Sue and be recognized: collecting section 1350 judgments abroad.

Author:Amley, Edward A., Jr.
Position:Alien Tort Claims Act codified in 28 United States Code
 
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Few domestic courts around the world possess either the competence or the desire to process individual and group human rights claims. International judicial attempts to respond to the violators of these norms are even rarer. In contrast, federal courts in the United States have provided fora allowing some of those who have suffered at the hands of foreign public officials the opportunity to make themselves whole. For almost twenty years, judges have construed the Alien Tort Claims Act (ATCA)(1) to empower Article III tribunals to redress human rights abuses. As currently read, the ATCA and its modern counterpart, the Torture Victim Protection Act of 1991 (TVPA),(2) permit nationals of foreign states to bring civil actions against their tormentors in federal court, even if the alleged violations took place thousands of miles from U.S. territory.

The mere existence of the provisions codified at 28 U.S.C. [sections] 1350 does not mean that prevailing in a human rights suit is an easy task. Successfully bringing ATCA and TVPA actions is fraught with obstacles. For example, plaintiffs must prove that the federal court in which a suit is brought can properly exercise jurisdiction over the defendant and that it is the most convenient forum for the action.(3) Judges must be convinced that the act-of-state doctrine(4) does not render the case nonjusticiable. If the defendant is either a foreign sovereign or a recognized head of state, federal courts may not allow the suit to proceed.(5) In the course of actions premised on the ATCA, parties must make a compelling case that the alleged misconduct runs afoul of the constantly evolving "law of nations."(6) In addition to surmounting these hurdles, ATCA and TVPA plaintiffs must persuade a court that the alleged tort took place, that the plaintiffs were in fact the victims of the tortious conduct, and that the defendants committed that conduct.

Even if plaintiffs successfully navigate these obstacles and a court finds liability under [sections] 1350, they are unlikely to collect a dime of the judgments they have been awarded.(7) The dim prospect of recovery in this context undoubtedly has a chilling effect on the willingness of human rights victims to regard [sections] 1350 as a viable vehicle for redress. For those who do choose to proceed, they are unlikely to receive the assistance of a vigorous bar. Indeed, advocates who can afford to ignore the bottom line, including law school clinics, nongovernmental organizations (NGOs), and private practitioners willing to engage in [sections] 1350 litigation on a pro bono basis, are usually the only legal actors willing to represent ATCA and TVPA claimants.(8)

If courts could make [sections] 1350 judgment-creditors whole via monetary relief more consistently, victims of human rights violations might place greater faith in ATCA and TVPA suits. This Note explores and evaluates one means of accomplishing this end: seeking the recognition and enforcement(9) of judgments rendered in [sections] 1350 suits in non-U.S. domestic judicial fora.(10) It argues that efforts to have ATCA and TVPA decisions recognized can succeed. Indeed, there is nothing about [sections] 1350 judgments that would cause a conscientious non-U.S. court to reject them summarily. In general, however, the success of such collection efforts is Rely to depend on intensely case-specific factors.

This Note discusses the dynamics likely to determine the enforceability of ATCA and TVPA judgments in foreign jurisdictions. First, it predicts that [sections] 1350 judgment-creditors, like their counterparts who have successfully litigated other types of controversies, will be attracted to non-U.S. judiciaries that exhibit certain structural features. Part I of this Note surveys these characteristics, concluding that the availability of prejudgment relief as well as the impartiality of judges will prove important as plaintiffs screen potential jurisdictions in which to seek recognition.

When assessing collection requests, non-U.S. courts could potentially consider some of the issues that determine the validity of a purely commercial contract or tort judgment. Part II of this Note identifies those legal requirements that are likely to be difficult for ATCA and TVPA plaintiffs to meet. Concerns relating to personal jurisdiction, subject matter jurisdiction, public policy, choice of law, default judgments, and foreign sovereign immunity are likely to obstruct recognition efforts, thereby hampering [sections] 1350 plaintiffs' efforts to collect the judgments that U.S. federal tribunals have awarded them.

The legal factors foreign courts consider when determining whether to ratify non-ATCA and -TVPA judgments furnish only the beginnings of a thorough accounting of what will likely matter in the [sections] 1350 collections context. Part III highlights the differences between ATCA and TVPA suits and international commercial contract and tort claims, a staple of transnational litigation. Unlike such actions, [sections] 1350 suits allege violations of the "law of nations." The activities that [sections] 1350 suits address therefore cannot be separated from governmental assertions of power that offend values embraced by the international community, even though they are committed by private actors. Thus, additional factors are likely to impact [sections] 1350 collection efforts. Part III also distills these factors and concludes that they will be decidedly more political than the factors relevant to conventional transnational litigation.

Because these three different sets of dynamics--structural, legal, and political--play fundamentally different roles in the ratification of [sections] 1350 judgments, assessing the precise importance of each is difficult. Initially, structural concerns, such as whether a given judiciary is able to administer justice fairly, will matter a great deal; nevertheless, these concerns will fade into the background upon the initiation of a recognition request. Similarly, the political aspects of a [sections] 1350 suit are likely to exist only at the margins in cases in which it is legally clear that ratification should either ensue or not be forthcoming. When the law is more ambiguous, however, politics will play a central role in the validation effort. For analytic clarity, this Note assumes that non-U.S. judicial decisionmakers will determine the legality of [sections] 1350 recognition efforts before focusing on their political dimensions. This assumption is plausible given foreign tribunals' core institutional competencies: the processing and resolution of questions of law. Moreover, and for largely the same reason, where politics does intrude into the recognition decision, its intervention is unlikely to be explicit.

Given that some ATCA and TVPA judgment-collection efforts are likely to prevail, analysis of the desirability of this outcome is integral to understanding the full ramifications of the ATCA and TVPA statutes. This Note concludes that such attempts are not likely to interfere with other important human rights projects, such as introducing new [sections] 1350 suits in federal court and criminalizing international human rights norms. Furthermore, collection would probably not undercut the symbolism of ATCA and TVPA judgments. Instead, their recognition may spur the healing process for victims of human rights abuses and enhance the prestige of the statutory provisions authorizing such suits.

  1. AMERICAN JUDGMENTS ABROAD: STRUCTURALLY FRIENDLY FOREIGN JUDICIARIES WILL ATTRACT [sections] 1350 JUDGMENT-CREDITORS

    Section 1350 collection efforts are most likely to thrive in judiciaries with certain structural properties. First, jurisdictions authorizing prejudgment relief on demand might facilitate the recognition of U.S. judgments. Countries like Switzerland could automatically accord full faith and credit to both [sections] 1350 and commercial judgments rendered by foreign tribunals.(11) Nevertheless, unless foreign states are willing to authorize immobilizations of a given party's property at a point early in the litigation taking place in the United States, potential judgment-creditors are not likely to regard the jurisdiction as particularly user-friendly.(12)

    Second, the de facto independence of the relevant judicial structures--their sensitivity to pressures from both public and private entities with explicit political agendas--will also be an important determinant of the success of ATCA and TVPA collection efforts.(13) Strong courts emerge as the exception, not the rule, in many areas around the world. For example, court-made law, particularly judicial challenges to government policies, counts for very little in states like China,(14) Cuba,(15) Ghana,(16) and Lebanon.(17)

    Because of their independence and willingness to accord attachment remedies to litigants, Western European judiciaries are likely to furnish particularly attractive backdrops for [sections] 1350 collection efforts. First, plaintiffs can secure prejudgment attachment of property with relative ease from the other domestic political structures as their American counterparts, the national judiciaries of this area play key roles in the prevailing constitutive arrangements of most European states.(19) Section 1350 export efforts are thus likely to display a decidedly Eurocentric flavor.

  2. LAW AND RECOGNITION: LEGAL FACTORS AND THE AUTHORIZATION OF COLLECTION

    Evaluating the structural features of a foreign judiciary provides only a rough gauge of whether it would validate a [sections] 1350 judgment. Once a jurisdiction that seems responsive to the needs of judgment-creditors is located, the effort to have the ATCA or TVPA verdict recognized is likely to turn on the principles that guide courts' decisions on collection efforts routinely brought by non-[sections] 1350 judgment-creditors.(20) The literature on the ratification of foreign judgments has distilled the legal...

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