The Foundation, partnering with the international law firm DLA Piper, filed an amicus brief on behalf of itself and four current or former general counsels of major United States-domiciled international corporations in support of a petition for certiorari by more than 50 major international corporations, including Bank of America, BP, Bristol-Myers Squibb, ChevronTexaco, Citigroup, Coca-Cola, Colgate-Palmolive, Daimler AG, Dow Chemical, DuPont, Exxon Mobil, Ford Motor, Fujitsu, General Electric, General Motors, Hewlett-Packard, Honeywell, IBM, JPMorgan Chase, 3M, Nestle, Shell Oil and Xerox, seeking interlocutory review of an October 2007 decision of the U.S. Court of Appeals for the Second Circuit, in which that court reversed the trial court and held that a case brought under the Alien Tort Statute (ATS), 28 U.S.C. 1350, could proceed in U.S. courts against the more than 50 U.S. and foreign corporations for their role in aiding and abetting South Africas former apartheid regime. The case is styled American Isuzu Motors, et al. v. Lungisile Ntsebeza, et al.
The overriding issue is whether allowing the cases to proceed, over the strong objections of the current majority Black government of South Africa and opposition of the Executive Branch, comports with the Supreme Courts recent decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). In that case the Court instructed trial courts to undertake case specific political question deference and international comity inquiries. In this case, the Second Circuit held that such an inquiry should not be made at the outset, but should await further motion practice, despite a statement of interest filed by the State Department and briefs supporting dismissal filed by the United States Department of Justice and the Republic of South Africa in the district court and in Court of Appeals and whether the decision to retain jurisdiction infringes the foreign affairs powers of the political branches of the U.S. Government.
In our brief, we focused on the principle of international comity, which teaches that one nation should, under most circumstances, defer, within its territory, to the legislative, executive or judicial acts of another nation and that under the principles of comity, United States courts ordinarily refuse to review acts of foreign governments and defer to proceedings taking place in foreign countries, allowing those acts and proceedings to have extraterritorial effect in the United States.
In this case, the democratically-elected government of the Republic of South Africa, with the overwhelming mandate of its people, is actively addressing the legacy of apartheid, and by failing to immediately recognize the comity to which South Africa is entitled and instead permitting the cases to continue, is an affront to that countrys sovereignty, and the Second Circuits decision perpetuates the very harm comity is designed to prevent.
We also argue that expansive exposure to potential ATS actions created by the Second Circuits ruling places the international business community is an untenable position because in this case the defendant multinational corporations were complying with the official policies of the United States and other Western democracies to promote economic and social reform in South Africa through economic engagement. The alternative, avoiding economic participation in countries with less than acceptable human rights records, effectively cedes these markets and political influence to countries that may not be as sensitive as the United States and its allies to the plight of the peoples of those authoritarian regimes. We argue that these are matters best left, as a matter of constitutional architecture and common sense, to the political branches, as the Court has recognized for many decades.
To view a copy of the Foundations brief, click here.