Originally from:
The Practice of International Litigation - 2nd Edition - Looseleaf
The Practice of International Litigation - 2nd Edition - Electronic
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The Alien Tort Claims Act: How Far Will it Go?
Lawrence W. Newman and Michael Burrows
There is a 213-year old statute that lay dormant for almost two
centuries but that now has the attention of more than a few general
counsel. Well known companies such as Citigroup, Ford, Coca-Cola,
ChevronTexaco and Nike have all been the subject of multi-million dollar
lawsuits brought under this statute. Although the statute is intended to
provide relief for conduct committed in violation of the law of nations,
recent holdings to the effect that private companies may be vicariously
liable for the acts of corrupt foreign governments have been the impetus
for a rash of new suits against corporations. It is for this reason that the
Alien Tort Claims Act (“ATCA”) is now a genuine concern for
international business.
History of ATCA Litigation
The ATCA was passed by the first Congress as part of the Judiciary
Act of 1789. It is all of 33 words, as follows:
The district courts shall have original jurisdiction of any civil
action by an alien for a tort only, committed in violation of the
law of nations or a treaty of the United States.
28 U.S.C. § 1350.
There the statute stood, rarely being invoked, for almost 200 years.
Indeed, writing in 1980, the Second Circuit was only able to find two
instances in which jurisdiction was invoked under the ATCA. All that
changed with the Filartiga suit in 1979. Dr. Filartiga was a longstanding
opponent of the government of Paraguay. He and his daughter, Dolly
Filartiga, brought suit under the ATCA, alleging that the doctor’s son,
Joelito Filartiga, has been kidnapped and tortured to death on March 29,
1996 by the defendant, Peña, who at the relevant time was the Inspector
General of police in Asuncion, Paraguay. The Filartigas claimed that Joelito
was tortured and killed in retaliation for his father’s political activities and
beliefs.
After the killing, Dolly Filartiga fled to the United States. When
she later learned that Peña was present in the United States, she caused a
summons and complaint to be served on him while he was waiting to be
deported. The district court dismissed the lawsuit for lack of subject
manner jurisdiction, holding that “the law of nations,” as employed in the
ATCA, excluded that law which governs a state’s treatment of its own
citizens. The Second Circuit reversed. In light of the universal
condemnation of torture, the Second Circuit found that the act of torture
committed by a state official against one held in detention violated
established norms of the international law of human rights and thus the law
of nations.
Filartiga was a watershed decision. It breathed life into a moribund
statute and established that the ATCA could be used to bring lawsuits in
federal court when the following three conditions are satisfied: (1) an alien
sues (2) for a tort (3) committed in violation of the law of nations. The
other important lesson from Filartiga was that the term “law of nations” was
not to be interpreted in accordance with international law standards as they
existed in 1789. Rather, it was appropriate to apply international law as it
evolved and as it existed among the nations of the world at the time the
lawsuit is brought.
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
