Alien tort statute

• Pages: 10-16

10 Volume 21, January–March 2015 international law update

© 2015 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

emphasized this presumption in its rst ruling, and

it did nothing to suggest it had shifted the burden

when it considered these factors in its motion for

reconsideration. at presumption of convenience

has been rebutted by the strength of the private and

public factors discussed above.”

e Court concluded that because Plaintis

have not exhausted their Hungarian remedies and

have not yet provided a legally compelling reason

for their failure to do so, their claims against the

national defendants were properly dismissed

without prejudice by the district court. e district

court did not abuse its discretion by dismissing the

claims against Erste Bank without prejudice based

on forum non conveniens.

e Court thus arms the District Court.

citation: Fischer v. Magyar Államvasutak Zrt., 777

F. 3d 847 (7th Cir. 2015).

ALIEN TORT STATUTE

In lawsuit brought by more than 4,000

Colombian victims of paramilitary

forces that received support from

Chiquita banana company, Eleventh

Circuit dismisses based on the Alien

Tort Statute’s presumption against

extraterritoriality

Cardona v. Chiquita Brands International

is a class-action suit brought on behalf of

approximately 4,000 victims of state-sponsored

terrorism in Colombia. e plaintis brought their

suits based on the Alien Tort Statute (ATS) and the

Torture Victim Protection Act (TVPA). Chiquita

plead guilty in 2007 to funding the Colombian

paramilitary—and former terrorist—organization,

the Autodefensas Unidas de Colombia (AUC)

(United Self-Defense Forces of Colombia), and

other guerrilla groups during Colombia’s civil war.

Chiquita made at least 100 payments between

1997 and 2004 to the AUC. e paramilitary

coalition of narco-trackers has been responsible

for the rape, torture, murder, disappearance, and

forced displacement of hundreds of thousands of

Colombians. e company paid AUC for security

services, disguising the payments as accounting.

Chiquita did all this against the express warnings

of its attorneys and with the repeated and express

authorization of the highest ranking executives at

its Ohio headquarters.

Chiquita continues to dispute the nature

of its dealings with the AUC. Its representatives

insist that AUC was extorting payments from the

company. But, beyond dispute, the paramilitary

atrocities did further the company’s interests.

According to the National Union School (ENS),

668 members of Colombia’s largest banana workers

union were murdered between 1991 and 2006. By

way of comparison, between 1999 and 2005, the

rest of the world combined saw 314 similar killings

of union members.

Bananas were not the only business that

thrived under the AUC’s watch. e group moved

cocaine and weapons through the same ports

that fed U.S. demand for bananas. In November

2001, two months after the AUC was designated

a terrorist group, Chiquita facilities were used to

bring 3,400 AK-47 assault ries and ve million

rounds of ammunition into the country from AUC

tracking partners in Nicaragua.

In 2007, Chiquita settled with the U.S. Justice

Department for $25 million. During the period

its conduct violated U.S. anti-terror law, Chiquita

brought in $49.4 million—almost twice the

penalty fee—from its Colombian holdings alone,

according to the Justice Department. In 2005, the

company informed its shareholders that it had sold

those assets, its most valuable, for roughly $40

million, while also keeping distribution rights to

the bananas they produced.

Chiquita has never faced prosecution in

Colombia, where the AUC’s political and economic

support networks remain largely intact. And neither

Chiquita nor the U.S. government—which has sent

billions to the Colombian military, in full knowledge

of its extensive paramilitary ties and abysmal human