The Practice of International Litigation - 2nd Edition - Looseleaf
The Practice of International Litigation - 2nd Edition - Electronic
Supreme Court's Alien Tort Statute Compromise
Lawrence W. Newman and Michael Burrows
In Chapter 29 we discussed how the Alien Tort Statute (“ATS”)
was becoming a major concern to multinational corporations as a result of
an ever-increasing number of lawsuits against them, seeking billions in
damages under the statute. We talked about how the threat of large
judgments could adversely affect international business and aid to
developing countries. And we explained how the Supreme Court would
likely have to play a significant role in shaping the jurisprudence in this area,
lest matters spiral completely out of control.
As anticipated, the Supreme Court granted certiorari on an ATS
case, and, in its recent decision in Sosa v. Alvarez-Machain, the Supreme
Court brought some much needed clarity to this area of the law. Or did it?
Development of the Statute
First, some historical context. The ATS was passed by the first
Congress as part of the Judiciary Act of 1789. It provides, in its entirety, as
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. The statute was rarely invoked until the
Second Circuit breathed life into it with the Filartiga
decision in 1980. That decision held that the ATS 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
Second Circuit also said, in connection with this last
requirement, that it was appropriate to apply international
law as it had evolved and as it existed among the nations of
the world at the time the lawsuit was brought.
In 1995, the Second Circuit held, in Kadic v. Karadzic, that private
individuals could be held liable under the ATS for certain violations of
international law — such as genocide and violations of the law of war. In
addition, other conduct, such as torture, which would not otherwise be
actionable unless committed by state officials acting under color of law, is
actionable under the ATS, without regard to state action, to the extent that
the acts are committed in pursuit of genocide or war crimes.
The Ninth Circuit’s decision in Doe v. Unocal Corp, expanded the
scope of the ATS into the realm of vicarious liability. In that case, Unocal
was part of an international oil project in Myanmar that included the
construction of a pipeline. The claim under the ATS against Unocal was
that it should be held liable for alleged atrocities committed by the
Myanmar military relating to the construction. The Ninth Circuit
announced the following broad standard for aiding and abetting under the
ATS: “knowing practical assistance or encouragement that has a substantial
effect on the perpetration of the crime.”
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.