Lexpert US Guides

INTERNATIONAL TORT RISK The Impact of US "ATS" Litigation on CCOAs For more than three decades, victims of international human rights violations have used the Alien Tort Statute (ATS; or the Alien Tort Claims Act) to bring their international claims to American soil. This phenomenon sensitized many multinationals to the fact that risk of international tort litigation was not merely hypothetical. For almost two centuries, the ATS was a moribund legislative enactment of the first United States Congress in 1789, codified at 28 U.S.C. § 1350 (2011). It was originally enacted to grant jurisdiction in the newly created US federal courts to deal with foreign claims for alleged violations of international law, which were relatively narrow in scope: offenses against ambassadors, violations of safe conducts and piracy on the high seas (Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)). However, the ATS was rediscovered as a basis for human rights and class-action litigation based on contemporary international human rights norms, which are captured under its broad wording: "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Legally, it served as a statutory mechanism to give universal jurisdiction over violations of international law to American federal district courts. THE BREADTH of Canada's commitments in this regard also provides a broad foundation for the importation of liability to Canadian private actors for human rightsbased international torts. The effect of the ATS was felt by a Calgary-based energy and natural resources company, Talisman Energy, Inc., in Presbyterian Church of Sudan, et al. v. Talisman Energy, Inc. 453 8 Supp. 2d 633 (S.D.N.Y. 2006); Affd. 582 F. 3d 244 (2d. Cir. 2009); certiorari denied; 131 S. Ct. 79 (2010). In that case, Talisman purchased oil concessions in southern Sudan through partial ownership in a consortium held jointly with China, Malaysia and the Republic of Sudan. Thereafter, as civil strife escalated to civil war ravaging the region, Talisman was accused of breaches of international human rights for alleged complicity with the government of Sudan in a campaign of genocide, war crimes and crimes against humanity. The Southern District Court of New York accepted in personam jurisdiction over Talisman because of an inactive shell company in New York that had the same officers and directors as the Calgary parent company. The plaintiffs first asserted direct liability on the part of Talisman and then shifted to claim that Talisman had aided and abetted the government in Khartoum in the commission of the alleged atrocities. While Talisman ultimately succeeded on the merits in having the case dismissed on a motion for summary judgment, it raised awareness that Canadian companies were exposed to legal actions in American courts for their business activity outside of Canada (and the US). Subsequent US Supreme Court case law has put the future of 50 | LEXPERT • December 2013 | www.lexpert.ca ATS litigation in doubt (Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013)), particularly with respect to international human rights claims framed as class actions with limited or no substantial connections to the United States. However, liability for such international torts does not end with American courtrooms, as some recent Canadian jurisprudence makes abundantly clear. Tort Liability from Violations of Public International Law in Canadian Courts The Supreme Court of Canada, in R. v. Hape, 2007 SCC 26, demonstrated that even though Canada lacks a statutory jurisdictional vehicle functionally equivalent to the ATS, CCOAs may still be exposed to legal actions in Canada for violations of international law abroad. That case, which arose in the relatively unrelated context of alleged violations of the Canadian Charter of Rights and Freedoms with respect to a domestic criminal prosecution dependent on Canadian police investigations in a foreign jurisdiction, authoritatively resolved in the affirmative a long-held assumption that international customary law was automatically part of the law of Canada, absent statutory departures to the contrary (for detailed commentary, see H.S. Fairley, "International Law Comes of Age: Hape v. The Queen" (2008) 87 Can. B. Rev. 229). In Canada, treaties per se are not part of domestic law unless implemented by Parliament and/or provincial legislatures (A.G. Canada v. A.G. Ontario (Labour Conventions), [1937] A.C. 325 (P.C.)) but the same rules that are expressed in treaties can also be incorporated into the body of Canadian common law if the treaties stand as codifications of pre-existing international customary law (Statute of International Court of Justice, Art. 38; North Sea Continental Shelf Cases, [1969] ICJ Rep. 3, 32-41). Canada's long-standing commitment to international human rights law is evidenced by its central role in the drafting of the Universal Declaration of Human Rights in 1947/1948 (G.A. res. 217A (III), U.N. Doc A/810) as well as its ratification of eight different core multilateral human rights treaties, which are now in force: United Nations Convention Relating to the Status of Refugees 1951 ([1969] Can. T.S. no. 29); Convention Concerning Freedom of Association and Protection of the Right to Organize 1948 [1973] Can. T.S. no. 14); the International Covenant on Civil and Political Rights 1966 ([1976] Can. T.S. no. 47); the International Covenant on Economic, Social and Cultural Rights 1966 ([1976] Can. T.S. no. 46); International Convention on the Elimination of All Forms of Racial Discrimination 1966 ([1970] Can. T.S. no. 28); Convention on the Elimination of All Forms of Discrimination Against Women 1979 ([1982] Can. T.S. no. 31); Convention Against Torture 1984 ([1987] Can. T.S. no. 36); Convention on the Rights of the Child 1989 ([1992] Can. T.S. no. 3.) (for further details, see Gib van Ert, Using International Law in Canadian Courts,( 2d ed. 2010 at pp. 323-325). The breadth of Canada's commitments in this regard also provides a broad foundation for the importation of liability to Canadian private actors for human rights-based international torts. In addition to customary international law evidenced by codification in treaties, certain fundamental principles of international law ‒ known as "peremptory norms" or "jus cogens norms" ‒ apply to all states without exception or permitted derogation (see James Crawford, Ian Brownlie's Principles of International Law, 8th ed. (2012), at pp. 594-599; and Vienna Convention on the Law of Treaties, 115 UNTS 331; Can. T.S. No. 37, Art. 53). As a category of custom-

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