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Bastian Brunk, research assistant and doctoral student at the Institute for Comparative and Private International Law at the University of Freiburg (Germany), has provided us with the following summary of the eagerly awaited decision in Jesner v Arab Bank.

On April 24, the Supreme Court of the United States released its decision in Jesner v Arab Bank (available here; see also the pre-decision analysis by Hannah Dittmers linked here and first thoughts after the decision of Amy Howe here) and, in a 5:4 majority vote, shut the door that it had left ajar in its Kiobel decision. Both cases are concerned with the question whether private corporations may be sued under the Alien Tort Statute (ATS). In Kiobel, the Court rejected the application of the ATS to so-called foreign-cubed cases (cases in which a foreign plaintiff sues a foreign defendant for acts committed outside the territory of the US), but left the door open for cases that touch and concern the territory of the US (see also the early analysis of Kiobel by Trey Childress here). In Jesner v. Arab Bank, the majority now held that – in any case – “foreign corporations may not be defendants in suits brought under the ATS” (p. 27).

The respondent in the present case, Arab Bank, PLC, a Jordanian financial institution, was accused of facilitating acts of terrorism by maintaining bank accounts for jihadist groups in the Middle East and allowing the accounts to be used to compensate the families of suicide bombers. The petitioners further alleged that Arab Bank used its New York branch to clear its dollar-transactions via the so-called Clearing House Interbank Payment System (CHIPS) and that some of these transactions could have benefited terrorists. Finally, the petitioners accused Arab Bank of laundering money for a US-based charity foundation that is said to be affiliated with Hamas.

As in Kiobel, the facts of the case barely touch and concern the territory of the United States. The Court therefore held that “in this case, the activities of the defendant corporation and the alleged actions of its employees have insufficient connections to the United States to subject it to jurisdiction under the ATS” (p. 11). However, in order to overcome the divided opinions between the Courts of Appeals and to provide for legal certainty, the Supreme Court decided to answer the question of corporate liability under the ATS, but limited its answer to the applicability of the ATS to foreign corporations only. Justice Kennedy, who delivered the opinion of the majority vote, therefore based his reasoning on a cascade of three major arguments that rely on the precedents in Sosa and Kiobel.

First, the Court referred to the historic objective of the ATS, which was enacted “to avoid foreign entanglements by ensuring the availability of a federal forum where the failure to provide one might cause another nation to hold the United States responsible for an injury to a foreign citizen” (p. 8 f.). Thus, the goal of the Statute’s adoption was to avoid disturbances in foreign relations and not to create them by alienating other countries. This was the main concern with the present case “that already ha[d] caused significant diplomatic tensions with Jordan for more than a decade” (p. 11).

Second, the Court emphasized the “strictly jurisdictional” character of the ATS and asked for a proper cause of action to impose liability on corporations in accordance with the test established in the Sosa-decision. The Sosa-test allows for the recognition of a cause of action for claims based on international law (p. 10), but requires the international legal provision to be “specific, universal and obligatory” (p. 11 f.). The majority concluded that it could not recognize such a norm as almost every relevant international law statute (e.g. the Rome Statute and the statutes of the ICTY and the ICTR) excludes corporations from its jurisdictional reach and, accordingly, limits its scope of application to individuals.

Thirdly, even if there was a legal provision justifying corporate liability in international law, the Supreme Court found that US courts should refrain from applying it without any explicit authorization from Congress. In this way, the Supreme Court upheld the separation-of-powers doctrine stating that it is the task of the legislature, not the judiciary, to create new private rights of action, especially when these pose a threat to foreign relations. From this reasoning, courts are required to “exercise ‘great caution’ before recognizing new forms of liability under the ATS” (p. 19). In doing so, courts should not create causes of action out of thin air but by analogous application of existing (and therefore Congress-approved) laws. However, neither the Torture Victim Protection Act (TVPA) nor the Anti-Terrorism Act (as the most analogous statutes) are applicable because the former limits liability to individuals whereas the latter provides a cause of actions to US-citizens only (thus being irreconcilable with the ATS, which is available only for claims brought by “an alien”; see p. 20-22).

Justice Sotomayor, who wrote a 34-page dissent, criticized the majority for absolving “corporations from responsibility under the ATS for conscience-shocking behavior” and argues that “[t]he text, history, and purpose of the ATS, as well as the long and consistent history of corporate liability in tort, confirm that tort claims for law-of-nations violations may be brought against corporations under the ATS” (Sotomayor, p. 1). However, the dissenting opinion could not prevail over the conservative majority.

Thus, for now, Jesner v Arab Bank has rendered human rights litigation against foreign corporations before US courts impossible. However, in contrast to this post’s title, the decision is not necessarily the end of the US human rights litigation. The ATS is still applicable if the defending corporation has its seat in the territory of the US. Moreover, the Court emphatically calls upon Congress to provide for legislative guidance. “If Congress and the Executive were to determine that corporations should be liable for violations of international law, that decision would have special power and force because it would be made by the branches most immediately responsive to, and accountable to, the electorate” (p. 27 f.). It remains to be seen whether Congress answers this call.

By the Permanent Bureau of the Hague Conference on Private International Law (HCCH)

DIPLOMAT LAWYER ((FIRST) SECRETARY) with the following qualifications:

• Outstanding academic record and expertise in private international law (PIL);
• Common-law trained, with good comparative law background, including in the field of PIL
• Good knowledge of Hague Conventions (and other Hague instruments), including in the areas of Family Law and related Hague Children’s Conventions
• Good knowledge of public international law including the law of treaties; experience in international negotiations is desirable;
• Excellent drafting capabilities (dissertation and / or Ph.D., law review or other publication experience will be taken into account);
• 13-15 years of relevant post-qualification experience in academia, law practice, domestic administration, and/or in an intergovernmental organisation;
• Complete fluency both spoken and written, in at least one of the working languages of the Conference (French or English), with preference given to candidates who also have a strong working knowledge of the other official language;
• Applications from qualified female candidates are particularly welcomed;
• Candidates from outside Europe are especially encouraged to apply.

The selected candidate will reinforce the team at the Permanent Bureau; his or her portfolio will include several Conventions and may include ongoing legislative projects. He or she will be part of the senior management team and assure a good, co-operative working atmosphere, conducive to team work and efficient communications, both within the Permanent Bureau and in relations with representatives of States and Organisations (respect of the Permanent Bureau’s core values is essential). The selected candidate will represent the HCCH in dealings with Members as well as other stakeholders and interested parties. He or she will also be expected to assist with the administration of the Permanent Bureau.

The position requires frequent travel to both neighbouring and distant countries.

Type of appointment and duration: three-year contract (with a one-year probationary period), possibility for renewal (medical clearance required).

Grade (Co-ordinated Organisations scale for the Netherlands): +/- A4/A5 subject to relevant experience. Secretarial status granted according to the Statute of the Hague Conference and Diplomatic status, with the relevant privileges and immunities, according to the agreements of the Hague Conference with the Netherlands Ministry of Foreign Affairs.

Deadline for applications: 26 May 2018

Anticipated starting date: September/October 2018

Applications: written applications should be sent by e-mail, with Curriculum Vitae, letter of motivation and contact information for at least two references, to be addressed to the Secretary General, e-mail: applications@hcch.nl.

In view of the terms of the Statute of the HCCH according to which diversity of geographic representation and of legal expertise shall be taken into account, candidates should preferably not have (exclusively) Swiss, Canadian or Portuguese nationality.

The short-listed candidates whose applications are retained will be invited to an interview with a Selection Committee which will include the Chairman of the Netherlands Standing Government Committee, the Chairman of the Council on General Affairs and Policy, and Members of the Permanent Bureau. They may also be invited to take part in an external professional assessment.

The Permanent Bureau reserves the right not to make any appointment to this vacancy, to make an appointment at a lower grade, or to make an appointment with a modified job description.

Senetic / EUIPO - HP Hewlett Packard Group (hp)
Propriété intellectuelle et industrielle
Hewlett Packard peut enregistrer les lettres HP comme marque de l’Union

Caisse régionale de crédit agricole mutuel Alpes Provence / BCE
Politique économique
Le Tribunal de l’UE déclare qu’une même personne ne peut pas occuper à la fois le poste de président du conseil d’administration et de « dirigeant effectif » dans les établissements de crédit soumis à la surveillance prudentielle

MP
Espace de liberté, sécurité et justice
Une victime de tortures passées dans son pays d’origine peut bénéficier de la « protection subsidiaire » si elle encourt un risque réel de privation intentionnelle de soins adaptés à son état de santé physique ou mentale dans ce pays

In  [2018] EWHC 799 (QB) the High Court granted one and refused another delisting request, otherwise known as the ‘right to be forgotten’ following the CJEU’s judgment in Google Spain.

Of interest to data protection lawyers is Warby J’s excellent review of the test to be applied (particularly within the common law context of misuse of private information). Of interest to readers of this blog, is what is not yet part of the High Court’s ruling: the precise wording of the delisting order. Particularly: defendant is Google LLC, a US-based company. Will the eventual delisting order in the one case in which it was granted, include worldwide wording? For our discussion of relevant case-law worldwide, see here.

Geert.

Pourvoi c/ Chambre de l'instruction de la cour d'appel de Paris - 5e section, 22 janvier 2018

Cour d'appel de Basse-Terre, 08 janvier 2018

Two recent judgments of European courts have highlighted the difficulty in finding the right balance between the cultural assimilation of Muslim immigrants demanded by national laws on citizenship and the necessary degree of tolerance towards foreign laws and customs. In a widely reported decision of 11 April 2018, the French Council of State (Conseil d’Etat) ruled that a naturalisation of an Algerian-born woman could be revoked because she had refused to shake hands with a male public servant during the naturalisation ceremony. The Council evaluated her behaviour as proof that she was obviously not sufficiently assimilated to French culture in order to become a French citizen. In sharp contrast to this restrictive attitude, the High Administrative Court of Baden-Württemberg (Germany), in an earlier decision of 25 April 2017, allowed the naturalisation of a Syrian-born man to be upheld although it turned out that he had lied to German authorities about the fact that he had entered into a polygamous marriage abroad. The court argued that the appellant’s polygamous marriage as such did not amount to a violation of German public policy, which, in the context of naturalisation, is a rather narrowly phrased concept that presupposes a lack of loyalty to the German constitutional order. From a traditional choice of law point of view, however, there are rather convincing arguments for assuming a violation of German public policy: the husband’s first wife was a German national, and both spouses had their habitual residence in Germany, thus creating a very strong connection with the German legal order and its constitutional values on equality of the sexes. The case is now pending before the German Supreme Administrative Court in Leipzig.

One of Us e.a. / Commission
Droit institutionnel
Le Tribunal de l’UE confirme la décision de la Commission de ne pas soumettre de proposition législative dans le cadre de l’initiative citoyenne européenne « Un de nous »

Fellow faculty about to examine students on the Law of the World Trade Organisation, have their exam sorted (especially if it is an oral exam). In 2018 SCC 15 R v Comeau the Canadian Supreme Court held last week. At issue is New Brunswick’s restrictive regime on the import and sale of alcoholic beverages. Greg Tereposky and Daniel Hohnstein have background to the case.

Despite the Province’s regime having clear trade impact, the SC held that it was not illegal under Canada’s internal free trade rules – with occasional reference to GATT and WTO. For comparative and exam purposes, the interesting angle is clear: has the Supreme Court adopted the kind of aims and effects test which the WTO is no fan of?

Copy of the judgment. 15 mins prep. And Bob’s your (oral exam) uncle.

Geert.

(Handbook of) The law of the World Trade Organisation, forthcoming at OUP with Demeester, Coppens, Wouters and Van Calster.

The Foundation of Choice of Law: Choice and Equality by Dr Sagi Peari has been published by OUP recently. Please find the abstract below:

This book focuses on the subject of choice of law as a whole and provides an analysis of its various rules, principles, doctrines and concepts. It offers a conceptual account of choice of law, called “choice equality foundation” (CEF), which aims to flesh out the normative basis of the subject. The author reveals that, despite the multiplicity of titles and labels within the myriad choice of law rules and practices of the U.S., Canadian, European, Australian, and other systems, many of them effectively confirm and crystallize CEF’s vision of the subject. This alignment signifies the necessarily intimate relationship between theory and practice by which the normative underpinnings of CEF are deeply embedded and reflected in actual practical reality. 

Among other things, this book provides a justification of the nature and limits of such popular principles as party autonomy, most significant relationship, and closest connection. It also discusses such topics as the actual operation of public policy doctrine in domestic courts, and the relation between the notion of international human rights and international commercial dealings, and makes some suggestions about the ability of traditional rules to cope with the advancing challenges of the digital age and the Internet.

Please click to download the Flyer.

The Supreme Court of Canada, in Office of the Children’s Lawyer v Balev (available here), has evolved the law in Canada on the meaning of a child’s habitual residence under Article 3 of the Hague Convention.  The Convention deals with the return of children wrongfully removed from the jurisdiction of their habitual residence.

A majority of the court identifies [paras 4 and 39ff] three possible approaches to habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach.  The parental intention approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives.  This approach has been the dominant one in Canada.  In contrast, the hybrid approach, instead of focusing primarily on either parental intention or the child’s acclimatization, looks to all relevant considerations arising from the facts of the case.  A majority of the court, led by the (now retired) Chief Justice, holds that the law in Canada should be the hybrid approach [paras 5 and 48].  One of the main reasons for the change is that the hybrid approach is used in many other Hague Convention countries [paras 49-50].

The dissent (three of the nine judges) would maintain the parental intention approach [para 110].  One of its central concerns is the flexibility and ambiguity of the hybrid approach [para 111], which the judges worry will lead to less clarity and more litigation.  Wrongful removal cases will become harder to resolve in a timely manner [paras 151-153].

The majority did not apply the law to the facts of the underlying case, it having become moot during the process of the litigation [para 6].  The court rendered its decision to provide guidance going forward.  The dissent would have denied the appeal on the basis that the child’s habitual residence was in Germany (as the lower courts had held).

The court briefly addresses the exception to Article 3 in what is commonly known as “Article 13(2)” (since it is not numbered as such) – a child’s objection to return – setting out its understanding of how to apply it [paras 75-81 and 157-160].

The Supreme Court of Canada has recently adopted the practice of preparing summaries of its decisions (available here for this decision) to make them more accessible to the media and the public.  These are called “Cases in Brief”.

In 2018, the Australian Branch of the International Law Association (ILA) will be hosting the biennial ILA conference. The conference, which is being held in Sydney, Australia, from 19-24 August 2018, is a major international event that will bring together hundreds of judges, academics, practitioners and officials of governments and international organisations from all around the globe. To register please follow this link. Please note that he early bird rate is available until 31 May 2018. The draft conference programme is now available on the ILA website here.

The German branch of the ILA will hold its annual meeting on 22 June, 2018, in Frankfurt (Main). This year’s topic is „International Dispute Resolution in Times of Crisis”. The list of distinguished speakers will include the Vice-President of the European Court of Human Rights, Professor Dr. Angelika Nußberger (Strasbourg/Cologne), Professor Dr. Giesela Rühl (University of Jena), and Professor Dr. Stephan Schill (University of Amsterdam). You may find the full programme and further information here.

The ILA was founded in Brussels in 1873. Its objectives, under its Constitution, are “the study, clarification and development of international law, both public and private, and the furtherance of international understanding and respect for international law”. The ILA has consultative status, as an international non-governmental organisation, with a number of the United Nations specialised agencies. For further information and a welcome address from ILA chairman Lord Mance, please click here.

Le juge des référés du Conseil d’État affirme, dans une ordonnance du 11 avril, que la liberté d’aller et venir n’implique pas, pour les étrangers, la possibilité d’entrer sur le territoire sans autorisation.

en lire plus

La rédaction de Dalloz actualité prend quelques jours de vacances…

en lire plus

The European Parliament Committee on Legal Affairs will hold a public hearing on «The Hague Judgments Convention» in Brussels, on 24 April 2018, from 15.00-16.30. The hearing is aimed at bringing together Members of the European Parliament, Commission representatives, the Permanent Bureau of the Hague Conference and stakeholders with a view to discussing the ongoing negotiations on a world-wide Convention on the recognition and enforcement of judgments in civil and commercial matters.

Since the recognition and enforcement of judgments is a matter of EU exclusive competence, the Commission represents all Member States (except Denmark) on the basis of the negotiating directives adopted by the Council in 2016. A third Special Commission was held in November 2017, which focused on intellectual property matters and general and final clauses, whereas the fourth and final Special Commission Meeting will take place in May 2018. This hearing will therefore provide the opportunity to get up to speed with the results of the three meetings of the Special Commission as well as with the next steps and future stages of the project.

Announcement: http://www.europarl.europa.eu/committees/en/events-hearings.html?id=20180403CHE03681

Draft Programme: http://www.europarl.europa.eu/cmsdata/141460/juri-committee-hearing-hague-judgments-project.pdf

April 2018 JURI Study: http://www.europarl.europa.eu/RegData/etudes/STUD/2018/604954/IPOL_STU(2018)604954_EN.pdf