Posts Tagged Touch and concern
Doe v Nestle and Tiffany v China Merchants Bank et al: The concertina effect of the Alien Torts Statute
Update 8 July 2019 for the latest in the Doe v Nestle case see the Court of Appeals for the Ninth circuit here. The majority held that held that plaintiffs allege concrete and redressable injury that was fairly traceable to the challenged conduct of one defendant, and their allegations against another defendant were sufficient to allow a final opportunity to replead. This gives them enough standing for the case to continue on the merits.
I may yet have to insert a special category ‘ATS’ in the ‘Categories’ on the right hand side of this blog. Distinguishing, and precedent application alike keep on stretching cq enforcing the USCC’s decision in Kiobel.
On the precedent side of the debate, Tiffany v China Merchants Bank et al , the US Second Circuit Court of Appeals took the application of Kiobel in Daimler as cue for a refusal of the recognition of Asset Restraints and Discovery Orders against a Bank with merely branch offices in New York. The Bank’s sites of incorporation and principal places of business are all outside of the US. With reference to Daimler, the Court held that there is no basis on which to conclude that the Bank’s contacts in New York are so ‘continuous and systematic’ judged against their national and global activities, that they are ‘essentially at home’ in the State.
The Ninth Circuit Court of Appeals in Doe v Nestle reversed the lower court’s decision to dismiss ATS claims and arguably indeed adopted an extensive view of ‘aiding and abetting’ within the context of ATS: ‘Driven by the goal to reduce costs in any way possible, the defendants allegedly supported the use of child slavery, the cheapest form of labor available. These allegations explain how the use of child slavery benefitted the defendants and furthered their operational goals in the Ivory Coast, and therefore, the allegations support the inference that the defendants acted with the purpose to facilitate child slavery.’ : these allegations were considered to even meet the supposedly stricter ‘purpose’ test. Defendant’s market power and control over operations abroad seemed to have played an important role.
Applicants have now been allowed to re-plead given the intervening judgments by the USSC (the Doe v Nestle case has been running for a while)- watch this space, yet again.
17-55435, Alien Tort Statute, Asset Restraints and Discovery Orders, ATS, Comity, Corporate social responsibility, CSR, DaimlerChrysler, DaimlerChrysler v Bauman, Doe v Nestle, Extraterritoriality, http://cdn.ca9.uscourts.gov/datastore/opinions/2014/09/04/10-56739.pdf, http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/05/17-55435.pdf, Human rights, Inc. v. Bank of China, Jurisdiction, Kiobel, Nestle, Piercing the corporate veil, Recognition, Recognition and enforcement, Regulation 1215/2012, Rio Tinto, SC, SCOTUS, Tiffany, Tiffany (NJ) LLC v. China Merchants Bank and Gucci America, Touch and concern, United States Supreme Court, USSC
‘Apartheid’ dismissed and Al-Shimari distinguished: The bar is high for the ATS’ touch and concern test
For readers unfamiliar with earlier posts on the Alien Torts Statute and its role in the corporate social responsibility debate, the title of this piece may sound like gobbledygook. Review of the interim ruling in Apartheid probably helps. As I noted in that piece, Scheindlin USDJ instructed counsel to brief on the ‘touch and concern’ test put forward by the Supreme Court in Kiobel, with the warning that they must show in particular that the companies concerned acted ‘not only with the knowledge but with the purpose to aid and abet the South African regime’s tortious conduct as alleged in these complaints’.
Having now reviewed those extra briefs, she has decided that the high bar set by the USCC in Kiobel was not met in current case. She distinguished (at p.18) the case from Al-Shimari, for the alleged violation of international law was inflicted by the South African subsidiaries of the US defendant corporations, over whom defendants may have exercised control however control alone, it transpires, is not enough to create sufficient link with the US to meet the Kiobel test.
Applicants had previously already argued that critical policy level decisions were made in the US, and that the provision of expertise, management, technology and equipment essential to the alleged abuses came from the US. This has now, so it would seem, been further backed up by detailed facts however even these facts did not graduate so to speak the US companies’ involvement from management and effective control to ‘aiding and abetting’ as Scheindlin USDJ had instructed counsel to show.
Similarish issues are at stake in trying to subject activities taking place outside the EU, to EU law by virtue of companies’ EU headquarters.
02-md-1499, Alien Tort Statute, Apartheid, Comity, Corporate social responsibility, CSR, DaimlerChrysler, DaimlerChrysler v Bauman, Extraterritoriality, Human rights, In re South African Apartheid Litigation, Jurisdiction, Kiobel, Lungisile Ntsebeza et al v Ford General motors and IBM, Piercing the corporate veil, Regulation 1215/2012, Rio Tinto, SC, SCOTUS, Touch and concern, United States Supreme Court, USSC
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- GFH Capital v Haigh. Enforcement of DIFC judgment puts spotlight on international commercial courts. 22/05/2020
- AB v EM. Recognising Sharia decisions in England. 20/05/2020
- Bao v Qu; Tian (No 2). A reminder of the principles of enforcement and the common law in Australia. 20/05/2020
- Suing the EU in The Netherlands. Stichting Human Rights for Eritreans v the European Union and its jurisdictional challenges. 19/05/2020
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