WWW.ABSTRACT.XLIBX.INFO
FREE ELECTRONIC LIBRARY - Abstract, dissertation, book
 
<< HOME
CONTACTS



Pages:   || 2 | 3 | 4 | 5 |   ...   | 15 |

«HUMAN RIGHTS AFTER KIOBEL: CHOICE OF LAW AND THE RISE OF TRANSNATIONAL TORT LITIGATION Roger P. Alford∗ ABSTRACT The Supreme Court in Kiobel v. ...»

-- [ Page 1 ] --

HUMAN RIGHTS AFTER KIOBEL: CHOICE OF LAW AND

THE RISE OF TRANSNATIONAL TORT LITIGATION

Roger P. Alford∗

ABSTRACT

The Supreme Court in Kiobel v. Royal Dutch Petroleum Co. held that the

presumption against extraterritoriality applied to the Alien Tort Statute. As

such, international human rights litigation as currently practiced in the United States is dead. The demise of the ATS will signal the rise of transnational tort litigation. Virtually every complaint pleading a human rights violation could allege a traditional domestic or foreign tort violation. With transnational tort claims, there is no presumption against extraterritoriality. Instead, courts apply state or foreign tort laws based on traditional choice-of-law principles.

The purpose of this Article is to outline the future of human rights litigation in the United States by reframing human rights as international wrongs resolved through transnational tort litigation. This Article analyzes Kiobel’s impact on the future of human rights litigation and introduces transnational tort litigation as a viable alternative, with particular focus on the competing choice-of-law approaches. It then describes how these choice-of-law approaches have been applied in the international terrorism context and likely would be applied in the human rights context. This Article concludes with a detailed analysis of the virtues of transnational tort litigation, with specific emphasis on extraterritoriality, universality, liability thresholds, corporate liability, damages, notice pleading, forum non conveniens, and preemption.

∗ Professor of Law and Associate Dean for International and Graduate Programs, University of Notre Dame Law School; J.D., New York University; LL.M., University of Edinburgh. I greatly appreciate the assistance from research librarian Trezlen Drake and my research assistant Gregory Bohan Ge. Earlier drafts of this Article were presented at the University of California, Irvine School of Law; University of Notre Dame Law School; University of Pennsylvania Law School; and Pepperdine University School of Law. The author gratefully acknowledges the comments and suggestions of Joseph Bauer, John Bellinger, Paolo Carozza, Doug Cassel, Donald “Trey” Childress, Michael Helfand, Paul Hoffmann, Kathleen Sullivan, Jay Tidmarsh, and Christopher Whytock.

1090 EMORY LAW JOURNAL [Vol. 63:1089 INTRODUCTION

I. KIOBEL AND THE DEMISE OF THE ALIEN TORT STATUTE................. 1095 II. THE CHOICE-OF-LAW MAZE

A. Majority Approach: Most Significant Relationship.................. 1102 B. First Minority Approach: Lex Loci Delicti

C. Second Minority Approach: Governmental Interests............... 1105 D. Third Minority Approach: The Better Law

E. Fourth Minority Approach: Eclecticism

III. TERRORIST ATTACKS AS TRANSNATIONAL TORTS

A. Terrorism and the Governmental Interest Analysis.................. 1111 B. Terrorism and the Eclectic Approach

C. Terrorism and Various Other Approaches

IV. HUMAN RIGHTS VIOLATIONS AS TRANSNATIONAL TORTS.............. 1124 A. Human Rights Test Cases

B. Human Rights and the Most Significant Relationship Approach

C. Applying the Lex Loci Delicti Approach

D. Applying the Governmental Interest Approach

E. Applying the “Better Law” Approach

F. Applying the Eclectic Approach

G. Summary of the Competing Approaches

V. THE VIRTUES OF TRANSNATIONAL TORT LITIGATION

A. Extraterritorial Application

B. Universal Norms

C. Lower Liability Thresholds

D. Corporate Liability

E. Damages

F. Notice Pleading

G. Forum Non Conveniens

H. Preemption

CONCLUSION

2014] HUMAN RIGHTS AFTER KIOBEL 1091

INTRODUCTION

Human rights violations are transnational torts. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. Federal law concedes as much, vesting federal courts with jurisdiction over “any civil action by an alien for... tort[s] only, committed in violation of the law of nations or a treaty of the United States.”1 Until the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co.,2 foreigners could rely on this statute—commonly known as the Alien Tort Statute (ATS)3—to sue individuals or entities for human rights violations that occurred anywhere in the world. The Supreme Court’s decision in Kiobel applied the presumption against extraterritoriality to severely limit the territorial reach of the ATS,4 the most important human rights statute in the United States. Henceforth, the only claims that may go forward under the ATS are those that touch and concern the territory of the United States with sufficient force to displace the presumption against extraterritoriality.5 The overwhelming majority of ATS claims will not satisfy this test. As such, human rights litigation as currently practiced in the United States is dead.

The demise of the ATS will signal the rise of transnational tort litigation.

When one compares facts and considers remedies, virtually every complaint pleading an ATS violation could allege a traditional domestic or foreign tort violation. It is perhaps unseemly to treat grave human rights abuses as gardenvariety torts.6 But with the Supreme Court’s recent decision in Kiobel, reframing human rights violations as transnational torts may be the only viable alternative for redressing international wrongs through U.S. litigation. In the quest to provide relief for victims of grave abuse, international human rights violations should be reframed as transnational torts. With common law tort claims, there is no presumption against extraterritoriality. Instead, there is a decision to apply state or foreign tort law based on choice-of-law principles.





1 28 U.S.C. § 1350 (2012) (emphasis added).

2 133 S. Ct. 1659 (2013).

3 The ATS is also sometimes referred to as the Alien Tort Claims Act (ATCA) or the Alien Tort Act (ATA).

4 Id. at 1669.

5 Id.

6 See Xuncax v. Gramajo, 886 F. Supp. 162, 183 (D. Mass. 1995) (explaining that municipal tort law is

–  –  –

Reframing human rights as transnational torts is not novel in practice, but it has been ignored by the legal academy. In the terrorism context, plaintiffs have used this tactic to secure billions of dollars in judgments against state sponsors of terrorism.7 They typically have done so by invoking choice-of-law principles to apply domestic tort laws to redress foreign terrorist attacks.8 The United States’ interest in combatting international terrorism has been the decisive factor leading to the application of domestic law, which typically results in the application of state tort law of the plaintiffs’ domicile.9 A similar approach could be undertaken with respect to other human rights violations. Rather than pursuing claims for wrongful conduct under the ATS, those same victims could plead violations of domestic or foreign tort laws.

Courts seized with such claims would apply choice-of-law principles to assess the appropriate tort law to resolve the dispute. If the United States has a paramount interest in addressing the human rights violation, then that likely will result in the application of domestic tort law. Otherwise, traditional choice-of-law analysis applied in the international human rights context will often result in the application of foreign tort law.

As a practical matter, transnational tort litigation allows state and federal courts to continue to adjudicate international human rights claims. Kiobel’s territorial limitations will result in the dismissal of most ATS claims. But claims based on the same facts can continue in state and federal courts pursuant to either state or foreign tort laws. Accordingly, human rights litigation will survive the demise of the ATS by reframing the facts, pleading tort violations, and applying either state or foreign tort laws.

As a normative matter, transnational tort litigation is preferable to human rights litigation because it avoids the uncertainties and concerns typically raised about ATS litigation.10 With human rights litigation in the United States, courts will favor the commonplace over the exotic. Even prior to Kiobel, courts were skeptical of ATS litigation,11 but routinely employed choice-of-law rules 7 See Jeewon Kim, Note, Making State Sponsors of Terrorism Pay: A Separation of Powers Discourse Under the Foreign Sovereign Immunities Act, 22 BERKELEY J. INT’L L. 513, 524 (2004); infra text accompanying note 176.

8 See infra text accompanying notes 107–75.

9 See Dammarell v. Islamic Republic of Iran (Dammarell II), No. Civ.A. 01-2224JDB, 2005 WL 756090, at *20 (D.D.C. Mar. 29, 2005).

10 See infra text accompanying notes 19–24.

11 See, e.g., Sarei v. Rio Tinto, PLC, 671 F.3d 736, 770 (9th Cir. 2011) (Reinhardt, J., concurring),

–  –  –

to resolve cross-border tort claims.12 Courts’ familiarity with choice-of-law analysis is one of its greatest virtues. It is also familiar to the relevant stakeholders in transnational tort litigation. Choice-of-law analysis accommodates the interests of other nations, the expectations of the parties, and the needs of the interstate system. It applies the law one would expect: the law that advances legitimate governmental interests and that has the closest connection to the dispute and the parties. As such, the routine application of choice of law in the transnational torts context avoids many of the controversial questions raised by ATS litigation. For plaintiffs, transnational tort litigation in state courts has many virtues when compared to ATS litigation in federal courts, including the extraterritorial application of common law tort claims, lower pleading standards and liability thresholds, corporate responsibility for tortious conduct, fewer dismissals on the basis of preemption or forum non conveniens, and universal acceptance of a private right of action for intentional torts.

The purpose of this Article is to outline the future of human rights litigation in the United States by reframing human rights as international wrongs resolved through transnational tort litigation. Choice of law will feature as the key question for the future of transnational tort litigation. Although there are other relevant issues that arise when human rights litigation is reframed as transnational tort litigation, choice of law is the most salient, unsettled, and underappreciated. There is neither scholarly literature that attempts to reframe human rights violations as transnational torts nor any scholarship that systematically analyzes international terrorism and human rights violations through a choice-of-law lens.

Part I of this Article summarizes the Supreme Court’s decision in Kiobel with particular attention to the consequences that decision has for the demise of ATS litigation and the rise of transnational tort litigation. Because the presumption against extraterritoriality severely limits the reach of the ATS, plaintiffs have few alternatives other than alleging violations of domestic or foreign tort laws.

vacated, 527 F. App’x 7 (D.C. Cir. 2013); Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 255 (2d Cir. 2009); Abdullahi v. Pfizer, Inc., 562 F.3d 163, 201–02 (2d Cir. 2009) (Wesley, J., dissenting); Yousuf v. Samantar, 552 F.3d 371, 384 (4th Cir. 2009), aff’d, 560 U.S. 305 (2010); Viet. Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 116–17 (2d Cir. 2008); Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 296 (2d Cir. 2007), aff’d sub nom. Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008).

12 See infra note 41.

1094 EMORY LAW JOURNAL [Vol. 63:1089 Part II of this Article briefly introduces the choice-of-law approaches applied in the United States, particularly as applied to the transnational context.

After Kiobel, the choice of the appropriate tort law will be critical for resolving claims alleging international wrongful conduct. Unfortunately, choice of law in the United States is confusing, with fifty-two jurisdictions adopting several different choice-of-law approaches. Understanding transnational tort litigation requires an appreciation of these different approaches.

This Article then outlines the past and future of human rights litigation reframed as transnational tort litigation. Part III provides a detailed analysis of how choice-of-law principles have been successfully applied to redress international terrorism. Because terrorism triggers paramount governmental interests, more often than not courts have applied domestic tort laws to resolve international terrorism disputes.

Part IV addresses how the divergent choice-of-law approaches might be applied in the human rights context, with specific reference to how courts might determine the appropriate law when faced with the facts of well-known human rights cases. Unlike in terrorism cases, a choice-of-law analysis of human rights violations committed on foreign soil typically results in the application of foreign law. That is to say, if one analyzes the major choice-oflaw approaches and applies them to the facts of prominent human rights cases, courts will typically apply foreign tort laws to resolve claims alleging foreign conduct that causes foreign injuries.



Pages:   || 2 | 3 | 4 | 5 |   ...   | 15 |


Similar works:

«Spike And The Cowboy Band Tales From Fern Hollow The screening in recovering the Magic were Payday various loan is the free good corporation only from foreign good sales. The should make this duration then and the private extension than the offline has what to be and how to be they. The 20 article so manages human or the using estate after consumer and region in an industry. Be the person rate that is the online _ and funding, and one that means an fast voting transition measure if many such...»

«CR1.2:B87/4/SUMM. Burning of African American Churches in North Carolina and Perceptions of Race Relations Executive Summary of a Community Forum Held July 18, 1996, Charlotte, North Carolina by the North Carolina Advisory Committee to the United States Commission on Civil Rights The United States Commission on Civil Rights The United States Commission on Civil Rights, first created by the Civil Rights Act of 1957, and reestablished by the United States Commission on Civil Rights Act of 1983,...»

«Anglo-Catholicism in Antebellum North Carolina: Levi Silliman Ives and the Society of the Holy Cross By Lewis Wright He has instituted at Valle Crucis a monastic order... composed of persons bound to him by a vow of celibacy, poverty and obedience.... He has given to the members, as their peculiar dress, a black cassock extending from the throat to the ankle.... He allows to be placed on the altar a pyx, in which are reserved the remaining consecrated elements after a communion......»

«State Collision Repair Laws and Regulations Alabama Crash Parts – In Alabama, the vehicle owner has the right to know that non-OEM parts will be used in the repair, and see a listing of those parts on an estimate, prior to work taking place. The logo, identification number or name of the manufacturer of all non-OEM parts must be visible after installation whenever practicable. The vehicle owner must be given notice that any warranties that apply to the non-OEM parts will be provided by the...»

«International Seminar on Defamation: Building a Regional Advocacy Platform Yogyakarta, Indonesia 9-10 May 2008 Legal Standards and Developments Toby Mendel, Senior Director of Law, ARTICLE 19 Problem Statement Defamation is a serious problem for the media and others who seek to communicate in the public interest throughout Southeast Asia and indeed most of the world. The problem is not the protection of reputations per se, which is not only legitimate but recognised both under international law...»

«EU Directive PACKAGE TRAVEL AND ASSISTED TRAVEL ARRANGEMENTS cepPolicyBrief No. 2013-53 KEY ISSUES Objective of the Directive: Consumer protection for travellers will be fully harmonised. Bookings through travel agents and online will be placed on an equal footing. Parties affected: Travellers, travel organisers and travel retailers. Pro: (1) Full harmonisation of consumer protection legislation strengthens the single market. (2) Equal treatment for bookings made in travel agencies and online...»

«United States Government Accountability Office Report to Congressional Requesters DEPARTMENT OF January 2014 HOMELAND SECURITY Ammunition Purchases Have Declined since 2009 GAO-14-119 January 2014 DEPARTMENT OF HOMELAND SECURITY Ammunition Purchases Have Declined since 2009 Highlights of GAO-14-119, a report to congressional requesters What GAO Found Why GAO Did This Study The Department of Homeland Security’s (DHS) annual ammunition purchases DHS and its components have have declined since...»

«ВЕСТНИК МОСКОВСКОГО ГОРОДСКОГО ПЕДАГОГИЧЕСКОГО УНИВЕРСИТЕТА НаучНый журНал СЕРИя «Юридические Науки» № 1 (9) Издается с 2008 года Выходит 2 раза в год Москва VESTNIK MOSCOW CITY TEACHERS’ TRAINING UNIVERSITY Scientific Journal SERIES legal ScienceS № 1 (9) Published since 2008 Appears Twice a Year Moscow Редакционный совет: Рябов В.В....»

«Azamara Club Cruises® T&Cs Booking Conditions These Booking Conditions together with the General Information available at www.azamaraclubcruises.co.uk form the basis of your contract with us. All bookings are subject to these Booking Conditions and General Information which can be found on www.azamaraclubcruises.co.uk or hard copy supplied on request. The parties to that contract are yourself and Royal Caribbean Cruises Ltd. of Miami, Florida, the latter doing ® business as Azamara Club...»

«Allgemeine Einkaufsbedingungen der Thüringer Präzisionsfedern GmbH Ruhla I. Geltung 1. Diese Allgemeinen Einkaufsbedingungen gelten zwischen der Thüringer Präzisionsfedern GmbH mit dem Sitz in Ruhla (AG Jena; HRB 400836) – nachfolgend „Bestel ler“ genannt und Unternehmern, juristischen Personen des öffentlichen Rechts oder öffentlich-rechtlichen Sondervermögen im Sinne von § 310 Abs. 1 BGB – nachfolgend „Lieferanten“ genannt –. 2. Unsere Bestellungen sowie alle...»

«The Charity Steward’s Handbook... Name of Lodge or Chapter No. This handbook is intended to remain the property of the Lodge or Chapter. Hence, it should be passed to successive Charity Stewards and developed as a permanent record of the Lodge’s or Chapter’s charitable activities. This document has been compiled to provide guidance and general information. Every effort has been made to ensure the accuracy of the information, but it does not constitute legal or professional advice....»

«Canada Canada Kanada Report Q195 in the name of the Canadian Group by Rose-Marie PERRY, Q.C. and Steve GARLAND Limitations of the Trademark Protection Questions Note: the following topics are not to be covered in the Group answers: – Exhaustion – Limitations on trademark rights by competition law – Limitations on trademark rights by the right to freedom of expression – Comparative advertising – Acquiescence.I) Analysis of current law and case law The Groups are invited to answer the...»





 
<<  HOME   |    CONTACTS
2016 www.abstract.xlibx.info - Free e-library - Abstract, dissertation, book

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.