7. A look at the National trial procedure
With the exception of the UK, 1 trials in EU Member State courts differ greatly from those in the US because they remain subject to the legislation of individual Member States. It is therefore difficult to present an overview of European trial procedures. For this reason the appendix concentrates on describing various aspects of US trial procedure. One thing can, however, be said concerning European Member States: the discovery procedure found in the US is generally absent.
It is important to note that in US civil procedure, the victim’s role is accusatory and the role of the opposing parties is predominant over that of the judge. 2 The parties manage the trial, decide how it unfolds and provide evidence of the facts they allege. The judge’s role is merely that of a gatekeeper, ensuring that the parties comply with the trial procedure. Juries issue final decisions.
In cases of corporate human rights abuses, victims of human rights violations by multinational corporations generally have significantly fewer material and financial resources than their opponents to investigate and substantiate the facts and harm they allege. To counter this imbalance, Article 26 of the Federal Rules of Civil Procedure authorizes the discovery procedure, which permits either party to require the other to furnish it with all relevant information. This mechanism allows the plaintiff to use court orders to obtain necessary evidence from both the defendant and third parties. Victims may also require companies to turn over certain documents, even if they directly incriminate the company. 3 Failure to comply with the discovery procedure is grounds for the judge to hold a party in contempt of court, which may result in severe penalties.
In EU Member States, victims are most often responsible for demonstrating a multinational company’s liability for a tort, even though the body of documents and other material evidence is in the hands of the parent company, its subsidiary or its subcontractors abroad. The same applies to potential witnesses. There is no equivalent to the discovery procedure. The inequality between plaintiff and defendant is all the more striking given that defendants generally have unlimited financial and logistical means. Most Member States, however, offer a (partially) free system of legal aid. While some rules of US trial procedure are potential obstacles to suits brought under the ATCA, others, such as the discovery procedure, present advantages vis-à-vis the rules in place in Europe :
- The ability to bring class action on behalf of a group of individuals, or to bring action while protecting the plaintiff’s identity,
- The ability to modify or supplement a suit based on information gathered through discovery,
- A trial may be held even in the defendant’s absence, provided that personal jurisdiction is established (default judgement),
- Civil proceedings are independent from possible criminal proceedings (the adage le pénal tient le civil en l’état does not apply), 4
- The contingency fees of counsel are calculated in proportion to the amount of any rulings or settlements,
- The existence and pro-bono involvement of public interest lawyers who work with law schools and private firms,
- The sizeable damages awarded by juries,
- The unsuccessful party does not have to bear the costs of the case (no penalty for losing),
- The ability to obtain both compensatory and punitive damages, as well as court orders requiring changes in practices. Punitive damages are intended both to punish the defendant and discourage others from such conduct, and
- No compensation for frivolous and vexatious 5 lawsuits. If a suit is declared frivolous and vexatious, the defendant may claim damages. A frivolous and vexatious suit may be one that is brought without reflection, carelessly or recklessly, or without legal basis.
DISADVANTAGES / OBSTACLES 6
- The difficulty in US courts of establishing personal jurisdiction over a company for the actions of its subsidiaries and secondary entities (and vice versa), particularly when the companies are parts of multinational corporations,
- The doctrine of forum non conveniens ,
- The act of state and political question doctrines,
- The difficulty of enforcing rulings by US courts in foreign jurisdictions. Foreign governments have difficulty accepting the extraterritorial jurisdiction of US courts and the compensatory and punitive damages awarded in US courts are sometimes considered excessive. US courts are reluctant to recognize and enforce foreign rulings. These obstacles are all the more severe because there are few enforcement agreements between the US and other countries. 7 These restrictions require plaintiffs to consider the foreign jurisdiction where they wish to enforce the US decision, in order to best formulate their complaint to ensure its enforcement in that country.
- The United States does not offer a constitutional or legal basis for legal aid in civil matters. There is no organised system of legal aid. The support that exists is provided pro-bono by certain attorneys and NGOs, but not by the federal government,
- With certain exceptions, there is no rule which allows successful plaintiffs to be reimbursed for their legal costs, and
- Lastly, the court cannot appoint certified interpreters unless the government is the plaintiff.