USA*Engage, NFTC Urge Supreme Court to Reconsider South African Alien Tort Statute Cases

Tuesday, 19 February 2008

“Over the past two decades, scores of U.S. and international companies have been sued under the Alien Tort Statute for allegedly aiding and abetting human rights violations by foreign governments,” the associations stated. “And in many cases, the suits challenge trade with countries where the political branches have expressly decided to encourage commercial engagement. Those suits not only strain foreign relations but cause irreparable economic harm by deterring foreign trade.”

 

“As associations representing the U.S. and international business community, we support an open, rules-based global trading system and have concerns about the use of the Alien Tort Statute to bring lawsuits alleging wrongdoing by companies when they have acted within the bounds of law,” said NFTC President and USA*Engage Co-Chair Bill Reinsch. “We are supporting the certiorari petition filed by the defendants and are pressing the Supreme Court to review these cases because we believe it to be in the best of interest of U.S. foreign policy and our economic and diplomatic relations with South Africa and the rest of the world.”

 

The case was originally dismissed in November 2004 by the U.S. District Court for the Southern District of New York and appealed to the Second Circuit Court of Appeals. Subsequently, the Second Circuit vacated that dismissal on October 12, 2007. In December 2007, the NFTC and USA*Engage joined other leading business associations in sending letters to the U.S. Secretary of Commerce and Secretary of State to press them to recommend to the Solicitor General that the government file an amicus brief in support of the petition for certiorari. The letters noted that among other things, the Second Circuit’s decision “wholly ignored the stated position of the U.S. government regarding the negative impact that the litigation would have on U.S.-South Africa relations.” The Solicitor General subsequently intervened and filed an amicus curiae brief in support of the petitioners.

 In the brief filed by the trade associations this week, the groups assert that the Second Circuit’s decision imposes “grave uncertainty” and costs on international trade, and the Supreme Court should clarify uncertainty over aiding-and-abetting liability. The associations also point out that financial and reputational harm from ATS lawsuits is not limited to U.S. firms but extends to foreign multinational corporations as well, illustrating the extent of damage to trade and commerce worldwide. “Firms need clear guidance on where they can do business – guidance that must come from the political branches in advance, not from after-the-fact ATS litigation. Firms need to know, not only that they can rely on the Executive’s decisions, but that courts will protect their reliance in a timely manner,” the associations stated. “The Second Circuit’s ruling deters the constructive commercial engagement that the Executive often promotes, and it undermines the international trade on which our economy depends. That ruling warrants this Court’s immediate review.” For a full copy of the brief, please visit www.nftc.org.  

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USA*Engage (www.usaengage.org) is a coalition of small and large businesses, agriculture groups and trade associations working to seek alternatives to the proliferation of unilateral U.S. foreign policy sanctions and to promote the benefits of U.S. engagement abroad. Established in 1997 and organized under the National Foreign Trade Council (www.nftc.org), USA*Engage leads a campaign to inform policy-makers, opinion-leaders, and the public about the counterproductive nature of unilateral sanctions, the importance of exports and overseas investment for American competitiveness and jobs, and the role of American companies in promoting human rights and democracy world wide.

 The National Foreign Trade Council (www.nftc.org) is a leading business organization advocating an open, rules-based global trading system. Founded in 1914 by a broad-based group of American companies, the NFTC now serves hundreds of member companies through its offices in Washington and New York.