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"A ruling against the Kiobel plaintiffs would be disastrous"
October 2, 2012 9:22 AM   Subscribe

Yesterday, the U.S. Supreme Court returned from summer vacation, and among other things, it heard the second oral argument of Kiobel v. Royal Dutch Petroleum Co.. Esther Kiobel and eleven other Nigerian plaintiffs are accusing oil companies of complicity in a brutal crackdown on protesters that included torture and murder; during the first round of arguments, "some of the court's conservative justices signaled a willingness to shield corporations from liability in U.S. courts over allegations that they had aided or acquiesced to foreign governments that abused their own people." Meanwhile, a group called People Against Legalizing Murder has launched MurderisBad.com - which Shell has allegedly blocked from its employees.
posted by jbickers (50 comments total) 7 users marked this as a favorite

 
"A willingness to shield corporations from liability in U.S. courts over allegations that they had aided or acquiesced to foreign governments that abused their own people" seems like a pretty hyperbolic reading of the case. It's a lawsuit against a British-Dutch company (with a Finnish chief executive) over actions it took in Nigeria; whether this is a thing that should be happening in U.S. courts is a pretty fair question to ask.
posted by Holy Zarquon's Singing Fish at 9:35 AM on October 2, 2012 [6 favorites]


jbickers: "some of the court's conservative justices signaled a willingness to shield corporations from liability in U.S. courts over allegations that they had aided or acquiesced to foreign governments that abused their own people"



Why the US thinks it has jurisdiction over a foreign company and its alleged actions for a foreign national is beyond me. Of course they should be shielded from liability in US courts.

You can't sue in California courts for a car accident in Michigan. Why should it be allowed for different countries?

Do other countries try to do the same thing?
posted by 2manyusernames at 9:41 AM on October 2, 2012 [2 favorites]


Why the US thinks it has jurisdiction over a foreign company and its alleged actions for a foreign national is beyond me. Of course they should be shielded from liability in US courts.

You can't sue in California courts for a car accident in Michigan. Why should it be allowed for different countries?

Do other countries try to do the same thing?


Uh, you could sue in California courts for a car accident in Michigan. Some contracts even require it.

Jurisdiction and venue are very complicated issues. This is why rehearing is occurring.

As for other countries look here.
posted by Ironmouth at 9:45 AM on October 2, 2012 [7 favorites]


The NPR story has a more nuanced view of where the Justices were leaning. It points out that the Shell attorney also received quite a bit of pushback. I don't think the outcome is as clear as some of the doomsday reports would lead people to believe.
posted by stoneweaver at 9:47 AM on October 2, 2012 [1 favorite]


If you want to understand Shell's point of view, you might want to try out the game Oiligarchy.
posted by weston at 9:54 AM on October 2, 2012 [1 favorite]


You can't sue in California courts for a car accident in Michigan.

That depends, actually. For example, if both drivers were California residents, the cars were registered, licensed, and insured in California, and all of the witnesses and evidence were now in California, then it's entirely possible that a California court would hear the case and even apply California law. Conflict of laws is a complicated thing, and the location of the underlying tort does not necessarily control the outcome.

Why should it be allowed for different countries?

Because we passed a law to that effect, and if the foreign entities don't like it then they can keep their assets out of the US.
posted by jedicus at 9:54 AM on October 2, 2012 [4 favorites]


It'd be really nice if it was written into employment laws that everyone gets a months-long summer vacation, much like the Councel of Appointed Robes (starring Clarence Thomas as The Pubefinder!) do.

I suppose a person can dream, though - as long as that dreaming's not done during company time.
posted by item at 9:58 AM on October 2, 2012


> "It'd be really nice if it was written into employment laws that everyone gets a months-long summer vacation ... I suppose a person can dream, though - as long as that dreaming's not done during company time."

Join us in Europe. Some of the customs here are sane!
posted by kyrademon at 10:10 AM on October 2, 2012 [5 favorites]


I think the reason this is happening in the US is that the Nigerian Victims have no leverage over Shell in their own country. And I assume they have (had?) difficulty suing Shell in The Netherlands (?).

Whereas the USA has this old Alien Tort Statute, (1789 law) that could enable Nigerian victims to obtain some leverage over Shell for what are considered "international human rights cases".

This is really the other side of the USA claiming to be the world 'police' due to their economical largesse. If you want to bring 'human rights' and 'democracy' to the rest of the world you have to get involved. And the US actually has the ability to enforce any punishment on Shell.
posted by mary8nne at 10:12 AM on October 2, 2012 [3 favorites]


Do other countries try to do the same thing?

For a while, Belgium had arrogated to itself the right to try any human rights violater no matter where the alleged crimes took place. The resulting circus (i.e. charges being filed against the Prime Minister of Israel, some activists threatening to file charges against George W. Bush) was increasingly embarrassing and eventually the whole thing was relieved by a decision by the top court in the EU which said Belgium couldn't do that.
posted by Chocolate Pickle at 10:13 AM on October 2, 2012 [1 favorite]


Myles draws parallels between that case and Kiobel, and she cautions that reading the ATS to potentially hold corporations liable in cases like these can threaten the sovereignty of their foreign hosts. She reasons that when a country cooperates with a foreign company for the sole purpose of enjoying economic benefits from the foreign company, holding the company responsible for the actions of the host country’s military can look like a threat to the nation’s sovereignty. Such countries, Myles says, “don’t want a doctrine of law that says that ‘visitors in our borders get to tell us how to run our country.’”

By the logic of the plaintiffs, Iraqis could sue American - and other foreign - oil companies for the invasion in Iraq on the basis that they benefited from the war.

I accept the usefulness of universal jurisdiction for the prosecution of war criminals, but the claim for compensation here rests on a fairly nebulous link between those committing the crime (Nigerian government soldiers) and the supposed beneficiaries (oil companies in general, Shell in particular).

That would be all well and good if you could presume that they did this at the behest of the big bad oil company, but 66% of Nigerian federal revenues are from oil royalties and taxes. If someone protested paying US income taxes and went to prison over it, would it make sense to say that H&R Block forced the government to put that person in prison? Or would it make more sense that despite H&R Block's interest in Americans continuing to pay their taxes, the government didn't require any prodding from anyone to shut down a threat to their revenue?

This was a dictatorial regime known for its brutality and suppression of any kind of dissent, no matter how minor. A regime almost entirely dependent for its sustenance on oil money. It sees its revenue source challenged by activists chiefly concerned with the fact that most oil revenue in Nigeria goes to the federal government for redistribution and very little stays in the delta region where it comes out of the ground, it sees that challenge as ethnically secessionist in nature (probably wrongly, but that is how autocrats think) because of the history of the Delta region. That regime responds with violence (as it did to every challenge, perceived or actual).
It is sheer lunacy to go from those facts to "the oil companies made them do it". They know they won't be allowed to sue the Nigerian government, so they pick a target that they might be able to extract a settlement from when the PR impact gets big enough. They're suing in the American court system for the same reason that everyone tries to have their libel trials in English courts, this is jurisdiction shopping plain and simple.
posted by atrazine at 10:14 AM on October 2, 2012 [3 favorites]


Because we passed a law to that effect, and if the foreign entities don't like it then they can keep their assets out of the US.

I actually have some related experience regarding tort claims brought by foreign nationals in district court for claims that accrued abroad. (although admittedly, not under ATS jurisdiction)

I don't know that we did "pass a law to that effect". The history of the Alien Tort Statute is scant, but I would be surprised to learn that it sets up every US district court as a international tribunal. Here we have Nigerians suing European companies for acts committed in Nigeria. If the plaintiffs were U.S. residents I could see the applicability of the ATS, but I think the question of "what is the US connection" is a pertinent one.

Since the ATS is largely about jurisdiction to bring suit for acts committed outside the United States, I find it difficult to imagine what it has to do with foreign assets in the United States. Whether the foreign entity has assets in the US (or assets at all) does not have anything to do with ATS jurisdiction.
posted by Tanizaki at 10:34 AM on October 2, 2012 [1 favorite]


I know very little about this area of the law, but my immediate reaction is that this seems to take the courts outside of (what I think of as) their role. One of the links used the phrase "plaintiff diplomacy" to describe it, and that sort of pinned down what makes me uncomfortable about this law and its broadening application. The mission of the federal court system is not to meddle in US relations with foreign sovereigns, and I am not sure that introducing chaos, uncertainty, and multiple actors into foreign policy is a good thing even in the scenario where the executive and legislative branches are conducting it poorly.
posted by prefpara at 10:39 AM on October 2, 2012


If the plaintiffs were U.S. residents I could see the applicability of the ATS, but I think the question of "what is the US connection" is a pertinent one.

To be fair - and I do think that this is an abuse of the American court system, and would be absurd even apart from the jurisdictional issues - the plaintiffs are US residents.
posted by atrazine at 10:46 AM on October 2, 2012


I think the pertinent piece to keep in mind regarding the US connection is whether or not a corporation that does business in the US should be punished for making certain decisions in other countries.

The legality of such is debatable, proven by the fact that SCOTUS is taking a second look at it. The moral concept of it is pretty clear though: If you want to do business in the US you should follow certain guidelines, even when doing business abroad.

To paraphrase Jedicus: This is the cost of doing business in the US, and if the foreign entities don't like it then they can keep their assets profit seeking ventures out.

Edit: all hail the edit button.
posted by Blue_Villain at 10:49 AM on October 2, 2012


Also, when I think about who is under the protection of US laws, I think of US citizens/residents and people who are in the US or in US power (on a US military base, in a US embassy). When I think about a person who is not a US citizen or resident standing on foreign soil and being wronged by some other non-US person, I don't understand on what basis the protection of US laws extends to that situation unless we totally redefine sovereignty and the nation state.

I understand that corporations muddy the waters by existing in multiple locations simultaneously. So if the law is interpreted as functionally telling corporations that a condition of doing business inside the US is that they have to obey a certain code of conduct outside the US, then I don't know how to respond to that. It's a really interesting problem.
posted by prefpara at 10:54 AM on October 2, 2012


If you want to understand Shell's point of view, you might want to try out the game Oiligarchy.

I don't think this game sends the message it's supposed to. The best practice is to abandon oil drilling entirely in favor of processing brown people into fuel.
posted by kafziel at 11:08 AM on October 2, 2012


This is the cost of doing business in the US

The ATS has nothing to do with doing business (or anything else) in the US. Quite the contrary.
posted by Tanizaki at 11:50 AM on October 2, 2012


The moral concept of it is pretty clear though: If you want to do business in the US you should follow certain guidelines, even when doing business abroad.

Typical Yankee arrogance. Do Japanese companies doing business in Belgium need to make sure they are in full compliance with every single law in South Africa? That is patently absurd, but somehow the United States (a nation that has on its books a law that mandates the invasion of a sovereign country if one of its soldiers is ever tried for war crimes in an international court - hardly an impossible eventuality considering the way it is currently murdering its way through Pakistan and Afghanistan by remote control) has the right to be simultaneously international scoff-laws and universal morality police.

You'll note that under this "theory" of jurisdiction, courts in any country could seize the assets of American companies for laws they broke in unrelated third countries. Except of course they can't because American military power prevents that kind of seizure in practice unless the seizing country is itself a superpower. It's military bullying dressed up in the garments of a technical legal argument over jurisdiction.

Anyway the ATS is not about following "certain guidelines". The interpretation the plaintiffs are looking for is that it is a license to sue anyone for anything that happened anywhere, even if the supposed offence is that the defendant did not sufficiently interfere with the government of a third party country to prevent a harm to the plaintiff.
posted by atrazine at 11:56 AM on October 2, 2012 [1 favorite]


This is extraordinarily complex legal issue. Trying to cast it as "conservative justices" "shielding corporations" as if that is the primary goal is repellant and ignorant. The question is simply one of limiting the Court's jurisdiction; it's a scope of power issue. Universal civil jurisdiction is an exceedingly controversial issue. It has nothing to do with favoring corporations.

I do not think there is any possibility that the Court will embrace universal civil jurisdiction. I think the most likely result to obtain is some ruling limited to the facts with a lot of concurrences dismissing this case against Shell, but leaving the door open under the Alien Tort Statute to permit cases like the Filartiga case by possibly using the current domicile of the defendant as the distinguishing factor in this case.

Good rule of thumb: if you are reading someone who characterizes the issues at play in a Supreme Court case in a short one sentence partisan-sounding snipe, that person has no idea about what is actually going on and is not a good source for a Metafilter post. Examples proving that on this site are legion.
posted by dios at 11:57 AM on October 2, 2012 [4 favorites]


Whether the foreign entity has assets in the US (or assets at all) does not have anything to do with ATS jurisdiction.

No, but it has everything to do with the enforceability of a judgment against the defendants. A foreign company may not be able to escape ATS jurisdiction but it can escape liability (as a practical matter) by keeping its assets outside the reach of the US courts.
posted by jedicus at 11:57 AM on October 2, 2012


...the United States (a nation that has on its books a law that mandates the invasion of a sovereign country if one of its soldiers is ever tried for war crimes in an international court - hardly an impossible eventuality considering the way it is currently murdering its way through Pakistan and Afghanistan by remote control)

What law is this?
posted by Falconetti at 12:04 PM on October 2, 2012


Falconetti: forget it, he's rolling.
posted by dios at 12:10 PM on October 2, 2012


atrazine correctly notes that a major problem is the enforcement of any judgments under such a law. The exercise of jurisdiction is an exercise of power. When US courts claim they have the power to punish foreign nationals for conduct that took place outside of the US and which affected a non-US plaintiff, that's a power grab that disrespects the sovereign in whose jurisdiction the relevant conduct took place as well as the sovereign whose citizenship the defendant claims. Power grabs are based in large part on perception of military threat. This is a really uncomfortable law.
posted by prefpara at 12:17 PM on October 2, 2012


What law is this?
posted by atrazine at 12:27 PM on October 2, 2012


This is a really uncomfortable law.

The law is a perfectly fine response to the problems of the era in which it was passed, the plaintiff's desired interpretation of it is not.

A lot of commentators who presumably know what they're talking about seem pretty sure that the Supreme court will come up with some kind of reasonable compromise. I hope so, but my objections are on policy grounds not legal grounds - for all I know the correct legal interpretation of this law might be in the plaintiff's favour.
posted by atrazine at 12:33 PM on October 2, 2012


Atrazine:
"A law that mandates the invasion of a sovereign country if one of its soldiers is ever tried for war crimes in an international court"
is different than
The President is authorized to use all means necessary and appropriate to bring about the release of any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court... To wit:

When any person described in subsection (b) is arrested, detained, investigated, prosecuted, or imprisoned by, on behalf of, or at the request of the International Criminal Court, the President is authorized to direct any agency of the United States Government to provide--

legal representation and other legal assistance to that person (including, in the case of a person entitled to assistance under section 1037 of title 10, United States Code, representation and other assistance in the manner provided in that section);

exculpatory evidence on behalf of that person; and

defense of the interests of the United States through appearance before the International Criminal Court pursuant to Article 18 or 19 of the Rome Statute, or before the courts or tribunals of any country.
So, no, you are not correct. But don't let that stop you from rolling.


prefpara: that is incorrect. The problem is not enforcement. Whether a judgment issuing from a court is enforceable has nothing to do with jurisdiction. The problem is jurisdiction, plain and simple: does the Court have the authority over the defendant and over the subject matter.
posted by dios at 12:37 PM on October 2, 2012


dios, I wasn't talking about the enforceability of these judgments as a practical matter. I was talking about enforceability as a component of jurisdiction. The exercise of jurisdiction can only happen when a court's judgment can have some effect (can be enforced) and jurisdiction is therefore premised on power. So when jurisdiction is extended to foreign citizens acting on each other on foreign soil, where does the power to exercise jurisdiction (and therefore enforce judgments) over them come from? Implicitly, military might.
posted by prefpara at 1:07 PM on October 2, 2012


The exercise of jurisdiction can only happen when a court's judgment can have some effect (can be enforced) and jurisdiction is therefore premised on power.

This really is not what jurisdiction means or how it works. dios is right. I don't always agree with him, but his analysis of how this case will turn out will likely prove to be correct.

Legal threads on MeFi are like watching a bunch of non-technically trained lawyers argue strenuously about network architecture. Why do people with no training or education in this very complicated topic want to jump in and provide nothing helpful to the discussion?
posted by Sangermaine at 1:19 PM on October 2, 2012


So, no, you are not correct. But don't let that stop you from rolling.

You surely cannot have missed the domestic political rhetoric surrounding this law. That rhetoric was very much about invasions. Nonetheless, I withdraw that part of my comment.
posted by atrazine at 1:20 PM on October 2, 2012


Legal threads on MeFi are like watching a bunch of non-technically trained lawyers argue strenuously about network architecture. Why do people with no training or education in this very complicated topic want to jump in and provide nothing helpful to the discussion?

I generally agree with you. As I said, I don't have any opinion on the legal merits of the case. The whole reason that sovereign immunity exists in the first place is to prevent the legal system from mixing itself into policy and diplomacy where it has no place. I can assure you that the Nigerian government will have a very limited interest in hearing the legal grounds on which this case will be decided.

The reason that people in metafilter are always jumping into legal threads is the uniquely powerful role of the US Supreme Court in policy making, something that is not the case in almost any other country. How many people on this site were watching the Obamacare/PPACA ruling because they cared about the legal issues involved? Some, I'm sure, but not the majority of the people in the breaking news thread about it. People cared because it was a pivotal moment for the future of American Healthcare and secondarily for the future of American federal vs state power.

The American system has evolved a uniquely influential role for lawyers and judges, with that is going to come lay interest in and comment on the law. Even if most people paying attention don't really understand what they're watching.
posted by atrazine at 1:33 PM on October 2, 2012


Sangermaine, I was about to get snarky, but then realized that I was in fact thinking about the redressability prong of the standing inquiry, not straight up subject matter jurisdiction.

I stand by my feeling that because jurisdiction is the exercise of power, extending jurisdiction in this way seems to disrespect foreign sovereigns.
posted by prefpara at 1:37 PM on October 2, 2012


the claim for compensation here rests on a fairly nebulous link between those committing the crime (Nigerian government soldiers) and the supposed beneficiaries (oil companies in general, Shell in particular).

Well, more specifically there were allegations that Shell had been paying the government to send security forces to brutally quash protests, and leaked government documents point to the validity of that claim. This Human Rights Watch report goes into it a bit more.
posted by naoko at 1:38 PM on October 2, 2012


No, but it has everything to do with the enforceability of a judgment against the defendants. A foreign company may not be able to escape ATS jurisdiction but it can escape liability (as a practical matter) by keeping its assets outside the reach of the US courts.

As it happens, I have a creditor's rights practice and have some experience with judgment enforcement across national borders. While the process is complicated and depends on the forum state and the state where enforcement is sought, a foreign defendant does not necessarily make itself judgment-proof by not having assets in the forum state. In fact, that is usually not the case. Most countries have laws that provide for the enforcement of out-of-country judgments within their respective borders. The equivalent law in the US is the Uniform Out-of-country Foreign Money-Judgment Recognition Act, which AFAIK every state as adopted.

So, I don't think the comment about foreign companies "keeping their assets out of the US" makes much sense. In fact, given the "debtor's haven" status of my state, I sometimes think I'd have a better shot of collections if the defendant were abroad than in my own county.
posted by Tanizaki at 1:53 PM on October 2, 2012


By the logic of the plaintiffs, Iraqis could sue American - and other foreign - oil companies for the invasion in Iraq on the basis that they benefited from the war.

No. The companies you discussed engaged in no torts against anyone in the hypothetical you present.

Nor did the oil companies invade the country of Iraq.

And there is no remedy for damages by US government armed forces acting in combat. These questions are massively more complicated than presented here.
posted by Ironmouth at 2:32 PM on October 2, 2012


The equivalent law in the US is the Uniform Out-of-country Foreign Money-Judgment Recognition Act, which AFAIK every state as adopted.

I'm familiar with that law, and it has several caveats, including a requirement that the foreign court have both personal jurisdiction over the defendant and subject matter jurisdiction. Both of those are quite debatable in a case like this (obviously). For example, if a court in the Netherlands had rendered a judgment against a US oil company (and in favor of a US plaintiff) based on fracking in the United States, then I think it's quite likely that a US court would decline to enforce the judgment based on the Dutch court's lack of jurisdiction.

But if the US oil company had assets in the Netherlands, then obviously the Dutch court could reach those. And that's my point. The ATS may or may not be a good idea, and it may or may not reach as far as the plaintiffs would like, but if it does reach that far, then foreign companies can likely avoid its reach by not having their assets in the US. And such a result might tell us something about whether a far-reaching ATS is a good policy or not (hint: probably not).
posted by jedicus at 2:39 PM on October 2, 2012


No. The companies you discussed engaged in no torts against anyone in the hypothetical you present.

Well whether they did or not or whether Shell engaged in torts against the Nigerian plaintiffs are surely equally irrelevant to the jurisdictional issue?

Nor did the oil companies invade the country of Iraq.

Shell is not accused of actually killing anyone, but of conspiring with the Nigerian military to do so. I don't happen to believe that American oil companies conspired with the American government to induce the latter to invade Iraq.

And there is no remedy for damages by US government armed forces acting in combat.

Of course not! Not in an American court.

What about an American company close to the Iraqi* government in 2012?
What if a Greek court decided that there was such a remedy in Greek law? What if they decided that an American company was sufficiently close to the Iraqi military to be partially responsible for the actions of the Iraqi security forces? What if they decided that a Greek court had jurisdiction over the actions of that company? I suspect that neither Iraq, nor the United States would look kindly on that.

The US because it's an American company, and Iraq because they for some reason don't want a completely foreign court sticking its nose into their business.

*If we want to maintain the symmetry, we need three countries, so my original example where the company and the government are both American doesn't work so well.

These questions are massively more complicated than presented here.

Of course. Both legally and otherwise they're complicated. I'm perfectly happy to cede the legal argument to lawyers. The policy argument not so much.
posted by atrazine at 2:57 PM on October 2, 2012


You surely cannot have missed the domestic political rhetoric surrounding this law.

I, for one, am thankful that laws are enforced on the basis of their text and not on the political rhetoric surrounding them.
posted by Slothrup at 3:03 PM on October 2, 2012


I, for one, am thankful that laws are enforced on the basis of their text and not on the political rhetoric surrounding them.

That's not always the case. Some judges lean heavily on legislative history, including floor speeches and other fundamentally political statements by members of Congress.
posted by jedicus at 4:09 PM on October 2, 2012


That's not always the case. Some judges lean heavily on legislative history, including floor speeches and other fundamentally political statements by members of Congress.

Only when plain language is ambiguous.
posted by kafziel at 4:49 PM on October 2, 2012


And some judges find ambiguity a lot more readily than others.
posted by jedicus at 7:20 PM on October 2, 2012


I'm familiar with that law, and it has several caveats, including a requirement that the foreign court have both personal jurisdiction over the defendant and subject matter jurisdiction. Both of those are quite debatable in a case like this (obviously). For example, if a court in the Netherlands had rendered a judgment against a US oil company (and in favor of a US plaintiff) based on fracking in the United States, then I think it's quite likely that a US court would decline to enforce the judgment based on the Dutch court's lack of jurisdiction.

But if the US oil company had assets in the Netherlands, then obviously the Dutch court could reach those. And that's my point. The ATS may or may not be a good idea, and it may or may not reach as far as the plaintiffs would like, but if it does reach that far, then foreign companies can likely avoid its reach by not having their assets in the US. And such a result might tell us something about whether a far-reaching ATS is a good policy or not (hint: probably not).


Well, the ATS would never be used to invoke jurisdiction against a US company acting in the US, so I don't see the point of your hypothetical. And, the "caveats" of the US act don't matter when attempting to enforce a US judgment abroad. What matters is the law of the country where enforcement is sought. I do not know such law for where the defendants in this case maintain property, so I cannot comment on likelihood of enforcement should the plaintiffs prevail.

But, to address your hypothetical, if the Dutch court lacked personal jurisdiction over the US company, it lacked it whether or not the US company had assets in Netherlands. The personal jurisdiction defense would be equally available pre- and post-judgment. In fact, I have argued when enforcing foreign judgment in the US that the failure to raise lack of personal jurisdiction in the foreign tribunal should be deemed a waiver of it when domestication is sought in the US. This isn't something I do every day, but it also isn't just academic for me.

I think the main point that is being missed in this thread is that the ATS is concerned with torts committed "in violation of the law of nations or a treaty of the United States" and one of the defendants is a corporation. Corporations are generally not thought of as being part of "the law of nations", but rather, the state and its actors (and IGOs like the WTO or IMF). If a Spaniard totals a Dane's car in Munich, we may have negligence, conversion, or a few other torts, but the act is a breach of a US treaty or public international law, so there would be no ATS jurisdiction.
posted by Tanizaki at 7:37 PM on October 2, 2012


Jedicus wrote: A foreign company may not be able to escape ATS jurisdiction but it can escape liability (as a practical matter) by keeping its assets outside the reach of the US courts.

This may be harder than it sounds, even without the ability to pursue defendants overseas for debts (e.g., damages) incurred in the USA. For instance, a Dane purchasing cigars from a German company found his money confiscated by the USA - because that's where international monetary settlement takes place.
posted by Joe in Australia at 8:02 PM on October 2, 2012


Well, the ATS would never be used to invoke jurisdiction against a US company acting in the US, so I don't see the point of your hypothetical.

The hypothetical assumes that there's a law like the ATS in the foreign country. The point of the hypothetical is to say that a far-reaching ATS-like law does not mean that judgments would necessarily be enforceable in another country, contrary to your apparent assertion earlier regarding laws like the Uniform Out-of-country Foreign Money-Judgment Recognition Act.

But, to address your hypothetical, if the Dutch court lacked personal jurisdiction over the US company, it lacked it whether or not the US company had assets in Netherlands. The personal jurisdiction defense would be equally available pre- and post-judgment.

You misunderstand the hypothetical. In the hypothetical, there is a far-reaching ATS-like law in the Netherlands that gives the Dutch court jurisdiction, at least from its own point of view. Despite this, a US court asked to enforce the judgment in the US would say that no, the Dutch court didn't actually have jurisdiction just because a Dutch law said it did.

Similarly, the US courts could claim they have jurisdiction over this case all they like, but good luck convincing a Dutch or Nigerian court to enforce the judgment. Thus, as long as the foreign entities don't have any assets in the US, then a far-reaching ATS wouldn't be a problem.

This is not to say that I think that the statute should be read so expansively. I think that would be a bad result both legally and police-wise.
posted by jedicus at 8:58 PM on October 2, 2012


Wheneve an American company operates in a foreign country there is a high standard they must meet. For instance they cannot bribe government etc. It would be prudent to expect the same for other large multinationals if only to not unduly handicap american enterprise
posted by Shit Parade at 10:06 PM on October 2, 2012


In case anyone is interested, the transcript of oral argument is now available here.
posted by Carmelita Spats at 6:40 AM on October 3, 2012




You misunderstand the hypothetical. In the hypothetical, there is a far-reaching ATS-like law in the Netherlands that gives the Dutch court jurisdiction, at least from its own point of view.

What part of the hypothetical mentioned that? Perhaps my practice is different that most other lawyers, but "assume the unstated" is not advice I generally follow.
posted by Tanizaki at 5:18 PM on October 3, 2012




In other SCOTUS news: Antonin Scalia says abortion, gay rights are easy cases
posted by homunculus at 8:49 PM on October 5, 2012


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