Although Kiobel and Jesner considerably limited the scope of the ATS and a number of lower federal courts have dismissed ATS cases following this jurisprudence, it remains an important tool for corporate accountability, particularly in the case of U.S. corporations. Given the existence of class action lawsuits, the discovery procedure and the contingency system for remunerating attorneys. The ATS has also accepted international law as the law applicable to the case and developed a liberal approach in terms of piercing the corporate veil.
In practice, however, ATS trials are characterized by numerous difficulties and uncertainties which render the process unpredictable. Some go as far as saying the ATS process is compromised from the outset. It is difficult to meet the substantive conditions for civil action in cases concerning corporate human rights abuses, particularly with regard to international law violations. The quasi-universal jurisdiction granted by the ATS is limited by various procedural hurdles which require a territorial connection between the U.S. and the dispute, either through personal jurisdiction or forum non conveniens, or which aim to avoid any interference with U.S. foreign policy. ATS trials are lengthy and costly for victims.
In addition, despite an increasing body of favourable case law affirming the right of victims of international law violations to a remedy in the U.S., many doctrinal and jurisprudential controversies remain with regard to the application and appropriateness of legislation such as the ATS.
Despite the low number of actual settlements or trials, some have stressed the value of the cases introduced under the ATS, noting that the ATS provides a forum where victims can publicly denounce the abuses they suffered, force companies to answer for their actions before an independent court and disclose relevant documents via the disclosure procedure. In addition, calling the reputation of corporations into question plays a preventive role. 1
Despite these obstacles, it remains pertinent to draw lessons from the ATS, particularly in terms of the content and principles it ascribes. It is also important to learn from the practices it generates for building an appropriate model of civil liability that responds to the challenges of globalisation.
Thus, waiting for the law to develop a truly effective legal system, it is important to coordinate efforts between NGOs and attorneys, to further advocate and to increase litigation relating to human rights violations committed by multinational companies.