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Corporate Exposure Under the Alien Tort Claims Act
Despite the U.S. Supreme Court's effort to restrict and clarify the Alien Tort Claims Act ('ATCA'), the divergence between judicial interpretations of the law, and the number of ATCA lawsuits continues to grow. Some courts have construed the ATCA narrowly, as the Supreme Court urged, limiting the cases that can be brought. Others have interpreted the Act broadly, recognizing novel claims and theories of liability. Emblematic of that schism are two cases decided last year, one filed in New York involving an energy company's role in oil development in Sudan, and one in California involving Papua New Guinea mining operations. These ATCA cases and others like them are part of a rising wave of high-stakes litigation against corporations and their executive officers, and necessitate especially careful attention by in-house counsel regarding overseas operations.
A Brief History
The ATCA was enacted in 1789, as part of the nation's first Judiciary Act. Though its origins are sketchy, by its terms it permits aliens to file civil lawsuits in the U.S. for discrete wrongs ' primarily 'violations of the law of nations,' which in 1789 meant piracy, ambassadorial attacks, and safe conduct violations. Because the reach of international criminal law traditionally has been restricted to misconduct by states or state officials, most acts under the ATCA must be committed in connection with some kind of governmental authority; namely, misdeeds by government agents or private actors acting with the imprimatur of government power.
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