Civil Litigation and Transnational Business: An Alien Tort Statute Primer

This article examines efforts in the United States to hold corporations and corporate officers accountable for egregious human rights and humanitarian law violations using the Alien Tort Statute (ATS). It traces the evolution of ATS jurisprudence since the landmark Filártiga v. Peña-Irala case, giving particular attention to successful cases against non-state actors which led to the filing of the first corporate cases in the mid-1990s. In so doing, it highlights the linkages between the developments in international law (human rights, humanitarian and criminal law) and ATS case law. It then provides an overview of ATS corporate cases, demonstrating the range of violations and circumstances that have given rise to civil cases brought in US courts against corporations. Finally, it highlights current issues and challenges facing litigators seeking to hold corporations liable for damages through the ATS. These challenges include invocation of the political question doctrine or forum non conveniens arguments in an effort to have cases dismissed, and questions about whether corporations can be held liable for aiding and abetting international violations, and if so, what the appropriate source or test for aiding and abetting is under the ATS. Notably, among the questions being raised by at least one court, in the wake of the Supreme Court’s Sosa v. Alvarez-Machain decision, is whether corporations can be held liable under international criminal law.