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In Flores v. Southern Peru Copper Corporation, the U.S. Court of Appeals, Second Circuit, re-examined its Alien Tort Claims Act (ATCA) jurisprudence and assumed that a private domestic company acting in its private capacity could be liable to Peruvian nationals under the ATCA for a wide range of torts under international law, including violations of rights to “life and health.” Previous cases and other Circuits held that only a handful of egregious crimes, when committed by a private individual or corporation, can justify private liability under the ATCA. Rather than abiding by these interpretations, however, the court examined in depth the sufficiency of the Peruvians' claims without addressing the threshold issue of private liability.

Ultimately, the Flores court held that it lacked subject matter jurisdiction over the Peruvians' environmental claims, styled as claims for life and health. Nevertheless, the court raised the prospect of wide-ranging ATCA liability by suggesting that if it had found sufficient consensus in “customary international law” regarding the illegality of Southern Peru Copper Corporation's intra-national pollution, the claims may have been granted subject matter jurisdiction. The court came to the proper conclusion in rejecting subject matter jurisdiction. However, it wrongly applied the holding in Filartiga v. Pena-Irala-which considered only state-sponsored activity-to claims against a private corporation acting in its private capacity. Whether this misplaced reliance on Filartiga and failure to set a threshold standard for private corporate liability was intentional or mistaken, it was a grave error, putting private corporations at risk for snowballing private corporate liability under the ATCA.

The Flores court should have issued a more limited holding and re-emphasized that private, non-state-sponsored actions will only engender Filartiga-style ATCA analysis in a limited set of egregious circumstances. Instead, as this note will examine, the court opened the door for endless and unpredictable liability, double recovery, and forum-shopping that could eventually stifle U.S. multi-national corporation (“MNC”) investment and activity abroad, hamper the competitiveness of U.S. MNCs abroad, and cost such companies millions of dollars in extensive discovery and briefing on every claim brought in the Second Circuit.

The ideal solution to the problem presented by the Flores decision would be for Congress or the Supreme Court to clarify all aspects of liability under the ATCA, particularly corporate liability. While the Supreme Court recently issued its long-awaited first decision addressing the scope of the ATCA, Sosa v. Alvarez-Machain, it specifically left open the corporate actor question under the ATCA. To respond to this confusion, and to redress cases such as Flores, Congress and the Circuits must set a standard which makes individual corporate liability a threshold question, as in the Ninth Circuit's panel decision in Doe v. Unocal.

Publication Citation

25 Nw. J. Int’l L. & Bus. 205 (2004).