defendant.
Congress has provided targeted statutes: the Anti-Terrorism Act (ATA), as amended by JASTA, allows U.S. nationals to sue for injuries arising from international terrorism and recognizes aiding-and-abetting liability. The TVPA authorizes suits against natural persons for torture and extrajudicial killing. Plaintiffs may also explore state-law tort claims (subject to preemption, jurisdiction, and forum non conveniens) and foreign forums. Jesner signals that Congress, not the courts, is the proper source for expanding civil remedies in this arena.
No. In Jesner, Arab Bank's use of its New York branch to clear dollar transactions did not alter the dispositive point: the defendant was a foreign corporation. The Court's holding categorically precludes ATS suits against foreign corporate entities regardless of their U.S. contacts, though such contacts may be relevant in other statutory schemes (e.g., ATA/JASTA) or for personal jurisdiction analyses.
Jesner v. Arab Bank marks a decisive turn in the Supreme Court's modern ATS jurisprudence. Building on Sosa's caution and Kiobel's extraterritoriality limits, the Court refused to extend ATS liability to foreign corporations, citing the absence of a clearly established international-law norm of corporate liability and the profound foreign-relations implications of doing so. The decision underscores the judiciary's reluctance to craft new federal common-law causes of action in sensitive international contexts without explicit congressional direction.
For practitioners and students, Jesner recalibrates litigation strategies: plaintiffs must carefully assess the identity of potential defendants (favoring natural persons or possibly domestic corporations), the domestic nexus of alleged conduct, and the availability of congressionally authorized causes of action like the ATA/JASTA and TVPA. Jesner thus reaffirms Congress's primacy in designing civil remedies with foreign-affairs consequences and narrows the ATS to a constrained role in U.S. courts.
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