The Alien Tort Statute (ATS)1 and the Torture Victim Protection Act of 1991 (TVPA)2 are statutes that work in tandem to provide, respectively, jurisdiction and causes of action in U.S. federal courts for, inter alia, foreign and domestic victims of state-sponsored war crimes and crimes against humanity. Back in 2003 and 2004, we discussed in this column how the ATS was becoming a major concern to multinational corporations as a result of an ever-increasing number of lawsuits against them, seeking billions in damages, and noted how the threat of large judgments could adversely affect international business and aid to developing countries.3 The Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain4 certainly narrowed the scope of the types of wrongs actionable under the ATS. We revisit the ATS in this column because a pair of recent Circuit Court decisions has provided still further protection to corporations in holding that they cannot be held liable under these statutes.

Enacted in 1789 as part of the first Judiciary Act, the ATS provided the federal courts with jurisdiction to hear non-U.S. plaintiffs’ claims related to a violation of the “law of nations or a treaty of the United States.” A claim under the ATS requires that there was state action, yet may not be brought against the foreign state itself (which is immune under the Foreign Sovereign Immunities Act). The TVPA was enacted in 1992 specifically to carry out domestic obligations pertaining to the protection of human rights and to give U.S. citizens a cause of action for damages related to torture or extrajudicial killings that occurred outside of the United States.

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