s claim requires state action and rd plane as state action allegations do not meet meet a t s standards because they don't qualify the allege these private defendants implemented state policy turning to the st point plaintiff a t s claim little lies entirely on an international convention that we've called the financing convention planners concede this and the district court found that there is no other basis for their claim now this court's decision in kiev tells us that the core question here an element tort statute claim is who can be liable for what under the financing invention this chord d and key about implementing so that international law governs and i'm quoting who is liable for what close quote under the a t s as importantly this court in the veliz case held that when as here an international convention as the sole relevant source of international law then a ts claim depends entirely on the terms of that convention and in fact that's why the restatement for foreign relations was section four hundred and thirteen dollars recognizes that treaty based jurisdiction and that's what we have here an international treaty is a standalone category distinct from civil and criminal universal jurisdiction the finance convention answers the key had the question by telling us expressly who is liable for what it expressively limits both the scope and the subject of civil liability by telling us the civil liability is number one entirely elective and number two the civil liability is elective d only for legal entities not for individuals is it part of your argument when you say that this is that this lawsuit is not based on a specific international law norm i thought reading the briefs that the easiest duty lawsuit that was brought in lebanon and that the plaintiff here lost before they chose to refile this case in the united states and gussied up st as a rico claim and when that didn't work they changed it to an alien torts that you claim my only is that the plaintiffs here are not injured by terrorism they're injured by mismanagement of the bank in which they were shareholders isn't that their problem yes precisely or  terrorism in the district court correctly rejected that theory on the ground that the plaintiffs here were not victims of terrorism but she said i'm gonna give you one more chance to plead a primary liability claim but now you have to lead that money laundering is a violation of international law but that doesn't change the substance of reality that your honor is pointing out that what they have alleged here is abuse of control by the majority shareholders of my clients against the minority shareholders plaintive of a bank in lebanon that is a business tort and they concede that it page eight of their value and we've argued your honor that's part of the reason why no state action is involved here because this is fundamentally a business dispute and to which an a t f label has been put the district or less signal to the plaintiff that they can have one more shot at turning this into an alien tort statute claim but it's a stretch it is a reach because you have to be able to point to any source of civil liability in the financing convention it couldn't be clear article five dollars of the convention it says that if you're going to impose civil liability it is elective d it is elective for each member state and it can only be imposed on legal entities if there were any doubt five dollars contains this compelling language it says if a member state chooses to impose d civil liability on legal entities then i'm quoting here such liability is incurred without prejudice to the criminal liability of individuals having committed the offense is the tree couldn't be clearer that the choice is binary here that if you want to pursue an individual it can only be criminal and if it's going to be civil then you have to opt in to that civil liability and it's only poor legal and that is a fundamental failing of this complaint fails the sosa test even if you acknowledge that the tort statute label has any legs here but that's one of three failings with this complaint the other and your point precisely judge sledge is that because we're dealing with what is fundamentally a business a tort it doesn't always in the blockbuster genocide crimes against humanity exemptions from the state action requirement that are only subject to universal for this to be actionable under the under the a t s and that you're making the argument that there is no such universal jurisdiction i don't think we should lose sight of the fact that what is at issue seems to me to use whether this is an ac that were brought and fail the question i have is with the jurisdictional point is that really in order to be actionable a violation of international law must be subject to universal jurisdiction i mean that's part of the part of what goes into the question and i think it's restatement of rd of foreign relations section and four that deals with this particular question and i can just read that section the state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as if  concern such as piracy slave trade attacks on hijacking of aircraft genocide war crimes and perhaps certain acts of terrorism even where none of the typical bases  jurisdiction is present that is the crime wasn't committed in this in the country that's prosecuting the defendant there's no in the press where the country is being prosecuted and nor nor as nor as a player and that's universal jurisdiction if i'm if i'm not mistaken they are not that section talks about certain acts of terrorism but in this case we're not talking about acts of terrorism that was thrown out the under the aiding abetting we're talking about whether terrorist financing is subject to universal jurisdiction and i think what you pointed out is that you know universal jurisdiction arises out of acts of war crimes and piracy slave trade genocide crimes against humanity and that sort is this is this accurate as far as as far as you can see yes your honor and let me just explain why if i may which is the section of the  said certain acts of terrorism and as we see it this is certain acts of terrorism restatement for section four hundred and thirteen absolutely forecloses that argument because it says in a comment to that on the one hand precisely the convention that we have here and so that's the bucket into which the restatement would put this claim which is it's a sewage generous treaty based jurisdiction claim which takes us right back to the question of what does this treaty allow this treaty does not allow a claim whatever you want to call it even if you try to squeeze it into other acts of terrorism it's not that it is a treaty based jurisdiction claim this claim stands or falls by the terms of this convention the terms of this convention more close your honor sees on the universal point but it's also a sow's it tells us it has to be specific universal and toward the financing convention couldn't be clearer that civil jurist that that civil liability of individuals is elected it's not obligatory so it fails that test as well as universality because it's  universal concern i don't impose state action requirements that was an error because when you look at the terms of this treaty article two point one it makes it clear that only criminal offenses are subject to criminal universal jurisdiction civil liability is not subject to civil universal jurisdiction under this treaty thirdly because state action is required the district court committed a nother error when plaintiffs that is foreclosed for two reasons number one the allegation in the complaint is they turned a blind eye to money laundering precisely to favor one of the defendants here mr hum doom well that's not going t doesn't satisfy the requirement that state action show state policy what that shows it is entirely ad hoc and ad hominum allegations about why the central bank did something and secondly it is quite clear we put this into our brief the united states government has a screwy stated policy that it works closely with the central bank of lebanon and the central bank of lebanon is a bulwark against hezbollah to allow an alien to statute theory to go forward that impeaches the bona fides of the central bank levanon cause all the problems the supreme court has told us about allowing a t s claims to become a source of friction between the united states and other countries so for those three reasons i would say that under this court's both and more searching review stands for a t s claims which was expanded in the had a chase and in case district court's order should be reversed the a t s claim should be dismissed and because it's the sole remaining claim in the case the case should be dismissed thank you for your time is wrong aspired let me turn to the new cause of action based upon norms of international law if those norms are specific universal and obligatory i thought december thirty one two thousand and ten when defendants came to finance hezbollah still in operation one hundred here in this case to the extent your question goes to whether there is an adequate nexus to be united states that's a separate question that wasn't raised well and there wasn't there is a very important nexus to the united states in this case which is that the   but the problem i have is that even where it requires that even where none of the typical basis of jurisdiction is present that a case like this can be brought in any country in the world and that is has to be so that's a bit universal it seems to me the universal jurisdiction requirement is a question of international law and it's a question of whether there's a consensus on the question and there's consensus  i understand it is pretty clear when it comes to funds against humanity genocide piracy and the like but not typical not cases like this otherwise you know there's a there conventions against drug trafficking but that's what really can be prosecuted anywhere in the world but by a country that is not connected to it to be on so i under under the sosa test the question is whether the norm is sufficiently specific and has achieved such universal recognition that it becomes part of the law of nations and therefore is effectively incorporated into the federal common law to address a question that i asked mr berger this is all very abstract it seems to me as a discussion of is there a universal norm against financing terrorism let me assume for the moment that you're right that there is i have trouble with the sort of basic tort principle here it seems to me you'd have a very different case if you were representing someone who here i'm having trouble getting basic tort principles like proximate cause and whether there is a cause of action that lies in favor of a shareholder of the bank it would seem to me and this is the question i'm asking you to address that what you're really arguing here is not a tort of financing terrorism under international law but a tort of mismanagement  duty breach of proper management by the bank bank officers which is what causes the harm to you why i is that way as i have anything to do with international law well  i appreciate the opportunity to answer that and you know i would change around there's really two separate questions on the one of which is before this court that the st question is whether this category of defendant is amenable to shoot under statute that's that's a question of international law and we believe they are amenable to because they have violated universal and specific norm against daughter but the nd question which i think your honor is getting at is whether this particular plaintiffs may bring suit based on that international law norm that's a question of domestic law and we would say that that turns on you know really just sort of basic principles committed by aliens i suppose but what sosa's telling us is that we should be cautious about recognizing particular causes of action and you're asking us to recognize a cause of action not for victims of of terrorism that is financed by business entities but by one businessman against another businessman who's saying that drug trafficking or put the money into his own pocket or did something else that was not authorized and was a breach of producer duty that's the cause of the action that you're alleging is that taking that money and putting it into terrorism creates a cause of action under this international convention not in the abstract but in favor of your client what we are saying is these defendants by financing the syrian the assad regime in the syrian civil war violated a firmly established international norm against terror financing and that our clients the plaintiffs suffered a concrete and particularized injury as a direct result of that terror financing for their their their ways of being harmed  earlier this is just too or could you just describe the facts are that your clients suffered because of the financing  investors and the lebanese canadian bank they was money they were not managing it they don't have control over the bank the defendants in this case control of the bank unbeknown to my client our clients lost money when the united states government initiated a forfeiture action against the bank she's a large quantity of lebanese canadian banks assets precisely because the defendants in this case were engaged in the financing of terrorism and so that the financing of terrorism was directly to a concrete and particularized harm to my client in this  case and do you have any case in which anything like that as a as a sort of that's right if you're proximate cause that's your harm was recognised as a tort it seems to me that even the cases that have failed  for one reason or another in the supreme court or in this court have been cases where there is a where the tort is predicated directly on the act that violates international law whereas your claim is predicated on something that's internal to the corporation well that the question that vacations under the alley and tort statute  different question is whether a particular defendant falls within a category such that they are a proper defendant indications of and whatever the norm in question this is really a different question and you know essentially what you're asking is analogous to the zone of interest analysis that you know you see in other cases outside in torts that you know fair enough but the question that the supreme court wants us to address is whether we should be recognizing a new sort of international law or tort and it sounds to me as if the tort that you're actually asking us to endorse is a breach of duty that involves misapplication of funs in a way that violates international law as opposed to simply a harm that results from the violation of international law you're one step away and you know i respectfully on the tort we are asking this court to recognize is a tort by private individuals who engage in the financing of got an injury and if we decided that you could bring a tort claim to redress that injury it would presumably redress the bowl by ordering the diff and it's to pay you money it doesn't sound like an article three problem or a standing problem at all it's a problem of what is the nature of the tort liability you know when we have a tort of battery the tort is you know punching somebody and the plaintiff is the person punched that people shouldn't finance terrorism that doesn't mean that your client is the victim of a tort that is recognized by international law at all let alone universally well  norm you know that it wasn't briefed below whether these particular plaintiffs you know fall within the zone of interest that they should receive protection from and under that norm would point out that you know that there's known of interest test even if it applied to the alien tort statute is not a question of subject matter jurisdiction and therefore can be waived you know at no point did plaintiffs did the defendants argue that we're the biden in conclusion would you want to say just in conclusion i'd like to read very briefly address this point that there is no cause of action here because the convention itself and other sources of international law that were simply silent on the question of who could be held civilly liable the convention here is entirely different it gives us clear rules as to who can be held civilly liable to judge lynch's question which was i don't thing this trip is really ever answered which is what's the cause of action here the strip is still his answer was well there's an international norm and you can find it when it says terrorism financing is bad that begs two questions both of which is argument is incorrect one is this court in ky about said you still must ask the question under sosa who is liable for what not just is there a norm and then sosa itself said that the creation of a private right of action raises issues beyond the mere consideration of whether the underlying primary conduct should be allowed or not entailing for example the decision to permit in force and without must go through the step this court identifying key a bell you must ask the question of who is liable for what the finance convention gives us the answer at best legal entities can be liable for civilly but individuals cannot united states is not elected to give a claim and that is the only way you could augment the convention i would just one or two other points here which is to judge lynch's question which i think is the grab between minority and majority shareholders to which somebody is trying to affix an a t f label under sosa under key about it won't work the district court's decision should be reversed and the case should be ordered to be dismissed thank you york because the entire order came up to repeal i would suggest that there they had the ability at that point once this court granted permission appeal to cross appeal on any issue that it would mr berger i'm not raising a question about the common law claims those as i understand it rise or fall as supplemental jurisdiction the issue here is whether we are recognizing a novel cause of action inherently not a claim they stone international law really because the harm is not caused by the violation of international law the harm is essentially caused by misapplication of funds or abuse of corporate authority or abuse a fiduciary duty however one wants to characterize that that may be a tort or may not be a tort under the law of new york or under the law of lebannon or anywhere else the question is whether this kind of claim is  one additional fact i agree with everything you said i think it does not amount to harm caused by money laundering importantly although we have two individuals here whose name this appeal has been taken the claim the alien torch that you claim is actually asserted riveted on behalf of lebanese canadian bank separately briefed below that a derivative claim of this type cannot be maintained under lebanese law but i think it exemplifies your point judge lynch which is and also judge pooler asked this question what is the harm here the harm is according to these plaintiffs that the value of lebanese canadian bank which plaintiffs were shareholders went down because lebanese canadian banks had to fork out some money to the united states government their harm is only indirect in that they say that their minority shares in l c b accordingly were worth less so the only question is was l harmed in the way that this financing convention recognizes by alleged money laundering n l c b the answer to that is clearly no because it was not terrorism financed by money laundering that l c d was injured