Archive for the ‘customary international law’ Category

Kedar S. Bhatia, “Reconsidering the Purely Jurisdictional View of the Alien Tort Statute”

May 16, 2012

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.

Johanna Kalb on “Human Rights Treaties in State Courts: The International Prospects of State Constitutionalism after Medellín”

November 28, 2011

I have previously posted on the U.S. Supreme Court decision in Medellin v. Texas here.

In a recent article entitled “Human Rights Treaties in State Courts: The International Prospects of State Constitutionalism after Medellín”, Johanna Kalb at the Loyola University New Orleans College of Law, Penn State Law Review, Vol. 115, No. 4, 2011, examines the conditions under which state courts have engaged with the international human rights treaties the United States has signed or ratified, and considers whether and how these treaties will be affected by the Medellín decision. Kolb concludes that because state courts have been more receptive to arguments based on treaties as non-binding persuasive authority, even the broadest reading of the decision will not end this type of human rights advocacy.

A copy of the article is available for download on SSRN here.

My New Article in the Canadian International Lawyer

October 21, 2011

I have published a new article in the latest issue of the Canadian Bar Association’s Canadian International Lawyer journal entitled, “Adjudicating International Human Rights Claims in Canada”, (2011), 8(3) Cdn. Int. Lawyer 117-133. Here is the abstract:

This article addresses the issue of the privatization of justice and whether a social contract model is appropriate in disputes affecting the public interest, if one accepts the premise that international human rights claims fall under the rubric of “public order” or public interest. The article then explores the implications of promoting a social contract model for advancing and adjudicating international human rights claims in Canada against corporate and state actors, both from the perspective of litigation and arbitration. It concludes with an overview of recent federal legislative reforms relating to state-sponsored terrorism and international human rights standards.

A pdf copy of the article is available for download here.

Andrei Mamolea, “The Future of Corporate Aiding and Abetting Liability under the Alien Tort Statute: A Roadmap”

December 8, 2010

Andrei Mamolea (Duke University School of Law)  has published “The Future of Corporate Aiding and Abetting Liability under the Alien Tort Statute: A Roadmap“, Santa Clara Law Review, Vol. 51, p. 79, 2011. Here is the SSRN abstract:

This Article offers a roadmap for the Supreme Court to follow in resolving the most pressing issues in Alien Tort Statute litigation. Are corporations liable under the Alien Tort Statute? Does corporate liability under the ATS conflict with international law? What body of substantive law should courts apply, especially when adjudicating alien tort claims arising under the aiding and abetting theory of liability? What are the policy implications of ATS litigation? The Court’s only significant pronouncement on the statute, in Sosa v. Alvarez-Machain, relegated most of these concerns to a footnote that raised more questions than it answered. Taken together the answers to these questions help identify the limits imposed by customary international law – and by Sosa – on the federal courts regarding corporate aiding and abetting liability.

The Article proceeds as follows: Part I reviews the complicated history of the ATS and explains why the Court must revisit many of the issues in Sosa. Part II examines corporate liability under the law of nations and argues that corporations may be held liable under the ATS. Part III explains how the ATS is jurisdictionally compatible with international law. Part IV offers a corrective to the common choice of law mistakes made during ATS adjudication. Part V argues that Pfizer v. Abdullahi was a missed opportunity to clarify corporate aiding and abetting liability under the ATS. Part VI delves into the certiorari briefs submitted in Presbyterian Church of Sudan v. Talisman Energy. Finally, Part VII shows that concern over the alleged harms of ATS litigation is vastly exaggerated.

UPDATE: Court of Appeal sets aside foreign arbitral enforcement judgment in Znamensky v. Donaldson

April 29, 2010
This is an update on the recent Ontario foreign arbitral award enforcement proceedings in Znamensky Selekcionno-Gibridny Center LLC v. Donaldson International Livestock Ltd., 2009 CanLII 51197 (ON S.C.);  See my backgrounder here.

In reasons released today and as I predicted, the Court of Appeal for Ontario has taken a fresh look at the arguments relating to issue estoppel and change of arbitral venue as they related to the underlying alleged death threats which apparently pre-empted Donaldson from participating in the arbitration in Russia.

Essentially, the per curiam opinion per Gillese, Rouleau and Watt JJ.A., allowed the appeal and set aside the judgment of Pitt, J., based upon two errors of law. First, the doctrine of issue estoppel did not preclude the application judge from considering the alleged death threat. The Sentence from the Prior Appeal Decision:”[i]n my view, the time to have requested the trial of the issue concerning the death threats was when the parties were before the motion judge” was held not to be dispositive:

“The Sentence was made in response to a request by the appellant that this court order a trial of the issue.The court refused, explaining that it was not appropriate to grant the request because the appellant had not requested that relief in the proceedings before Gans J.”

The Court points to the first sentence of para. 30 of the Prior Appeal Decision  which leaves the door open for Donaldson:

“Should [the respondent] take steps to enforce its arbitral awards against [the appellant] in the Ontario courts, then it would seem to me that [the appellant] should be free to resist the enforcement of those awards on whatever basis it chooses, subject to the ruling of the presiding judge. [Emphasis added.]

[14] Nor do we accept that issue estoppel flows from the statements made by Gans J. in the injunction motion. Justice Gans observations on the issue of the alleged death threats were made in the context of an interim interlocutory proceeding seeking to prevent the ICAC arbitration from proceeding. In our view, those remarks do not bind the judge deciding the enforcement proceedings.

[15] In any event, it appears that Gans J.’s finding on this issue rests on a misapprehension of the evidence. The respondent had not, as Gans J. appears to have understood, offered to change the venue of the arbitration hearing to a neutral location. Rather, as the respondent confirmed to this court, the offer was to allow that part of the arbitration involving testimony by the appellant’s witnesses to be heard in a neutral location. The balance of the arbitration would have taken place in Moscow. Thus, the offer could not amount to a complete answer to the appellant’s concerns because the appellant would still have had to go to Russia for all aspects of the arbitration except for the giving of its testimony.

Second, even if the preconditions to the operation of issue estoppel were established, the application judge failed to exercise the court’s residual discretion taking into account the entirety of the circumstances, including weighing the factors for and against the exercise of the residual discretion: citing, Danyluk v. Ainsworth Technologies Inc. [2001] 2 S.C.R. 460 at para’s 33, 66 and 80. 
The Court of Appeal concludes:
“…It was an error to fail to consider this residual discretion. In the circumstances of this case where the issue of the alleged death threats has never been decided on the merits and where that undecided issue goes to the heart of the appellant’s ability to participate in the arbitration the application of issue estoppel would have worked an injustice”

Accordingly, the enforcement application was remitted for a fresh determination to be made in accordance with the panel’s reasons. with costs of the appeal and thrown away below in favour of the appellant fixed at $25,000 and $20,000, respectively, to be set off against outstanding costs order in favour of the respondent.

H/T to Allan L. Herman, co-counsel for the appellant, Donaldson International Livestock Ltd. for alerting me to this decision.

%d bloggers like this: