Tort doubts ‘need to go to highest court'

Only a Supreme Court ruling will provide real clarity on whether the US’s Alien Tort law can successfully be used to convict American companies for human rights abuses abroad, a legal expert has argued.

Andrew Behrman, a litigation expert in the New York office of international law firm Lovells, says the welter of cases being brought via the Act is just adding to the general confusion, with different approaches being taken by various courts.

And as the two cases that have gone all the way through the courts – against coal firm Drummond and oil company Chevron – have both been found in the companies’ favour, it is still unclear as to whether anyone will ever be convicted under the Act.

‘With different courts adopting conflicting standards, it will likely take a decision of the US Supreme Court to definitively decide this issue,’ says Behrman in a new paper on the Act. ‘Until that happens, multinational corporations will continue to operate in an uncertain world as regards how their actions abroad will be judged in the US courts.’

Behrman, whose comments have been published in Lovells’ latest CSR legal bulletin, says uncertainty over the Act may have been a factor in the recent decision by Shell to settle an Alien Tort case brought by Nigerian families (EP11, issue 3, p7). He adds: ‘As seen from Shell’s settlement, even the possibility of an unfavourable jury verdict may be enough to scare multinational defendants from proceeding to trial regardless of how strong they feel their defence to be.’

He also warns that the Chevron and Drummond suits were based on allegations of complicity in ‘very specific, narrow international law violations’, whereas many of the current cases involve more generalized allegations that may have a better chance of being upheld.