Amicus Curiae Brief — Nestlé USA, Inc., Petitioner v. John Doe I, et al.

Supreme Court briefOct 21, 2020

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Nos. 19-416 & 19-453

IN THE

SUPREME COURT OF THE UNITED STATES

NESTLÉ USA, INC., Petitioner,

JOHN DOE I, et al., Respondents.

__________

CARGILL, INC., Petitioner,

JOHN DOE I, et al., Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

BRIEF OF FOREIGN LAWYERS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Tanya Sukhija-Cohen

Hadsell Stormer Renick

& Dai LLP

128 North Fair Oaks Ave.

Pasadena, CA 91103

(626) 585-9600

tanya@hadsellstormer.com

William J. Aceves

Counsel of Record

California Western School

of Law

225 Cedar Street

San Diego, CA 92101

(619) 515-1589

wja@cwsl.edu

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ..........................................i

TABLE OF AUTHORITIES ................................. iii

INTEREST OF AMICI CURIAE ............................ 1

SUMMARY OF ARGUMENT ................................ 1

ARGUMENT ........................................................... 3

INTERNATIONAL LAW ALLOWS STATES

TO EXERCISE JURISDICTION OVER

THEIR CITIZENS, INCLUDING

CORPORATIONS, REGARDLESS OF

WHERE THEY OPERATE .......................... 3

II.

FOREIGN STATES ROUTINELY ASSERT

JURISDICTION OVER DOMESTIC

CORPORATIONS REGARDLESS OF

WHERE THEY OPERATE .......................... 9

A. AUSTRALIA ............................................ 9

B. CANADA ................................................ 15

C. ENGLAND & WALES ........................... 21

D. FRANCE ................................................ 25

E. GERMANY ............................................. 28

F. NETHERLANDS ................................... 32

CONCLUSION ...................................................... 36

APPENDIX .......................................................... A-1

TABLE OF AUTHORITIES

Page(s)

U.S. CASES

Blackmer v. United States,

284 U.S. 421 (1932) .............................................. 8

Daimler AG v. Bauman,

571 U.S. 117 (2014) .............................................. 9

Jesner v. Arab Bank, PLC,

138 S. Ct. 1386 (2018) ........................................ 17

Kiobel v. Royal Dutch Petroleum Co.,

621 F.3d 111 (2d Cir. 2010)................................ 18

Skiriotes v. Florida,

313 U.S. 69 (1941) ................................................ 8

FOREIGN CASES

AAA & Others v. Unilever,

[2017] EWHC 371 (Eng.).................................... 25

Akpan & Stichting Milieudefensie v. Shell,

Court of Appeal The Hague, Dec. 18,

2015, ECLI:NL:GHDHA:2015:3587

(Neth.) ................................................................. 34

Araya v. Nevsun Resources Ltd.,

[2016] BCSC 1856 (Can.) ................................... 18

iii

Araya v. Nevsun Resources Ltd.,

[2017] BCCA 401 (Can.) .................................... 18

Australian Competition and Consumer

Commission v Bridgestone Corp., (2010)

186 FCR 214 (Austl.) .......................................... 12

Bil’in (Village Council) v. Green Park Ltd.,

[2009] QCCS 4151 (Can.) ................................... 21

British South Africa Company v

Companhia de Moçambique,

[1893] AC 602 (Austl.) ........................................ 14

Bundesgerichtshof [BGH] [Federal Court of

Justice] May 5, 2011, IX ZR 176/10)

(Ger.) ................................................................... 30

Caal Caal v. Hudbay Minerals Inc.,

[2020] ONSC 415 (Can.) ..................................... 20

Case C-281/02, Owusu v Jackson,

2005 E.C.R. I-1383 ............................................. 23

Choc v. Hudbay Minerals Inc.,

[2013] ONSC 1414 (Can.) ............................. 16, 20

Connelly v. RTZ Corp.

PLC [1998] AC 854 (Eng.) .................................. 25

Court of Appeals Amsterdam, July 23 2019,

ECLI:NL:GHAMS:2019:2682 (Neth.) ................ 35

Court of Appeals The Hague, Nov. 30, 2011,

ECLI:NL:GHSGR:2010:BO6529 (Neth.) ........... 35

Dagi v The Broken Hill Propriety Company

Ltd [No. 2], [1997] 1 VR 428 (Austl.) ................. 13

Darwalla Milling Co. Pty. Ltd. v F

Hoffmann-La Roche Ltd.,

[2006] FCA 915 (Austl.) ..................................... 12

De Brett Seafood Pty. Ltd. v Qantas

Airways Ltd.,

[No. 7], [2015] FCA 979 (Austl.) ........................ 12

DRJ v Commissioner of Victims’ Rights [No.

2], [2020] NSWCA 242 (Austl.) .......................... 13

Garcia v. Tahoe Resources Inc.,

[2017] BCCA 39 (Can.) ....................................... 16

Guerrero & Others v. Monterrico Metals

PLC, [2009] EWHC 247 (Eng.) .......................... 24

Jabir et al. v. KiK Textilien und Non-Food

GmbH,

LG Dortmund (Regional Court

Dortmund), 2016 (Case No. 7 O 95/19)

(Ger.) ................................................................... 29

Jabir et al. v. KiK Textilien und Non-Food

GmbH,

LG Dortmund (Regional Court

Dortmund), Oct. 1, 2019 (Case No. 7 O

95/19) (Ger.) ........................................................ 30

JN v Wilson Security Pty. Ltd, Victorian

Supreme Court,

Case No. S CI 2017 02933 (Austl.) .................... 15

Kamasaee v Commonwealth,

[2017] VSC 537 (Austl.)...................................... 14

Kesabo v. African Barrick Gold PLC &

NMGML, [2013] EWHC 4045 (Eng.) ................. 24

Kiobel v. Shell, District Court The Hague,

May 1, 2019,

ECLI:NL:RBDHA:2019:4233 (Neth.) ................ 34

Lliuya v. RWE AG, LG Essen,

2015 (Case No. 2 O 285/15) (Ger.) ........................ 29

Lliuya v. RWE, OLG Hamm (Higher

Regional Court Hamm), Nov. 30, 2017,

I-5 U 15/17 (Ger.) ................................................ 31

Lubbe & Others v. Cape PLC concerning

South Africa,

[2000] 1 WLR 1545 (Eng.) .................................. 25

Lungowe & Others v Vedanta & Another

[2019] UKSC 20 (Eng.) ....................................... 22

National Commercial Bank v Wimborne,

(1979) 11 NSWLR 156 (Austl.) .......................... 11

Nevsun Resources Ltd. v. Araya,

[2020] SCC 5 (Can.) ........................................... 16

Oceanic Sun Line v Fay,

[1988] 165 CLR 197 (Austl.) ............................. 10

OLG Köln (Higher Regional Court Köln),

Jan. 31, 2006, Case No. 22 U 109/05

(Ger.) ................................................................... 31

Regie Nationale de Usines Renault SA v

Zhang, [2002] 210 CLR 491 (Austl.) .................. 10

Sanda v PTTEP Australasia (Ashmore

Cartier) Pty. Ltd.,

NSD1245/2016 (Austl.) ...................................... 15

Stichting Victimes des Dechets Toxiques

Cote d'Ivoire v. Trafigura, District Court

Amsterdam, Apr. 18, 2018,

ECLI:NL:RBAMS:2018:2476 (Neth.) ................ 33

Voth v Manildra Flour Mills, [1990] 171

CLR 538 (Austl.) ................................................. 10

Wright Rubber Products Pty. Ltd. v Bayer

AG, [2010] FCAFC 85 (Austl.) ........................... 12

Young v. Anglo American South Africa

Limited & Ors,

vii

[2014] EWCA Civ 1130 [45] (Eng.) .................... 23

INTERNATIONAL CASES

Case Concerning Ahmadou Sadio Diallo

(Guinea. v. DRC), Preliminary

Objections, 2007 I.C.J. Rep. 4 (May 24) .............. 9

Case Concerning Barcelona Traction, Light

and Power Co., Ltd. (Belg. v. Spain),

Preliminary Objections, 1970 I.C.J. Rep.

3 (Feb. 5) ............................................................... 8

TREATISES AND SCHOLARLY ARTICLES

BARRY E. CARTER ET AL., INTERNATIONAL

LAW (7th ed. 2018). ............................................... 5

CEDRIC RYNGAERT, JURISDICTION IN

INTERNATIONAL LAW (2d ed. 2015) ....................... 4

Cedric Ryngaert, The Concept of

Jurisdiction in International Law, in

RESEARCH HANDBOOK ON JURISDICTION

AND IMMUNITIES IN INTERNATIONAL LAW

50 (Alexander Orakhelashvili ed., 2015)............. 4

CHRISTOPH SCHMON, THE INTERCONNECTION

OF THE EU REGULATIONS BRUSSELS I

RECAST AND ROME I: JURISDICTION AND

LAW (2020) .......................................................... 23

viii

F.A. Mann, The Doctrine of Jurisdiction in

International Law,

111 RECUEIL DES COURS (1964) ............................ 4

Geoffrey Watson, Offenders Abroad: The

Case for Nationality-Based Criminal

Jurisdiction, 17 YALE J. INT’L L. 41 (1992).......... 7

JAMES CRAWFORD, BROWNLIE’S PRINCIPLES

OF PUBLIC INTERNATIONAL LAW (8th ed.

2012) ...................................................................... 4

Gabrielle Holly, Challenges to Australia’s

Offshore Detention Regime and the Limits

of Strategic Tort Litigation, 21 GERMAN

L.J. 549 (2020) .................................................... 10

Gabrielle Holly, Transnational Tort and

Access to Remedy under the UN Guiding

Principles on Business and Human

Rights: Kamasaee v Commonwealth, 19

MELBOURNE J. INT’L L. 52 (2018) ....................... 10

Jason MacLean & Chris Tollefson, Foreign

Wrongs, Corporate Rights and the Arc of

Transnational Law, in CORPORATE

CITIZEN: NEW PERSPECTIVES ON THE

GLOBALIZED RULE OF LAW 31 (Oonagh E.

Fitzgerald ed., 2020)........................................... 16

Joanna Kyriakakis, Freeport in West

Papua: Bringing Corporations to Account

for International Human Rights Abuses

under Australian Criminal and Tort

Law, 31 MONASH U. L. REV. 95 (2005) ............... 10

LORI FISLER DAMROSCH & SEAN D. MURPHY,

INTERNATIONAL LAW: CASES AND

MATERIALS (7th ed. 2019)................................. 5, 7

Lucas Roorda & Cedric Ryngaert, Business

and Human Rights Litigation in Europe:

The Promises of Forum of Necessity

Jurisdiction, 80 RABEL J. COMP. & INT’L

PRIV. L. 784 (2016).............................................. 35

LUNG-CHU CHEN, AN INTRODUCTION TO

CONTEMPORARY INTERNATIONAL LAW: A

POLICY-ORIENTED PERSPECTIVE (3d ed.

2015) .............................................................. 5, 6, 7

MALCOM SHAW, INTERNATIONAL LAW (6th

ed. 2012) ................................................................ 5

OPPENHEIM’S INTERNATIONAL LAW (Sir

Robert Jennings & Sir Arthur Watts eds.,

9th ed. 1996). ........................................................ 5

Peter Prince, Bhopal, Bougainville and OK

Tedi: Why Australia’s Forum Non

Conveniens Approach is Better,

47 INT’L & COMP. L.Q. 573 (1998) ...................... 10

Philippe Wesche & Miriam Saage

Maaß, Holding Companies Liable for

Human Rights Abuses Related to Foreign

Subsidiaries and Suppliers Before

German Civil Courts: Lessons from Jabir

and Other v. Kik,

16 HUM. RTS. L. REV. 370 (2016)........................ 29

Research in International Law under the

Auspices of the Faculty of the Harvard

Law School, Jurisdiction with Respect to

Crime, 29 AM. J. INT’L L. 435 (Supp. 1935) ......... 4

TREATIES AND

INTERNATIONAL AGREEMENTS

Antarctic Treaty June 23, 1961, 402

U.N.T.S. 71 ........................................................... 6

Convention against Torture and Other

Cruel Inhuman or Degrading Treatment

or Punishment June 26, 1987, 1465

U.N.T.S. 85 ........................................................... 5

Convention against Transnational

Organized Crime Sept. 29, 2003, 2225

U.N.T.S. 209 ......................................................... 5

Convention for the Suppression of the

Financing of Terrorism Apr. 10, 2002,

2178 U.N.T.S 197 ................................................. 5

Convention on Jurisdiction and the

Enforcement of Judgments in Civil and

Commercial Matters signed at Brussels,

27 September 1968, 1972 O.J. (L 299) 32

(EC) ..................................................................... 23

Convention on Jurisdiction and the

Recognition and Enforcement of

Judgments in Civil and Commercial

Matters,

[2007] O.J. (L 339) 3 (EC) ................................... 24

Regulation (EC) No. 864/2007 of the

European Parliament and of the

Council of 11 July 2007 on the

law applicable to non-contractual

obligations 2007 O.J. (L 199) (EC) …………….30

Regulation (EU) No. 1215/2012 replaced

Regulation (EC) No 44/2001 of 22

December 2000 of the European

Parliament and of the Council on

jurisdiction and the recognition and

enforcement of judgments in civil and

commercial matters 2012 O.J. (L 351) ...... passim

Treaty on the Principles Governing the

Activities of States in the Exploration

and Use of Outer Space, Including the

Moon and Other Celestial Bodies Oct. 10,

1967, 610 U.N.T.S 205 ......................................... 6

FOREIGN STATUTES

Corporations Act 2001 (Cth) .................................. 11

xii

Competition and Consumer Act 2010 (Cth) ......... 12

Art. 2:1 ¶1 BW (Neth.) ........................................... 33

Art. 7:1 ¶1 BW (Neth.) ........................................... 34

BGH RIW 2013, 399 Rn. 13 (Ger.) ........................ 32

BGH, July 12, 1995, XII ZR 109/94 (Ger.) ............ 32

BGH, June 29, 2010, VI ZR 122/09 (Ger.) ............ 32

BGH, Mar. 15, 2010, II ZR 27/09 (Ger.) ................ 31

BGH, Mar. 21, 1986, V ZR 10/85 (Ger.) ................ 31

BGH, Mar. 9, 2010, XI ZR 93/09 (Ger.) ................. 32

CODE DE PROCÉDURE CIVILE [C.P.C.] [CIVIL

PROC. CODE] (2020) (Fr.) .................................... 26

CODE DE PROCÉDURE PÉNALE [C. PR. PÉN]

[CRIM. PROC. CODE] (2020) (Fr.) ......................... 26

Federal Court Rules 2011 (Cth) ch 2 pt 10

div 10.4 (Austl.); Uniform Civil Procedure

Rules 2005 (NSW) pts 10 &11 sch 6

(Austl.) (Fr.) ........................................................ 11

French Law on the Duty of Vigilance of

Parent and Instructing Companies, Law

No. 2017-399 (Mar. 27, 2017) ...................... 27, 28

xiii

French National Assembly, Proposed Law

on the Duty of Vigilance of Parent

Companies and Ordering Companies

(Nov. 6, 2013) ...................................................... 27

French National Assembly, Report Made on

Behalf of the Committee on

Constitutional Laws, Legislation, and the

General Administration of the Republic

on the Proposal of Law (No. 1519)

Relating to the Duty of Vigilance of

Parent Companies and Ordering

Companies (Jan. 21, 2015) ................................. 28

OTHER AUTHORITIES

Justice James Allsop & Daniel Ward,

Incoherence in Australian Private

International Laws, FED. COURT OF

AUSTRALIA: DIGITAL LAW LIBRARY (Apr.

10, 2013) ............................................................... 11

Miki Perkins, Wilson Security Settles

Alleged Rape Claim From Refugee on

Nauru, SYDNEY MORNING HERALD, Nov.

25, 2019 ................................................................ 15

RESTATEMENT (FOURTH) OF THE FOREIGN

RELATIONS LAW OF THE UNITED STATES §

410 ...................................................................... 5, 7

SHERPA, VIGILANCE PLANS REFERENCE

GUIDANCE (2019) ................................................. 27

xiv

INTEREST OF AMICI CURIAE

This Brief of Amici Curiae is respectfully

submitted in support of Respondents and pursuant

to Supreme Court Rule 37(2).1

Amici are foreign lawyers with expertise in

international litigation. 2 While they practice in

different legal systems, they all share a deep

commitment to the rule of law, respect for

international

law,

and

the

principle

accountability for human rights violations.

As foreign lawyers, Amici take no position on

the U.S. legal system or the intricacies of the Alien

Tort Statute. Rather, Amici offer their expertise on

international litigation as well as state jurisdiction

over domestic corporations. Amici believe this

submission will assist the Court in its

deliberations.

SUMMARY OF ARGUMENT

International law regulates state action in

several ways. It establishes rules that regulate

1 No counsel for a party authored this brief in whole

or in part, and no such counsel or party made a

monetary contribution intended to fund the

preparation or submission of this brief. No person

other than the amici curiae, or their counsel, made

a monetary contribution to its preparation or

submission. Counsel for all parties consented to the

filing of this brief.

2 A list of the Amici appears in the Appendix.

inter-state behavior, as evidenced in numerous

multilateral and regional treaties. In addition,

international law regulates certain intra-state

activity, such as a state’s assertion of jurisdiction

within its national legal system.

International law allows states to exercise

jurisdiction

over

their

citizens,

including

corporations, when they commit extraterritorial

harms. The well-established active personality

principle allows a state to assert jurisdiction over

its citizens regardless of where they are located.

Accordingly, states may assert jurisdiction over

corporations for extraterritorial harms, including

conduct they commit in their state of domicile but

which results in injuries abroad. Indeed, numerous

states have asserted jurisdiction over domestic

corporations

that

allegedly

committed

extraterritorial human rights abuses or engaged in

domestic conduct that caused injuries abroad.

When states properly assert jurisdiction over

their nationals for wrongful conduct, they create an

essential web of accountability that spans the

globe. Conversely, when states fail to hold their

nationals accountable, they facilitate violations of

the rule of law, which could generate international

conflict. Moreover, the active personality principle

ensures that no state’s nationals gain an unfair

advantage because all states have the right and

ability to hold their nationals accountable. Finally,

state assertions of jurisdiction over their nationals

offer a degree of certainty to individuals and

corporations that allow them to predict the

jurisdictional consequences of their activities.

Unlike other forms of jurisdiction, there are no

surprises when states assert jurisdiction over their

own nationals.

ARGUMENT

International law regulates the behavior of

states, including assertions of national jurisdiction

in legal proceedings.3 Indeed, assertions of national

jurisdiction, even for conduct committed abroad or

domestic conduct that causes harm abroad, are

both well-recognized by states and firmly accepted

under international law. In such matters, the rules

of international law offer no meaningful distinction

between natural and legal persons, including

corporations.

I. INTERNATIONAL LAW ALLOWS STATES

TO EXERCISE JURISDICTION OVER

THEIR

CITIZENS,

INCLUDING

CORPORATIONS,

REGARDLESS

WHERE THEY OPERATE.

International law regulates state action in

several ways. It establishes rules that regulate

inter-state behavior, as evidenced in numerous

multilateral and regional treaties. In addition,

international law regulates certain intra-state

activity, particularly when this activity implicates

the rights of other states. One such area of intra3 Of

course, international law also regulates the

behavior

non-state

actors,

including

corporations.

state activity involves a state’s assertion of

jurisdiction within its national legal system. See

CEDRIC RYNGAERT, JURISDICTION IN INTERNATIONAL

LAW 6 (2d ed. 2015); F.A. Mann, The Doctrine of

Jurisdiction in International Law, 111 RECUEIL DES

COURS 15 (1964).

There are three forms of jurisdiction in national

legal systems: jurisdiction to prescribe, adjudicate,

and enforce. See generally JAMES CRAWFORD,

BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL

LAW 440 (9th ed. 2019). While related, they each

represent a distinct exercise of state power.

Jurisdiction to prescribe involves a state’s power to

adopt legislation that regulates behavior or specific

entities, including individuals and corporations.

Jurisdiction to adjudicate involves the ability of a

state’s courts to assert their authority over parties

and claims. Finally, jurisdiction to enforce allows a

state to compel compliance with the law. See Cedric

Ryngaert, The Concept of Jurisdiction in

International Law, in RESEARCH HANDBOOK ON

JURISDICTION AND IMMUNITIES IN INTERNATIONAL

LAW 50 (Alexander Orakhelashvili ed., 2015).

The active personality principle is one of the

oldest and most well-established forms of state

jurisdiction. 4 It presumes that nationals traveling

See Research in International Law under the

Auspices of the Faculty of the Harvard Law School,

Jurisdiction with Respect to Crime, 29 AM. J. INT’L

L. 435, 519 (Supp. 1935) (“The competence of the

State to prosecute and punish its nationals on the

or residing abroad remain under their home state’s

“personal authority.” OPPENHEIM’S INTERNATIONAL

LAW 462 (Sir Robert Jennings & Sir Arthur Watts

eds., 9th ed. 1996). As a result, states have long

had the authority to assert jurisdiction over their

nationals, even when their nationals travel or

reside abroad. LUNG-CHU CHEN, AN INTRODUCTION

TO CONTEMPORARY INTERNATIONAL LAW: A POLICYORIENTED PERSPECTIVE 281–82 (3d ed. 2015);

MALCOM SHAW, INTERNATIONAL LAW 663–64 (6th

ed. 2012). This principle exists within both civil law

and common law legal systems. See, e.g., LORI

FISLER DAMROSCH &

SEAN D. MURPHY,

INTERNATIONAL LAW: CASES AND MATERIALS 761

(7th ed. 2019) (describing the exercise of the active

personality principle by the United States, France,

Germany, India, and the United Kingdom);

RESTATEMENT (FOURTH) OF THE FOREIGN RELATIONS

LAW OF THE UNITED STATES § 410, rpt. nt. 1 (2018)

(describing the exercise of the active personality

principle in Estonia, Finland, Germany, Greece,

Spain, and Sweden). It also applies to both civil and

criminal proceedings. Jennings & Watts, supra, at

462–63. In sum, “[t]he right of a state to regulate

all conduct of its citizens or nationals is, like

territorial jurisdiction, usually noncontroversial.”

BARRY E. CARTER ET AL., INTERNATIONAL LAW 591

(7th ed. 2018).

The active personality principle is premised on

sole basis of their nationality is universally

conceded.”).

the strong connection between a state and its

citizens. 5 See generally CHEN, supra, at 281 (The

active personality principle “follows from a state’s

claim to control its own people as a base of power.”);

RYNGAERT, supra, at 106. It recognizes that citizens

are members of a polity, with commensurate rights

and obligations. This alone justifies the assertion of

jurisdiction. There are, however, other reasons. For

example, it prevents citizens from engaging in

harmful activity abroad and then seeking de facto

immunity in their home state. Id. It also protects “a

State’s reputation from being blemished by the

conduct of its nationals abroad.” Id. On some

occasions, the active personality principle may

alleviate international tension between the state

where the harmful act was committed and the state

5 While

recognized under customary international

law, numerous treaties also recognize the active

personality principle. See, e.g., Convention against

Transnational Organized Crime art. 15(2)(b), Sept.

29, 2003, 2225 U.N.T.S. 209; Convention for the

Suppression of the Financing of Terrorism art.

7(1)(c), Apr. 10, 2002, 2178 U.N.T.S 197;

Convention against Torture and Other Cruel

Inhuman or Degrading Treatment or Punishment

art. 5(1)(b), June 26, 1987, 1465 U.N.T.S. 85;

Treaty on the Principles Governing the Activities of

States in the Exploration and Use of Outer Space,

Including the Moon and Other Celestial Bodies art.

6, Oct. 10, 1967, 610 U.N.T.S 205; Antarctic Treaty

art. 8(1), June 23, 1961, 402 U.N.T.S. 71.

of nationality. “The territorial State might arguably

welcome the exercise of jurisdiction by the State of

nationality of the offender, as this may relieve it of

the task of harnessing its resources to prosecute

the offense.” Id. at 106–07; see also Geoffrey

Watson, Offenders Abroad: The Case for

Nationality-Based Criminal Jurisdiction, 17 YALE

J. INT’L L. 41, 69–70 (1992).

The active personality principle extends to both

natural and legal persons, including corporations.6

Thus, states routinely “assert jurisdiction over legal

persons whose principal place of business or

registered office is located in their territories,

without encountering objections assertedly based

on international law.” DAMROSCH & MURPHY,

supra, at 762; CHEN, supra, at 282; RESTATEMENT

(FOURTH), supra, at § 410 rpt. nt. 2 (describing

relevant state practice in Australia, Netherlands,

and United Kingdom).

International

law

recognizes

that

the

nationality of a corporation can be established in

several ways. RESTATEMENT (FOURTH), supra, at

§ 410 cmt. b (“The most common bases for

recognizing the nationality of a corporation are

(1) the state in which the corporation is

incorporated and (2) the state where it has its seat

6 The

active personality principle even extends to

“legal persons organized or having their principal

places of business abroad when these persons are

owned or controlled by nationals.” DAMROSCH &

MURPHY, supra, at 762.

(siège social) or center of control.”). Indeed,

nationality has significant implications. Cf. Case

Concerning Barcelona Traction, Light and Power

Co., Ltd. (Belg. v. Spain), Preliminary Objections,

1970 I.C.J. Rep. 3, 42 (Feb. 5) (“The traditional rule

attributes the right of diplomatic protection of a

corporate entity to the State under the laws of

which it is incorporated and in whose territory it

has its registered office. These two criteria have

been confirmed by long practice and by numerous

international instruments.”). Highlighting the

significance of nationality, the state that grants

corporate personhood is the only state capable of

providing

diplomatic

protection

under

international law. Case Concerning Ahmadou

Sadio Diallo (Guinea v. DRC), Preliminary

Objections, 2007 I.C.J. Rep. 4, 27 (May 24)

(“Conferring independent corporate personality on

a company implies granting it rights over its own

property, rights which it alone is capable of

protecting. As a result, only the State of nationality

may exercise diplomatic protection on behalf of the

company when its rights are injured by a wrongful

act of another State.”).

In sum, it is firmly established that states may

exercise jurisdiction over their own citizens,

including corporations, when they commit harms

abroad. 7 Indeed, there are pragmatic reasons for

7 This Court has long recognized the application of

the active personality principle. See, e.g., Skiriotes

why international law has recognized the

permissibility of such assertions of jurisdiction. It

ensures that no individual or corporation can

escape accountability. When jurisdiction is properly

asserted by states, it creates a web of

accountability that spans the globe. And, it

minimizes international conflict by recognizing

jurisdictional authority with the state that has the

closest connection to the offending party.

II. FOREIGN STATES ROUTINELY ASSERT

JURISDICTION

OVER

DOMESTIC

CORPORATIONS

REGARDLESS

WHERE THEY OPERATE.

It is not surprising that states routinely assert

jurisdiction over their own nationals, including

domestic corporations, regardless of where they

operate.8

A. Australia

Australian courts recognize jurisdiction over

v. Florida, 313 U.S. 69, 73 (1941); Blackmer v.

United States, 284 U.S. 421, 436–38 (1932).

8 In

Daimler AG v. Bauman, 571 U.S. 117, 141

(2014), this Court acknowledged that countries in

the European Union allow for corporations to be

sued in the place of their statutory seat, central

administration, or principal place of business. For

purposes of establishing jurisdiction, the locus of

the harm is of no significance.

Australian corporations for extraterritorial harms.

In fact, numerous scholars have noted that

Australian private international law principles are

advantageous to foreign plaintiffs seeking remedies

against Australian corporations.9 See, e.g., Joanna

Kyriakakis, Freeport in West Papua: Bringing

Corporations to Account for International Human

Rights Abuses under Australian Criminal and Tort

Law, 31 MONASH U. L. REV. 95 (2005); Peter Prince,

Bhopal, Bougainville and OK Tedi: Why Australia’s

Forum Non Conveniens Approach is Better, 47

INT’L & COMP. L.Q. 573 (1998); Gabrielle Holly,

Transnational Tort and Access to Remedy under the

UN Guiding Principles on Business and Human

Rights:

Kamasaee

Commonwealth,

MELBOURNE J. INT’L L. 52 (2018); Gabrielle Holly,

Challenges to Australia’s Offshore Detention

Regime and the Limits of Strategic Tort Litigation,

9 As it operates in Australian states and territories,

the doctrine of forum non conveniens is favorable to

plaintiffs. The discretion to stay proceedings will be

exercised only where the Australian jurisdiction is

a “clearly inappropriate forum.” Voth v Manildra

Flour Mills, [1990] 171 CLR 538 (Austl.); Oceanic

Sun Line v Fay (1988) 165 CLR 197 (Austl.); Regie

Nationale de Usines Renault SA v Zhang, [2002]

210 CLR 491 (Austl.). The defendant or respondent

has the difficult onus of demonstrating that the

proceedings in the forum are “oppressive,

vexatious, or an abuse of process.” Voth, 171 CLR

at 564.

21 GERMAN L.J. 549 (2020).

Personal jurisdiction over a defendant

corporation arises where the corporation carries on

business in the forum.10 National Commercial Bank

v Wimborne, [1979] 11 NSWLR 156 (Austl.). As

noted by the Chief Justice of the Federal Court of

Australia, the sole grounds for establishing a

court’s personal jurisdiction over a party at

common law are the service of a writ upon that

party within the court’s territorial jurisdiction, or

the party’s voluntary appearance.11 Justice James

Allsop & Daniel Ward, Incoherence in Australian

Private International Laws, FED. COURT OF

AUSTRALIA: DIGITAL LAW LIBRARY (Apr. 10, 2013),

https://www.fedcourt.gov.au/digital-law10 In addition to corporate liability, there are also

avenues for holding directors of multinational

corporations accountable for failing to prevent

extraterritorial human rights violations through

personal liability for breaches of directors’ duties

under Australia’s Corporations Act 2001 (Cth).

11 State and territory courts, as well as the federal

courts, have long-arm rules permitting service of

process upon defendants in a broader range of

circumstances than at common law. See Federal

Court Rules 2011 (Cth) ch 2 pt 10 div 10.4

(Austl.); Uniform Civil Procedure Rules 2005

(NSW) pts 10 &11 sch 6 (Austl.).

library/judges-speeches/chief-justice-allsop/allsopcj-20130410.

Whether an Australian federal or state court

has subject matter jurisdiction depends upon the

conduct in question, the causes of action relied

upon, and the applicable law. Where the cause of

action is based on an Australian statute, it is clear

that both the Commonwealth as well as state and

territory Parliaments have constitutional power to

enact legislation that has extraterritorial effect.

Whether a particular statute has extraterritorial

application may be clear from its wording.12 In the

absence of an express provision connecting the

For example, under section 5(1) of the

Competition and Consumer Act 2010 (Cth), parts of

the Act apply to conduct occurring outside

Australia where the defendant is, inter alia, a

foreign corporate body carrying on business in

Australia or an entity incorporated in Australia. A

number of cartel class actions brought in Australia

have concerned Australian and multinational

corporations, and these cases raised extraterritorial

considerations given allegations of conduct

occurring outside Australia. See, e.g., De Brett

Seafood Pty. Ltd. v Qantas Airways Ltd. [No. 7],

[2015] FCA 979 (Austl.); Wright Rubber Products

Pty. Ltd. v Bayer AG, [2010] FCAFC 85 (Austl.);

Australian Competition and Consumer Commission

v Bridgestone Corp., [2010] 186 FCR 214 (Austl.);

Darwalla Milling Co. Pty. Ltd. v F Hoffmann-La

Roche Ltd., [2006] FCA 915 (Austl.).

statute to Australian jurisdiction, both federal and

state statutory laws as well as the common law

incorporate a rebuttable presumption that the

legislation only applies domestically.

Where a statute is silent as to the sphere of its

intended territorial application, the court’s task is

to identify the central focus or central conception of

the legislation, and to consider its connection with

Australian jurisdiction. See DRJ v Commissioner of

Victims’ Rights [No. 2], [2020] NSWCA 242 (Austl.).

This is done as a matter of statutory construction

based on the subject matter and scope of the

legislation, and with regard to internal indications

in order to avoid improbable and absurd outcomes.

The court considers the scope of the statute, the

statutory purpose, and the need to avoid an unduly

restrictive approach. As noted by the President of

the New South Wales Court of Appeal, contrary

legislative intention, sufficient to rebut or displace

the operation of the statutory and common law

presumptions of domestic application, may be

evinced by express words, necessary implication,

and reading the Act as a whole. Id. ¶ 10. Such an

approach is warranted if the legislative purpose

would otherwise be frustrated or if the contrary is

indicated by “the object, subject matter or history of

the enactment.” Id.

In Dagi v The Broken Hill Propriety Company

Ltd [No. 2], [1997] 1 VR 428 (Austl.), individuals

from Papua New Guinea brought a lawsuit against

an Australian corporation in Australia arising out

of its overseas actions. 13 The court assessed

whether Australian courts could assert jurisdiction

and concluded that negligence claims arising from

the plaintiffs’ loss of amenity or enjoyment of land

and waters in Papua New Guinea were

justiciable. 14 Id. at 454–55. The proceedings

eventually resulted in a substantial settlement in

1996 and agreement to remediation works.

Subsequent proceedings were brought in Australia

alleging that the agreed remediation work had not

been carried out.

In Kamasaee v Commonwealth, [2017] VSC 537

(Austl.), a class action lawsuit was filed in

Australia concerning extraterritorial harms,

including claims in negligence and false

imprisonment, against the Australian government,

an Australian security company, and various

contractors. The lawsuit stemmed from the

detention of asylum applicants on Manus Island in

Papua New Guinea. Id. ¶ 1. The class action was

13 The plaintiffs’ claims included causes of action in

trespass, nuisance, and negligence arising out of

the discharge of by-products of copper mining into

the local rivers.

14 An idiosyncratic issue arose as to the jurisdiction

of the Victorian Supreme Court to entertain actions

with respect to foreign land (the so-called

Moçambique rule, derived from the case British

South Africa Company v Companhia de

Moçambique, [1893] AC 602 (Austl.)).

settled before trial in 2017 for $70 million (AUD).

The settlement was approved by the Victorian

Supreme Court in Kamasaee.15 Id. ¶ 47.

Finally, in Sanda v PTTEP Australasia

(Ashmore Cartier) Pty. Ltd., NSD1245/2016

(Austl.), a group of Indonesian seaweed farmers

brought a federal class action lawsuit against an

Australian company for damages to their seaweed

crop. Id. ¶¶ 83, 89–96. An oil spill traced to the

company’s offshore drilling operations resulted in a

decline of seaweed production in Indonesian waters

and ensuing economic damages. The defendants

have not challenged Australian jurisdiction, and a

judgment on liability is now pending in the Federal

Court.

B. Canada

Canadian courts up to the highest level have

15 In addition, in November 2019, Wilson Security

settled out of court with a plaintiff who alleged she

had been raped at an offshore detention center in

Nauru. See JN v Wilson Security Pty. Ltd, Victorian

Supreme Court, Case No. S CI 2017 02933 (Austl.).

The plaintiff alleged that Wilson Security knew its

employees engaged in sexual misconduct and failed

to address it. Miki Perkins, Wilson Security Settles

Alleged Rape Claim From Refugee on Nauru,

SYDNEY MORNING HERALD, Nov. 25, 2019,

https://www.smh.com.au/national/wilson-securitysettles-alleged-rape-claim-from-refugee-on-nauru20191125-p53dzi.html.

permitted civil lawsuits to proceed against

Canadian corporations for alleged human rights

abuses connected to their overseas operations.

Significantly, the Supreme Court of Canada has

also allowed common law tort claims framed in

customary international law to proceed against

Canadian corporations. Nevsun Resources Ltd. v.

Araya, [2020] SCC 5 (Can.).16 Canadian courts have

also permitted negligence claims, as well as

intentional torts, to proceed against the parent

companies based in Canada, alleging that the

corporations owed a direct duty of care to local

inhabitants or workers in the foreign countries

where their projects are located. See, e.g., Choc v.

Hudbay Minerals Inc., [2013] ONSC 1414 (Can.);

Garcia v. Tahoe Resources Inc., [2017] BCCA 39

(Can.).

In Nevsun, refugee plaintiffs alleged that a

Canadian parent company was liable for their

forced labor at the corporation’s mine in Eritrea.

Nevsun, ¶¶ 3–4. Although the harms occurred

abroad, the plaintiffs claimed that the company’s

board of directors and senior management in

Canada were responsible for decisions regarding

the development of the mine and exercised

16 See generally Jason MacLean & Chris Tollefson,

Foreign Wrongs, Corporate Rights and the Arc of

Transnational Law, in CORPORATE CITIZEN: NEW

PERSPECTIVES ON THE GLOBALIZED RULE OF LAW 31,

42–48 (Oonagh E. Fitzgerald ed., 2020) (reviewing

the Nevsun, Choc, and Garcia decisions).

authority over the parastatal subcontractors for

whom the plaintiffs were forced to work. The

plaintiffs pleaded not only direct negligence by the

Canadian company, but also common law torts

based on the defendant’s role in aiding and abetting

violations of customary international law norms,

including slavery and crimes against humanity.

The Supreme Court of Canada refused to strike

the plaintiffs’ customary international law claims.

Id. ¶ 6. The court confirmed that Canada

automatically adopts customary international law

into domestic common law absent express

derogation in legislation. Id. ¶¶ 90, 94. The court

held that “[c]ustomary international law is part of

Canadian law. Nevsun is a company bound by

Canadian law.” Id. ¶ 132. Thus, in Canada, a

common

law

tort

framed

customary

international law is comparable to the Alien Tort

Statute, which allows U.S. federal courts to

“recognize a common-law cause of action for claims

based on the present-day law of nations.” Jesner v.

Arab Bank, PLC, 138 S. Ct. 1386, 1398 (2018).

Presented with arguments similar to the ones

raised by Petitioners in this case, the Supreme

Court of Canada rejected the assertion that

corporate liability for human rights violations is

not recognized under customary international law,

stating,

“Nevsun’s

position,

with

respect,

misconceives modern international law. As

Professor William S. Dodge has observed,

‘[i]nternational law . . . does not contain general

norms of liability or non-liability applicable to

categories of actors.’” Nevsun, ¶ 105 (internal

citations omitted). 17 The court ruled that

corporations may, in principle, be bound by

customary international law through either “direct

liability for violations of ‘obligatory, definable, and

universal norms of international law’, or indirect

liability for their involvement in what Professor

Clapham calls ‘complicity offenses.’” Id. ¶ 113

(internal citations omitted). The court cited

approvingly to Professor Harold Koh’s conclusion

that it would not “‘make sense to argue that

international law may impose criminal liability on

corporations, but not civil liability.’” Id. ¶ 112

(internal citations omitted).18 Likewise, “‘what legal

17 At the Supreme Court of Canada, the defendant

cited to this Court’s judgment in Jesner to argue

that the court should recognize a general rule that

corporations can never be liable for human rights

violations under customary international law.

Factum of the Appellant, Nevsun Resources Ltd. v.

Araya, ¶ 69. At the court of first instance, the

defendant had argued unsuccessfully that an

analysis of state practice and opinio juris regarding

corporate liability was required, relying in part on

the Second Circuit’s judgment in Kiobel v. Royal

Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010).

See Araya v. Nevsun Resources Ltd., [2016] BCSC

1856, ¶¶ 425, 474 (Can.).

18 The Supreme Court of Canada also rejected the

argument that existing domestic torts can

adequately address allegations of jus cogens

violations like slavery and crimes against

sense would it make to let states and individuals

immunize themselves from liability for gross

violations through the mere artifice of corporate

formation?’”19 Id.

In allowing the customary international law

claims to move forward, the court was unpersuaded

by the argument of one intervener that “[t]he

application of CIL [customary international law] to

private companies would be a competitivedisadvantage for mining companies and businesses

in Canada,” and “businesses will have to reexamine their decisions to incorporate, raise

capital, maintain offices, employ people and

otherwise do business in Canada.” Factum of the

Intervener Mining Association of Canada, Nevsun

humanity. Nevsun, ¶¶ 20, 60–69. The court

considered those violations “inherently different”

than garden variety torts, and to treat them as

traditional torts “may undermine the court’s ability

to adequately address the heinous nature of the

harm caused by this conduct.” Id. ¶¶ 123–26.

Lower courts, in dismissing the defendant’s

forum non conveniens motion (which was not at

issue before the Supreme Court of Canada), found

that there was a real risk of an unfair trial in

Eritrea. Araya v. Nevsun Resources Ltd., [2017]

BCCA 401, ¶ 118 (Can.). Had Canadian courts

refused to assert jurisdiction, there would have

been no judicial means for the plaintiffs to seek

accountability against the Canadian company.

Resources Ltd. v. Araya, ¶ 27.

Lower Canadian courts have upheld jurisdiction

in similar lawsuits. The Ontario Superior Court

allowed a human rights case to proceed based on a

claim of direct negligence of a Canadian mining

company for “its own actions and omissions in

another country.” Choc v. Hudbay Minerals Inc.,

[2013] ONSC 1414, ¶ 50 (Can.). The negligence

allegedly resulted in abuses by security personnel

working

for

the

defendant’s

Guatemalan

subsidiary, including gang rapes and murder. Caal

Caal v. Hudbay Minerals Inc., [2020] ONSC 415

(Can.) (upheld on appeal but appellate judgment

not yet reported, Case No. CV-11-423077, Sept. 30,

2020) (Can.)).20 The court held that the pleadings

alleged sufficient facts such that a trial court could

find proximity and, therefore, a duty of care

between the Canadian parent and the Guatemalan

plaintiffs. Choc, ¶ 70.

Finally, the Québec Superior Court, applying

civil law, found it could adjudicate an allegation

that Canadian corporate defendants knowingly

assisted a foreign state in committing war crimes,

Plaintiffs in Garcia v. Tahoe made similar

allegations to those in Choc, arguing that security

personnel for the Guatemalan subsidiary of a

different Canadian company shot them while they

were protesting outside a mine. The British

Columbia Court of Appeal found that jurisdiction

was proper in Canada. Garcia v. Tahoe Resources

Inc., [2017] BCCA 39 (Can.).

and that such a claim would be recognizable as a

civil fault (tort). See Bil’in (Village Council) v.

Green Park Ltd., [2009] QCCS 4151, ¶¶ 188, 204–

06 (Can.) (dismissing the lawsuit on forum non

conveniens grounds) (“Knowingly participating in

such breach would constitute a civil fault, as would

an intentional participation to a war crime.”).

C. England & Wales

It is an unremarkable feature of the substantive

and procedural law of the United Kingdom that

corporations can be held liable for harm arising

from their operations abroad. 21 Long established

rules and precedent governing jurisdiction, choice

of law, and the joinder of foreign entities have been

applied to hold corporations accountable in the

21 This section refers to the law of England & Wales

(“England”). Scotland and Northern Ireland (the

other constituent parts of the United Kingdom)

each have separate legal regimes. However, they

are all governed by the jurisdictional rules of the

European Union (“EU”), which are of uniform

application,

and

any

future

jurisdictional

framework is likely to be applied across the United

Kingdom. However, the House of Lords has held

that where an English domiciled company is sued

for injuries arising overseas, the United Kingdom

would be the appropriate jurisdiction. In October

2009, the Supreme Court replaced the Appellate

Committee of the House of Lords as the highest

court in the United Kingdom.

United Kingdom for harms caused by their own

acts and by those of their foreign subsidiaries.

Many of these principles were recently

considered by the Supreme Court of the United

Kingdom in Lungowe & Others v Vedanta &

Another, [2019] UKSC 20 (Eng.). In this case,

several thousand inhabitants of a town in Zambia

brought a claim for environmental harm against a

local copper mine and its English domiciled parent

company. Id. ¶¶ 1–3. This case is the latest and

most authoritative treatment of the relevant

principles regarding jurisdiction in the United

Kingdom.

As to jurisdiction, the Vedanta decision

identifies the law of the European Union as the

governing regime for tort claims. Id. ¶ 16.

Specifically, the U.K. Supreme Court affirmed the

relevance of EU Regulation No. 1215/2012 of the

European Parliament and of the Council of 12

December 2012 on jurisdiction and the recognition

and enforcement of judgments in civil and

commercial matters, also known as the Brussels I

Regulation (recast). 22 According to Article 4,

Regulation (EU) No. 1215/2012 replaced

Regulation (EC) No. 44/2001 of 22 December 2000

of the European Parliament and of the Council on

jurisdiction and the recognition and enforcement of

judgments in civil and commercial matters 2012

O.J. (L 351); and the Convention on Jurisdiction

and the Enforcement of Judgments in Civil and

Commercial Matters signed at Brussels, 27

“persons domiciled in a Member State shall,

whatever their nationality, be sued in the courts of

that Member State” and “[p]ersons who are not

nationals of the Member State in which they are

domiciled shall be governed by the rules of

jurisdiction applicable to nationals of that Member

State.” A corporation is considered a legal person

for purposes of the Regulation.23

In 2005, the European Court of Justice

confirmed that Article 4 (formerly Article 2)

precluded any possibility of a company domiciled in

the United Kingdom resorting to domestic law

arguments of forum non conveniens when facing a

claim concerning extraterritorial torts. Case CSeptember 1968, 1972 O.J. (L 299) 32 (EC). See

generally

CHRISTOPH

SCHMON,

THE

INTERCONNECTION OF THE EU REGULATIONS

BRUSSELS I RECAST AND ROME I: JURISDICTION AND

LAW (2020) (describing the jurisdictional rules of

EU regulations).

23 Pursuant to Article 63 (formerly Article 60) of the

Brussels I Regulation (recast), a corporation is

domiciled in the place of its statutory seat, its

central administration, or its principal place of

business. The place of central administration is the

location where the company, through its relevant

organs, makes the decisions that are essential for

the company’s operations. Young v. Anglo American

South Africa Limited & Ors, [2014] EWCA Civ

1130 [45] (Eng.).

281/02, Owusu v Jackson, 2005 E.C.R. I-1383, 1462.

This includes torts committed outside the European

Union. Id. ¶ 31. Repeated attempts by defendants

to fashion exceptions to the rule have been

unsuccessful.

Over the past 25 years, there have been

numerous

cases

where

English

domiciled

companies have been sued “as of right” before the

English courts for the impact of their overseas acts.

See, e.g., Guerrero & Others v. Monterrico Metals

PLC, [2009] EWHC 247 (Eng.) (alleged corporate

complicity with state security in the torture and

unlawful detention of 33 indigenous environmental

protesters at a copper mine in Peru); Kesabo v.

African Barrick Gold PLC & NMGML, [2013]

EWHC 4045 (Eng.) (alleged corporate complicity

with state security in the shooting and killings of

12 villagers at a gold mine in Tanzania).

Due to Brexit, the United Kingdom has now left

the European Union. As a result, the relevant EU

Regulations will cease to have legal effect as of

December 31, 2020 unless the United Kingdom

reaches an agreement with the European Union.

The United Kingdom has indicated it will become a

party to the Lugano Convention on Jurisdiction

and the Recognition and Enforcement of Judgments

in Civil and Commercial Matters, 2007 O.J. (L 339)

3 (EC). The Lugano Convention replicates the

mandatory jurisdiction provided by the Brussels I

Regulation (recast). Accordingly, the United

Kingdom would be bound by the same jurisdictional

principles it currently recognizes.

If the United Kingdom does not accede to the

Lugano Convention, then jurisdiction will revert to

domestic law rules, and each case would turn on its

individual facts. Nevertheless, the House of Lords

has held that where an English domiciled company

is sued for injuries arising overseas, the United

Kingdom would be the “appropriate jurisdiction.”

Connelly v. RTZ Corp. PLC, [1998] AC 854, 873

(Eng.).

Even where England is not the natural or most

convenient forum for a claim against a nondomiciled party, a court will still maintain

jurisdiction over the case if it concludes that there

is a real risk the claimants would not obtain

substantial justice in the foreign court. In Vedanta,

for example, the court retained jurisdiction because

it determined that the complexity and cost of the

case made it unlikely that the plaintiffs could

obtain justice in Zambia.24 Vedanta, ¶ 88.

D. France

French courts exercise jurisdiction in tort cases,

even when there is a dispute over jurisdiction, as

long as one of the defendants is domiciled in

24 U.K. courts have retained claims for a variety of

reasons, including the risk of corruption in foreign

courts and the inability of foreign courts to keep

highly sensitive information confidential. See, e.g.,

AAA & Others v. Unilever, [2017] EWHC 371

(Eng.); Lubbe & Others v. Cape PLC concerning

South Africa, [2000] 1 WLR 1545 (Eng.).

France. 25 As with other EU member states, the

assertion of jurisdiction in France is governed by

the Brussels I Regulation (recast). Therefore,

French courts are unlikely to decline jurisdiction

over defendants domiciled in France absent fraud

or similar facts.

This principle is also explicitly set forth in

Article 42 of the French Code of Civil Procedure,

which states “[u]nless otherwise provided, the court

with territorial jurisdiction is that of the place

where the defendant resides.” CODE DE PROCÉDURE

CIVILE [C.P.C.] [CIVIL PROC. CODE] art. 42 (2020)

(Fr.). Article 42 adds that “[i]f there are several

defendants, the plaintiff shall, at his/her option,

bring proceedings in the court of the place where

one of them resides.” Id. These procedural rules

apply equally to individuals as well as corporations.

Significantly, French law, as set forth in the

2017 Law on the Duty of Vigilance, requires large

corporations to establish, publicize, and implement

a vigilance plan which applies to their domestic and

25 French

criminal law also allows for jurisdiction

by French courts over French nationals who have

committed extraterritorial harms. See generally

CODE DE PROCÉDURE PÉNALE [C. PR. PÉN] [CRIM.

PROC. CODE] art. 113-6 (2020) (Fr.). Under this

authority, French courts may assert jurisdiction

over parent companies incorporated in France, as

well as French managers of foreign subsidiaries.

overseas actions.26 See French Law on the Duty of

Vigilance of Parent and Instructing Companies,

Law No. 2017-399 (Mar. 27, 2017). Vigilance plans

must include reasonable measures to identify risks

and prevent serious violations of human and

environmental rights resulting from the activities

of the company and those entities it controls, as

well as from the activities of subcontractors or

suppliers with which it has an established business

relationship. Id. art. 1. The failure to comply with

this obligation triggers the liability of the French

corporation and requires that it provide

compensation for damages. Id. art. 2.

French law thus includes a dedicated cause of

action providing that French corporations will be

held accountable for breaching their duty of

vigilance even for actions committed abroad.

According to its legislative history, the purpose of

the law is “to make transnational corporations

accountable in order to prevent the occurrence of

tragedies in France and abroad and to obtain

compensation for victims in the event of damage to

human rights and the environment.” French

National Assembly, Proposed Law on the Duty of

26 For a translation of the French Law on the Duty

of Vigilance of Parent and Instructing Companies,

see

SHERPA, VIGILANCE PLANS REFERENCE

GUIDANCE

(2019),

https://www.assosherpa.org/wpcontent/uploads/2019/02/Sherpa_VPRG_EN_WEBilovepdf-compressed.pdf.

Vigilance of Parent Companies and Ordering

Companies

(Nov.

2013),

available

http://www.assembleenationale.fr/14/propositions/pion1519.asp#:~:text=L

a%20proposition%20de%20loi%20propose,portant%

20atteinte%20aux%20droits%20fondamentaux. The

extraterritorial reach of the duty of vigilance was

acknowledged throughout French parliamentary

debates.27

E. Germany

German courts may exercise jurisdiction in tortbased proceedings regarding human rights abuses

abroad when the corporate defendants are

domiciled in Germany.

In the case of complaints against companies

domiciled in Germany, jurisdiction is based on the

27 See French National Assembly, Report Made on

Behalf of the Committee on Constitutional Laws,

Legislation, and the General Administration of the

Republic on the Proposal of Law (No. 1519)

Relating to the Duty of Vigilance of Parent

Companies and Ordering Companies (Jan. 21,

2015),

available

http://www.assembleenationale.fr/14/rapports/r2504.asp (“In the absence

of a mechanism for the legal responsibility of

transnational corporations for human rights

violations committed by their subsidiaries and

subcontractors—particularly

outside

national

borders—it is difficult for victims to obtain

compensation for the damages suffered.”).

Brussels I Regulation (recast). Therefore, German

courts can exercise jurisdiction over cases filed

against parent or buying companies involved in

overseas human rights abuses that have their

statutory seat, central administration, or principal

place of business in Germany.

Applying these rules, German courts accepted

jurisdiction in Jabir et al. v. KiK Textilien und NonFood GmbH, LG Dortmund (Regional Court

Dortmund), 2016 (Case No. 7 O 95/19) (Ger.) as

well as Lliuya v. RWE AG, LG Essen, 2015 (Case

No. 2 O 285/15) (Ger.). In both cases, the defendant

companies were headquartered in Germany and

committed human rights abuses or environmental

damage in another country.

Jabir involved a 2012 fire at the Ali Enterprise

(“AE”) textile factory in Karachi, Pakistan, in

which 259 workers died and 32 were heavily

injured. See generally Philippe Wesche & Miriam

Saage-Maaß, Holding Companies Liable for Human

Rights Abuses Related to Foreign Subsidiaries and

Suppliers Before German Civil Courts: Lessons

from Jabir and Other v. Kik, 16 HUM. RTS. L. REV.

370 (2016). The most notable customer of the

factory was the German textile company KiK

Textilien und Non-Food GmbH (“KiK”). According

to its own statements, KiK purchased at least

70% of the production output of AE over a period of

five years. In Jabir, the court stated that

jurisdiction arose both from Article 4(1) and Article

63(1) of the Brussels I Regulation (recast) as well

as from Sections 12 and 17 of the German Code of

Civil Procedure. ZIVILPROZESSORDNUNG [ZPO]

[CODE OF CIVIL PROCEDURE], §§ 12, 17 (citing

Bundesgerichtshof [BGH] [Federal Court of

Justice] May 5, 2011, IX ZR 176/10) (Ger.)).

In Lliuya, the plaintiff was a Peruvian farmer

who owned property located below a glacial lake at

the foot of the Andes. Lliuya v. RWE AG, LG Essen,

2015 (Case No. 2 O 285/15) (Ger.). The defendant

RWE AG was a German registered company and

was the parent company of RWE, an energy group

that owned various companies in the field of coalbased power generation. The plaintiff claimed that

his home was threatened by flooding because the

glacial lake could break at any time as a

consequence of anthropogenic climate change. The

plaintiff further claimed that the defendant was

jointly responsible because it released large

quantities of greenhouse gases throughout Europe,

particularly through its subsidiaries, which were

active in the field of coal-fired power generation.

Therefore, the plaintiff sought a declaration that

the defendant should bear the costs of protective

measures against a glacial flood of the plaintiff’s

property in proportion to its contribution of

allegedly 0.45% of global greenhouse gas emissions.

Both the first instance court and the court of

appeal followed Regulation (EC) No. 864/2007 of

the European Parliament and of the Council of 11

July 2007 on the law applicable to non-contractual

obligations 2007 O.J. (L 199) (EC) (“Rome II”) and

applied German law. Article 7 of Rome II provides

an exception to the lex loci damni rule in cases

arising from environmental damage. In such cases,

claimants can choose to base their claims on the

law of the country in which the conduct giving rise

to the damage occurred. The court of appeal

allowed the case to proceed to discovery, and

ordered expert opinions on the question of

causation and attribution. See Lliuya v. RWE, OLG

Hamm (Higher Regional Court Hamm), Nov. 30,

2017, I-5 U 15/17 (Ger.).

In lawsuits against subsidiaries and suppliers

domiciled outside the European Union, the German

laws on civil jurisdiction apply in accordance with

Article 6 of the Brussels I Regulation (recast).

According to Section 17 of the German Code of

Civil Procedure, which regulates jurisdiction over

judicial persons, German courts have jurisdiction

over companies seated in Germany. The decisive

factor in determining where a company is seated is

its actual center of administration, meaning the

place where fundamental management decisions

are taken and implemented. See BGH, Mar. 21,

1986, V ZR 10/85 (Ger.). Consequently, the German

rules generally do not provide the courts with

jurisdiction over non-European Union subsidiaries

or suppliers. However, there is some case law

where German courts exercised jurisdiction over

companies incorporated outside the European

Union on the basis that their administration was

actually carried out in Germany. See, e.g., BGH,

Mar. 15, 2010, II ZR 27/09 (Ger.); OLG Köln

(Higher Regional Court Köln), Jan. 31, 2006, Case

No. 22 U 109/05 (Ger.).

In addition, Section 32 of the German Code of

Civil Procedure provides jurisdiction over tortious

acts and omissions committed in Germany,

irrespective of where the harmful event occurred.

Under German law, the contribution of each

tortfeasor to a jointly committed tort is attributable

to the other tortfeasors, not only in terms of

damages, but also in terms of establishing

jurisdiction under Section 32. See BGH, July 12,

1995, XII ZR 109/94 (Ger.). On this basis, the

Federal Court of Justice has exercised jurisdiction

over non-EU companies that were allegedly

involved in torts committed jointly with German

nationals on German territory. See BGH, June 29,

2010, VI ZR 122/09 (Ger.). To establish jurisdiction,

it is sufficient that the claimants present the court

with conclusive facts substantiating their claim.

See BGH, Mar. 9, 2010, XI ZR 93/09 (Ger.).

F. Netherlands

Dutch law allows civil courts to exercise

jurisdiction over the foreign activities of legal

persons domiciled in the Netherlands, and over tort

lawsuits concerning harmful acts carried out in the

course of those activities. Courts can also exercise

jurisdiction over the tortious conduct of

subsidiaries of Dutch corporations domiciled

outside of the Netherlands. This principle is

established in both statutory and case law.

Jurisdiction over civil lawsuits in the

Netherlands is partially governed by the Brussels I

Regulation (recast). The Regulation is binding on

the Netherlands, is directly applicable in the

domestic legal order, and has primacy over

domestic law. It applies to all civil suits against

persons domiciled in an EU member state, and

exhaustively harmonizes rules on jurisdiction for

cases that fall within its scope. It is reflected in

Article 2 of the Dutch Code of Civil Procedure

(Wetboek van Burgerlijke Rechtsvordering) (Art. 2:1

¶ 1 BW). In Stichting Victimes des Dechets Toxiques

Cote d’Ivoire v. Trafigura, a case concerning the

dumping of toxic material in Ivory Coast, the court

exercised jurisdiction over Trafigura Beheer Ltd., a

corporation registered in the Netherlands, for

damage caused to Ivorian plaintiffs. See District

Court

Amsterdam,

Apr.

18,

2018,

ECLI:NL:RBAMS:2018:2476 (Neth.), affirmed in

Court of Appeal Amsterdam, Apr. 14, 2020,

ECLI:NL:GHAMS:2020:1157 (Neth.).

If a defendant is not domiciled in an EU

member state, jurisdiction is determined according

to the domestic law of the state where the suit is

filed. Under Dutch law, it is possible to sue

defendants not domiciled in the Netherlands,

including corporate defendants. Under Article 7(1)

of the Dutch Code of Civil Procedure, courts can

exercise jurisdiction over multiple defendants if

they have jurisdiction over at least one of the

defendants, and the claims are so related that it

would be in the interests of expediency to hear

them together. See Art. 7:1 ¶ 1 BW. Dutch courts

also consider whether bringing claims separately

before different courts would create the risk of

irreconcilable judgments. This includes defendants

that would otherwise be outside the jurisdiction of

the court.

Dutch courts have also relied on these

provisions to exercise jurisdiction over lawsuits

against Dutch corporations and their subsidiaries

for extraterritorial harms that arise out of their

conduct overseas. In Akpan & Stichting

Milieudefensie v. Shell, Nigerian plaintiffs sued

Royal Dutch Shell (“RDS”), a company incorporated

in the Netherlands, and its Nigerian subsidiary

Shell Petroleum Development Company of Nigeria

(“SPDC”) for damage caused to farmlands and

fishing grounds by oil spills in the Niger Delta. See

Court of Appeal The Hague, Dec. 18, 2015,

ECLI:NL:GHDHA:2015:3587 (Neth.). In 2015, the

Court of Appeal ruled that it could exercise

jurisdiction over RDS pursuant to its domicile in

the Netherlands according to Article 4(1) of the

Brussels I Regulation (recast), and over SPDC

pursuant to the claims being sufficiently connected

according to Article 7(1) of the Dutch Code of Civil

Procedure. Id. ¶¶ 2.3–2.4, 28. The court explicitly

rejected the defendants’ arguments that RDS was

only sued as an anchor defendant to bring SPDC

within the court’s jurisdiction. Id. ¶¶ 2.5–2.7.

Similarly, in Kiobel v. Shell, Nigerian plaintiffs

sued RDS and SPDC for complicity in the torture

and extrajudicial executions of their family

members. See District Court The Hague, May 1,

2019, ECLI:NL:RBDHA:2019:4233 (Neth.) In an

interlocutory decision, the court found that it could

exercise jurisdiction over both defendants based on

the same grounds under Article 4(1) of the Brussels

I Regulation (recast) and Article 7(1) of the Dutch

Code of Civil Procedure. Id. ¶¶ 4.23–4.28.

Additionally, under Article 9 of the Dutch Code

of Civil Procedure, courts can exercise residual

jurisdiction as a form of forum necessitatis if the

case has a connection with the Netherlands and if

it would be impossible for the plaintiff to bring the

case in their home forum or unreasonable to

require the plaintiff to do so. The court can then

assert jurisdiction to prevent the plaintiff from

facing a denial of justice. Forum necessitatis is

generally considered to be a last resort, but it has

been relied on in practice. See Lucas Roorda &

Cedric Ryngaert, Business and Human Rights

Litigation in Europe: The Promises of Forum of

Necessity Jurisdiction, 80 RABEL J. COMP. & INT’L

PRIV. L. 784 (2016). Dutch courts have exercised

necessity jurisdiction in commercial disputes

between corporations, and in El Houjouj v.

Unnamed Libyan Officials, the court accepted

necessity jurisdiction in a tort case filed by a

refugee in the Netherlands against Libyan officials

concerning acts of torture in Libya. See District

Court

The

Hague,

Mar.

21,

2012,

ECLI:NL:RBSGR:2012:BV9748 (Neth.).

In conclusion, there are ample grounds for

Dutch courts to exercise civil jurisdiction over

corporations for extraterritorial harms.

28 See also

Court of Appeals Amsterdam, July 23,

2019, ECLI:NL:GHAMS:2019:2682 (Neth.); Court

of Appeals The Hague, Nov. 30, 2011,

ECLI:NL:GHSGR:2010:BO6529 (Neth.).

CONCLUSION

There is ample precedent for courts to exercise

jurisdiction over domestic corporations for their

conduct that causes injury abroad. Accordingly, this

Court should affirm the decision of the Ninth

Circuit.

Respectfully submitted,

October 21, 2020

William J. Aceves

Counsel of Record

California Western School of Law

225 Cedar Street

San Diego, CA 92101

(619) 515-1589

wja@cwsl.edu

Tanya Sukhija-Cohen

Hadsell Stormer Renick & Dai LLP

128 North Fair Oaks Avenue

Pasadena, CA 91103

(626) 585-9600

tanya@hadsellstormer.com

Counsel for Amici Curiae

APPENDIX:

LIST OF AMICI CURIAE29

Camp Fiorante Matthews Mogerman

Vancouver, British Columbia, Canada.

LLP,

Peter Cashman, Barrister, 3 Wentworth Chambers,

Sydney, Australia.

Sandra Cossart, Sherpa, Paris, France.

Laura Bourgeois, Sherpa, Paris, France.

Richard Hermer, QC, Matrix, Griffin Building,

Gray’s Inn, London, United Kingdom.

Klippensteins, Barristers & Solicitors, Toronto,

Ontario, Canada.

Richard Meeran, Leigh Day Priory House, London,

United Kingdom.

Tamara Morgenthau, Toronto, Ontario, Canada.

Waddell Phillips PC, Toronto, Ontario, Canada.

Michiel Pestman, Amsterdam, The Netherlands.

Affiliations provided for informational purposes

only.

A-1

Lucas Roorda, Universiteit Utrecht, Utrecht, The

Netherlands.

Miriam Saage-Maaß, Berlin, Germany.

Amelia Simpson, Solicitor, Sydney, Australia.

Siskinds LLP, London, Ontario, Canada.

James Yap, Toronto, Ontario, Canada.

A-2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.