Can foreigners sue international corporations in US courts?
A 223-year-old law says foreigners can file lawsuits in American courts for alleged violations of international law. But whether they can sue corporations remains a question for the Supreme Court.
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But lawyers for the villagers decided to base their suit on the Alien Tort Statute which permits non-US citizen “aliens” to sue other foreign residents for egregious violations of international law such as genocide, extra-judicial killing, torture, and slavery.
The Alien Tort Statute was adopted by the first Congress in 1789. It was largely ignored for nearly two centuries, but since 1980, lawyers have been trying to establish it as a vehicle to fight human rights abuses around the world.
At first, foreign plaintiffs went after individual foreign torturers and abusive officials. But since the late 1990s, the trend has been to target deep pocket corporations doing business in countries ruled by oppressive governments.
According to one analyst, 120 lawsuits have been filed in US courts against 59 corporations for alleged violations in 60 foreign countries.
Although four members of the high court’s conservative wing expressed significant skepticism about the tactic of charging corporations under the ATS, not all justices were openly opposed to the concept.
Justice Stephen Breyer hypothesized about a group of incorporated criminals operating as Pirates, Inc. Would they be immune from a civil lawsuit under ATS, he wondered.
“Yes, the corporation would not be liable,” Appellate lawyer Kathleen Sullivan replied. She said the lawsuit could seek to seize the ship the pirates had used to carry out their illicit piracy, but the ATS would not permit a litigant to seize the corporate assets of Pirates, Inc.
Justice Elena Kagan asked what would happen in an ATS lawsuit if the French ambassador to the US was assaulted by a corporate agent. “Would we say that the corporation there cannot be sued under the Alien Tort Statute,” she asked.
There is no internationally-accepted norm concerning corporate assaults on ambassadors that would govern the case, Sullivan said.
But she added that the ambassador would not be without recourse. He could use the ATS to sue the individual who carried out the assault, she said.
Sullivan said ATS lawsuits must be based on violations of the law of nations. “There is no country in the world that provides a civil cause of action against a corporation under their domestic law for a violation of the law of nations,” she said.
Sullivan’s point is counterintuitive to many Americans who understand that corporations have long been subject to liability under US law. But the ATS operates under international law, not US domestic law, she said.
Violations of international law are crimes that are so egregious and universally condemned that a perpetrator could rightly be classified as an enemy of mankind.
The Obama administration is arguing the case on the side of the Nigerian villagers and against the coporations.