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The questions over aiding and abetting

Financial Times: The questions over aiding and abetting

By Jonathan Birchall

Posted 2 August 04

Does a group of Burmese villagers have the right to take legal action in the US against a US oil company over alleged complicity in murder and forced labour in their home country? Unocal, the oil company, will shortly resume its efforts to persuade a federal appeals court in California that they do not.

The case will provide a first test of last month’s Supreme Court ruling on the Alien Tort statute, an 18th-century law controversially invoked by human rights groups in a series of cases against US companies. Daniel Petrocelli of O’Melveny & Myers, the law firm representing Unocal, claimed the Supreme Court had delivered a “sound rejection” of the way the statute has been used against business; Amnesty International, echoing other human rights groups, argued instead that the court had upheld the act’s “core principles”.

Passed into law by the first Congress in 1789, the Alien Tort statute gave US federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”.

In 1980, the law was reinterpreted and successfully used by relatives of a torture victim to sue a retired Paraguayan police officer living in the US. Human rights groups and environmentalists have sought to extend its scope to include corporations, sparking a struggle with business groups.

Some 20 Alien Tort cases have been brought against corporations; only five have survived a motion to dismiss, with eight more facing a motion to dismiss. The Unocal case is the most advanced, despite a brief from the US Justice Department arguing against the plaintiffs’ use of the statute.

In its ruling last month (on a case involving the federal government), the Supreme Court argued that the statute should be limited to violations that are “specific, universal and obligatory” under international law. This, the court suggested, should involve “an international law norm with definite content and acceptance” similar to the principle of piracy in the 18th century.

Lawyers representing the Burmese villagers in the Unocal case believe the complaints – of complicity in acts of murder, forced labour and rape – will be sufficient to bring the case to trial.

“We have slavery, we have torture, we have crimes against humanity as part of our claim,” said Dan Stormer, of the law firm Hadsell & Stormer, who argued on behalf of the Unocal plaintiffs. “They can pound the table all they want, but we are going to get to argue this case in court.”

Rights activists believe that other high profile cases – including complaints against ExxonMobil, Talisman Oil, Shell and ChevronTexaco – will be able to meet the Supreme Court’s tort standard, though this will be contested.

“It is our view that the allegations in this complaint consist of statements or charges . . . which are not universally held concepts of international law,” says Martin Weinstein, a lawyer at Willkie Farr Gallagher, who is defending ExxonMobil in a case arising from its operations in Indonesia. Other less defined cases, including litigation against US companies that worked in South Africa under apartheid, are widely expected to fall short of the standard.

Meanwhile, US business groups have expressed disappointment that the Supreme Court failed to shut the door on Alien Tort claims against corporations.

“These cases are going to end up in the Supreme Court anyway, and the court will over time end up defining what in its judgment constitutes the law of nations, and what does not. But that seems to us a fairly circuitous way of doing things,” said Bill Reinsch, head of the National Foreign Trade Council.

Later this month, the American Bar Association will report on its efforts to find a consensus between business and human rights groups on amending the statute in the interests of greater legal certainty.

In California, Sandra Coliver, of the Center for Justice and Accountability, believes the Ninth Circuit appeals court – widely regarded as liberal – will send the Unocal case for trial, sparking an appeal to the Supreme Court.

“The Ninth Circuit has framed the issue as ‘What is the standard for judging a company as an aider and abetter?’ Do you look at international law, or do you look at US law, or even Burmese law?” she says. “But I think the Justice Department and Unocal will raise the broader question . . . of whether a corporation can be held liable at all.”

Patti Waldmeir’s column will return on August 30.

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