Amicus Curiae Brief — The Doe Run Resources Corporation, et al., Petitioners v. Kate Reid, et al.

No. 24-601

In the Supreme Court of the United States

THE DOE RUN RESOURCES CORPORATION, ET AL.,

PETITIONERS,

v.

KATE REID, ET AL.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF AMICUS CURIAE

PROFESSOR SAMUEL ESTREICHER

SUPPORTING PETITIONERS

SAMUEL ESTREICHER

Dwight D. Opperman

Professor of Public Law

Director, Center for Labor

and Employment Law &

Director, Institute of

Judicial Administration

NEW YORK UNIVERSITY

SCHOOL OF LAW

40 Washington Sq. So.

New York, NY 10012

ELIZABETH HOLT ANDREWS

Counsel of Record

HEATHER C. SMITH

TROUTMAN PEPPER

LOCKE LLP

Three Embarcadero Ctr.

Suite 800

San Francisco, CA 94111

415.477.5700

elizabeth.andrews@

troutman.com

Counsel for Amicus Curiae

PROFESSOR SAMUEL ESTREICHER

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICUS CURIAE.............................1

SUMMARY OF ARGUMENT ....................................... 2

ARGUMENT ................................................................... 6

I.

Principles of International Comity Abstention

Are Essential in Helping U.S. Courts Deal

with Cases That Pose a Significant Risk of

Tensions with Foreign States .............................6

II.

The U.S. Courts of Appeals’ Struggle to

Adequately Address International Comity

Concerns Demonstrates the Need for a

Clearer Analytical Framework ...........................9

A. The Ninth Circuit’s Timberlane Factors

(1976) .............................................................9

B. The Third Circuit’s Mannington Mills

Factors (1979) ..............................................10

C. The Second Circuit’s Attempt to Refocus

International Comity in Animal Science II

(2021) ...........................................................11

D. A Proposed Clarification of the Analytical

Framework for Comity Abstention .............13

III. CONCLUSION ..................................................20

ii

TABLE OF AUTHORITIES

CASES

Abad v. Bayer Corp.,

563 F.3d 663 (7th Cir. 2009)................................13

Acosta v. JPMorgan Chase & Co.,

219 F. App’x 83 (2d Cir. 2007) .............................13

Animal Sci. Prods., Inc. v.

Hebei Welcome Pharm. Co.,

585 U.S. 33 (2018) ................................................18

Empresa Lineas Maritimas Argentinas S.A. v.

Schichau-Unterweser, A.G.,

955 F.2d 368 (5th Cir. 1987)..................................8

Figueiredo Ferraz E Engenharia de Projeto Ltda.

v. Republic of Peru,

665 F.3d 384 (2d Cir. 2011) .................................13

GDC Acquisitions, LLC v. Gov’t of Belize,

749 F.3d 1024 (11th Cir. 2014)............................19

Hilton v. Guyot,

159 U.S. 113 (1895) ................................................7

In re Maxwell Commc’n Corp.,

93 F.3d 1036 (2d Cir. 1996) .................................11

In Re: Vitamin C Antitrust Litig.,

8 F.4th 136 (2d Cir. 2021).................... 9, 11, 12, 13

Indus. Inv. Dev. Corp. v. Mitsui & Co.,

671 F.2d 876 (5th Cir. 1982), vacated

on other grounds, 460 U.S. 1007 (1983) ................9

Macedo v. Boeing Co.,

693 F.2d 683 (7th Cir. 1972)..................................8

iii

Mannington Mills, Inc. v. Congoleum Corp.,

595 F.2d 1287 (3d Cir. 1979) ............... 9, 10, 11, 13

Mujica v. AirScan,

771 F.3d 580 (9th Cir. 2014)................................15

RJR Nabisco v. Eur. Comty.,

579 U.S. 325 (2016) ................................................3

Societe Nationale Industrielle Aero-spatiale v.

U.S. Dist. Ct.,

482 U.S. 522 (1987) ..............................................15

The Schooner Exch. v. McFaddon,

11 U.S. 116 (1812) ..............................................6, 7

Timberlane Lumber Co. v. Bank of Am.,

549 F.2d 597 (9th Cir. 1976)................ 9, 10, 11, 13

Torres v. S. Peru Copper Corp.,

965 F. Supp. 899 (S.D. Tex. 1996) .................16, 18

Torres v. S. Peru Copper Corp.,

113 F.3d 540 (5th Cir. 1997)................................15

Ungaro Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004)..............................9

iv

STATUTES, RULES AND REGULATIONS

9 U.S.C. § 205 ..............................................................5

Federal Rule of Civil Procedure 44.1........................18

Judiciary Act of 1789, ch. 20, § 9,

1 Stat. 73 (1789) .....................................................6

Supreme Court Rule 37.2 ...........................................1

Supreme Court Rule 37.6 ...........................................1

OTHER AUTHORITIES

Stephen Breyer, The Court and the World:

American Law and the New Global Realities

91 (2015) .............................................................2, 3

Brief for the United States as Amicus Curiae

Supporting Petitioner, Republic of Hungary v.

Simon, 592 U.S. 207 (2021) (No. 18-1447) ..........14

Samuel Estreicher & Thomas H. Lee, In Defense

of International Comity, 93 S. Cal. L. Rev. 169

(2020) ............................................................1, 7, 15

Harold H. Koh, Private Official Immunity After

Samantar: A United States Government

Perspective, 44 Vand. J. Transn’l L. 1141

(2011) ....................................................................15

Justice Joseph Story, Commentaries on the

Conflict of Laws (1834) ..........................................6

Pub. L. No. 110-138, 121 Stat. 1455, § 102(b)(1) .....17

v

U.S.–Peru Trade Protection Agreement

(“TPA”)............................................................16–18

Art. 10.21................................................................4

Art. 18.3(5) ...........................................................17

Art. 18.4(4) ...........................................................17

Art. 18.8................................................................16

INTEREST OF AMICUS CURIAE1

Amicus Curiae Samuel Estreicher is the Dwight D.

Opperman Professor of Public Law at New York

University School of Law. He is also the Director of its

Center for Labor and Employment Law, and Director

of its Institute of Judicial Administration.

Professor Estreicher is a renowned expert on

international litigation, foreign relations law, federal

courts, and administrative and regulatory law. He is

the co-author of Samuel Estreicher & Thomas H. Lee,

In Defense of International Comity, 93 S. Cal. L. Rev.

169 (2020) (hereinafter “Estreicher & Lee”), which

sets forth his views on international comity

abstention, a principal focus of the Petition. Professor

Estreicher regularly teaches foreign relations law,

among other subjects. He (along with Professor Lee)

has regularly filed amicus briefs in this Court and

lower courts dealing with international comity issues.

He authors a regular column on foreign relations law

for the New York Law Journal. He also served as the

Chief Reporter of the American Law Institute (“ALI”)’s

Restatement of Employment Law, is a member of the

ALI’s consultative group on the Restatement Fourth of

Foreign Relations Law, and recently completed his four-

1 Pursuant to this Court’s Rule 37.2, Amicus provided timely

notice to all parties of his intent to file this brief. Further, per

Rule 37.6, Amicus affirms that no counsel for a party authored

this brief in whole or in part, and that no party, counsel for a

party, or any person other than Amicus or his counsel made a

monetary contribution intended to fund the preparation or

submission of this amicus brief.

2

year term as a member of the Internal Justice Council

of the United Nations.

This brief represents Professor Estreicher’s views

as a teacher and scholar and not necessarily the views

of any organization with which he is affiliated. He is

filing this brief in support of the Petition, to call the

Court’s attention to the continuing importance of

international comity as a freestanding doctrine of

restraint in helping U.S. courts tread carefully in cases

implicating U.S. relations with foreign states, and to

urge the Court to take up the Petition to resolve certain

gaps and inconsistencies in the law as highlighted by

Eighth Circuit’s ruling below.

SUMMARY OF ARGUMENT

As litigation has become increasingly transnational, consideration of international comity in

judicial decision-making has taken on growing

significance. Justice Breyer has observed that “the old

legal concept of ‘comity’ has assumed an expansive

meaning,” no longer referring “simply to the need to

ensure that domestic and foreign laws did not impose

contradictory duties upon the same individual; it used

to prevent the laws of different nations from stepping

on one another’s toes. Today it means something

more.” Stephen Breyer, The Court and the World:

American Law and the New Global Realities

91 (2015). “Since there is no Supreme Court of the

World, national courts must act piecemeal, without

direct coordination, in seeking interpretations that

can dovetail rather than clash with the working of

foreign statutes,” and in doing so they must “listen to

3

foreign voices, to those who understand and can

illuminate relevant foreign laws and practices.” Id. at

92.

Principles of international comity abstention play

a critical role in urging federal and state courts to

take seriously U.S. interests in avoiding frictions with

foreign states when hearing “foreign cubed” cases—

cases occurring on foreign soil, involving foreign

plaintiffs and often the application of foreign law, and

implicating foreign policy concerns.2

The Petition addresses a case originating in the

Missouri state courts but later removed to federal

court, which involves questions of compliance with

Peruvian environmental law in connection with a

Peruvian subsidiary of a U.S. corporation’s operation

of Peruvian mines in causing environmental harms in

that country. The Eighth Circuit below rejected

Petitioners’ claim for international comity abstention

because this case (a) was not of that “rare” breed of

“often calamitous cases” warranting what the court

termed

“prospective

international

comity”—

“prospective” since there were no past Peruvian

judgments seeking recognition and enforcement in

the U.S. or pending parallel U.S. and Peruvian court

2 “Foreign-cubed” generally refers to cases in which a foreign

plaintiff sues a foreign defendant for acts committed on foreign

soil. RJR Nabisco v. Eur. Cmty., 579 U.S. 325, 363 (2016)

(Breyer, J., concurring in part, dissenting in part, and dissenting

from the judgment). In this case, more than 1400 Peruvian

citizen claimants have brought suit both on their own behalf and

through next friends who are Missouri residents. Pet. App. 1a,

2a.

4

proceedings (“parallel proceedings”); (b) involved a

U.S. company’s “negligence” in making corporate

decisions out of Missouri; and (c) “[n]either the State

Department nor the government of Peru has

submitted a declaration of its position in this case.”

Pet. App. 7a–10a.

The Eighth Circuit here essentially truncated the

international comity inquiry to the point of rendering

it a dead letter in many cases. The presence of parallel

proceedings is certainly a relevant factor, but it is not

a required element. A formal declaration by the U.S.

State Department is another relevant factor, but

there are many reasons, including political

considerations, that often preclude such a

declaration. Despite the court’s insistence on a formal

“declaration,” Peruvian officials made clear Peru’s

opposition to this U.S. court proceeding in official

correspondence, to which the Eighth Circuit should

have given appropriate weight instead of dismissing

the correspondence out of hand. Pet. App. 10a, 80a–

82a; ECF 545-3, 545-13. The Peruvian officials

submitted two letters, one dated October 2007 and the

other dated April 2017. The 2007 letter argued that

this case should be heard in Peru based on principles

of international law. The letter requested that the

State Department notify the relevant Missouri court

that the lawsuit must be filed in Peru and “take other

steps” the ensure that any court of the United States

would refuse to review the case. ECF 545-13. The

Peruvian officials sent the April 2017 letter pursuant

to Article 10.21 of the U.S.–Peru Trade Promotion

Agreement (“TPA”) in relation to arbitration

proceedings brought by Petitioners Renco and Doe

5

Run Resources against Peru. ECF 545-3. The April

2017 letter incorporated the officials’ October 2007

letter and reiterated that Peruvian authorities must

hear and resolve this dispute in Peru. Id. Specifically,

the Peruvian authorities stated that “Peru has long

emphasized and maintains the importance of its

sovereign rights with respect to these issues,

including as reflected in the Treaty ratified thereafter

and conveyed in arbitration.” Id. at 4.

Consideration of international comity concerns is

especially salient as extraterritorial international

human rights and other lawsuits migrate to state

courts in circumstances where, unlike the instant

proceeding,3 removal to federal court will not be

available; and, other than international comity, there

may be no clear federal basis for this Court’s review

of such suits even where they pose marked tensions

with U.S. foreign relations.

3 Removal occurred in this case because Renco Group, one of

the Petitioners here, had initiated arbitration proceedings to

compel Peru to defend and indemnify Renco. The arbitration

agreement between Renco and Peru fell under the Convention

on the Recognition and Enforcement of Arbitration Awards

which allows removal “where the subject matter of an action or

proceeding . . . relates to an agreement or award falling under

the Convention.” 9 U.S.C. §205; Pet. App. 4a–5a.

6

ARGUMENT

I.

Principles of International Comity

Abstention Are Essential in Helping U.S.

Courts Deal with Cases That Pose a

Significant Risk of Tensions with

Foreign States.

In our increasingly interconnected world, the

United States is an influential global player in a way

that the Founders could hardly have imagined, and it

is becoming increasingly common for decisions made

in our courts to have significant repercussions in

other countries. The need for judicial sensitivity to

litigation that could cause friction with foreign

nations has been obvious from our country’s early

years. This sensitivity has been woven into the fabric

of American jurisprudence at least since the early

nineteenth century. Indeed, even before the concept

of “comity” was formally articulated in Justice Joseph

Story’s Commentaries on the Conflict of Laws (1834),

this Court, in recognizing the implied immunity of a

public armed vessel of a friendly foreign state in a

U.S. port, declined jurisdiction where important

foreign governmental interests were at stake. See The

Schooner Exch. v. McFaddon, 11 U.S. 116 (1812).4

4 The Schooner Exchange Court declined jurisdiction over the

foreign vessel, which had taken shelter during a storm in the

port of Philadelphia, despite the American libellants’ plea for

jurisdiction under the 1789 Judiciary Act, which provided that

the district courts “shall also have exclusive original cognizance

of all civil causes of admiralty and maritime jurisdiction.”

Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (1789) (emphasis

added). Chief Justice Marshall reasoned: “Those general

7

By the end of the nineteenth century, this Court

had applied the principle of international comity to

compel abstention in appropriate cases, honoring the

“recognition which one nation allows within its

territory to the legislative, executive or judicial acts of

another nation, having due regard both to

international duty and convenience, and to the rights

of its own citizens or of other persons who are under

the protection of its laws.” Hilton v. Guyot, 159 U.S.

113, 164 (1895); see generally Estreicher & Lee, supra,

at 190–97 (providing a summary of the history of

international comity starting in the early 1800s).

The traditional principles from cases like The

Schooner Exchange and Hilton have not always been

carried forward to the present day in a fully coherent

fashion. See generally Estreicher & Lee, supra, at

175–77 (providing a comprehensive overview of the

problematic state of current law). Relying on

indeterminate, manipulable multi-factor tests, U.S.

courts lack a workable analytic framework to assist

them in appropriately analyzing the growing number

of foreign-cubed suits by foreign plaintiffs seeking to

leverage the American judicial system to address

wrongs they have suffered in their home countries.

statutory provisions . . . which are descriptive of the ordinary

jurisdiction of the judicial tribunals, which give an individual

whose property has been wrested from him, a right to claim that

property in the courts of the country, in which it is found, ought

not, in the opinion of this Court, to be so construed as to give

them jurisdiction in a case, in which the sovereign power has

impliedly consented to waive its jurisdiction.” The Schooner

Exchange, 11 U.S. at 146.

8

A clearer analytical framework continues to be

needed because international comity plays an

essential role in focusing judicial attention on possible

conflicts with U.S. foreign relations in permitting

these essentially extraterritorial claims to proceed in

U.S. courts. Cognate doctrines like the presumption

against extraterritoriality can be helpful when

dealing with federal laws, but they are not clearly

applicable to state courts in international tort cases

under state laws. The “act of state” doctrine plays a

role where sovereign acts of foreign states are

involved. And other avenues such as forum non

conveniens (“FNC”) emphasize litigation convenience,

and in many jurisdictions lead to a strong bias in

favor of resident plaintiffs (perhaps one reason the

suit below was initially brought in Missouri state

court).5 Limits on personal jurisdiction can be invoked

in appropriate cases, but having a U.S. corporation as

defendant typically eliminates that obstacle.

The bottom line is that existing doctrines do not

adequately further the need for international comity

As the Seventh Circuit recognized in Macedo v. Boeing

Company, there is “a strong presumption in favor of the

plaintiff’s choice of forum, which may be overcome only when the

private and public interest factors clearly point to trial in the

alternative forum,” especially where plaintiff has filed suit in his

home forum. 693 F.2d 683, 688 (7th Cir. 1972). Litigation

convenience is a paramount consideration in FNC determinations, but “[w]hen a plaintiff chooses a foreign forum for its

claim, courts are reluctant to assume that convenience

motivated that choice.” Empresa Lineas Maritimas Argentinas

S.A. v. Schichau-Unterweser, A.G., 955 F.2d 368, 373 (5th Cir.

1987).

5

9

in U.S. courts that our history, tradition, and

precedents prescribe.

II.

The U.S. Courts of Appeals’ Struggle to

Adequately Address International

Comity Concerns Demonstrates the Need

for a Clearer Analytical Framework.

In the modern era, the U.S. Courts of Appeals have

recognized international comity as an independent

basis for abstention or dismissal in sensitive foreign

relations cases dating back to the 1970s. See, e.g., In

Re: Vitamin C Antitrust Litig., 8 F.4th 136 (2d Cir.

2021); Ungaro Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004); Indus. Inv. Dev. Corp.

v. Mitsui & Co., 671 F.2d 876, 884 n.7 (5th Cir. 1982),

vacated on other grounds, 460 U.S. 1007 (1983);

Mannington Mills, Inc. v. Congoleum Corp.,

595 F.2d 1287 (3d Cir. 1979); Timberlane Lumber Co.

v. Bank of Am., 549 F.2d 597, 613–615 (9th Cir. 1976).

A.

The Ninth Circuit’s Timberlane

Factors (1976)

The Ninth Circuit kicked off the modern era of

international comity law in the mid-1970s, when it

articulated a “multi-factor balancing test” in

Timberlane Lumber Company v. Bank of America,

N.T. & S.A., 549 F.2d 597, 614–15 (9th Cir. 1976).

The Timberlane factors are as follows: (1) “degree

of conflict with foreign law or policy”; (2) “nationality

or allegiance of the parties and the locations or

principal places of businesses or corporations”;

(3) “extent to which enforcement by either state can

be expected to achieve compliance”; (4) “relative sig-

10

nificance of effects on the United States as compared

with those elsewhere”; (5) “extent to which there is

explicit purpose to harm or affect American

commerce”; (6) “foreseeability of such effect”;

(7) “relative importance to the violations charged of

conduct within the United States as compared with

conduct abroad”; and (8) “whether in the face of

[potential conflict], the contacts and interests of the

United States are sufficient to support the exercise of

. . . jurisdiction”). Id.

B.

The Third Circuit’s Mannington

Mills Factors (1979)

The Third Circuit took a stab at revising the

Timberlane factors in Mannington Mills, Inc. v.

Congoleum Corporation, arriving at a ten-part test,

instead of eight. 595 F.2d 1287, 1297–98 (3d Cir.

1979) (“The factors we believe should be considered

include: 1. Degree of conflict with foreign law or

policy; 2. Nationality of the parties; 3. Relative

importance of the alleged violation of conduct here

compared to that abroad; 4. Availability of a remedy

abroad and the pendency of litigation there;

5. Existence of intent to harm or affect American

commerce and its foreseeability; 6. Possible effect

upon foreign relations if the court exercises

jurisdiction and grants relief; 7. If relief is granted,

whether a party will be placed in the position of being

forced to perform an act illegal in either country or be

under conflicting requirements by both countries;

8. Whether the court can make its order effective;

9. Whether an order for relief would be acceptable in

this country if made by the foreign nation under

11

similar circumstances; 10. Whether a treaty with the

affected nations has addressed the issue.”).

The Ninth and Third Circuit’s tests were wellintentioned attempts to operationalize traditional

concerns respecting international comity, but

unfortunately, they proved too unpredictable and

manipulable to provide a workable framework.

C.

The Second Circuit’s Attempt to

Refocus International Comity in

Animal Science II (2021)

In 2021, the Second Circuit made an effort to

gather together many of the relevant principles in

international comity doctrine in In Re: Vitamin C

Antitrust Litigation (more commonly referred to as

Animal Science II), 8 F.4th 136 (2d Cir. 2021). In that

case, before diving into the Timberlane and

Mannington Mills factors, the court went back to first

principles. The court wrote that, “[a]s a general

matter, international comity ‘takes into account the

interests of the United States, the interests of the

foreign state, and those mutual interests the family of

nations have in just and efficiently functioning rules

of international law.’’’ Id. at 144 (quoting In re

Maxwell Commc’n Corp., 93 F.3d 1036, 1048 (2d Cir.

1996)). The appeals court further noted: “[F]oreign

policy, reciprocity, comity, and limitations of judicial

power are considerations . . . bearing on the decision

to exercise or decline jurisdiction.” Animal Sci. II,

8 F.4th at 144 n.9 (quoting Mannington Mills,

595 F.2d at 1296)).

12

In determining whether a district court has

erroneously declined to dismiss an action on

international comity grounds, the Second Circuit

noted that it reviews “relevant questions of statutory

interpretation de novo,” Animal Science II, 8 F.4th at

142, when analyzing prescriptive comity—i.e., the

authority to legislate. It applies essentially the same

standard for adjudicative comity issues—i.e., the

authority to adjudicate. Id. at 142 n.7 (noting that the

case involved “prescriptive comity” and applying a de

novo standard of review to “relevant questions of

statutory interpretation,” and that in reviewing a

decision to decline jurisdiction as a matter of

“adjudicative comity,” the appellate court applies “an

unusually rigorous abuse-of-discretion standard that

leaves little practical distinction between review for

abuse of discretion and review de novo” (internal

quotation omitted)).

Animal Science II showed a special solicitude for

the potential effect on foreign relations of an intrusive

exercise of U.S. jurisdiction in a case to which China

attached “great importance”—even though China was

not a party—because China “perceive[d] th[e] case as

threatening its rights as a sovereign to enact and

enforce regulations governing Chinese companies

conducting business within China’s borders.” Id.

at 161. Furthermore, China had “already taken

umbrage at the district court’s treatment of its

representations about the meaning and operation of

its law.” Id. Given the probability that “enforcement

of a sizeable damages award and permanent

injunction against defendants” would serve as a

further “irritant” to China, and in the absence of a

13

view expressed by the U.S. Department of State, the

Second Circuit panel concluded that China’s reactions

“tip[ped] in favor of dismissal for reasons of

international comity.” Id. at 162–63; see also

Figueiredo Ferraz E Engenharia de Projeto Ltda. v.

Republic of Peru, 665 F.3d 384, 392 (2d Cir. 2011) (the

“public [interest] factor [in the FNC inquiry] of

permitting Peru to apply its cap statute to the

disbursement of governmental funds to satisfy the

Award tips the [FNC] balance decisively against the

exercise of jurisdiction in the United States.”); Acosta

v. JPMorgan Chase & Co., 219 F. App’x 83, 87 (2d Cir.

2007) (public interest factor favors dismissal where

resolution of case “will require extensive applications

of both Uruguayan and Argentine law” and the

“interest of the United States pales compared to the

‘immense interest’ of Uruguay” (citation omitted));

Abad v. Bayer Corp., 563 F.3d 663, 671 (7th Cir. 2009)

(Posner, J.) (“[T]he uncertainty of Argentine law is a

compelling reason why this case should be litigated in

Argentina rather than in the United States.”).

D.

A Proposed Clarification of the

Analytical Framework for Comity

Abstention

Today, multivariate balancing tests like

Timberlane and Mannington Mills seem hopelessly

indeterminate and readily manipulable to achieve

outcome-driven ends.

Just because a certain test may in some instances

be indeterminate, however, does not mean the

function that the test serves is unimportant or should

14

be abandoned.6 More concise and workable frameworks can be derived from existing precedents. For

example, Amicus (with Professor Thomas H. Lee) has

elsewhere proposed the following framework that

distills existing federal common law on adjudicative

comity into a straightforward test that leads to

principled, workable results:

“Our proposed federal common law framework has

four central elements: (1) deference to specific, wellconsidered State Department statements of interest

regarding whether the court should exercise its

jurisdiction in a particular case; (2) ascertaining the

relevant practice of other nations—particularly the

reciprocal practice of any nation directly implicated;

(3) respecting applicable U.S. statutes or treaties

indicating a strong U.S. sovereign interest in hearing

the case, or . . . statutory authorization to ignore or

displace foreign sovereign acts or interests; and

(4) findings as to whether parallel proceedings have

been commenced or concluded in an alternative

foreign forum. These four elements . . . inform what

U.S. courts should do in suits posing risks of

significant tensions with other countries. They

address what is called “adjudicative comity,” as

contrasted with “prescriptive comity” which deals

See Brief for the United States as Amicus Curiae

Supporting Petitioner at 25, Republic of Hungary v. Simon,

592 U.S. 207 (2021) (No. 18-1447) (observing that the

“categorical rejection of international-comity-based abstention

likely would be harmful to the foreign-relations interests of the

United States” and “domestic litigation against foreign

sovereigns, by its nature, often raises serious foreign-policy

concerns”).

6

15

with the question of which substantive law to apply—

whether a state has a sufficiently strong interests in

a controversy or connection with the litigants such

that its substantive law ought to apply irrespective of

the interests of other states.’” Estreicher & Lee,

supra, at 171–72 (emphasis omitted).

Consider the following evaluation of these factors,

as they pertain to the Petition:

U.S. State Department Views. When the State

Department files a Statement of Interest (“SOI”)

urging abstention or dismissal, that is ordinarily

highly relevant, if not determinative, as in the Ninth

Circuit’s decision in Mujica v. AirScan, 771 F.3d 580

(9th Cir. 2014). But generally, the State Department

“does not take positions regarding . . . litigation between private parties, unless required to do so by

applicable law.” Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct., 482 U.S. 522, 554 n.5 (1987)

(Blackmun, J., concurring in part and dissenting in

part); see also Harold H. Koh, Private Official

Immunity After Samantar: A United States

Government Perspective, 44 Vand. J. Transn’l L.

1141, 1160 (2011) (view of the Obama Administration’s Legal Advisor to the U.S. State Department

that “no inference should be drawn from the State

Department’s decision not to intervene in the case”).

In Torres v. Southern Peru Copper Corporation,

113 F.3d 540, 545 (5th Cir. 1997), a case virtually on

all fours with this one save a Missouri resident

plaintiff)—mining operations in Peru causing

environmental harms in that country—the apparent

absence of an SOI from the State Department did not

16

prevent the appellate court from affirming dismissal

of the plaintiff’s class claims on FNC and

international comity grounds. As the district court

noted: “This controversy involves approximately 700

Peruvian plaintiffs alleging injuries as result of

SPCC’s mining and smelting operations in Peru . . .

The only connection Plaintiffs have shown to Texas is

that SPCC’s controlling shareholder, ASARCO,

‘conducts operations’ in Texas . . . . The challenged

conduct is regulated by the Republic of Peru and

exercise of jurisdiction by this Court would interfere

with Peru’s right to control its own environment and

resources,” despite Peru’s “strenuous objection to the

exercise of jurisdiction by this Court.” Torres v. S.

Peru Copper Corp., 965 F. Supp. 899, 907–909 (S.D.

Tex. 1996).

Inconsistency with U.S.–Peru Trade Protection

Agreement. As the third factor in the Estreicher-Lee

analysis suggests, international comity required the

Eighth Circuit to consider seriously whether allowing

the litigation to proceed in a U.S. court was consistent

with the U.S.–Peru Trade Protection Agreement

(“TPA”). Pet. App. 99a–123a.

The TPA covers environmental harms arising out

of Peruvian operations, obliges both the U.S. and Peru

to enforce their laws, and provides a protest

mechanism in Article 18.8 for persons suffering such

harms (other than the arbitration procedure for the

TPA parties themselves).

Instead of addressing the TPA as a substantial

bilateral framework for dealing with environmental

harms in Peru, the Eighth Circuit engaged in an

17

essentially freewheeling, breezy interpretation of the

TPA and its U.S. implementation law, Pub. L. No.

110-138, 121 Stat. 1455 (2007), to conclude that

“dismissal is not required under the TPA.”7 Surely, a

request for the State Department’s views before

issuing this blanket conclusion would have been in

order. While a U.S. court is not bound by the

interpretation of a treaty by the affected foreign state

7 The panel relied on Article 18.4(4) of the TPA, which provides:

“Each Party shall provide persons with a legally recognized

interest under its law in a particular matter appropriate and

effective access to remedies for violations of that Party’s

environmental laws or for violations of a legal duty under that

Party’s law relating to the environment or environmental

conditions affecting human health, which may include rights

such as: (a) to sue another person under that Party’s jurisdiction

for damages under that Party’s laws . . . .” From the “plain

language” of this text, the Eighth Circuit inexplicably found “a

pathway for the plaintiffs to sue the defendants under Missouri

law.” Pet. App. 8a. Since the relevant environmental laws

arguably violated in this case are Peru’s, absent some contrary

indication from other provisions of the TPA, the negotiation

history, or the TPA parties themselves, the reference to “that

Party’s jurisdiction” would seem to be to Peru’s courts. See also

Pet. App. 102a (“Nothing in this Chapter shall be construed to

empower a Party’s authorities to undertake environmental law

enforcement activities in the territory of another party.” (quoting

Art. 18.3(5) of the TPA)).

The Eighth Circuit also invoked language in the TPA

implementation statute: “No State law, or the application

thereof, may be declared invalid as to any person or

circumstance on the ground that the provision or application is

inconsistent” with the TPA, 121 Stat. 1455, §102(b)(1); see Pet.

App. 8a–9a. Since no Missouri law would “be declared invalid”

by application of international comity abstention in this case, the

relevance of the panel’s observation is not evident. Pet. App. 8a.

18

or other TPA party, it has an obligation under Animal

Science

Products,

Inc.

v.

Hebei

Welcome

Pharmaceutical Co., 585 U.S. 33, 34 (2018), and

Federal Rule of Civil Procedure 44.1 to give at least

“respectful consideration” to the views of the two TPA

parties.

Relevant Practice and Views of the Foreign State

Directly Involved. Plaintiffs in this case apparently

did not contest the fact that Peruvian government

officials made clear their opposition to the U.S.

litigation. The Eighth Circuit dismissed these

protests seemingly because of the absence of a formal

declaration (meeting the court’s unspecified

standards) or some “direct[ ] assert[ion] of Peru’s

sovereignty.” Pet. App. 10a. Such insistence on a

particular mode of expressing opposition has no basis

in federal comity decisions or State Department

practice.8 It also requires the foreign state to navigate

unfamiliar American pleading practices to make its

views known.

8 The Eighth Circuit also questioned whether plaintiffs have

an adequate alternative forum in Peru, despite Petitioners’

perhaps belated consent to personal jurisdiction in the Peruvian

courts: “While the timeliness of the consent can be debated, the

record also contains letters from Peruvian officials suggesting

there does not appear an adequate forum or remedy available to

the plaintiffs under Peruvian law.” Pet. App. 10a. If the

adequacy of Peruvian forum was material, and there was any

doubt on this score, inquiries could and should have been put

directly to Peru. See also Torres v. S. Peru Copper Corp., 965 F.

Supp. 899, 903, 909 (S.D. Tex. 1996) (noting “the Fifth Circuit

has explicitly or implicitly concluded that Peru is an adequate

alternative forum for purposes of foreign non conveniens

rulings”; and so holding in an analogous litigation).

19

Parallel Proceedings. As discussed, the presence of

parallel proceedings is a relevant factor because of the

possibility of duplicative, wasteful actions and

inconsistent determinations, and the need to

accommodate the foreign state’s interests. The

absence of parallel proceedings, however, is not

invariably relevant, and certainly it is not

determinative as the Eighth Circuit would have it.

There can be many reasons for the absence of such

proceedings, such as plaintiffs’ own decision in this

case to sue in a U.S. court.

Truncating the International Comity Inquiry?

Tellingly, the Eighth Circuit’s emphasis on the

absence of past or pending parallel proceedings in this

case may reflect an attempt by that court (and the

Eleventh Circuit decisions it cites) to reduce the

international comity inquiry to cases of direct conflict

with foreign proceedings or with formal State

Department

declarations.

Other

comity

considerations are relegated to the “prospective

international comity” category where they will be

subject to a form of strict scrutiny. See GDC

Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 1024,

1030, 1034 (11th Cir. 2014) (“Far more rarely, courts

have applied international comity prospectively,

without a conflicting past or present foreign

proceeding”; vacating dismissal on prospective

international comity because that exceptional doctrine

does not apply to the commercial dispute in this case.”

(emphasis added)).

There is no basis in this Court’s jurisprudence for

this doctrinal divide between retrospective and

prospective international comity, which if applied

20

mechanically (as the Eighth Circuit did below)

disserves U.S. foreign relations interests in dealing

with this new, growing arena of extraterritorial

litigation, coming this way via state and federal

courts.

III.

CONCLUSION

For the reasons set forth above, this Court should

grant the Petition.

Respectfully submitted,

SAMUEL ESTREICHER

Dwight D. Opperman

Professor of Public Law

Director, Center for

Labor and Employment

Law &

Director, Institute of

Judicial Administration

NEW YORK UNIVERSITY

SCHOOL OF LAW

40 Washington Sq. So.

New York, NY 10012

ELIZABETH HOLT

ANDREWS

Counsel of Record

HEATHER C. SMITH

TROUTMAN PEPPER

LOCKE LLP

Three Embarcadero

Ctr., Suite 800

San Francisco, CA

94111

415.477.5700

elizabeth.andrews@

troutman.com

Counsel for Amicus Curiae

PROFESSOR SAMUEL ESTREICHER

January 28, 2025