Conditions for bringing action under the ATS
An alien tort victim
The first material condition for bringing action under the ATS is that the victim of the alleged tort is not a U.S. national. The ATS may be invoked only by foreigners.
The practical impact of this restriction, however, is limited because in our scenario the tort is committed by a multinational during its operations abroad, where victims tend to be foreign nationals.
Moreover, it is not necessary for the victim to exhaust domestic remedies available in his or her country of residence prior to bringing action under the ATS. 1 The TPVA, by contrast, does require the exhaustion of domestic remedies.
Class action lawsuits in the U.S.
In civil procedure, U.S. courts recognise class action lawsuits. Class action suits can take two forms:
Opt-in: To be part of the class action, each individual must declare his or her intention to participate. This is the case in the U.K. and Québec, for example.
Opt-out: Everyone sharing the defendant’s situation is automatically part of the class action, but may opt out with a formal statement. This system is in place in the United States.
In the United States, an individual or group of individuals (both private and legal persons) whose rights have been violated may sue on behalf of an unlimited number of victims in similar circumstances. The court’s decision will be binding upon all victims in the same circumstances, whether they are party to the proceedings or not. The aim of the class action process is to address large numbers of related complaints through a single legal action, and to facilitate access to justice for all who suffered similarly. This type of collective action is in the victims’ financial interest because it reduces the costs of litigation.
In addition to permitting class action lawsuits, the U.S. legal system provides numerous another advantages, including the discovery procedure and the system of contingency fees. These aspects are discussed briefly in the annex at the end of chapter III.
A violation of international law
For the ATS to be applicable, the harm must have been caused by a violation of international law, in our case, a violation of international human rights law. Violations of international law which provide a U.S. court with jurisdiction may take two forms:
- A violation of a treaty by which the U.S. is bound In most cases, the U.S. has refused to recognize the direct applicability of human rights treaties it has signed. Accordingly, few cases cite this basis for jurisdiction. 2
- A violation of customary international law (the law of nations) For an international human rights law norm to be characterized as customary international law, it must be universal, definable and obligatory. 3 These norms need not necessarily fall under jus cogens. The concept refers to customary practices and principles clearly defined by the international community. 4 The norm is flexible and should be interpreted dynamically. 5
A violation of a jus cogens norm, however, clearly provides U.S. courts with jurisdiction to hear allegations of the following: 6
- Genocide, war crimes, and crimes against humanity,
- Slavery and forced labour,
- Summary execution, torture, and disappearance,
- Cruel, inhuman, and degrading treatment,
- Prolonged arbitrary detention,
- Serious violations of the right to life and personal security, and
- Serious violations of the right to peaceful demonstration.
Environmental abuses have not been found to constitute violations of international law under the ATS; 7 in light of the growing international movement related to climate change and environmental issues, and resulting changes to regulatory frameworks, human rights advocates might consider asking courts to reconsider this finding. For the time being, however, to bolster the admissibility of a complaint, it is more useful to bring action for the human rights violations so often tied to environmental abuses.
A case against a U.S. corporation deemed the human rights to freedom of association and collective bargaining defendable under the ATS. 8 The fate of social rights, however, remains uncertain in the event of suits against non-U.S. firms. Freedom of association and collective bargaining rights still fail to be regarded as part of customary international law, a sine qua non for the ATS to be applied. 9
The Supreme Court’s ruling in Sosa v. Alvarez-Machain confirms earlier jurisprudence defining international law norms under the ATS as being universal, definable and obligatory. At the same time, the ruling requires federal judges to exercise great judicial caution in ensuring that violations meet these criteria. 10 Prior to accepting jurisdiction, U.S. courts must consider how the practical consequences of hearing a case will impact foreign relations. 11 In addition, if bringing action under the ATS does not first require the exhaustion of domestic and international remedies, U.S. courts may, according to the Supreme Court, take that fact into consideration before accepting jurisdiction. This is a prudential rather than a jurisdictional requirement.
Meeting the above-mentioned conditions, particularly with regard to violations of customary international law, is not easy. In addition to Sosa ’s requirements, and those stemming from Kiobel (infra), domestic law provides several procedures requiring a link between the case and the forum court.
A procedural requirement: personal jurisdiction
Whether a multinational defendant is headquartered in the U.S. or elsewhere, plaintiffs must establish personal jurisdiction in a U.S. court prior to bringing action under the ATS. This requirement is complex. To fulfil it, plaintiffs must demonstrate that the corporation maintains affiliations “ so constant and pervasive as to render it essentially at home in the forum state.” 12 In January 2014, in Daimler AG v. Bauman, the Supreme Court found that sizable sales were not enough to establish jurisdiction over a corporation, when the tortious conduct occurred abroad.
Prior to the Supreme Court’s Jesner v. Arab Bank decision, U.S. states recognized a court’s jurisdiction in the following situations, regardless of where the facts of the case took place:
- The corporation’s headquarters were located in the state of the forum court, or
- The company (U.S. or foreign) had its head office in another state but is conducting ongoing and systematic business in the forum state. 13
However, since the Jesner judgement, the Supreme Court refuses the US judge’s jurisdiction for actions brought against foreign corporations based on the impossibility of holding foreign companies liable on the basis of the ATS 14
Regarding subsidiary foreign corporations, it is still possible (although very difficult) for foreign victims to claim the liability of the American parent corporation on the basis of the parent’s company connections with the United States in order to establish the jurisdiction of the U.S. judge under the ATS. 15
Time limits: the statute of limitations
Present in both the U.S. and european legal systems, the statute of limitations, as it is known in U.S. law, is a procedural element that applies to both civil and criminal cases. The statute of limitations requires the plaintiff to bring action within a defined period of time after the starting point of the event, either the Commission of a harmful act, or the discovery of the harm. Failure to do so will deprive the plaintiff of his or her cause of action.
Grounds for tolling the statute
The statute of limitations is a defence often invoked by defendants. In the U.S., however, few transnational disputes have been declared inadmissible on this basis. Indeed, a plaintiff can prove that the reason for the limitation was suspended. This argument, if granted by a court, has the effect of delaying (tolling) the period during which legal action may be brought. For example, it has been found that the statute of limitations may be tolled if:
- The plaintiff has been detained,
- The plaintiff was not on U.S. soil,
- The plaintiff had access to ineffective remedies, 16
- It was difficult to gather evidence during a civil war, or
- The defendant attempted to conceal evidence. 17
The limitations period continues again from the time the cause of the suspension ceases to remain in effect.
If the defendant has always been subject to the jurisdiction of U.S. courts (by virtue of being a U.S. resident or a corporation headquartered in the U.S.) and if the plaintiff’s life was not in danger, the statute of limitations cannot be tolled.
The statute of limitations is generally defined by law. Under the TVPA, the statute of limitations is 10 years from the time the misconduct occurred. The ATS, however, prescribes no specific time period and U.S. courts determine the statute of limitations by drawing parallels with similar federal laws. Given the ATS and TVPA’s common purpose (protecting human rights), the type of proceedings (civil suits to protect human rights), and the place they share in U.S. legislation, several jurisdictions have borrowed the TVPA’s 10-year statute of limitations for cases brought under the ATS. Similarly, some courts have adopted the grounds for tolling denoted under the TPVA (listed by the 1991 U.S. Senate report) for use with litigation invoking the ATS. 18