Kedar S. Bhatia (Student-at-law, Emory University School of Law) has posted  ”Reconsidering the Purely Jurisdictional View of the Alien Tort Statute”, Emory International Law Review, 2013, forthcoming/Emory Public Law Research Paper. Here’s the abstract:

The Alien Tort Statute is a remarkable provision. This thirty-three word statute lay dormant for nearly two centuries but now allows federal courts to hear claims for violations of the law of nations stemming from behavior anywhere in the world. Such an extraordinary interpretation was far from inevitable and remains on unsteady footing.

This article argues that the Statute should be read as purely jurisdictional, rather than as a hybrid provision granting both jurisdiction and a cause of action. In contrast to the current hybrid model, a strictly jurisdictional view of the Alien Tort Statute would provide a manageable framework for expanding the scope of the statute. Rather than requiring courts to first measure the specificity of international law and then gauge the practical consequences of recognizing a new cause of action, the jurisdictional view would require Congress to make those difficult, complex, and weighty policy decisions. A purely jurisdictional view of the statute adheres more closely to well-established views toward federal common law and also patches many of the problems that have arisen in applying the statute.

Download a pdf version of the article via SSRN here.

Related articles

• SCOTUS grants cert. in ATS case: Kiobel v. Royal Dutch Petroleum (thetrialwarrior.com)
• Murray et al., Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel” (thetrialwarrior.com)
• Corporate Liability under International Law: U.S. and Canadian perspectives (thetrialwarrior.com)
• Corporate liability under the Alien Tort Statute (professorbainbridge.com)
• Another Decision of Interest on the Alien Tort Statute: Flomo v. Firestone (7th Cir.) (lawprofessors.typepad.com)
• Alien Tort Statute Development (druganddevicelaw.blogspot.com)
• Bellia and Clark on Kiobel v. Royal Dutch Petroleum and the Alien Tort Statute (volokh.com)
• Supreme Court Orders Reargument in Alien Tort Statute Case (legaltimes.typepad.com)
• Keitner on Corporate Alien Tort Cases (lawprofessors.typepad.com)
• Supreme Court Eyes Scope Of Controversial Alien Tort Statute (forbes.com)
• Contemporary Practice of the United States Relating to International Law: Brief Note by John R. Crook (westphaliaxxi.com)
• Extraterrritoriality Becomes Focus of Kiobel Supreme Court; Are We Headed for Morrison II? (internationalpractice.org)
• SCOTUS for law students: Torture and jurisdiction (sponsored by Bloomberg Law) (scotusblog.com)
• SCOTUS decision in Mohamad v. Palestinian Authority (lawprofessors.typepad.com)
• More Kiobel Coverage (lawprofessors.typepad.com)
• Alliance for Justice Releases Report on Human Rights Case To Be Argued Before Supreme Court (yubanet.com)
• Ogoni vs Shell: US Supreme Court to re-hear case (vanguardngr.com)
• High court to deliberate on whether rights groups can sue companies for atrocities (foxnews.com)
• The AM Roundup: Holder’s Speech, Alien Tort, Biden Just Says ‘No’ (blogs.wsj.com)
• Justices Skeptical of Bringing Torture Cases to U.S. Courts (blogs.wsj.com)
• Court Seeks Reargument of Alien Tort Statute Case (volokh.com)
• Fourth Circuit Upholds “Derivative” Soveign Immunity, following the D.C. Circuit (internationalpractice.org)
• Argument recap: Downhill, from the start (scotusblog.com)

I can’t stand Flawging or Splawging (spam law blogging), but I genuinely detest Blog Scraping, including RSS scraping.

It is more than plagiarism.

It is intellectual property theft.

The Trial Warrior Blog is a personal law blog (blawg). I devote a significant amount of time and energy in writing posts for the benefit of my readers. It is NOT commercial speech or lawyer advertising and is in no way associated with my legal practice or my law firm.

I have previously taken a stand on this issue, which resulted in lawyerlocate.ca abandoning its RSS aggregator feed.

Today I noticed that one of my posts has been redirected by an RSS feed in violation of my copyright. The only exceptions are where I have authorized or consented to have my blawg being added to a RSS feed aggregator (e.g. Canadian Law Blogs List at lawblogs.ca because Steve Matthews had the courtesy to ask first) or the exclusive, non-transferrable license granted to Newstex to syndicate my blawg, for which I receive a nominal royalty which covers administrative costs associated with operating my blawg.

Here is the email text of my cease-and-desist notice and takedown demand to Mobispine AB, the owner of NewsAlloy.com, regarding breach of my copyright:

“Mobispine AB 

Mobispine SMS4PC 

To Whom It May Concern:

I am the owner of The Trial Warrior Blog: http://thetrialwarrior.com/.

According to the PR Web post dated May 11, 2012: http://www.prweb.com/releases/mobispine/newsalloy/prweb1108824.htm, your company has acquired NewsAlloy.com, the Web based feed reader.

Recently, I have noticed at least three redirects by newsalloy.com for this post:  http://newsalloy.com/redirect?url=http%3A%2F%2Fthetrialwarrior.com%2F2012%2F02%2F29%2Fmodel-law-not-common-law-governs-enforcement-of-foreign-arbitral-awards-in-ontario%2F

The following “Creative Commons Attribution-Non-Commercial-No Derivs 3.0 Unported License” copyright notice is prominently displayed on the main page of my blog:

Copyright Notice

This work is licensed under aCreative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.

You are in flagrant breach of my copyright.

I have neither consented nor authorized NewsAlloy.com to redirect, republish, or otherwise reproduce, in whole or in part, through the means of an RSS feed, the content of my blog. The NewsAlloy.com RSS redirect reproduces the entirety of my blog post, which is neither “fair dealing” under the Canadian federal Copyright Act, RSC 1985, c C-42, nor “fair use” under the U.S. Copyright law, title 17, U. S. Code.

I hereby demand that you immediately remove the RSS feed linking, redirecting or republishing the content of my blog.  If I do not receive written confirmation that you have complied with this cease-and-desist notice and takedown demand by no later than 5:00 p.m. (EST) on Monday, May 14, 2012, I will have no recourse but to commence legal action against and seek monetary damages and equitable relief.

Please govern yourself accordingly.

Antonin I. Pribetic”

Let’s see if and how they respond.

UPDATE:

I have subsequently modified my Creative Commons license to reflect the Canadian content of my blog as follows:

Copyright Notice

The Trial Warrior Blog by Antonin I. Pribetic is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 2.5 Canada License.

Lights! Camera! Action! Hosted by Steven Spielberg (Photo credit: Wikipedia)

The recent decision in Code Inc. v. Indepedent High Electoral Commission, 2012 ONSC 2208 (CanLII) ["Code Inc."] held that video conferencing is a viable option for the conduct of cross-examinations of foreign witnesses on a jurisdictional motion. 

In Code Inc., the Plaintiff moved to to compel two of the Defendants’ affiants, on affidavits filed on a forum non conveniens motion, to attend for their cross-examination in Ottawa or, alternatively, in London, England. While the decision suggests that the Defendants had not attorned to the Ontario court’s jurisdiction, it is unclear why the Defendants have not also moved for stay of the action based upon lack of jurisdiction simpliciter. 

The Plaintiff, a Canadian corporation with head offices in Ottawa, carries on business providing democratizing countries around the world with supplies and services required to conduct elections. The corporate Defendant, with head offices in Baghdad, administers elections in Iraq. The individual Defendant was a director of the corporate Defendant, also a resident of Baghdad. The Plaintiff sued for recovery of the balance allegedly owing (US$810,102) under a US$9.3M contract between the parties for the purchase of electoral supplies. Presumably, there was no forum selection or exclusive jurisdiction clause, although the reasons of Master Pierre E. Roger are silent on this point.

The Plaintiff argued that Baghdad is a “dangerous city with widespread risk of death and serious injuries to civilians, even within the Green zone (international military zone). Consequently, the Plaintiff is not prepared to allow any of its employees or any of its lawyers to travel to Baghdad.” (at para. 6)

 The Plaintiff suggested  cross-examinations be conducted in either Ottawa or London, England, at the expense of the parties with the issue of costs to be resolved on the forum non conveniens motion.  The Defendants proposed cross-examinations by video conference at the Defendants’ expense or, alternatively, if the Plaintiff insisted that the affiants attend personally in Ottawa, they suggested that the Plaintiff pay for the Defendants’ travel to Ottawa and required accommodation.

After comparing the estimated travel costs to Ottawa and London, Master Roger noted the Plaintiff’s objections to video conferencing, including the applicable factors in exercising the court’s discretion; namely:

a)      Complexity and volume of facts involved in the cross-examination.

b)      Logistics issues of video conferencing with language, time-zone, cultural and legal issues surrounding exhibits and private video conferencing in Iraq.

c)      Potential intimidation of witnesses more difficult to address during video conferencing.

d)      Defendants that are not impecunious and could pay for their travel with these costs dealt with at the motion. This to ensure that if the Plaintiff is successful at the motion it does not pay for costs in advance of the motion that it might not be able to collect from the Defendants (adding insult to injury considering the balance allegedly owing).

e)      Convenience is not an issue as the Defendants’ affiants are or were prepared to travel to Ottawa if their costs were covered.

f)        The Defendants have not provided evidence to support some of the allegations made in their factum (such as their crushing work load in Iraq and how it would negatively be impacted by their travelling to Ottawa) nor have they addressed how the video conferencing could actually be arranged in Iraq. (at para. 11)

Once again, there appears to be some analytical confusion regarding the issue of attornment in the context of a motion challenging jurisdiction:

[13]      The Defendants argue that on a forum non conveniens motion, when the Defendants have not attorned to the jurisdiction and are in fact challenging the jurisdiction of the Court, the Court has no jurisdiction to order a foreign defendant to travel to Ontario. They referred to four cases on jurisdiction which I have considered. Further, they argue on this motion that cross-examination by video conferencing is the most efficient and effective method of conducting these cross-examinations and that it would not be just or convenient in this case to order them to travel to Ontario. They point to factors that the Court should consider, see paragraph 12 of their factum.

A motion based upon forum non conveniens is normally brought in circumstances where the foreign defendant has either conceded that Ontario has a “real and substantial connection” to the subject-matter of the dispute, or to the foreign defendant (by presence-based, consent-based or assumed jurisdiction). In other words, attornment is irrelevant on a forum non conveniens motion.

With respect to the conduct of examinations of out-of-province witnesses, Master Roger notes that Rule 34.07 of the Rules of Civil Procedure provides for situations where the person to be examined resides outside Ontario.  The Master cites with approval the decision of Justice Newbould in Midland Resources Holding Ltd. v. Shtaif (2009), 99 O.R. (3^rd) 550 (at para. 9 and 20), on the applicable law and test:

Unlike when a person resides in Ontario, there is no prima facie right of someone who resides outside of Ontario to be examined where he or she lives. The test for determining the location of the examinations is what is just and convenient for both parties, based solely on the circumstances in each particular case. There is no prima facie right of either party with respect to the place of examination.

…….

As stated, it is conceded on behalf of the defendants that rule 34.07(1)(f) gives a court jurisdiction to order that the examination of a person who resides outside of Ontario be held by video conferencing. I agree with this interpretation of the rules.

Relying on rule  rule 1.04, which provides that “the Rules are to be construed to secure a just, most expeditious and least expensive determination and that proportionality is a factor to consider”, the Master concludes that there is no presumption for or against video conferencing. However, despite the territorial limitations in jurisdiction, even where a party is contesting jurisdiction, the court retains an inherent jurisdiction to control and regulate its processes to order a party to submit to cross-examination by video conferencing.

Kendyl Sebesta over at Canadian Lawyer Magazine reports that the Law Society of Upper Canada will not be changing its name:

More than 50 Law Society of Upper Canada members showed up at the regulator’s annual general meeting last night and overwhelming showing their support to keep its 215-year-old name.

The lively debate at Osgoode Hall last night was mixed with passionate comments and bursts of laughter to discuss Federal government lawyer Thomas Vincent’s formal motion in a battle that saw traditionalists and modernists divided.

Jennifer Pagliaro at The Toronto Star further reports:

But few sitting beneath the hall’s ornate chandeliers were onboard with the proposed change.

“I am here to speak for traditions,” said Vern Krishna, former treasurer of the society, sporting a well-trimmed, snow-white handlebar moustache and round spectacles.

Krishna pointed out that the law society is the oldest in the Commonwealth, outdating even Britain’s.

“We have every reason to be proud of our organization,” Krishna said. “There is no confusion in the public mind.”

To much applause, Toronto lawyer Daniel Paul Sommers put the dissent most simply: “Changing our name will not help us do our job better.”

Thornhill lawyer Alan Silverstein pointed out that several other organizations have yet to release their grip on the historical name: Upper Canada College, Upper Canada Brewing Company and even the Jesuit Fathers of Upper Canada.

“And it never hurts to have God on your side,” he said, to the loudest laughter of the evening.

The debate had been percolating through social media for several weeks before the meeting, some commenters drawing attention to the unfortunate pronunciation of the society’s acronym “LSUC.”

According to Sebesta:

A formal vote was not taken at the annual general meeting, however, of the more than 50 members who attended, three supported the motion. Those three were Vincent, Ha-Redeye, and past Ontario Bar Association president Lee Akazaki.

During the meeting, it was estimated the cost to the law society to change its name would be between $1.4 and $1.5 million — a figure that would likely come have to come from increases to member’s annual fees.

The result is unsurprising, but disappointing; particularly after the informal poll I conducted here that garnered widespread world-wide massive viral a modicum of interest and resulted in a win for the proposed new name:

The League of Extraordinary Ontario Lawyers and Paralegals

Pagliaro adds,

 Suggestions for new names included the amusing “League of Extraordinary Ontario Lawyers and Paralegals.”

What? No credit or attribution for my poll result? Tsk. Double Tsk. Triple Tsk.

Journalistic mocking aside, I suspect that the decision to reject the motion to change the Law Society of Upper Canada’s name had less to do with the so-called “modernists vs. traditionalists” debate, and more to do with the hefty $1.4-$1.5 million price tag, which likely dampened any enthusiasm when licensees realized they would have to foot the bill through an increase in member’s annual fees.

Perhaps its time to focus on more important matters….like improving the public’s perception of the legal profession, updating the Rules of Professional Conduct to address unethical law marketing and improving equal access to justice.

I previously blogged about the the Court of Appeal for Ontario decision in Mexico v. Cargill, Incorporated, 2011 ONCA 622 which held that the standard of review from a NAFTA trade tribunal arbitral decision is correctness.

Today, the Supreme Court of Canada denied the application for leave to appeal filed by the United Mexican States:

“United Mexican States v. Cargill, Incorporated (Ont.) (Civil) (By Leave) (34559)

(The application for leave to appeal is dismissed with costs to the respondent. /

La demande d’autorisation d’appel est rejetée avec dépens en faveur de l’intimée.)

Coram: Deschamps / Fish / Karakatsanis”