I am pleased to pass on that Professor Symeon Symeonides has once again compiled a bibliography that covers private international law, or conflict of laws, in a broad sense. In particular, it covers judicial or adjudicatory jurisdiction, prescriptive jurisdiction, choice of forum, choice of law, federal-state conflicts, recognition and enforcement of sister-state and foreign-country judgments, extraterritoriality, arbitration and related topics. You can find it here. Thanks to Professor Symeonides for continuing to publish this incredibly helpful resource.
On December 19, 2013, the United States Court of Appeals for the Ninth Circuit issued an order in the case of Doe I v. Nestle USA, Inc. vacating a federal district court's dismissal of Plaintiffs' ATS claim and remanding for further proceedings. The case has been around for some time and relates to allegations of slave labor performed on plantations in the Ivory Coast in 2005. Nestle was sued by Malian children who allegedly were forced to labor on plantations that produced cocoa that was later purchased by Nestle. The suit alleged that Nestle was aware of the conditions on the plantations but nevertheless bought the cocoa. Plaintiffs did not argue that Nestle engaged in any acts of forced labor or violence. Instead, Plaintiffs argued that Nestle was liable for violations of international law under the Alien Tort Statute, specifically for aiding and abetting forced labor and child labor violations in purchasing the cocoa. The district court had dismissed the case finding that corporations cannot be liable for violations of international law and finding that Plaintiffs had failed to plausibly plead that Nestle knew or should have known that the wrongful acts were being committed. In vacating the district court's decision and remanding for further proceedings, the Ninth Circuit explained "In light of intervening developments in the law, we conclude that corporations can face liability for claims brought under the Alien Tort Statute. . . . Additionally, the district court erred in requiring plaintiff-appellants to allege specific intent in order to satisfy the applicable purpose mens rea standard. Furthermore, we grant plaintiff-appellants leave to amend their complaint in light of recent authority regarding the extraterritorial reach of the Alien Tort Statute and the actus reus standard for aiding and abetting. Kiobel, 133 S. Ct. at 1669; Prosecutor v. Charles Ghankay Taylor, Case No. SCSL–03–01–A Judgment, at ¶ 475 (SCSL Sept. 26, 2013) (“[T]he actus reus of aiding and abetting liability is established by assistance that has a substantial effect on the crimes, not the particular manner in which such assistance is provided.”); Prosecutor v. Perisic, Case No. IT–04–81–A Judgment, at ¶ 36 & n.97 (ICTY Feb. 28, 2013) (holding that “specific direction remains an element of the actus reus of aiding and abetting,” but noting that “specific direction may be addressed implicitly in the context of analysing substantial contribution”)." It will be interesting to see how the plaintiffs respond and what the district court ultimately does in this case.
As the impact of the Supreme Court's Kiobel decision continues to take shape before U.S. federal courts, one recent essay, entitled "Reviving Human Rights Litigation After Kiobel" (appearing in the near future in the October 2013 American Journal of International Law), encourages a comparative and legislative approach to the Alien Tort Statute. As Professors Vivian Grosswald Curran (Pitt Law) and David Sloss (Santa Clara Law) explain: "This essay proposes a legislative response to Kiobel that would preserve some of the benefits of ATS human rights litigation, while minimizing the costs. Although the proposed legislation does not address the corporate liability questions that were at issue when the Supreme Court initially granted certiorari in Kiobel, the legislation would allow human rights victims to bring civil claims against perpetrators in some foreign-cubed cases. However, plaintiffs could not file such claims until after a federal prosecutor filed criminal charges against the perpetrator. This approach would allow federal executive officials to block claims that raised serious foreign policy concerns by choosing not to prosecute. It would also promote a more robust dialogue between federal executive officials and groups representing prospective human rights plaintiffs. The proposed legislation is modeled partly on pending French legislation, as well as existing Belgian and German legislation. Statutes in all three countries share two critical features (assuming the French bill becomes law). First, victims of genocide, war crimes, and crimes against humanity have the right to initiate judicial proceedings against perpetrators who committed crimes extraterritorially, including in foreign-cubed cases. Second, public prosecutors in all three countries can block such judicial proceedings if they determine that a victim-initiated case would impair the state’s foreign policy interests or would otherwise be contrary to public policy. The next section gives a brief overview of the foreign legislation. The concludingnsection explains and defends our proposal." The full essay will be available soon at the American Journal of International Law website (here). [Editor's note: the PDF of the article has been removed, on copyright grounds, at the demand of the Journal.]
As part of an ongoing research project, I am in the midst of compiling the most influential Engligh language papers in the field of private international law. Given the expertise of our readership, I wanted to solicit your thoughts on this question. Please feel free to post responses in the comments or via email to me. I will happily share the compiled results in a future post. Many thanks!
On October 18, 2013, Brooklyn Law School is hosting an important symposium on the question of what law governs international commercial contracts. A link to the event is here. Below is a short description of the symposium. This should be of great interest to private international lawyers and the international arbitration community. ------- What Law Governs International Commercial Contracts? Divergent Doctrines and the New Hague Principles
Friday, October 18 9:15 am-3:15 pm Brooklyn Law School Subotnick Center 250 Joralemon Street Brooklyn, New York Co-Sponsors Dennis J. Block Center for the Study of International Business Law Brooklyn Journal of International Law About the Symposium With the continued dramatic growth of international commerce, a critical question has become even more important: What law governs the contracts behind the commerce? Key issues include:
- In much of the world, courts accept the choice of the parties to a contract as to what law will govern it – but this principle is not accepted everywhere. Even in nations where it is accepted, differences abound.
- Should the ability of parties to select the law governing their contract be approached differently in the increasingly prevalent world of international commercial arbitration?
- In many arbitral systems, parties may select not only the law of a sovereign state, but also “rules of law” emanating from non-state sources, such as “principles” promulgated by international organizations. Should courts show the same deference to the parties’ choice of non-state law?
With thanks to Professor S.I. Strong for bringing these openings to our attention, there are serveral fellowships currently accepting applications that might be of interest to our readers. The first position is the Brandon Research Fellowship at the Lauterpacht Centre for International Law at the University of Cambridge in the United Kingdom. The Brandon Fellowship supports research on various topics of international public and private law, including international arbitration. Further details are available at http://www.lcil.cam.ac.uk/news/content/brandon-research-fellowships-international-law-2014 . The closing date for applications is September 23, 2013. The second position is also based at the Lauterpacht Centre. This fellowship is sponsored by the British Red Cross and involves research relating to the International Committee of the Red Cross Study on Customary International Humanitarian Law. More information can be found at http://www.redcross.org.uk/About-us/Jobs or by contacting Elizabeth Knight on EKnight@redcross.org.uk or 020 7877 7452 quoting ref number UKO 46734. The closing date is September 22, 2013. The final position is the U.S. Supreme Court Fellowship in Washington, D.C. Four fellowships are awarded each year, and several of the positions provide the opportunity to consider matters relating to international and comparative law. Although the fellowships are affiliated with the U.S. Supreme Court, there does not appear to be a requirement that candidates be U.S. nationals, although applicants from outside the United States should check. The program has been significantly revamped this year and is now open to both junior and mid-career candidates. Further information is available at http://www.supremecourt.gov/fellows/default.aspx. Applications are due by November 15, 2013.
As readers of this blog are aware, the United States Supreme Court in the recent case of Kiobel v. Royal Dutch Petroleum applied the presumption against extraterritoriality to limit the reach of the Alien Tort Statute. In short, the Court held that the ATS did not apply to violations of the law of nations occurring within the territory of a foreign sovereign. Today, the United States Court of Appeals for the Second Circuit issued an opinion in the case of Balintulo v. Daimler AG holding that the Kiobel decision barred a class action against Daimler AG, Ford Motor Company, and IBM Corporation for alleged violations of the law of nations in selling cars and computers to the South African government during the Apartheid era. Rather than dismiss the case itself, the Second Circuit remanded the case to the district court to entertain a motion for judgment on the pleadings. This case is important because it rejected the plaintiffs' theory that "the ATS still reaches extraterritorial conduct when the defendant is an American national." Slip op. at 20. It is also important because it explains that "[b]ecause the defendants' putative agents did not commit any relevant conduct within the United States giving rise to a violation of customary international law . . . the defendants cannot be vicariously liable for that conduct under the ATS." Slip op. at 24. This case as well as the Ninth Circuit's recent decision in Sarei v. Rio Tinto (similarly dismissing an ATS suit) would seem to point to substantial contraction in ATS litigation. But, not so fast. A federal disctrict court in Massachussettes recently let an ATS case go forward notwithstanding Kiobel where it was alleged that a U.S. citizen in concert with other defendants took actions in the United States and Uganda to foment "an atmosphere of harsh frighenting repression against LGBTI people in Uganda." Sexual Minorities Uganda v. Lively, 2013 WL 4130756 (D. Mass. Aug. 14, 2013). According to the district court, "Kiobel makes clear that its restrictions on extraterritorial application of American law do not apply where a defendant and his or her conduct are based in this country." This statement is plainly at odds with the Second Circuit decision. Similarly, a federal district court in D.C. recently held that an ATS case could go forward that involved an attack on the United States Embassy in Nairobi.. Mwani v. Bin Laden, 2013 WL 2325166 (D.D.C. May 29, 2013). This was so because, according to the district court, "[i]t is obvious that a case involving an attack on the United States Embassy in Nairobi is tied much more closely to our national interests than a case whose only tie to our nation is a corporate presence here. . . . Surely, if any circumstances were to fit the Court's framework of “touching and concerning the United States with sufficient force,” it would be a terrorist attack that 1) was plotted in part within the United States, and 2) was directed at a United States Embassy and its employees." This case is now on appeal. To be clear, these cases are in the minority of the post-Kiobel decisions. By my count, it appears that 12 courts have dismissed ATS cases on extraterritoriality grounds and that the two cases higlighted above are the only courts to push the boundaries of the "touch and concern" language in Kiobel. As always with ATS litigation, it will be interesting to see how the case law develops.
Politics and Principle in International Legal TheoryCall for Papers On November 14–15, 2013, the University of Michigan Law School will host the Second Annual ASIL–ESIL–Rechtskulturen Workshop on International Legal Theory. It is a collaboration between Michigan Law School, the Interest Groups on International Legal Theory of the American and European Societies of International Law, and the Rechtskulturen Program, an initiative of the Wissenschaftskolleg zu Berlin at Humboldt University Law School. The principal aim of this collaboration is to facilitate frank discussion among legal scholars from diverse backgrounds and perspectives on the fundamental theoretical questions that confront the discipline today. American and European legal scholars often approach international legal theory with different assumptions about the relationship between law and politics, as well as the relationship between normative theory and positive jurisprudence. Positivist, realist, natural-law, critical, feminist, TWAIL and policy-oriented approaches are present in both American and European international legal scholarship, yet the prevalence and salience of these approaches for international lawyers on either side of the Atlantic differ. In an effort to both better understand and move beyond these regional dynamics, workshop participants will discuss the role of “politics” and “principle” in international legal discourse from a variety of perspectives. Examples of topics that might be relevant include:
- How should scholars and practitioners of international law negotiate the competing demands of “politics” and “principle”? How do they actually negotiate such demands?
- What role does politics (or the study of international relations) play in law and international legal scholarship? What role should it play?
- How does law inform politics (or the study of international relations)? What role should law play?
- What role remains for principle(s) in an era of post-modern value-relativism and global legal pluralism?
Selection Procedure and Workshop OrganizationInterested participants should submit an abstract (800 words maximum) summarizing the ideas they propose to develop for presentation at the workshop. Submissions of all proposals that engage the workshop’s theme are encouraged. Papers that have been accepted for publication prior to the workshop are in principle eligible for consideration, provided that they will not appear in print before the workshop. Papers will be chosen for presentation by peer review, taking into account not only the need for a balance of topics and viewpoints, but also for geographic diversity among the participants. Although discussants will be assigned to introduce the papers at the workshop, all participants will be expected to read all of the contributions in advance and come prepared to contribute to the discussion. The organizers hope that the event will serve as a showcase for innovative research on international legal theory, while at the same time strengthening personal and professional ties between scholars on either side of the Atlantic, and beyond. Abstract submissions should be sent to email@example.com by July 21, 2013. Successful applicants will be notified by August 12, 2013. Papers must be fully drafted and ready for circulation by October 14, 2013. Applicants are strongly encouraged to assess all possible options with regard to receiving funding from the institutions with which they are affiliated. If funding cannot be obtained in this way, they should indicate as part of their submission whether they will require financial assistance to cover the costs of travel and accommodation for the event. Questions regarding the workshop may be directed to: Evan Criddle firstname.lastname@example.org Jörg Kammerhofer email@example.com Alexandra Kemmerer firstname.lastname@example.org Julian Davis Mortenson email@example.com Kristina Daugirdas firstname.lastname@example.org
See below for an announcement regarding an extremely interesting conference on Non-State Law next week in Washington, DC Symposium of the International Legal Theory Interest Group, titled “The Rise of Non-State Law” May 2, 2013, 8:30 a.m. – 5:15 p.m. ASIL Headquarters, Tillar House - 2223 Massachusetts Avenue, NW Washington, DC 20008 Trends in legal philosophy, international law, transnational law, law & religion, and political science all point towards the increasing role played by non-state law in both public and private ordering. Indeed, numerous organizations, institutions, associations and groups have emerged alongside the nation-state, each purporting to provide their members with rules and norms to govern their conduct and organize their affairs. This International Legal Theory Interest Group Symposium aims to explore this Rise of Non- State Law by bringing together experts on international law, transnational law, legal theory and political philosophy to consider the growing impact of non-state law. For full details, see this announcement (ASIL Flier).
Following on the heels of the Supreme Court's decision in Kiobel (highlighted here), the Court today granted certiorari in the case of DaimlerChrysler AG v. Bauman, et al. In granting cert., the Supreme Court will either resolve the cryptic reference in Chief Justice Roberts's opinion for the Court that "mere corporate presence" cannot suffice to avoid the presumption against extraterritoriality, or it might resolve the case purely on personal jurisdiction grounds. If the former, we will know significantly more about how much the ATS will be contracted. If the latter, we will know much more about agency and affiliate jurisdiction, which is an area of increasing importance in transnational litigation. To be clear, here is the Question Presented in Daimler: Daimler AG is a German public stock company that does not manufacture or sell products, own property, or employ workers in the United States. The Ninth Circuit nevertheless held that Daimler AG is subject to general personal jurisdiction in California—and can therefore be sued in the State for alleged human-rights violations committed in Argentina by an Argentine subsidiary against Argentine residents— because it has a different, indirect subsidiarythat distributes Daimler AG-manufactured vehicles in California. It is undisputed that Daimler AG and its U.S. subsidiary adhere to all the legal requirements necessary to maintain their separate corporate identities. The question presented is whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State. While this case is before the Court on the personal jurisdiction question, the Court would, I think, also be able to decide the broader ATS question, assuming, as in Kiobel, the Court treats the question as one going to jurisdiction and not the merits. In related ATS news, the Court today also vacated and remanded Rio Tinto PLX, et al. v. Sarei, et al. to the Ninth Circuit for further proceedings in light of the Kiobel decision.