Nadine Watté, Laurent Barnich and Rafaël Jafferali (Université Libre de Bruxelles) have posted Chronique de Jurisprudence Belge (1995-2010) (Conflits de lois) (Review of Belgian Case-Law (1995-2010) (Conflicts of Laws)  on SSRN.

This paper analyses the most significant judgements rendered by Belgian courts in the field of the conflicts of laws during the time period under review, during which Belgian Code of Private International Law (Statute of 16 July 2004) was adopted. Some of the analysed judgements are still based on the preceding conflicts of laws rules because they were rendered before the entry into force of the Code or because of its transitory rules. It seemed therefore interesting to mention the solution which would have been given under the new rules.

Note: Downloadable document is in French.

Many thanks to Elise Maes for this reflection on the Kiobel decision. Elise Maes is research fellow of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law. 

After more than a decade of awaiting and predicting the final outcome in the case of Kiobel v. Royal Dutch Petroleum Co., the United States Supreme Court reached a decision on April 17, 2013.

The case is a class action suit brought by Esther Kiobel on behalf of Nigerian residents against Royal Dutch Petroleum and its affiliates “Shell Transport and Trading Company” and “Shell Petroleum Development Company of Nigeria” (hereinafter referred to as “Shell”). The defendant companies are incorporated in the Netherlands, the United Kingdom, and Nigeria, respectively. They have been engaged in oil exploration and production in the Ogoni region of Nigeria. A group of Nigerian citizens protested against the environmental destruction caused by Shell’s oil exploration in the region. The plaintiffs claim that Shell has been complicit in the torturing and killing of the protestors by the Nigerian military. In other words, Shell allegedly aided and abetted the Nigerian government in committing violations of the law of nations in Nigeria.

None of the relevant facts of the case seem to point towards the United States. The unlawful conduct took place in Nigeria, the victims are Nigerian citizens (who are now legal residents of the United States) and the companies who allegedly took part in the crimes are incorporated in European and African countries. Nonetheless, in 2002 the plaintiffs filed their claim with a United States District Court. The suit was brought under the Alien Tort Statute (ATS), 28 U.S.C. §1350, enacted in 1789, which states: “The district courts shall have original jurisdiction of 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.”

At issue in the Kiobel case was the proper interpretation of the Alien Tort Statute. Originally, the Supreme Court was only asked to rule on the matter whether corporations can be held liable for international human rights violations under the ATS.  But the Court broadened the scope of its judgment and also answered the question whether and under what circumstances US courts may hear a case brought under the ATS, for violations of the law of nations occurring within the territory of a sovereign other than the United States.

Last Wednesday (April 17, 2013), the Supreme Court rendered its judgment and ruled unanimously. Four justices concurred with the Chief Justice’s opinion. The other four justices concurred in the outcome of the decision, but followed a different reasoning. Succinctly put, the Court decided that the plaintiffs were not entitled to damages under the ATS. More broadly, the Court ruled that the ATS is not applicable to actions committed on foreign soil. The justices stated that “the presumption against extraterritoriality applies to claims under the Alien Tort Statute, and nothing in the statute rebuts that presumption”. This judgment seems to put an end to the extraterritorial jurisdiction of the United States for claims brought under the ATS for human rights violations that were committed on foreign territory and that have no sufficient link to the United States. From now on, one cannot file a claim for human rights violations against a corporation in the USA, simply because they have a presence in the USA. Chief Justice Roberts justly wrote that “corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” An additional connection to the United States is required. Justice Kennedy wrote in his concurrence that the Court’s opinion leaves open a lot of significant questions regarding the reach and interpretation of the ATS. One of these remaining questions would indeed be what would constitute an additional sufficient connection. Professor Childress’ recent blog post provides several hypotheses and possible answers to that question (https://conflictoflaws.de/2013/what-will-kiobels-impact-be-on-alien-tort-statute-claims/).

Even though the Kiobel case turned out to be a substantial victory for the defendant corporations, they did not get their most favorable outcome. When it comes to the first question regarding the interpretation of the ATS, the Supreme Court has not closed the door to all cases of human rights violations committed by corporations. The Court did not decide that corporations are immune from the ATS.

The reactions to the judgment are – as expected – divided. Multinational companies read the judgment with a sigh of relief. Human rights lawyers on the other hand state that this judgment is not only a disaster for the Nigerian citizens, but the narrow interpretation of the ATS also drastically cuts down on the means and odds to seek redress for other future victims of international human rights violations in foreign and especially in developing countries. The USA are said to be turning their back on a global trend towards human rights enforcement. Some argue that the Supreme Court has interpreted the ATS in a way that is inconsistent with decades of use of the ATS. For over thirty years, the ATS has been used to bring human rights cases before federal courts.

Nonetheless, the judgment has its merits. From a human point of view, it is an understatement to say that it is tragic that the plaintiffs in this case will not be compensated. However, one cannot bend the law as far as one would like it to reach. The text of the ATS does indeed grant the United States jurisdiction for certain international law violations, but it does not explicitly state that this is the case for conduct on foreign soil. By clearly bringing the presumption against extraterritoriality to the fore, the Supreme Court restores the guiding principle that a nation does not have jurisdiction for causes of action that occur outside their borders. And even for foreign victims of human rights violations committed on foreign territory, the Supreme Court left the door to the US courtrooms ajar. The Chief Justice’s words “and even where claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application” indicate that in limited cases there is still the possibility to set aside the presumption against extraterritoriality. In other words, a case that concerns human rights violations committed on foreign territory but which nonetheless shows a greater nexus to the United States, may still fall under United States jurisdiction. Whereas professor Childress argues that in the end the possibilities for foreign victims to file ATS claims in federal court will be very limited, in my view the Supreme Court has left the US courts just the right amount of space to rule in cases of international human rights violations concerning foreign victims. A too far reaching extraterritorial jurisdiction for the United States in international human rights cases would establish a type of legal colonialism. It is not up to the United States – or any other country for that matter – to become the world police when it comes to human rights violations and to rule on these violations, regardless of where they occur. Or as Justice Story puts it: “No nation has ever yet pretended to be the custos morum of the whole world…” (United States v. The La Jeune Eugénie). In the Kiobel case, it would be up to Nigeria to choose their own means to deal with the conflict in their own way.

In conclusion, it may be said that the Supreme Court has found the right balance in the Kiobel judgment: the Court does not claim the United States to be “a uniquely hospitable forum for the enforcement of international norms” irrespective of where the violation takes place, but leaves room to rule on such cases and to give redress to the victims, as long as these cases show a sufficient connection with United States territory.

Andreas Vogeler has written a book on free choice of law in the European Private International Law of non-contractual obligations (Die freie Rechtswahl im Kollisionsrecht der außervertraglichen Schuldverhältnisse. Tübingen, Mohr Siebeck 2013). The official summary reads as follows:

With the codification of Art. 14 of the Rome II Regulation, European lawmakers harmonized the exercise of party autonomy for non-contractual obligations in European law. Andreas Vogeler does a systematic study of party autonomy in the framework of international private law, at the same time providing recommendations for politics and practical use.

Further information is available on Mohr Siebeck’s website (in German).

What follows is also posted at SCOTUSBlog:

After two rounds of briefing, two oral arguments, and a significant wait for an opinion, what do we know about the future of Alien Tort Statute (ATS) litigation in light of the Kiobel decision?  I think at least three things:  (1) plaintiffs’ ability to file ATS claims in federal court is now substantially limited; (2) plaintiffs will likely try to file such cases under U.S. state and foreign law, in some cases in U.S. state and foreign courts in the first instance; and (3) this will help usher in a brave new world of transnational litigation where federal, state, and foreign courts compete to regulate international human rights claims.

First, according to the Court in the Kiobel decision, ATS cases are subject to the presumption against extraterritoriality recently rearticulated in Morrison v. National Australia Bank.  For an ATS claim to survive a motion to dismiss, it must “touch and concern” activities occurring in the “territory of the United States.”  ATS claims that seek relief for violations of the law of nations occurring wholly outside of the United States are now barred.  Note that Kiobel is an easy case for the Court to apply this rule because “all the relevant conduct took place outside of the United States.”  The federal courthouse doors are now shut for these cases.

However, the keys may still be in the door if plaintiffs can creatively plead around the presumption.  For instance, a plaintiff might argue that a major portion of the tortious activity occurred in the United States even though the injury was caused in a foreign country.  Yet, according to the Court, “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritoriality.  Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”  But, what would such cases be?  Much is still left unanswered by the Court when it comes to ATS litigation.

So, let’s start with what is clear.  A foreign plaintiff suing a foreign defendant for acts or omissions occurring wholly outside of the United States that allegedly violate the law of nations (a so-called “F-cubed case” as presented in Kiobel) cannot bring suit under the ATS, even when there is personal jurisdiction in the United States.  Conversely, a foreign plaintiff suing a defendant (foreign or domestic) for acts or omissions occurring wholly inside of the United States that allegedly violate the law of nations can bring suit under the ATS.  Although, we know nothing from the Court’s opinion about how the ATS should be applied in such a case, except that lower courts should remain acutely sensitive to foreign policy implications.  As noted by Justice Kennedy in his concurring opinion, “[t]he opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.”  Let’s take a look at some of those questions and where their answers might lead us.

Can a foreign plaintiff sue a U.S. defendant for acts or omissions occurring wholly outside of the United State that allegedly violate the law of nations?

According to the opinion by Chief Justice Roberts, which was joined by Justices Scalia, Kennedy, Thomas, and Alito, the answer is “no.”  Even though the United States would have prescriptive jurisdiction under international law, as the case involves a U.S. defendant domiciliary, this too would be an extraterritorial application of the ATS.  Note that this would be a case that Justices Ginsburg, Breyer, Kagan, and Sotomayor would allow to go forward under the ATS.  This could also be an example of a case where, as noted by Chief Justice Roberts, “the claims touch and concern the territory of the United States” and “do so with sufficient force to displace the presumption against extraterritoriality.”  But, I doubt it, because “the claims” themselves have nothing to do with “the territory of the United States,” and “mere [] presence” is not enough.  So, it appears that escaping the presumption against extraterritoriality in the ATS context is not about “who” the defendant is but about “where” the tortious conduct took place.

Can a foreign plaintiff sue a foreign defendant for acts or omissions occurring in part in the United States that lead to an injury in a foreign country that allegedly violates the law of nations?  For instance, what if the plaintiff alleges that an officer of a foreign corporation gives directions from an office in New York that directly lead to a foreign tort that allegedly violates the law of nations?

This is a closer question, but I think the answer is “no.”  I also think that reasonable judges interpreting the Court’s Kiobel opinion might disagree on this.  To get to “no,” one has to look closely at Justice Alito’s concurrence, joined by Justice Thomas, which has the potential to serve as a model for lower court judges writing future opinions in the area, even if it could not command a majority at the Court.  According to Justice Alito, the answer to this question requires one to look at the “focus” of the ATS.  In light of the Court’s opinion in Sosa, not just any domestic conduct will be enough to escape the presumption.  In Justice Alito’s view, “unless the domestic conduct is sufficient to violate an international law norm that satis­fies Sosa’s requirements of definiteness and acceptance among civilized nations,” the ATS claim will fail.

Here is the multi-million dollar question:  What would such a case look like where the injury occurs abroad but some of the tortious conduct occurs in the United States and that U.S. conduct itself violates the law of nations?  Does Justice Alito mean to say that individuals or corporations in the United States aiding and abetting or conspiring to commit a tort in violation of the law of nations in a foreign country might still be sued under the ATS?  If so, the ATS might not be dead yet.  Such cases would be rare.

Can a foreign plaintiff sue a U.S. defendant for acts or omissions occurring in part in the United States that lead to injury in a foreign country?  For instance, what if the plaintiff alleges that a U.S. corporate official directed corporate agents in a foreign country to take action that allegedly violates the law of nations?  I think the answer here would also be “no” for the reasons given in the prior paragraphs, unless, assuming lower courts follow Justice Alito, that conduct itself violates an international law norm.  These cases would also be rare.

At bottom, foreign plaintiffs will only be able to proceed under the ATS when they are injured in the United States or when substantial activities occur in the United States that violates the law of nations, even though the injury is ultimately felt abroad.  As such, the Court has substantially limited the ability of plaintiffs to file ATS cases in federal court.

Second, assuming these answers are correct, what will happen next?  We should expect many ATS cases to be refiled in federal court to conform to the Court’s new rule.  As discussed above, we should expect some cases to be filed alleging that the tortious activity was planned or directed from the United States.  However, in light of the fact that nearly all post-Morrison cases that tried to escape the presumption by pleading some U.S. conduct have failed, one might similarly expect significant obstacles to federal ATS cases, especially if courts follow Justice Alito’s reasoning and in light of plausibility pleading requirements.

In light of this and as I have argued in the Georgetown Law Journal, the next round of international human rights cases will be filed under state law in federal court and, in some cases, under state law in state courts.  There is also every reason to believe that foreign law and foreign courts may become another battleground for such cases.  Courts and commentators must now focus on the appropriate role of transnational human rights litigation in U.S. courts generally.  In what circumstances should state law reach transnational human rights claims?  Should preemption, due process, and related doctrines constrain the ability of plaintiffs to raise such claims under state law?  Should forum non conveniens be robustly applied when cases are filed under foreign law in the United States?  Should courts be concerned that forcing such cases to be filed abroad may bring these cases back to the United States in later enforcement of judgment proceedings where the U.S. court has only limited review?  Should Congress step in and resolve these issues?

Finally, the Kiobel decision raises a significantly broader institutional and normative question:  What happens when U.S. federal courts close their doors to transnational cases?  As I explain in a new draft piece that will be looking for a law review home shortly, recent Supreme Court decisions regarding the Alien Tort Statute, extraterritorial application of U.S. federal law, plausibility pleading, personal jurisdiction, class action certification, and forum non conveniens pose substantial obstacles for transnational cases to be adjudicated by U.S. federal courts.  As noted, the result of this is that plaintiffs are now seeking other law – U.S. state and foreign law – and other fora – including U.S. state and foreign courts – to plead transnational claims.  When U.S. federal courthouse doors close, other doors open for the litigation of transnational cases.

In my view, we are at the beginning of a brave new world of transnational litigation where federal, state, and foreign courts compete through their courts and law to adjudicate transnational cases and regulate transnational activities. Maybe it is time for increased regulatory cooperation between the federal government and the states as well as between the United States and other countries to resolve these transnational legal issues.

Andreas Köhler from the University of Passau has written a book on overriding mandatory provisions in European Private International Law (Eingriffsnormen – Der ‘unfertige Teil’ des europäischen IPR, Tübingen, Mohr Siebeck 2013). The author has kindly provided us with the following summary:

After a detailed dogmatic analysis of the so-called “mandatory rules problem”, Andreas Köhler shows that, with the enactment of the Rome I and II Regulations, European Law on the conflicts of law now governs exclusively the applicability of provisions compliance with which is crucial for a country to protect its public interests, such as its political, social or economic system.The application of those provisions depends on a special conflict of law rule – originating from European Law – which must be developed modo legislatoris within the scope of the general clauses codified by Article 9 Rome I resp. Article 16 Rome II; in this sensethe so-called “mandatory rules problem” could be considered as Franz Kahn´s “unfinished part” of the – henceforth European – Private International Law. Based on this premise, the author develops a model for a coherent approach to mandatory rules (and to those protecting the socially weaker party) furthering the important objective of harmonizing judicial decisions in Europe but still subject to review by the European Court of Justice. One important consequence of Köhler’s approach is an unconditional obligation to apply mandatory rules of other member states, since the special conflict of law rule regardingsuch provisions originates from European Law and therefore binds all member state courts. In addition Köhler proves that the application of any foreign mandatory rules is not affected by the restrictive requirements of Article 9 III Rome I. Hence, it is possible to create a multilateral system for suchprovisions in European conflicts law.

Further information is available on the publisher’s website (in German).

The presumption against extraterritoriality applies to claims under the Alien Tort Statute, and nothing in the statute rebuts that presumption.

The opinion is available here.

For initial comments, see the insta-symposium over at opiniojuris.

On 14 and 15 June 2013, the annual conference of the European Private Law Review (GPR) will take place in Halle (Saale), Germany. Renowned officials, politicians, judges, and academics from various EU Member States are going to discuss the Commission’s Proposal for a Common European Sales Law. Speakers include Diana Wallis, the former Vice President of the European Parliament; Verica Trstenjak, formerly Advocate General of the European Court of Justice and now professor at the University of Vienna; Denis Mazeaud, UniversitéPanthéon-Assas; Paul Varul, University of Tartu; Pascal Ancel, Université de Luxembourg; Loukas Mistelis, Queen Mary, University of London, and Martin Schmidt-Kessel, University of Bayreuth. A unique feature of the conference is that it is not restricted to the legal aspects of the proposal, but also includes other perspectives, such as anthropology, the role of the media in judging the instrument and the place of the new sales law in academic education. The registration form is available here.

The programme reads as follows:

Friday, 14 June 2013

• 1:00 to 1:30 pm Registration
• 1:30 to 2:00 pm Introduction
  • 1. Welcome Address,
    Prof. Dr. Matthias Lehmann, Martin Luther Universität Halle-Wittenberg
  • 2. Greetings,
    Thomas Wünsch, State Secretary, Ministry of Justice and Equal Treatment, Saxony-Anhalt
• 2:00 to 3:45 pm CESL in Politics
  • 1. Making European Sales Law I: Insights from Brussels
    Mikolaj Zaleski, European Commission, DG Justice, Unit A2 – Contract Law
  • 2. Making European Sales Law II: Particularities in a Federal System
    Dr. Frank Warnecke, Ministry of Justice and Equal Treatment, Saxony-Anhalt
  • 3. Droit commun européen de la vente et la France: Je t’aime, moi non plus
    Prof. Dr. Denis Mazeaud, Université Panthéon-Assas
    4. Benefits and Drawbacks of CESL for Smaller Member States
    Prof. Dr. Paul Varul, University of Tartu, Estonia
  • 5. Is the UK Afraid of European Private Law and Should It Be?
    His Hon Judge David Mackie CBE, QC, High Court of Justice, England and Wales
• 3:45 to 4:15 pm Coffee break
• 4:15 to 6:00 pm CESL in Society
  • 1. CESL and the Media: Reduction of Complexity or Scaremongering?
    Diana Wallis, Former Vice President of the European Parliament
  • 2. Civil Law Codifications as Symbols of National Sovereignty
    Prof. Dr. Marie-Claire Foblets, Max-Planck-Institute for Anthropological Research, Halle
  • 3. Hitting That Blue Button Down There: Does the Consumer Have a Real Choice?
    Alice Wagner, Vienna Chamber of Labour
• 6:00 PM Cocktail Reception

Saturday, 15 June 2013

• 9:00 to 10:45 am CESL in Court
  • 1. The Challenge Faced by the ECJ and Possible Responses
    Prof. Dr. Verica Trstenjak, Universität Wien, Former Advocate General, European Court of Justice
  • 2. National Courts: How Can They Keep Track?
    Prof. Dr. Luz María Martínez Velencoso, Universidad de Valencia
  • 3. Taking CESL to ADR: The Solution?
    Prof. Dr. Loukas Mistelis, Queen Mary University of London
• 10:45 to 11:15 am Coffee break
• 11:15 AM to 1:00 pm CESL in University
  • 1. Good and Bad Timing: The Place in the Curriculum
    Prof. Dr. Pascal Ancel, Université de Luxembourg
  • 2. The Language in Which CESL Shall be Taught
    Prof. Dr. Christoph Busch, EBS Law School, Wiesbaden
  • 3. Civil Sales Law, Commercial Sales Law, Consumer Sales Directive, CISG, CESL – Enough is Enough?
    Prof. Dr. Martin Schmidt-Kessel, Universität Bayreuth
• 1:00 pm Conclusion

The University of Nancy will host an international workshop on the Circulation of Punitive Damages on 24 May 2013.

Introduction

9:30 – 10:00 : Les dommages-intérêts punitifs en quête de fondement, Philippe Jestaz (Emeritus Université Paris XII)

10:00 – 10:40 : Dissuader et punir : les dommages et intérêts punitifs remplissent-ils vraiment la fonction qui leur est assignée ? Le regard de l’économiste du droit, Samuel Ferey (Faculté de droit Nancy) 

1 – La compatibilité des dommages-intérêts punitifs avec un système civiliste

10:50 – 11:10 : La réception des punitive damages en Louisiane : un modèle pour l’Europe continentale ?, François-Xavier Licari (Faculté de droit Metz)

11:20 – 11:40 : La réception des dommages-intérêts punitifs au Québec : un modèle pour l’Europe continentale ?, Sylvette Guillemard (Université Laval, Québec)

11:50 – 12:10 : La présence cachée des dommages-intérêts punitifs  en Allemagne, Paul Klötgen (Faculté de droit Nancy)

12:10 – 12:50 : Discussion générale

2 – Le rayonnement des dommages-intérêts punitifs

14:00 – 14:20 : Les punitive damages et le droit américain de l’arbitrage, George A. Bermann (Columbia School of Law)

14:30 – 14:50 : Les dommages-intérêts punitifs dans la jurisprudence arbitrale de la CCI, Emmanuel Jolivet (ICC)

15:00 – 15:20 : Les dommages-intérêts punitifs à l’épreuve du contrôle national de l’exequatur, Olivier Cachard (Faculté de droit de Nancy)

15:30 – 15:50 : La quantification du préjudice dans les actions en dommages-intérêts fondées sur les infractions aux articles 101 ou 102 TFUE, Mattia Melloni (Autorité luxembourgeoise de la concurrence)

16:00 : Discussion générale et cocktail

Contact : Maëlle MEZIANI 03.54.50.45.15 maelle.meziani@univ-lorraine.fr

The second issue of International and Comparative Law Quarterly for 2013 includes three articles exploring private international law issues and a case commentary of the VALE Építési Kft decision of the European Court of Justice.

On 13 December 2012, the Court of Appeal of Liege held that restitution claims fall within the scope of Article 2 of the Brussels I Regulation.

A Belgian company was suing a Luxembourg company in Belgium. The companies had concluded a contract for carriage of goods. The Belgian company claimed restitution of certain payments from the Luxembourg party.

The Belgian Court wondered whether restitution claims belong to Article 5.1 or 5.3 of the Brussels I Regulation. It concluded that they do not, because under the Belgian law of obligations a claim in restitution is quasi-contractual and thus neither contractual nor delictual. As a consequence, the court held, only Article 2 applied.

It is unclear whether any party argued that there might be autonomous interpretation of the Brussels I Regulation, and that the European Court of Justice judgment in Kalfelis might well stand for the proposition that quasi-contractual claims are delictual for the purpose of Article 5.3 of the Regulation.