As previously reported here,  the United States Supreme Court recently granted certiorari in the case of Kiobel v. Royal Dutch Petroleum to consider the following questions:  (1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide or may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.  In addition to Kiobel, the Court also granted cert. in Mahamad v. Rajoub to consider whether whether the Torture Victim Protection Act of 1991 permits actions against defendants that are not natural persons.

There is now another cert. petition pending that follows up on the Ninth Circuit’s recent decision in Sarei v. Rio Tinto, discussed here.  Among other things. the petitionsers in Sarei ask the Supreme Court to grant the petition and to hear the case along with Kiobel.  Unlike Kiobel, the Sarei petitioners raise arguments beyond the question of corporate liability under the ATS for human rights violations.  Their questions presented are as follows:  1.  Whether U.S. courts should recognize a federal common law claim under the ATS arising from conduct occurring entirely within the jurisdiction of a foreign sovereign, especially where the claim addresses the foreign sovereign’s own conduct on its own soil toward its own citizens.  2. Whether U.S. courts should recognize a federal common law claim under the ATS based on aiding-and-abetting liability, even absent concrete factual allegations establishing that the purpose of the defendant’s conduct was to advance the principal actor’s violations of international law.  3. Whether a plaintiff asserting a federal common law claim under the ATS addressed to conduct occurring entirely within the jurisdiction of a foreign sovereign must seek to exhaust available remedies in the courts of that sovereign before filing suit in the United States, as international and domestic law require.  4. Whether federal common law claims asserted under the ATS for violations of international human rights law.

Interestingly, petitioners rely a great deal on former statemens of interest filed by the United States filed in various ATS suits to buttress many of their arguments related to these questions presented.  Given that the United State has not weighed in yet in Kiobel, it will be interesting to see how the Solicitor General deals with these arguments, either in Kiobel or in this case in the event it is granted.

It could be a very big Supreme Court Term indeed for the ATS and for international law litigation generally before the Supreme Court.

 Prof. Zamora Cabot (University of Castellón, España) has just published an article on multiculturalism, entitled “Europa entre las corrientes de la multiculturalidad: incidencia del velo islámico en el Reino Unido” (Papeles en el tiempo de los derechos, num. 14, 2011. ISBN: 1989-8797)

This paper addresses the topic of the Islamic veil, one of the most significant ones in the area of multiculturalism in Europe, with reference to the example of the United Kingdom. Its first section highlights the values which should frame the issue, namely tolerance and legal pluralism, singularly at the current time: a time in which the events in the Arab world force Europeans to an exercise of empathy, and towards finding a way to match discourse and real practice of these values.

The second section focuses in the UK, exploring the social and political substrate and milestones that must be taken into account to understand the legal response given in that country to the Islamic way of dressing. Some general observations are made on these clothes, also aiming to provide the reader with a better understanding of the English legal response; and the well known decision of the House of Lords in the Begum case is analyzed from a critical point of view. In this regard, the important efforts made by the various courts, crowned by that decision, are neither ignored nor underestimated; nevertheless, they deserve a negative assessment, as it seems that formal considerations and the will to maintain the status quo have prevailed at the expense of an analysis based on pluralism, that should have led to a different outcome.

The burqa or full veil is discussed in section four, through a variety of scenarios based on different practices in different contexts. Pragmatism and respect for religious convictions are remarkable in all of them: for example, when facing the delicate question of the use of the burqa in proceedings before the courts.

The concluding section praises the liberal spirit of British society where, unlike several European countries, these matters have not been addressed through a repressive apparatus. That is why the UK is considered in this work as a remarkable example that ought to be emulated.

Prof. Andrea Bonomi, Vice-Dean of the Faculté de droit et des sciences criminelles and Director of the Centre de droit comparé, européen et international (CDCEI), University of Lausanne, has just published a critical opinion on the Proposal for a Regulation in matters of succession in the collective book Innovatives Recht (Festschrift für Ivo Schwander), under the title “La compétence des juridictions des Etats membres de l’Union Européenne dans les relations avec les Etats tiers à l’aune des récentes propositions en matière de droit de la famille et des successions”. He has kindly sent me an abstract :

The Commission’s Proposal for a Regulation in matters of succession covers among alia the jurisdiction of the courts of EU Members States. By virtue of the recent Proposals for Regulations for matrimonial property and for the property consequences of registered partnership, the court with jurisdiction over the administration and distribution of the estate of a spouse or registered partner also has jurisdiction to rule on the winding up of the matrimonial property régime and on the property consequences of the partnership.

Normally, the competent court will be that of the last habitual residence of the deceased. However, where the deceased had his/her last habitual residence in a non-Member State, the competent court will have to be determined in accordance with Art. 6 of the Succession Proposal. This provision is for many reasons unfortunate, in particular because it creates the conditions for positive conflicts among the courts of several Member States and with the courts of non-Member States, as it is shown in the relationship to Switzerland.

In this article we analyze the shortcomings of Art. 6 and suggest some possible improvements of this provision (deleting Art. 6(c); reducing the role of nationality by retaining this criteria only in the case of a choice of the national law; reducing the reach of the court’s residual jurisdiction by excluding the property situated outside the European Union; including a lispendens rule applicable in the relation to third States’ courts; including a forum necessitatis to avoid negative conflicts). We hope that this provision will be corrected during the negotiation process.

A second recent, obviously worth commenting contribution of Prof. Bonomi is his “Succession internationales: conflits de lois et de juridictions”, The Hague Academy Collected Courses, vol. 350 (2010), pp. 71-418. The study takes the course taught by him in The Hague in 2007 as point of departure, and deepens and broadens the insights made at the time for the audience (which included me!). Clicking Table des matières you will have access to the index of the publication.

Two private international law offerings from the wise folk of the Court of Justice before they disappear on their Christmas vacations. First, the judgment in Case C-384/10, Voogsgeerd, concerning the employment provisions in Art. 6 of the 1980 Rome Convention. With the Court’s earlier decision in Case C-29/10, Koelzsch (see the earlier post by Gilles Cuniberti here), the Court provides substantial guidance as to the application of Art. 6 and its successor, Art. 8 of the Rome I Regulation. These two decisions look set to be cited in tandem in international employment cases for years to come. Secondly, the judgment in Case C-191/10, Rastelli Davide on the question whether the Insolvency Regulation permits joinder of co-insolvent parties whose centre of main interests (COMI) is in another Member State in circumstances where their affairs are intermixed with the insolvent party whose COMI is in the Member State seised of insolvency proceedings. The question, therefore, is essentially whether a jurisdictional hook similar to that found in Art. 6(1) of the Brussels I Regulation can be implied in the Insolvency Regulation regime. Unsurprisingly, the CJEU gives a negative answer to that question and holds further that the intermixture of assets, of itself, is not sufficient to justify the conclusion that two companies have their COMI in the same Member State.

Happy Christmas to all col.net readers.

The fourth issue of French Journal du droit international (Clunet) for 2011 was just released. It contains five articles and several casenotes. A table of content is accessible here.

Four articles explore private international law issues.

In the first one, Jonathan Mattout, who practices at the Paris office of Herbert Smith, wonders whether the English Bribery Act is a danger for French businesses (Le Bribery Act ou les choix de la loi britannique en matière de lutte contre la corruption.- Un danger pour les entreprises françaises ?). The English abstract reads:

The entry into force of the UK Bribery Act is an important step forward in the fight against corruption. This demanding legislation allows the UK to meet its international commitments. It requires all relevant commercial organisations carrying on a business in the UK to have in place adequate procedures designed to prevent bribery or face a serious risk of criminal prosecution. The Act reaches out beyond the UK and gives a new role to compliance, which will inevitably lead foreign businesses trading in the UK to adapt to its requirements. It is likely that this new legislation will inspire similar changes in France.

In the second article, Thomas Schultz, who lectures at the University of Geneva, and David Holloway, who is barrister at Number 5 Chambers in London, provide an account of the emergence and development of comity in the history of private international law(Retour sur la comity . – Première partie : Les origines de la comity au carrefour du droit international privé et du droit international public). The English abstract reads:

In a series of two articles, to be published in the present and the next issue of the Clunet, the authors provide an account of the emergence and development of comity in the history of private international law, discussing where comity came from, how it developed and what purposes it was initially meant to fulfil. The purpose of such recalling of comity is to provide a historical background and conceptual starting point for the increasing current attempts to rely again on the comity doctrine in court decisions and private and public international law scholarship. In the current article, we review the forces that led to strict territoriality in the 17th century and how comity became needed to mitigate it. We will see how regulatory overlaps contributed to making the Thirty Years War inevitable and will discuss the subsequent efforts to do away with such regulatory overlaps through territorial sovereignty, whose radicalism made comity necessary to accommodate the transnationalism of commerce and societies. In the second article, we will present the early history of the concept of comity in the context of the history of private international law generally. We will focus on the evolution of the use of comity through the great stages of its history. We will thus embark on a voyage from Rome and the ius gentium, to Perugia with Bartolus de Saxoferrato, to Holland and the Voets, to Berlin and Prussia with Savigny, to the United States with Joseph Story, and to the UK with Mansfield, Westlake and Dicey.

Valerie Pironon, who is a professor of law at Nantes University, is the author of the third article which discusses the method of focalisation of torts and contracts in e-commerce after recent cases of the European Court of Justice and the French Supreme Court for private and criminal matters (Dits et non-dits sur la méthode de la focalisation dans le contentieux – contractuel et délictuel – du commerce électronique . – (À propos de trois arrêts : CJUE, 7 déc. 2010, aff. C-585/08, Peter Pammer c/ Reederei Karl Schlüter GmbH & Co. KG et C-144/09, Hotel Alpenhof GesmbH c/ Oliver Heller. – Cass. com., 7 déc. 2010, n° 09-16.811, Sté eBay Inc. et a. c/ SA Louis Vuitton Malletier. – Cass. com., 29 mars 2011, n° 10-12.272, Sté eBay Europe et a. c/ SARL Maceo et a).

In recent case law, our highest jurisdictions seem to use the method of the focus to identify the competent judge in the disputes of the e-commerce : the European Court of Justice in B2C conflicts, the commercial chamber of the Cour de cassation in two recent eBay affairs. A comparison of these decisions shows however certain ambiguities relating to the method employed, in particular its subjective dimension. Some gaps concerning the probationary status of the listed indications remain also to be fulfilled.

Finally, Eric Loquin discusses in the last article an important French case of 2010 ruling on the arbitrability of international administrative contracts (Retour dépassionné sur l’arrêt INSERM c/ Fondation Letten F. Saugstad . – (Tribunal des conflits, 17 mai 2010)). No English abstract is provided.