The Alien Tort Claims Act: How Far Will it Go? - Part 1 Chapter 29 - The Practice of International Litigation - 2nd Edition
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.
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.