Elise Maes reported earlier in June on the judgment of the Court of Appeal at Versailles in AFPS and PLO v Alstom. Ms Maes flags a number of interesting issues which I shall not repeat here for readers can review Elise’s paper for themselves. In particular, the comparison between the USSC ruling in Kiobel, and the current ruling by the Versailles Court of Appeal.
The judgment provides plenty of issues to ponder for comparative contract law; international law; private law; and private international law. To Elise’s reasoning, I would like to add:
– the complex distinction between French (and perhaps continental) law and the common law on ‘objective’ v ‘subjective’ interpretation of contracts. I am not au fait with the finer details however they seem to have made an impact in the judgment at issue (see in particular p.19 ff.)
– the relevance of the lex fori in the judgment and the absence of any considerations on the lex contractus;
– the examples which the Court refers to in the context of ‘horizontal’ effect of international law: these are quite diferent from the examples given by the Appeals Circuit in the Kiobel case.
The case is likely to lead to the cour de cassation, I imagine, for further appeal on points of law.
4 Replies to “A European Kiobel? The Court of Appeal at Versailles in AFPS and PLO v Alstom”
Dear Geert (and Elise – good to read from you!)
Thank you for all of this, very interesting. However, I’m not sure I agree with the drawn parallels between Kiobel and Alstom – or, at least, let me raise some more questions!
Is the Versailles court right in dismissing ATCA case law because an ATCA claim is based on US federal law? Does this matter, if the norms in question – i.e. international law – which are assessed, are the same? Does it then suffice to bring a claim in France through a domestic law which, implicitly (consider the discussions on the scope ratione materiae of ATCA) refers to international legal obligations (here GC IV and Hague Convention)?
Considering the legal responsibility of corporations under ATCA, I feel that the Second Circuit’s approach is an isolated anomaly. The USSC basically denied to go into the debate, and in the commentaries it was pointed out that the – crucial – last paragraph, which, as Elise pointed out, leaves room for new claims against corporations may have been a compromise within the majority. However, this is a crucial compromise! Hence, to my mind, corporate liability has not taken a blow after the USSC ruling.
More importantly, to my mind – and this is the conclusion of an article (in Dutch) I wrote on jurisdiction under ATCA after USSC Kiobel and in European private international law, which is currently under review at the RBDI – the USSC is weeding out quasi-universal ‘tag’ jurisdiction in favour of reasonable extraterritoriality. This is perhaps not surprising in the context of the new world order and I’m unqualified to assess whether but am nonetheless inclined to think that the existing jurisdiction-limiting doctrines (act of State, comity, forum non conveniens etc.) sufficed to do so already. Moreover, as Geert has remarked in the context of i.a. the Dutch Shell case, jurisdiction is but the first step in a long process (although crucial, see the conclusions of Enneking’s book on ‘foreign direct liability’ and, with some additional remarks, my paper). Moreover, the EU approach to jurisdiction for extraterritorial corporate behaviour may not be different.
And that is perhaps not a bad thing. The US should not be the world’s corporate liability court. If all developed countries which are home to multinationals would use an instrument which in result is similar to Kiobel as understood by the USSC, the issue of corporate responsibility may be settled where it should be settled: in case of no better suited forum, in the forum of residence of the mother holding. (Economic) home state regulation seems much easier to defend from most points of view!
And to add to my call for each-home-state-their-own-multinationals, Canada may have taken a lead: http://www.csrandthelaw.com/2013/08/ats-of-the-north-canadian-court-allows-suit-to-continue-for-human-rights-abuses-committed-abroad/!
For sure a moving target Bregt, your upcoming paper! Thank you for sharing the Canadian link. Best, Geert.
Reblogged this on blog.coleurope.eu.