International Litigation: Could BP Be Sued in a U.S. Court by Foreigners Harmed by the Gulf Oil Spill?
Being an international litigation attorney based out of Miami, I see a great deal of lawsuits filed by.jpg)
foreign plaintiffs here in the U.S. District Court for the Southern District of Florida. By virtue of its close proximity to Latin America and the Caribbean, Miami is one of the busiest places in the country for foreigners to file lawsuits against multinational corporations in the U.S.
I'm sharing this with you because I’m seeing a great deal of interest in the BP oil disaster by foreign nationals who are concerned that the BP oil spill will eventually reach their shores and wreak havoc on their environment.
With the failure of BP’s “Top Kill” measure, it’s almost inevitable at this point that the transnational doomsday scenario that so many have feared will indeed play out. The probability that other countries will be harmed by the spill is higher than ever. Indeed, experts now project that the spill will intensify and continue to flow well into August.
Could Foreigners File Lawsuits Against BP in the U.S.?
As I commented in the last post, the spill is not yet a transnational matter because it has not breached or otherwise harmed the sovereign domain of any neighboring country.
In response to that comment, a reader asked me an interesting question--“what happens if the spill does breach and pollute the waters of another nation? Will those foreigners harmed by the spill have a legal basis to file lawsuits against BP in U.S. courts?”
Answer
It’s a stretch but theoretically, yes. It's possible for a foreigner to have legal grounds to sue BP in the U.S. for harm caused by the oil spill under the Alien Tort Claims Act (ATCA), which grants jurisdiction to U.S. Federal Courts 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."
However, the likelihood of a foreigner ultimately prevailing on a claim against BP in the U.S. is extremely low. As one commenter noted, “no company – whether through trial or at some earlier stage – has yet to lose an ATCA case. Indeed, despite the growing number of ATCA cases brought against multinational companies since 1993, only two have survived to proceed to trial. Most of the cases have been dismissed, mainly on substantive legal grounds. Only a few have settled.”
Alien Tort Claims Act
So what is the ATCA? The ATCA is a centuries-old law that extends U.S. jurisdiction to cover violations of international law abroad and has been increasingly used by foreigners to sue American companies in the United States for their actions in foreign countries. Companies that have faced ATCA cases include Chevron, Coca-Cola, Exxon-Mobil, Firestone, Shell and Wal-Mart.
While I see all kinds of challenges in filing a claim against BP in this context, I don’t view it as such a bad idea. If more of these kinds of lawsuits were allowed to proceed, then the ATCA could become a powerful tool to increase corporate accountability. And that's a good thing.
What do you think?
-Santiago
*Postscript*
One matter predicated on the Alien Tort claims Act that I have written several posts on is the Ecuador v. Chevron litigation that's been underway for the past 17 years. The lawsuit was filed as a result of Chevron's reckless practice of dumping enormous amounts of oil waste into Ecuador's river and streams over the course of many years.
You can read more about the case in these posts: Chevron's Missteps: How Not to Handle Foreign Litigation, Chevron Files International Arbitration Claim Against Ecuador: Forum Shopping in the Hague? and Ecuador Class Action Plaintifss Strike Back at Chevron's Cynical Game of Musical Jurisdictions.
I first read about the Chevron case in a New York Times article over a decade ago. I was so disturbed by the deliberate corporate pollution of the pristine Amazon rain forest that I wrote a lengthy law journal article that was subsequently published in the Florida Journal of International Law. The article is titled Oil's Not Well in Latin America: Curing the Short Comings of the Current International Environmental Law Regime in Dealing With Industrial Oil Pollution Through Codes of Conduct. The article advanced the idea of corporate codes of conduct as a prerequisite to the grant of drilling concessions. Regarded as a cutting-edge proposition, the article was subsequently cited in leading legal textbooks, law review and journal articles.
I'd like to think that the corporate codes of conduct I advocated in the journal article would have served BP well in conducting its drilling operations in the Gulf Of Mexico. Yeah, I'd like to think.
