FREE DOWNLOAD: Drimmer on Khulumani v. Barclay Nat'l Bank, LTD.
The recent decision in Khulumani v. Barclay Nat'l Bank, LTD, 2007 U.S. App. Lexis 24370 (Oct. 12, 2007), underscores the need for multinational corporations and their executive officers to focus closely on Alien Tort Claims Act-compliance issues. This commentary, written by Jonathan Drimmer, an attorney at Steptoe & Johnson, who practices in international and commercial litigation and advises corporations on issues related to ATCA compliance, discusses this decision and its implications for doing business abroad.
Excerpt:
The ATCA’s Confused Origins And Meaning. Although its origins remain murky, the ATCA has been part of federal law since the nation’s founding. Enacted in 1789 as part of the first U.S. Judiciary Act, Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77, the ACTA permits aliens to file civil lawsuits in the U.S. for discrete wrongs – “violations of the law of nations,” which in the 18th century meant piracy, ambassadorial attacks, and safe conducts violations.
For nearly 200 years, this narrow law remained dormant. In the 1980s, it was effectively rediscovered, and used as the basis for lawsuits against individuals and regimes accused of international human rights abuses. The following decade brought a new trend, as scores of multi-million dollar lawsuits against corporations arose based on a variety of foreign actions, resulting in varied interpretations by courts struggling to construe the hazy term “law of nations.”
The Supreme Court Steps In. In 2004, the Supreme Court tried to clarify the complex principles underlying the ATCA. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Court urged judges to exercise restraint in recognizing new ATCA claims, instructing them to engage in “vigilant doorkeeping.” In construing the “law of nations” provision of the ATCA, it declared that the ATCA would apply to “a narrow class” of international harms that are clearly defined and accepted by “civilized nations.” It further noted that, in appropriate cases, deference to political considerations might, for prudential reasons, justify dismissal. As an example, specifically cited the proceedings connected to the Apartheid litigation. [citations omitted]