Washington, D.C., February 19, 2008 – Groups representing major U.S. and foreign multinational companies have urged the Supreme Court to review a lower court’s ruling paving the way for a massive lawsuit asserting their liability for human rights abuses by the apartheid-era regime in South Africa. In a friend-of-the-court brief delivered last week, the companies said allowing the ruling to stand would cripple foreign commerce and impinge upon the Executive Branch’s primacy in setting U.S. foreign policy.
“This case is another example of how foreign plaintiffs are misusing the U.S. legal system to further their own causes and extort money from U.S. and foreign multinational companies for simply doing business abroad “ according to Timothy E. Deal, senior vice president with the United States Council for International Business, one of the groups that signed the industry brief. “What makes the decision of the Second Circuit to remand the case for further proceedings is that companies were following the explicit guidance of the U.S. Executive Branch, suggesting that positive engagement was the best way to promote political change in South Africa. We call on the Supreme Court to grant the writ of certiorari and prevent this miscarriage of justice.”
The case in question, American Isuzu Motors, Inc., et al. v. Lungisile Ntsebeza, et al., was filed under the Alien Tort Statute, an eighteenth-century U.S. law originally aimed at letting victims of maritime piracy sue for damages resulting from crimes on the high seas. The statute has been used increasingly of late to target the alleged perpetrators or abettors of human rights abuses, including private companies, for wrongs committed outside the normal jurisdiction of the U.S. courts.
In their brief, the business groups argued that the Second Circuit’s decision, if upheld, would make it impossible for companies to rely on the U.S. government’s foreign policy guidance in determining the legality of trading or investing abroad. Such a move, they said, would open companies engaged in ordinary foreign commerce to massive potential liability.
“This suit is premised on the theory that myriad businesses ‘aided and abetted’ violations of international law by engaging in ordinary commercial transactions with South Africa that indirectly contributed to that country’s former apartheid regime,” the groups stated in their brief. “The Executive, however, long ago adopted a policy of commercial engagement with apartheid South Africa. Private firms relied on that policy when they engaged in trade. For that and related reasons, South Africa’s current democratic government and the U.S. government have both urged that this suit must be dismissed.”
Other signatories to the industry brief include the National Foreign Trade Council, USA*Engage, the Organization for International Investment and the National Association of Manufacturers.
The Bush administration has also submitted a brief to urging the Supreme Court to review the Second Circuit’s ruling in the case.
Founded in 1945 and based in New York, USCIB promotes an open system of global commerce in which business can flourish and contribute to economic growth, human welfare and protection of the environment. Its membership encompasses over 300 leading U.S. companies, professional services firms and associations whose combined annual revenues exceed $3.5 trillion. As American affiliate of several leading global business groups, USCIB provides business views to policy makers and regulatory authorities worldwide and works to facilitate international trade.
Timothy E. Deal, SVP Washington, USCIB
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