Panel Three: U.S. Courts as Arbiters of Global Human Rights Disputes

Welcome back! We are about to get started with U.S. Courts as Arbiters of Global Human Rights Disputes, with John B. Bellinger III, Vivian Curran, and Roger Alford. I imagine the centerpieces will be the ATS and Kiobel.

Ted Folkman November 2, 20123:39 pm

That’s it for panel three! See you at 4 pm.

Ted Folkman November 2, 20123:35 pm

This is an interesting disagreement.

Ted Folkman November 2, 20123:34 pm

Curran: she’s not claiming there are no limitations. But you have to take states’ positions in amicus briefs with a grain of salt, since they don’t take the same positions all the time in other forums when their own companies are sued.

Ted Folkman November 2, 20123:32 pm

John Bellinger does not agree with Curran on the permissibility of universal civil jurisdiction under customary international law. I think his point is fairly strong in light of some of the amicus briefs from Kiobel objecting to universal jurisdiction.

Ted Folkman November 2, 20123:31 pm

Q&A: On the Greek and Italian cases on Nazi war crimes. What about the ICJ immunity decision?

Curran was surprised by the ICJ decision (Ed. this in itself is surprising, since I think the majority of scholars weren’t surprised by the outcome) in light of Nuremberg.

Ted Folkman November 2, 20123:26 pm

Examples of such cases:

Boweto v. Chevron (Nigerian human rights case brought in California: California law applied).

Doe v. Exxon (Indonesian human rights case brought in DC: Indonesian law applied).

Ted Folkman November 2, 20123:24 pm

So could these approaches to terrorism cases be used to resolve international human rights cases? Alford thinks that’s where we’re headed.

Ted Folkman November 2, 20123:24 pm

New York is more eclectic, sometimes applying the law of the place of injury (September 11 cases), sometimes applying the law of the place of the tort, sometimes applying the law of the plaintiff’s domicile (Lockerbie).

Ted Folkman November 2, 20123:21 pm

Here is how the DC cases on conflict of laws come out:

United States national plaintiff: the law of the plaintiff’s domicile applies.

Foreign national plaintiff but the attack targets the US: the law of the forum applies.

Foreign national plaintiff and attack not targeting the US: the law of the place of the tort applies.

Ted Folkman November 2, 20123:16 pm

His prediction for the future is that human rights litigation will involve claims under state tort law. Every human right violation is a tort: assault and battery; false imprisonment; etc.

There will, therefore, be a new focus on conflict of laws, because we need to know whether the law of the forum or the law of the place of the tort (or some other law) will govern.

Ted Folkman November 2, 20123:13 pm

He thinks the Court will severely restrict the ATS. He focuses on Justices Kagan and Sotomayor’s comments on exhaustion of remedies and Justice Kennedy’s concerns about reciprocity.

Ted Folkman November 2, 20123:11 pm

Here comes Roger Alford on life after the ATS.

Ted Folkman November 2, 20123:11 pm

Curran’s crystal ball: the ATS is likely to survive in something like the form that the EU is describing in its brief. Justice Kennedy is not prepared to overturn Filartiga.

Ted Folkman November 2, 20123:08 pm

We also mean different things when we say “prosecutorial discretion.” There is no prosecutorial discretion in our sense in the civilian states.

Ted Folkman November 2, 20123:05 pm

The special functions of our tort trial (a public trial in which victims can participate) are features of the civilian criminal trial.

Ted Folkman November 2, 20123:04 pm

The insight from comparative law: we do not mean the same thing by “civil” and “criminal” as civilians do. The reasons for rejecting universal civil jurisdiction in civilian systems are not problems in the US. Our tort law is much more like the civilian criminal law than the civilian tort law. In civilian countries, tort cases have no oral component at all. Everything is done in writing. The trial is a series of non-public filings. So an ATS victim would have no opportunity for a public airing of the claim. But that’s why many US lawyers take these cases in the first place!

Curran proceeds to contrast our system of trial from the civilian system of trials.

Ted Folkman November 2, 20122:59 pm

There is no international law problem with universal civil jurisdiction. But civilian jurisdictions typically have a problem with the concept unless there has been a criminal proceeding first.

Ted Folkman November 2, 20122:58 pm

She’s referring to recent Dutch decisions finding jurisdiction in civil cases against Shell for environmental torts where all plaintiffs were non-nationals and the tort took place outside the Netherlands (though Shell is a Dutch company, so this is a foreign-squared instead of a foreign-cubed case).

Ted Folkman November 2, 20122:57 pm

She’s discussing the jus cogens claims in Italy and Greece about German crimes against humanity during WWII. But the judgments were deemed unenforceable in Germany. The ECJ held these were not civil or commercial cases and thus not entitled to recognition and enforcement in Germany under the Brussels regime.

Ted Folkman November 2, 20122:54 pm

Mass torts are getting more destructive today than ever before. They are often trans-border. We can all observe the consequences of mass torts through modern communications technology much better than we could before.

Many parts of the world don’t have our system of civil money damages for mass torts. But our approach has made some inroads in Europe, e.g., in the Holocaust compensation cases. There was a 2006 French Holocaust case in which a lawyer brought something much like a US class action. The case succeeded in the lower court, though it was reversed on appeal.

Ted Folkman November 2, 20122:50 pm

Now Vivian Curran is up. She was the author of the comparative law amicus brief in Kiobel.

Ted Folkman November 2, 20122:49 pm

His guess: Shell is going to win. (Ed. that’s easy). But how much will the Court cut back on the statute? He reviews some possible permutations. He thinks the justices will be wondering whether they are being asked to legislate, given how cryptic the statute is.

Ted Folkman November 2, 20122:44 pm

The concern about reciprocity was, he thinks, decisive.

Ted Folkman November 2, 20122:43 pm

Why did the Obama administration support Shell in the second round? Some guesses: (1) almost all foreign governments asserted that extraterritorial application violated international law; (2) the Bush administration had argued for years that the statute did not apply extraterritorially, and this was really a staff-level approach, not a political decision; and (3) there was a concern about reciprocity, particularly from the Secretary of Defense, i.e., how could the US object to foreign exercises of civil universal jurisdictions in ways we don’t want?

Ted Folkman November 2, 20122:40 pm

The government’s brief in the second round? “Waffly.”

Ted Folkman November 2, 20122:40 pm

He’s recounting his second amicus brief, which argued that extraterritorial application of the statute violated the act of state doctrine.

Ted Folkman November 2, 20122:38 pm

He’s recounting his amicus brief in the first round of Kiobel, which argued that the statute was never meant to apply extraterriorially and was in fact intended to help decrease diplomatic tensions.

Ted Folkman November 2, 20122:35 pm

Foreign governments frequently complain to the State Department about these cases. Some of our closest allies ended up accusing the US of violating international law.

Ted Folkman November 2, 20122:34 pm

He’s recounting Sosa’s holding that the ATS is merely jurisdictional and applies only to a core group of customary international law violations. The Court clearly thought it was cutting back the statute, but of course things didn’t turn out that way. The lower courts “have not exercised much caution.”

Ted Folkman November 2, 20122:32 pm

He’s recounting the history of the ATS from Filartiga to the present, i.e., the development from suing foreign governments to suing American companies.

Ted Folkman November 2, 20122:29 pm

He is starting with some background on Kiobel and the history of the Alien Tort Statute.

John has just said something funny that I have had to swear a blood oath not to live blog.

Ted Folkman November 2, 20122:27 pm

John Bellinger is going first. He is doing a little reminiscing about his experience blogging on Opinio Juris while he was the legal adviser to the State Department.

Ted Folkman November 2, 20122:24 pm

Okay, here we go! The panel is being moderated by Derek Jinks.

Ted Folkman November 2, 20122:19 pm

As we wait … What a pleasure to meet Roger Alford, John Bellinger, Vivian Curran, Mike Traynor, Neil Popović, Judith Kimmerling, and the other panelists! The internet has its limits and there is no substitute for actually meeting people.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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