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The Future of the Alien Torts Statute

Should American federal courts maintain Article III jurisdiction for wrongful tortious conduct occurring overseas? Traditionally, the Alien Torts Statute (“ATS”) provided such redress. Recent court decisions have curtailed ATS’s reach.

Historically, ATS first provided redress for foreign dignitaries for injuries they suffered in the US. It was first codified in 1789.

The History

In 1980, the plaintiffs in Filartiga v. Pena-Irala successfully applied ATS in their wrongful death lawsuit against the defendant. The defendant ordered the decedent’s kidnapping, torture and subsequent murder in retaliation for his father’s public condemnation of the Paraguayan paramilitary government. The Filártiga case established that American federal courts have jurisdiction for cases involving torture and human rights violations. ( Smith, Amanda Trial History: Filartiga v. Pena-Irala)

The Torture Victim Protection Act {TVPA} signed into law in 1991 is considered an important addition to ATS. TVPA specifically states ” An individual who, under actual or apparent authority, or color of law, of any foreign nation- (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death. Thus, in contrast to the ATS, the TVPA is not jurisdictional in nature, but rather creates a substantive cause of action. ”

Case Law Support

Later court decisions (In re Estate of Ferdinand Marcos & Doe and Karadzic) reaffirmed that war criminals and human rights violators may face liability in American federal courts.
The 2011 Doe v. Exxon Mobil Corp. 654 F. 3d 11 case also expanded ATS’ reach. The court opined that parent liability is triggered when an overseas subsidiary’s tortious conduct is considered in furtherance of the company’s overall business objectives. The court also ruled that liability attaches when the parent company should have known about its subsidiary’s tortious actions.

ATS Future

Today, recent court decisions have threatened ATS’s future application. First in 2013, in Kiobel v. Royal Dutch Petroleum Company 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) [2013 BL 103044] the U.S Supreme Court ruled the judicial presumption against extraterritoriality will apply to ATS cases. The U.S Supreme Court extended this merits question canon to jurisdictional issues to prevent judicial interference in foreign policy.

The January of 2014 U.S Supreme Court decision in Daimler Chrysler v. Bauman 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014) [2014 BL 9151] dealt ATS plaintiffs another blow.

In Bauman, the U.S Supreme Court held that an American federal court’s personal jurisdiction over a parent company domiciled within the US does not prima facie establish the court’s personal jurisdiction over an international subsidiary for conduct occurring overseas. (134 S. Ct. 746, 187 L. Ed. 2d 624 (2014) [2014 BL 9151)

The U.S Supreme Court’s decision held that traditional notions of fairness and justice demand additional evidence that a subsidiary’s overseas actions touches and concerns the American forum state. The mere physical presence of a parent company in a forum state is not sufficient to withstand a U.S Federal Rules of Civil Procedure 12 (b) (2) motion for dismissal. ( U.S Federal Rules of Civil Procedure Rule 12 page 22)

ATS enjoys a rich statutory and case law history. American ratification of treaties condemning torture and genocide gives American federal courts Article III jurisdiction even when such actions occur overseas between non-American plaintiffs and defendants. American federal courts should continue to exercise Article III jurisdiction over these matters. It promotes adherence to international human rights and the rule of law. It is also an important tool for American national security efforts. With the recent Daimler Chrysler decision American plaintiff attorneys across the US must exercise a bit of creativity to ward of jurisdictional challenges and dismissal to ATS litigation.

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