Amicus Curiae Brief — Boureslan v. Arabian American American American Oil Co. (Nos. 89-1845, 89-1838)

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ECT AVA

QUESTION PRESENTED

Whether, in light of relevant principles and rules of

international law, Title VII should be construed to apply

to local conduct occurring within the territory of another

sovereign state.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ...................22.22.-..:.-0000-00-0--

TABLE OF AUTHORITIES ........... adliapialbeieassesnemnsenves

INTEREST OF AMICI CURIAE |...

SUMMARY OF ARGUMENT .....

I elictitietncteeneceeessencecenescreeeeeeeeessemmenencee:

I.

Il.

THE EXTRATERRITORIAL APPLICATION

OF TITLE VII IN THIS CASE WOULD BE

CONTRARY TO ESTABLISHED INTERNA-

TIONAL LAW PRINCIPLES AND RULES OF

CC Ee

A. Internationa! Law is “Part of Our Law” and

Must be Applied by this Court 0...

B. Principles and Rules of International Law

Limit a State’s Jurisdiction to Regulate the

Activities of its Nationals Abroad...

C. International Conventions, Declarations, and

Codes Regarding Employment Relations Rec-

ognize the Principle of Territorial Sover-

eignty and the Primacy of Local Regulation.

D. Employment is Precisely the Type of Local

Activity that States do not Regulate Extra-

territorially, Even as to Their Nationals Em-

ployed in Foreign Countries...

ACCORDING TO ESTABLISHED PRINCI-

PLES OF INTERNATIONAL LAW, IT

WOULD BE UNREASONABLE TO APPLY

TITLE VII TO CONDUCT IN FOREIGN

CO Ee ieiadeiialasenenssee

A. International Law Requires “Reasonable-

ness” in Extraterritorial Assertions of Juris-

Se "7 Rares

10

16

18

18

iv

TABLE OF CONTENTS—Continued

Page

B. Application of Title VII Abroad in this Case

Would be Unreasonable |... 19

Ill THE DOCTRINE OF COMITY AMONG

STATES CALLS FOR RESTRAINT IN THIS

I ae 26

CONCLUSION .................. icetepiidettabdaiiiadeneinbetniteasiabaasmhdaiiatiiiia ia 27

I io saaetacialaiaieail iaiceetenaie adele la

OT i a 6a

v

TABLE OF AUTHORITIES

Cases: Page

Argentine Republic v. Amerada Hess Shipping Co..,

§ & fF 5 eee 4

Boureslan v. Aramco, 857 F.2d 1014 (5th Cir.

1988), adopted en banc, 892 F.2d 1271 (5th Cir.

1990), cert. granted, 111 8S. Ct. 40 (1990) 3

Boureslan v. Aramco, 892 F.2d 1271 (5th Cir.

1990), cert. granted, 111 S. Ct. 40 (1990) 3,4

Callejo v. Bancomer, S.A., 764 F.2d 1101 (5th

OT a a 20

Foley Brothers, Inc. v. Filardo, 336 U.S. 281

EE AEA RRR aot eee ae ee 4

Harris v. VAO Intourist Moscow, 481 F. Supp.

SU int 20

Laker Airways, Ltd. v. Sabena, Belgian World Air-

lines, 731 F.2d 909 (D.C. Cir. 1984) 8

Lauritzen v. Larsen, 345 U.S. 571 (1953) 19

McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10 (1963)... 4-5

Murray v. The Schooner Charming Betsy, 6 U.S.

a i cuiueininenne 5

Skiriotes v. Florida, 313 U.S. 69 (1941)... 7,9

Société Nationale Industrielle Aérospatiale v.

United States District Court, 482 U.S. 522

FCM Ash Re CE aa = RTE ED 19, 26

Steele v. Bulova Watch Co., 344 U.S. 280 (1952). x

Sumitomo Shoji America, Inc. v. Avagliano, 457

U.S. 176 (1982) a MER Goh EEA 24

The Paquete Habana, 175 U.S. 677 (1900)... 3,7

Upton v. Iran, 459 F. Supp. 264 (D.D.C. 1978),

aff'd mem., 607 F.2d @4 (D.C. Cir. 1979)... 20

Statutes and legislative materials :

136 Cong. Rec. 817492 (daily ed. Oct. 27, 1990) .... 15

29 C.F.R. § 1606.1(c) (1971-1980) 23

Comprehensive Anti-Apartheid Act of 1986, Pub.

L. No. 99-440, § 208, 100 Stat. 1087, 1097 (to be

codified at 22 U.S.C. § 5085) .................................. 22

Foreign Sovereign Immunities Act, 28 U.S.C.

$§ 1330, 1332, 1391, 1441, 1602-1611 (1988)... 20

vi

TABLE OF AUTHORITIES—Continued

Page

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq...passim

Omnibus Export Amendments Act of 1990, H. Rep.

No. 101-944, 101st Cong., 2d Sess. § 128 1990)...

Foreign cases and statutes:

Compagnie Européenne des Pétroles S.A. v. Sensor

Nederland B.V., Judgment of Sept. 17, 1982,

District Court at the Hague, reprinted in 22

RR

Haughton v. Olau Line, Ltd., [1986] W.L.R. 504

(Ct. App. Mar. 7, 1986) _..... Se nee oe

Libyan Arab Foreign Bank v. Bankers Trust Co.,

High Court of Justice, Queen’s Bench, Commer-

celal Coust (Sept. 8, 1607) ...............-...-..................

Regina v. Foster, 103 C.L.R. 256 (Austl. 1959) ......

Walrave v. Association Union Cycliste Interna-

tionale, Case No. 36/74, 1975 Common Mkt. Rep.

7 8290 (CCH) (Dec. 12, 1974) ...................0........

18

18

17

18

17

17

Saudi Arabian Labor and Workmen Law of 1969. 6, 9, 16,

United Kingdom Race Relations Act 1976 (1976

RRM ha SR Mie os et A

United Kingdom Sex Discrimination Act 1975

i Se ear

International materials:

Code of Conduct on Transnational Corporations

(draft text prepared by the Chairman of the

Special Session on the Code of Conduct, May 31,

a Md CAS a ce a oO. SE

Convention against Torture and Other Cruel, In-

human or Degrading Treatment or Punishment,

G.A. Res. 39/46, U.N. GAOR Supp. (No. 51) at

197, U.N. Doc. A/39/51 (1985) ......... ie

Convention on the Elimination of All Forms of

Discrimination Against Women, G.A. Res. 34

180, 34 U.N. GAOR Supp. (No. 46) at 195, U.N.

oe eeientinneen

Discrimination (Employment and Occupation)

Convention (No. 111), 362 U.N.T.S. 31 (1958) ..

24, 25

16

15

15

11

5, 12

vii

TABLE OF AUTHORITIES—Continued

International Covenant on Civil and Political

Rights, G.A. Res. 2200, 21 U.N. GAOR Supp.

(No. 16) at 52, 55-56, U.N. Doc. A/6316 (1966) ..

International Covenant on Economic, Social and

Cultural Rights, G.A. Res. 2200, 21 U.N. GAOR

Supp. (No. 16) at 49-50, U.N. Doc. A/6316

I an a ee aera

International Convention on the Elimination of All

Forms of Racial Discrimination, G.A. Res. 2106,

20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc.

Se Ee aa Nea

OECD Guidelines for Multinational Enterprises,

15 LL.M. 969 (1976) _..... seneeacetsiibsiaaoineadoienamniseaiiaaibial

Tripartite Declaration of Principles concerning

Multinational Enterprises and Social Policy, 17

1.L.M. 422 (1978) ........ OME AES +6 Sie eee

a euaneaeianauniaianicnisanil

Other authority :

I. Brownlie, Basic Documents on Human Rights

CR ae es a

I. Brownlie, Principles of Public International

RS SR Re en eee

Can. Lab. L. Rep. ‘ 1600 (CCH Canadian Ltd.,

I

Henkin, International Law as Law in the United

States, 82 Mich. L. Rev. 1555 (1984)...

Gordon, Extraterritorial Application of United

States Economic Laws: Britain Draws the Line,

fh | RE Eee

Human Rights—Status of International Instru-

ments, U.N. Doc. ST HR/5, U.N. Sales No.

EEE Ee eC

7 Int'l Trade Rep. 1770 (Nov. 21, 1990) ed aA

International Labor Office, Legislative Series, Gen-

eral Subject Index 1919-88 (1988) Sos

Maier, Resolving Evxtraterritorial Conflicts, or

“There and Back Again,” 25 Va. J. Int'l L. 7

I CRE aL Deo eek Oe ee

Page

11

11

— viii

TABLE OF AUTHORITIES—Continued

Page

Mann, The Doctrine of Jurisdiction in Interna-

tional Law, 111 Recueil des Cours 23 (Hague

Academy of International Law, 1964)... al 9

F. Morgenstern, International Conflicts of Labour

| SCRE Seca SITET: alle So Se 16

OECD, The OECD Guidelines for Multinational

Enterprises 76 (1986) (publication of the

ERIE Si PR ae A A ea 14, 15

Restatement (Third) of the Foreign Relations

Law of the United States (1987)... passim

Washington Post, Nov. 1, 1990, at Fl _.... ees 18

Yntema, The Comity Doctrine, 65 Mich. L. Rev. 9

EERE SEAS he SS ca LES ES Sa ee 26

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1990

Nos. 89-1838, 89-1845

ALI BOURESLAN and

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

7 Petitioners,

ARABIAN AMERICAN OIL COMPANY, et al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICI CURIAE RULE OF LAW COMMITTEE

AND THE NATIONAL FOREIGN TRADE COUNCIL, INC.

IN SUPPORT OF RESPONDENTS

’ The Rule of Law Committee and the National Foreign

Trade Council, Inc., submit this amici curiae brief in sup-

port of respondents Aramco and Aramco Services Com-

pany. Pursuant to Rule 37, counsel for amici, Steptoe &

Johnson, has obtained and filed with the Clerk of the

Court the written consent of Petitioners and Respondents

to submit this brief.

INTEREST OF AMICI CURIAE

The Rule of Law Committee (“ROLC”) is an informal,

voluntary association of legal representatives from sev-

eral major U.S.-based multinational corporations * with

* The current members are Bank of America, Bechtel Group, Inc.,

Chase Manhattan Bank, Chevron Corporation, E.l. Du Pont de

long-standing, worldwide business interests. The ROLC,

which has been in existence for over 20 years, has fre-

quently expressed its views on questions of United States

and international law to courts of the United States, com-

mittees of Congress, and agencies of the Executive

Branch.

The National Foreign Trade Council, Inc. (“NFTC”),

is a New York not-for-profit corporation with more than

500 member firms concerned with international trade and

investment. Interests of NF TC members account for over

seventy percent of all U.S. exports and U.S. direct pri-

vate investment abroad.

As the representatives of multinational companies

which employ thousands of persons outside the United

States, amici have a direct interest in the question pre-

sented to the Court. Whether and in what manner U.S.

laws, such as Title VII of the Civil Rights Act of 1964,

may apply to business activities occurring within another

country is vitally important for American companies that

operate in many countries having diverse social, cultural,

and economic norms and that are subject primarily to

local policies and laws.

Amici agree with amici curiag for petitioners that

Title VII's antidiscrimination provisions reflect a deep,

moral value of the United States. Unlike other amici,

however, the ROLC and NFTC respectfully submit that

this moral value is not a legally compelling consideration

to the question before the Court. The question is not

whether the values inherent in Title VII warrant its

application to activities occurring abroad; rather, the

fundamental question is whether, in light of relevant

principles and rules of international law, Title VII should

Nemours & Company, Exxon Corporation, Texaco Inc., and Mobil Oil

Corporation. At the time of the alleged conduct giving rise to

the complaint, affiliates of four ROLC members, namely Chevron,

Exxon, Mobil Oil, and Texaco, held the stock of Arabian American

Oil Co. (“Aramco”).

be construed to apply to local conduct occurring within the

territory of another sovereign state.

The Fifth Cireuit, on two occasions, accurately noted

that the sovereignty of other nations must be respected

and that laws reflecting one state’s values and norms,

however important at home, cannot always be extended

worldwide simply on the basis of nationality without

infringing on the sovereignty of states having territorial

jurisdiction. Bou eslan v. Aramco, 857 F.2d 1014, 1017

(5th Cir. 1988), adopted en banc, 892 F.2d 1271, 1272-73

(5th Cir. 1990), cert. granted, 111 S. Ct. 40 (1990).

Amici ROLC and NFTC respectfully submit this

amicus brief to set forth views to the Court on the prin-

ciples and rules of international law which limit the

authority of a state to exercise jurisdiction in the cir-

cumstances of this case.

SUMMARY UF ARGUMENT

This Court has long recognized that “[i]nternational

law is part of our law, and must be ascertained and ad-

minisiered by the courts of justice... .” The Paquete

Habana, 175 U.S. 677, 700 (1900). Amici ROLC and

NFTC respectfully submit that extraterritorial applica-

tion of Title VII would violate international law as ex-

pressed in international conventions, in principles of cus-

tomary international law, and as evidenced in the prac-

tice of other countries in enacting domestic laws concerned

with employment discrimination. Furthermore, even un-

der the more recent and flexible approach to jurisdiction

formulated in the Restatement (Third) of the Foreign

Relations Law of the United States (1987) [hereinafter

Restatement 3d] it would be unreasonable, and, there-

fore, violate international law, for the United States to

assert jurisdiction over such conduct. The potential con-

flict with international legal principles and with the laws

of foreign sovereigns, as wel! as the dramatic practical

complexities of applying Titie VII abroad, compel an af-

4

firmance of the Fifth Circuit decision. Moreover, the

decision in the Fifth Circuit is consistent with the doc-

trine of international comity.

“The respect for the right of nations to regulate con-

duct within their own borders is a fundamental concept

~ of sovereignty that is not lightly tossed aside.” Bouwreslan

v. Aramco, 892 F.2d 1271, 1272. Starting from this basic

tenet of international law, the Fifth Circuit considered

whether Congress had addressed “foreign sovereignty

concerns” which would be implicated if the United States

attempted to regulate local conduct occurring within the

territory of another sovereign nation. It found that Con-

gress had not addressed these concerns and, sitting as a

panel and en banc, held that neither the text nor the legis-

lative history of Title VII reflected the “necessary clear

expression of congressional intent to extend its reach be-

yond our borders.” /d. at 1274.

Respect for foreign sovereignty forms the basis of the

long-established canons of construction which amici re-

spectfully suggest should underlie the Court’s analysis:

first, the presumption against the extraterritorial appli-

cation of a statute absent a clear expression of congres-

sional intent, Argentine Republic v. Amerada Hess Ship-

ping Co., 109 8. Ct. 683, 691 (1989) ; Foley Bros., Inc. v.

Filardo, 336 U.S. 281, 285 (1949) ;' second, the precedent

that “an act of congress ought never to be construed to

violate the law of nations if any other possible construc-

tion remains... .” McCulloch v. Sociedad Nacional de

1 Amici will not elaborate further on the absence of any evidence

of such intent in this case. This point has been thoroughly briefed

in other submissions to the Court. Amici endorse the opinion of the

Fifth Circuit that the negative inference—-read into the statute

by Petitioners based on the so-called alien employment exemption.

is insufficient evidence of congressional intent to warrant extra-

territorial application of a complex statute concerned with employ-

ment practices and based on U.S. social values. Indeed, the requisite

intent must be express.

5

Marineros de Honduras, 372 U.S. 10, 21 (1963) ‘quoting

Murray v. The Schooner Charming Betsy, 6 U.S. (2

Cranch) 64, 118 (1804)); see also Restatement 3d § 114.

These canons reflect the recognition that both international

law and relations depend, in large part, on the concept of

reciprocity—that is, the positions adopted by the United

States regarding questions of jurisdiction may be recipro-

cally adopted by other countries vis-d-vis the United

States. Thus, before it can be found that Congress acted

in a manner inconsistent with the international principle

of national sovereignty, Congress must clearly express its

intention.

It is clear from internationa! legal sources and state

practice that employment relations are a matter left to

regulation by each individual state within its sovereign

jurisdiction. Many of the international conventions,

declarations, and codes cited by other amici contain pro-

visions prohibiting discrimination in employment. How-

ever, these same sources acknowledge the vast social, re-

ligious, and economic differences between nations and

urge that action to prevent discrimination be taken by

each nation within the confines of its sovereignty.

Moreover, review of the employment discrimination

statutes collected by the International Labour Organiza-

tion*® demonstrates that the prevailing practice is not

to reach conduct abroad and that some statutes expressly

state that the law of the host country is exclusive, thereby

precluding regulatory jurisdiction by other sovereigns

2 The International Labour Organization is a specialized agency

of the United Nations, comprised of representatives of workers,

employers, and governments drawn from U.N. member states. It

is especially concerned with issues of social justice pursued from

a labor point of view and “has played a prominent and pioneer role

in standard-setting” with regard to the interactions of rovernments.

employers, and workers. I. Brownlie, Basic Documents on Human

Rights 257 (1971). Among the many Conventions that the ILO

has drafted as part of the process of establishing international labor

standards is Convention 111 discussed infra section I(C).

over local conduct. In the instant case, the Saudi Labor

and Workmen Law of 1969° governs all labor contracts

and labor disputes in Saudi Arabia. See discussion, infra,

at sections I1(D) and II(B). Furthermore, several domes-

tie tribunals have found that employment discrimination

statutes do not apply extraterritorially. This is consistent

with U.S. law as reported in the Restatement 3d,‘ which

provides that the exercise of jurisdiction based on the

“nationality principle” is limited and that the host state

has jurisdiction to prescribe over predominantly local

activities, such as industrial and labor relations. /d.

§ 414, comment c, at 271. See also $§ 402, at 237-42,

403, at 244-48.

id.

Thus, extraterritorial application of U.S. law in these

circumstances would clearly be contrary to international

based on respect for international law, national sov-

ereignty, and conflict avoidance in international rela-

tions, require restraint. Moreover, an analysis based on

the factors prescribed in the Restatement 3d demonstrates

that it would be “unreasonable,” and therefore violate

international law, for the United States to exercisé juris-

diction in the instant case before this Court.’

On a more practical level, as local work forces through-

out the world are comprised of employees from many

different countries, the exercise of extraterritorial juris-

* Relevant portions of Saudi Arabia's Labor and Workmen Law

are reproduced in appendix B.

* The Restatement 3d “reflect{s| [the] development in the law

as given effect by the United States courts.” Restatement 3d § 401,

et 231 (Introductory Note).

* Even if the Court were to find that it would be “reasonable”

for both the United States and Saudi Arabia to exercise jurisdic-

tion over employment practices in Saudi Arabia, comity would re-

quire that the United States refrain from its exercise in this

instance in favor of the territorial state. See infra, section III.

7

diction based on nationality, without clear guidance from

lawmakers, risks significant disruption and reciprocal

disrespect for the national sovereignty of our own

country.

For these reasons, amici respectfully urge the Court to

affirm the Fifth Circuit's decision below.

ARGUMENT

I. THE EXTRATERRITORIAL APPLICATION OF

TITLE VIL IN THIS CASE WOULD BE CONTRARY

TO ESTABLISHED INTERNATIONAL LAW PRIN-

CIPLES AND RULES OF JURISDICTION

Petitioner Equal Employment Opportunity Commission

(“EEOC”) argues that the extraterritorial application of

Title VII to U.S. employers and employees overseas “does

not give rise to significant conflicts with international

norms or the law of foreign states.” Brief for Petitioner

EEOC, at 25. Citing Skiriotes v. Florida, 313 U.S. 69,

73 (1941), the EEOC asserts that the U.S. nationality

of the parties confers prescriptive jurisdiction on the

United States and that established limitations on extra-

territorial regulation of U.S. nationals in a sovereign

foreign country should be discounted. Brief for Peti-

tioner EEOC, at 26.

Amici ROLC and NFTC respectfully submit that the

EEOC ignores the extent of conflict involved in the ex-

traterritorial application of Title VII. Such application

would be inconsistent with established principles and

rules governing the exercise of jurisdiction under inter-

national law.

A. International Law is “Part of Our Law” and Must

be Applied by this Court

U.S. courts have long recognized that “/i)nternational

law is part of our law, and must be ascertained and

administered by the courts of justice... .” The Paquete

Habana, 175 U.S. at 700. “From the beginning, the law

of nations . . . was considered to be incorporated into

the law of the United States without the need for any

i the

at 41 (Introductory Note). :

Henkin, /niernational Law as Law in the United States,

82 Mich. L. Rev. 1555 (1984).

:

:

é

“emerged as principles of customary [international]

909, 935 ‘D.C. Cir. 1984) (“Territorality, not national-

ity, is the customary and preferred base of juristiction.”) ;

I Brownlie, Principles of Public International Law 299

(1979) ‘observing that especially in civil cases “courts

are often reluctant to assume jurisdiction in cases con-

cerning a foreign element and adhere to the territorial

principle” } .

See Steele v. Bulova Watch Co., 344 US. 280, 285-86

(1952) (“‘(T)he United States is not debarred by any

9

tionals are not infringed.’”’ ‘emphasis added) (quoting

Skiriotes v. Florida, 313 U.S. 69, 73 (1941))): Mann,

The Doctrine of Jurisdiction in International Law, 111

Recueil des Cours 23, at 50 (Hague Academy of inter-

national Law, 1964) (“|T]he mere fact that a person

not resident in the legislating State is its national does

not necessarily make him subject to such State’s juris-

diction in all respects .... {T]he rights of other nations

or their nationals must not be infringed.”’).

In the case presently before the Court, Saudi Arabia’s

regulatory jurisdiction is predicated on the parties being

present and the conduct occurring within Saudi Arabia.

Indeed, Saudi Arabian law by its terms applies exclu-

sively to employment contracts and disputes occurring

within its territory. See discussion, infra, sections I(C)

and II(B). Here, United States jurisdiction is prescrip-

tive, based solely on the parties’ nationality. Yet, na-

tionality alone is not a sufficient basis in all cases on

which to prescribe rules to govern activities in a foreign

country. See Restatement 3d § 402, comment a, at 238.

In fact, jurisdiction based on the citizenship of a na-

tural person has been exercised only “sparingly.” Re-

statement 3d § 402, at 241 ‘Reporters’ Note 1).°

As to the exercise of jurisdiction based on the nation-

ality of a juridical person, or corporation, it too is lim-

ited. Such jurisdiction is not to be exercised when there

are strong corporate connections with another state (for

example, a state where the corporation has its head-

* Only in limited circumstances, such as in matters of allegiance

(¢.g., military service, participation in judicial proceedings in the

home country, or taxation of income earned by citizens abroad)

has it been found reasonable for conduct to be regulated based on

the nationality principle. Because such matters bear an excep-

tionally close relationship to the citizen and his state, decision-

makers have found the nationality principle acceptable in such

circumstances. And, it should be noted, these matters normally

do not give rise to conflict with the policy or law of the territorial

state.

10

quarters or conducts its operations) and the exercise of

jurisdiction by the state of incorporation would be “un-

reasonable.” See, e.g., Restatement 3d § 403(1), at 244,

discussed infra at section II. In this case, respondent

Aramco for many years maintained its corporate head-

quarters in Saudi Arabia and conducted all its business

activities in that country. See discussion, infra, sec-

tion II(B).

The exercise of jurisdiction based on nationality (i.e.,

the place of incorporation; has been limited to activities

related to international transactions such as export

and import, foreign exchange and credits, and trans-

border investment; but not generally over predomi-

nantly local activities, such as industrial and labor

relations, health and safety practices, or conduct re-

lated to preservation or control of the local environ-

ment.

Restatement 3d § 414, comment ec, at 271 (emphasis

added). Alleged discrimination in an employer-employee

relation occurring within Saudi Arabia cannot be viewed

as an “international transaction,” but is more properly

considered a local labor activity that may not, absent a

clear Congressional intent to the rpateee be regulated

by the United States.

C. International Conventions, Declarations, and Codes

Regarding Employment Relations Recognize the

Principle of Territorial Sovereignty and the Primacy

of Local Regulation

International agreements are sources of international

law. Restatement 3d § 102(1)(b), at 24. See also id.

§§ 102(3), at 24, 102, comment i, at 27. As agreements

among nations, they impose obligations upon the parties.

Moreover, certain multilateral conventions or codes can

be evidence of or reflect customary international law

which, as such, is binding on all states whether or not

they are parties. See Restatement 3d § 102(3), at 24

ee

(international agreements may “lead to the creation of

customary international law when such agreements are

intended for adherence by states generally and are in

fact widely accepted”). Both conventional and custom-

ary international law have equal authority. /d., com-

ment j, at 27.

Beginning with the creation of the United Nations

pursuant to its Charter, an international consensus has

emerged against many forms of discrimination, includ-

ing discrimination on the basis of race, gender, religion,

and nationality.’ The existence, however, of interna-

tional norms against such conduct is the result of inter-

national cooperation and concerted action, rather than

unilateral application of domestic laws across national

borders.

The United Nations Charter stresses “international

co-operation in solving international problems of an eco-

nomic, social, cultural, or humanitarian character, and

in promoting and encouraging respect for human rights

and for fundamental freedoms for all without distine-

tion as to race, sex, language, or religion.”” U.N. Char-

ter, art. 1/3). In implementing these Charter provi-

sions, the United Nations serves as a “center for har-

monizing the actions of nations in the attainment of

these common ends.” U.N. Charter, art. 1/4) (emphasis

added). Thus, although the United Nations Charter

seeks to promote an international consensus against dis-

crimination, it also recognizes the bedrock international

7 See, e.g., International Covenant on Civil and Political Rights,

G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16) at 52, 55-56, U_N.

Doe. A/6316 (1966); International Covenant on Economic, Social

and Cultura) Rights, G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16)

at 49-50, U.N. Doe. A/6316 (1966); International Convention on

the Elimination of All Forms of Racial Discrimination, G.A. Res.

2106, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A’ 6014

(1965) ; Convention on the Elimination of All Forms of Discrimi-

nation Against Women, G.A. Res. 34/180, 34 U.N. GAOR Supp.

(No. 46) at 195, U.N. Doe. A/34/46 (1979).

12

legal principle of national sovereignty and the need to

harmonize standards while respecting such sovereignty.

Multilateral instruments addressing corporate conduct

in employment have clearly delineated the relationship

between the international consensus against discrimina-

tion and the scope of domestic legislation. While specify-

ing international standards for corporate conduct and

protection of workers, these documents have also

stressed the importance of respecting differences among

nations and the sovereignty of each country. Contrary to

the erroneous suggestion of amicus Lawyers Committee

that national sovereignty is now of minimal importance,“

these documents make clear that the issue of sovereignty

is not losing its vitality or disappearing under the in-

fluence of increasing international transactions and mul-

tinational entities; rather, sovereignty is consciously

being protected.

For example, the Discrimination (Employment and

Occupation) Convention (No. 111), 362 U.N.T.S. 31

(1958), of the International Labour Organization

(“ILO”) addresses employment discrimination directly

and stresses that the issue of discrimination is an in-

ternational concern to be addressed on a national basis.

Convention No. 111 is intended to protect workers

against discrimination. Nonetheless, it declares that

“lelach Member for which this Convention is in force

undertakes to declare and pursue a national policy de-

signed to promote, by methods appropriate to national

conditions and practice, equality of opportunity and

treatment in respect of employment and occupation, with

a view to eliminating any discrimination in respect

thereof.” Jd. at art. 2 (emphasis added). The ratifica-

tion of this convention by 111 countries’ reflects the

* Brief of amicus Lawyers’ Committee For Civil Rights Under

Law, at 16-18.

* The 111 countries that have ratified the Convention include

not only Saudi Arabia, but also such countries as France, Germany,

13

consensus of the world community accepting the principle

of national sovereignty and the primacy of territorial

jurisdiction even within the context of the important and

fundamental commitment to nondiscrimination in em-

ployment. As a party to the Convention, Saudi Arabia

has expressed its agreement with these principles and

entered into an undertaking to abide by widely accepted

standards against discrimination within the context of

its national policy.

As further evidence of customary international law,

the ILO Tripartite Declaration of Principles concerning

Multinational Enterprises and Social Policy, 17 I.L.M.

422 (1978), demonstrates equal respect for standards of

nondiscrimination and principles of sovereignty. The

Declaration states:

All governments should pursue policies designed to

promote equality of opportunity and treatment in

employment, with a view to eliminating any discrim-

ination based on race, colour, sex, religion, political

opinion, national extraction or social origin.

Id., para. 21, at 426. Yet,

All the parties concerned by this Declaration should

respect the sovereign rights of States, obey the na-

tional laws and regulations, give due consideration

to local practices and respect relevant international

standards.

Id., para. 8, at 424.

The Organization for Economic Cooperation and De-

velopment (“OECD”) has developed a code of conduct

Italy, and the U.S.S.R. The United States has ratified neither the

Discrimination (Employment and Occupation) Convention nor most

of the other 169 ILO conventions.

" The purpose of the OECD is to promote policies designed to

achieve high economic growth and employment, to contribute to

world economic development, and to contribute to the expansion of

world trade on a multilateral nondiscriminatory basis. The United

States is a member of the OECD; Saudi Arabia is not.

14

for multinational enterprises—the OECD Guidelines for

Multinational Enterprises, 15 1.L.M. 969 (1976) [here-

inafter Guidelines}. These Guidelines reflect a dual con-

cern for the sovereignty of nations and equality in em-

ployment. According to the OECD Guidelines, multi-

national enterprises are to respect the rights of employ-

ees and to ensure employment standards “not less favour-

able than those observed by comparable employers in the

host country.” Jd. at 975. But these protections are to

be realized “within the framework of law, regulations

and prevailing labour relations and employment prac-

tices, in each of the countries in which they operate. . . .”

Id. (emphasis added}. The Guidelines, to which the

United States subscribes, underscore the importance of

sovereignty by acknowledging:

Every State has the right to prescribe the condi-

tions under which multinational enterprises operate

within its national jurisdiction, subject to interna-

tional law and to the international agreements to

which it has subscribed. The entities of a multi-

national enterprise located in various countries are

subject to the laws of these countries.

Id. at 970.

Concerned with the potential for conflict between laws

that might be applied extraterritorially, a 1984 report of

the OECD counselled cooperation in avoiding such con-

flict. OECD, The OECD Guidelines for Multinational

Enterprises 75 (1986) (publication of the OECD). It

urged Member states contemplating “action under exist-

ing legislation or other exercise of jurisdiction which

may conflict with the legal requirements or established

policies of another Member country and lead to conflict-

ing requirements being imposed on multinational enter-

prises .. . [to] [h]ave regard to relevant principles of

international law ... [and] [tlake fully into account

the sovereignty and legitimate economic, law enforce-

ment and other interests of other Member countries.” /d.

15

at 75. To this end, the report urges cooperation rather

than unilateral action. Jd."

In sum, these international conventions, declarations,

and codes acknowledge the obligation of all nations to

adopt standards of nondiscrimination, yet recognize that

this process must be undertaken with respect for the sov-

ereignty of individual nations and within the context of

each nation’s laws and policies.“ Far from justifying

extraterritorial application of domestic legislation, they

seek to implement international norms within the ambit

of domestic legislation of individual states. Increasing

transnational circulation of- goods, capital and labor has

not led to a decline of concern for sovereignty, but rather

has emphasized its significance in international law. The

extraterritorial application of Title VII would trans-

gress both the international consensus and the sover-

eignty of individual states.

" Additionally, the latest proposed draft text of the United

Nations Code of Conduct on Transnational Corporations ‘prepared

by the Chairman of the Special Session on the Code of Conduct and

dated May 31, 1990) echoes the concern for national sovereignty

under international law: “An entity of a transnational corporation

is subject to the laws, regulations and established administrative

practices of the country in which it operates.” Art. 8 (emphasis

added). See also art. 14.

In an area as important as the condemnation of terture, the

Senate has expressed its intent that the international consensus be

implemented in the context of U.S. domestic laws and policies. To

this end, when giving its advice and consent to ratification of the

U.N. Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, G.A. Res. 39 46, U.N. GAOR

Supp. (No. 51) at 197, U.N. Dee. A/39/51 (1985), the United States

Sen:te included an express reservation that the Convention would

not “restrict or prohibit the United States from applying the death

penalty consistent with the Fifth, Eighth, and or Fourteenth Amend-

ments to the Constitution of the United States.” 136 Cong. Rec.

$17492 (daily ed. Oct. 27, 1990). The recent instance of U.S. legis-

lative action reflects our own government's continuing respect for

national sovereignty.

16

D. Employment is Precisely the Type of Local Activity

that States do noi Regulate Extraterritorially,

Even as to Their Nationals Employed in Foreign

Countries

The practice of states is a primary source of custo-

mary international law. Restatement 3d § 102/24, at 24.

The “practice of states” includes “diplomatic acts and

instructions as well as public measures and other govern-

mental acts and official statements of policy... .” IJd.,

comment b, at 25.

As reflected in domestic laws, the prevailing practice

is to regulate er~loyment discrimination pursuant to

the territoriality ,.inciple of jurisdiction, even as to

nationals employed abroad. The International Labour

Organization lists 55 nations that have employment dis-

crimination laws. International Labour Office, Legisla-

tive Series, General Subject Index 1919-88 (1988).

Rather than applying extraterritorially, many of these

statutes expressly provide that they apply only within the

territory of the regulating state. For example, the Race

Relations Act and the Sex Discrimination Act of the

United Kingdom expressly apply only to employment “at

an establishment in Great Britain.” Appendix A.”

In addition, a number of laws assert that the employ-

ment law of the territorial state is to be exclusive within

its territorial boundaries. See F. Morgenstern, Interna-

tional Conflicts of Labour Law 34-35 (1984) (discussing,

inter alia, territorial exclusivity of Argentine, Ecuadoran,

Iraqi, Brazilian, and Mexican labor legislation). Most

relevant for the Court’s consideration in this case is the

Saudi Arabian Labor and Workmen Law of 1969, which

claims exclusive jurisdiction over all labor relations and

disputes within Saudi Arabia. See appendix B, arts. 2,

174, 176.

Similar. legislation from Argentina, Gabon, India, Jamaica.

Norway, and Spain is included in appendix A.

17

Moreover, courts of a number of states have applied

their domestic discrimination laws only to conduct within

the regulating state. In interpreting the U.K. Sex Dis-

crimination Act, a British court has rejected the claim

that the statute applied to conduct occurring in the chan-

nel between England and the European continent on a

ship registered in Hamburg but owned by an English

company. Haughton v. Olau Line, Ltd., (1986) W.L.R.

504 (Ct. App. Mar. 7, 1986). The Australian courts have

held that Australian labor laws apply only to activities

substantially connected with Australian territory. See

Regina v. Foster, 103 C.L.R. 256, 275 (Austl. 1959). The

European Court of Justice has held that the European

Communities’ rules against discrimination apply only to

activities within the member states. See Walrave v. As-

sociation Union Cycliste Internationale, Case No. 36 /74,

1975 Common Mkt. Rep. (CCH) % 8290 (Dee. 12, 1974)."

Thus, absent a clear congressional mandate, it would

be contrary to accepted state practice for the EEOC or

the courts to extend the scope of Title VII to activities

outside the United States and within the territory of

another sovereign nation."

’ The English texts of these foreign cases have been lodged with

the Clerk of the Court.

'® Given the absence of a clear Congressional mandate in thi« case,

amicus Lawyers’ Committee has sought to rely on the U.S. govern-

ment’s concern for its image amony the world community as a basis

for extending Title VII abroad. See Brief of Lawyers’ Committee

for Civil Rights Under Law, at 12 (characterizing Title VII as part

of “a fundamental moral commitment by this Nation... repeatedly

linked .. . to the international standing and relations of the United

States.”). However, the failure of the United States to ratify either

the ILO Convention No. 111 of any of the United Nations human

rights instruments relating to discrimination, see Human Rights

Status of International Inatruments at 12-12, U.N. Doe. ST HR 5.

U.N. Sales No. E.87.XIV.2 (1990). seriously undermines the Law-

yers’ Committee's analysis.

18

Il. ACCORDING TO ESTABLISHED PRINCIPLES OF

INTERNATIONAL LAW, IT WOULD BE UNREA-

SONABLE TO APPLY TITLE VII TO CONDUCT IN

FOREIGN COUNTRIES

A. International Law Requires “Reasonableness” in

Extraterritorial Assertions of Jurisdiction

Extraterritorial application of domestic laws—in par-

ticular by the United States—has bred resentment from

other governments and, in some cases, spawned the en-

actment of foreign blocking statutes." The principle of

reasonableness has been adopted to govern the authority

'* For example, the proposed Omnibus Export Amendments Act of

1990, H. Rep. No. 101-944, 101st Cong., 2d Seas., § 128 (1990), would

have imposed cestrictions on foreign subsidiaries of U.S. companies

trading with Cuba. The Canadian government, which allows trade

with Cuba, issued a blocking order demonstrating Canada’s “determi-

nation to block measures that infringe Canadian sovereignty.” Wash-

ington Post, Nov. 1, 1990, at Fl. Under pressure from various

countries, including Canada and the United Kingdom, President

Bush vetoed the bill. 7 Int'l Trade Rep. 1770 (Nov. 21, 1990).

For other examples, see also Restatement 3d § 403, at 248-49

‘Reporters’ Note 1) (various state objections reflect the view that

jurisdiction must be interpreted and applied reasonably); id. § 442,

at 357-59 (Reporters’ Note 4) (discussing blecking statutes enacted

by Canada, the Netherlands, Great Britain, the Federal Republic of

Germany, France, Norway, Australia, atid South Africa “to counter

litigation or investigation emanating from the United States”) ;

Gordon, Exrtraterritorial Application of United States Economic

Laws: Britain Draws the Line, 14 Int'l Law. 151 (1980).

Foreign courts have also reacted negatively to U.S. assertions of

extraterritorial jurisdiction. See, ¢.9¢., Libyan Arab Foreign Bank

v. Bankers Trust Co., High Court of Justice, Queen's Bench, Com-

mercial Court (Sept. 2, 1987) (U.K. court orders U.K. branch of

U.S. bank to make payment to Libyan bank despite U.S. law prohib-

iting payment, characterizing transaction as one governed by

British, no U.S., law); Compagnie ERuropéenne ace Pétroles S.A.

v. Sensor Nederiand B.V.. Judgment of Sept. 17, 1982, District

Court at the Hague, reprinted in 22 1.L.M. 66, 71-72 (198%) (Dutch

court characterizes U.S. Soviet pipeline regulations as a “restraint

of trade,” and concludes that U.S. assertion of jurisdiction over

U.S. foreign subsidiary is “dubious”).

19

of states to apply their domestic laws to conduct occurring

abroad so as to accommodate the conflicting interests of

States as well as affected private interests. Restatement

3d §§401 at 231 (Introductory Note), 403, at 244-48.

This principle is recognized through various judicial

decisions in United States law and has emerged as'» prin

ciple of international law as well. Id. § 403, comment a,

at 245; Socicté Nationale Industrielle Aérospatiale v.

United States District Court, 482 U.S. 522, 544-45 n.29

(1987) (in the context of discovery of documents located

abroad, the Court held that U.S. law should be applied

‘consistent with the overall principle of reasonableness

in the exercise of jurisdiction’ ”) (quoting Revised Re

statement Draft No. 7 § 437, at 42 ‘Reporters’ Note 5) ).

Cf. Lauritzen v. Larsen, 345 U.S. 571 (1958).

B. Application of Title VII Abroad in this Case Would

be Unreasonable

Whether it is reasonable for the United States to exer-

cise extraterritorial jurisdiction based on the nationality

principle is to be evaluated considering the followi

non-inclusive list of factors: 7”

regulating state, i.e., the extent to the ac-

tivity takes within the territory, or has

substantial, direct, and foreseeable effect upon

or in the territory ;

‘b+ the connections, such as nationality, residence,

‘e) the character of the activity to be regulated, the

importance of regulation to the regulating state,

the extent to which other states regulate such

activities, and the degree to which the desirabil-

ity of such regulation is generally accepted ;

(d) the existence of justified expectations that might

be protected or hurt by the regulation in ques-

tion ;

‘e) the importance of the regulation to the interna-

tional political, legal, or economic system ;

if) the extent to which the regulation is consistent

with the traditions of the international system ;

ig! the extent to which another state may have an

interest in regulating the activity ; and

th) the likelihood of conflict with the regulation by

another state.

/

i

;

:

The territorial links with

in this case since none of the activity to

curred within the United States nor did the alleged un-

lawful conduct have a substantial, direct, and foresee-

able effect in the territory of the United States.

1332, 1391, 1441, 1602-1611 (1988), activity affecting a

U.S. citizen abroad does not have an effect in the United

States. See Callejo v. Bancomer, S.A., 764 F.2d 1101, 1111

(Sth Cir. 1985); Harris v. VAO Intowrist Moscow, 481

F. Supp. 1056 (E.D.N.Y. 1979); Upton wv. Iran, 459 PF.

Supp. 264 (D.D.C. 1978), aff'd mem., 607 F.2d 494 (D.C.

Cir. 1979). Accordingly, consideration of the first factor

of Section 4038/2) (a) indicates it would be unreasonable

to apply Title VII abroad.

In addition, there is an insufficient connection between

the United States and the parties in this case to make

—

au

it Ee

eet

f iH

| i;

H

|

is precisely the type of activity that generally, and in this

instance specifically, is regulated exclusively by the host

' See discussion of conflict with Saudi law, iefre, note 21 and

accompanying text.

extraterritorial jurisdiction “over predominantly local ac-

tivities, such as industrial and labor relations, health and

:

As to the importance of such regulation, it is

an important U.S. policy prohibit

employment. Yet, there is

of Title VII or in its legislative history that

As

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tt f

lita

iE

z

:

fi

f

|

[

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ment laws in deference to the laws of the host or terri-

which cluded various principles of non-discrimination. Compre-

hensive Anti-Apartheid Act of 1986, Pub. L. No. 99-4460, § 208, 100

Stat. 1087, 1097 (te be codified at 22 U.S.C. § 5085).

In the case of Arameo’s operations in Saudi Arabia, Aramco

could have been subject to the employment discrimination laws of

at least Saudi Arabia, the United States, the Philippines, the United

As for the existence of justified expectations, the silence

of Congress on this issue provides no basis on which em-

ployees could expect that Title VII would apply to their

employment abroad. In fact, for 10 years, the EEOC

regulations extended Title VII solely to “all individuals,

both citizen and noncitizens, domiciled or residing in the

United States... .” 29 C.F.R. § 1606.1(c) (1971-1980)

(emphasis added). Given the general practice of states

to regulate the employer-employee on a territorial and

often exclusive basis, employees cannot expect to carry

their domestic employment discrimination laws with them

when they work abroad.

The international agreements and guidelines discussed

in section I1(C), supra, and the prevalence of domestic

laws regulating this issue indicate that eliminating dis-

crimination in employment is an important international

objective. As noted earlier, however, this objective is to

be achieved in the context of regulation by the territorial

state. The multilateral agreements in this area recognize

and accept the differences among states that otherwise

adhere to the generally accepted standards of nondiscrim-

ination.

The political consensus reflected in Title VII is an

American consensus and is not necessarily reflective of

any other nation’s political or social consensus on this

aspect of labor relations. Indeed, some nations provide

mo:- extensive protection to employees. For instance,

Canada prohibits discrimination on the basis of depend-

ence on alcohol or drugs, race, national /ethnic origin,

color, religion, age, sex, pregnancy ‘childbirth, marital

status, criminal conviction, mental or physical disability,

and family status. See Can. Lab. L. Rep. { 1600 at 901-

3 (CCH Canadian Ltd., 1987).

Kingdom, the Netherlands, Canada, Jordan, Egypt, India, Pakistan,

Sri Lanka, and Syria.

* This material has been lodged with the Clerk of the Court.

24

The extraterritorial application of Title VII would

burden the international legal system by encroaching on

individual nations’ implementation of this international

consensus. In addition, the extraterritorial application of

Title VII would burden the international economic system

by creating, within each foreign affiliate of a multina-

tional enterprise that had employees of diverse citizenship,

conflicting administrative and legal burdens. Thus, it is

important to the international political, legal and economic

system that Title VII not be applied in a unilateral and

extraterritorial fashion.

With respect to the sixth factor, the extraterritorial

application of Title VII would not be consistent with the

traditions of the international legal system. As stated

above, labor relations have been regarded as primarily a

matter of local concern. Restatement 3d § 414, comment

c, at 271. As discussed in section 1(D), supra, the tra-

dition is not to apply employment discrimination laws to

conduct in another state. Thus, consideration of the tra-

dition of the international legal system indicates that

Title VII should not be construed to apply abroad.

Domestic employment discrimination laws demonstrate

that most states clearly have an interest in regulating

such matters within their territories. U.S. employment

discrimination laws generally apply to U.S. and non-U.S.

citizens working in the United States. See, e.g., Sumi-

tomo Shoji America, Ine. v. Avagliano, 457 U.S. 176

(1982). Saudi Arabia has a similar interest in regulating

labor relations and employment activity within its borders.

The extensive Saudi Arabian Labor and Workmen Law

of 1969 occupies the field of employment in Saudi Arabia.

It stipulates as its goal to develop and modernize the

Saudi economy and to protect the integrity of the religi-

ous, moral, and social fabric of the society. It regulates

all employment in Saudi Arabia including “any contract

under which any person undertakes to work for the ac-

cour: of an employer .. . in consideration of a wage.”

25

Art. 2. The extensive requirements of this law govern

all aspects of the employment relationship between any

employer and employee in Saudi Arabia. Therefore, the

Saudi government’s interest in this area of law has been

made manifestly paramount.

Extraterritorial application of Title VII could conflict

with several provisions of the Saudi Labor and Workmen

Law of 1969. For example, the kind of work women may

or may not perform and which hours they may work are

strictly regulated to “protect” them from “hazardous” or

“harmful” industries and nighttime workshifts. Arts.

160, 161. The provisions regarding maternity leave grant

benefits far beyond those guaranteed by U.S. law. Arts.

160-62. The termination and complaint procedures in

Saudi Arabia are quite different from Title VII. Saudi

Arabian law establishes specific pre-conditions for dis-

charge including “valid reason” and notice. The law pro-

vides for indemnity for wrongful discharge and for termi-

nation awards. Arts. 74, 83.

Finally, and of primary importance in the instant case,

the extraterritorial application of Title VII would con-

flict with the provision of Saudi law giving it exclusive

jurisdiction over all labor matters in Saudi Arabia. Art.

2. Exclusive jurisdiction over all labor disputes is ex-

plicitly reserved to Saudi “Labor and Settlement of Dis-

putes Commissions” constituted by the Council of Min-

isters. Arts. 174, 176. Saudi Arabia’s claim to exclusive

jurisdiction over the resolution of all labor disputes within

Saudi territory demonstrates an apparent policy that la-

bor relationships are governed by Saudi local law.”'

*! There is no indication that petitioner Boureslan pursued the

remedies available to him under Saudi law prior to bringing an

action against respondents in U.S. courts. Coupled with Saudi

Arabia’s adherence to international standards, as set forth in the

ILO Convention (see discussion, section 1(D), supra), it cannot be

said that an appropriate remedy would not have been available to

him under the law of the territorial state.

Ill. THE DOCTRINE OF COMITY AMONG STATES

CALLS FOR RESTRAINT IN THIS INSTANCE

Comity among nations precludes finding that Title VII

should be applied in the circumstances of this case. Re-

statement 3d § 403(3), at 245, provides:

When it would not be unreasonable for each of

two states to exercise jurisdiction over a person or

activity, but the prescriptions by the two states are

in conflict, each state has an obligation to evaluate

its own as well as the other state’s interest in exer-

cising jurisdiction in light of all the relevant factors,

[including those set out in] Subsection (2); a state

should defer to the other state if that state’s inter-

est is clearly greater.

The balancing of interests called for in Restatement 3d

§ 40313) reflects principles of comity under international

law. See Maier, Resolving Extraterritorial Conflicts, or

“There and Back Again,” 25 Va. J. Int’l L. 7 (1984);

Yntema, The Comity Doctrine, 65 Mich. L. Rev. 9 (1966) ;

Société Nationale Industrielle Aérospatiale, 482 U.S. at

541-46 (considering comity concerns in dispute regard-

ing discovery of documents located abroad).

In this case, an evaluation of the competing interests

of the two states using the factors set out in Restatement

3d § 403(2) leads to the conclusion that the interests of

Saudi Arabia as the territorial state are “clearly greater”

than those of the United States. To conclude that the

United States has a lesser interest in no way implies that

its interest is not significant. Rather, it indicates that,

along with the substantial interest of the United States

in the values underlying Title VII, this country has

equally strong countervailing interests in demonstrating

its respect for sovereignty, international law, and avoid-

ing conflict. In these circumstances, the United States

should defer to Saudi Arabia’s clearly greater interests.

27

CONCLUSION

Por the foregoing reasons, the decision of the Fifth

Circuit should be affirmed.

Respectfully submitted,

CreciL J. OLMSTEAD *

EDWARD J. KRAULAND

NANCY B. ZUCKER

STEPTOE & JOHNSON

1330 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 429-3000

Attorneys for Amici Curiae

* Counsel of Record

APPENDICES

—_—_——- .

ae et Cmts, «+

la

APPENDIX A

Excerpts from selected foreign statutes governing em-

ployment discrimination.

ARGENTINA

Decree No. 390, to approve a consolidated text of the

rules governing contracts of employment. Dated 13 May

1976. (Boletin Oficial, 21 May 1976, No. 23410, p. 2),

reprinted in ILO, Legislative Series 1976-Arg. 1 (1978).

Art. 3. Cases in which the Act is applicable. This Act

shall apply to all matters relating to the legal capacity,

rights and obligations of the parties, regardless of

whether the contract of employment was concluded in

Argentina or abroad, on condition that it is performed

in Argentina (emphasis added).

Art. 17. Discrimination prohibited. This Act prohibits

any form of discrimination between workers on grounds

of sex, race, nationality, religion, political opinion, trade

union membership or age.

GABON

Act No. 5-78, to institute a new Labour Code for the

Gabonese Republic. Dated 1 June 1978. (Journal Officiel,

28 November 1978, No. 25, Extraordiary, p. 1), reprinted

in ILO, Legislative Series 1978-Gab. 1 (1980).

Art. 7. The State shall guarantee equal wages for the

same work or for work of equal value, without discrimi-

nation based upon nationality, sex or place of recruit-

ment.

Art. 21. Irrespective of the place where a contract of

employment is concluded and of the place where either

of the parties is resident, every contract of employment

concluded for performance either wholly or in part in the

territory of the Gabonese Republic shall be subject to the

2a

provisions of this Code: Provided that the foregoing shall

not apply to workers brought to Gabon for temporary

employment not exceeding three months (emphasis

added).

INDIA

An Act to provide for the payment of equal remunera-

tion to men and women workers and for the prevention

of discrimination, on the ground of sex, against women

in the matter of employment and for matters connected

therewith or incidental thereto. No. 25 of 1976. Assented

to 11 February 1976. (Gazette of India, Extraordinary,

Part II, Section 1. No. 29, 12 February 1976, p. 189),

reprinted in ILO, Legislative Series 1976-Ind. 1 (1977).

Art. 1. ‘short title, extent and commencement. (1)

This Act may be called the Equal Remuneration Act of

1976.

Art. 2. /t extends te the whole of India (emphasis

added}.

Art. 4. Duty of employer to pay equal remuneration

to men and women workers for same work or work of

a similar nature.

Art. 5. No discrimination to be made while recruiting

men and women workers.

JAMAICA

An Act to eliminate discrimination between the sexes

in the payment of remuneration for the doing of similar

work and to provide for matters incidental thereto. No.

34 of 1975. Assented to 2 October 1975. Reprinted ix

ILO, Legislative Series 1975-Jam. 2 (1976).

Art. 1. Short title and commencement. This Act may

be cited as the Employment (Equal Pay for Men and

Women) Act of 1975.

Art. 3. A person shall not be regarded for the pur-

poses of this Act as employed in Jamaica if his employ-

3a

ment is wholly or mainly outside Jamaica (emphasis

added) ; but

(a) employment on aircraft or hovercraft registered

in Jamaica shall not be regarded for the purposes

of this Act as employment outside Jamaica, unless

it is wholly outside Jamaica;

(b) persons employed to work on board a ship reg-

istered in Jamaica, unless the employment is wholly

outside Jamaica, are to be regarded for the pur-

poses of this Act-as employed in an establishment.

Art. 3. Payment of equal pay for equal work. (1)

From and after the first day of January 1976 no em-

ployer shall, by failing to pay equal pay for equal work,

discriminate between male and female employees employed

by him in the same establishment in Jamaica (emphasis

added).

NORWAY

Act respecting equality between the sexes. No. 45,

Dated 9 June 1978. (Norsk Lovtidend, Part 1, 27 June

1978, No. 18, p. 395), reprinted in ILO, Legislative Se-

ries 1978-Nor. 1 (1979).

Art. 1. Purpose of the Act. This Act is intended to

promote equality between the sexes and is specially aimed

at improving the status of women.

The public authorities shall arrange for conditions

ensuring equality between the sexes in all spheres of

public life.

Women and men shall be afforded equal opportunities

for training, employment and cultural and vocational

development.

Art. 3. General provisions. Discrimination between

women and men shall not be permitted.

The expression “discrimination” means any act plac-

ing women and men on a different footing because they

4a

are of different sexes. It shall also be deemed to include

any act whose practical effect is such that one sex is

unreasonably placed at a disadvantage in relation to the

other. ...

Art. 5. Equal wages for work of equal value. Women

and men engaged in the same activity shall have equal

wages for work of equal value.

Art. 20. Geographical scope of the Act. This Act shall

apply in Norway and Svalbard and on board Norwegian

vessels and aircraft in all spheres that are not subject

to the sovereignty of any State (emphasis added).

SPAIN

Act No. 8, to promulgate a Worker’s Charter. Dated

10 March 1980. (Boletin Oficial del Estado, 14 March

1980, No. 64, p. 5799), reprinted in ILO, Legislative Se-

ries 1980-Sp. 1 (1981).

Art. 2. As a party to an employment relationship a

worker shall have the right—

(c) to freedom from discrimination, when seeking em-

ployment or after having found employment, on

grounds of sex, marital status, age (within the

limits specified in this Act), race, social circum-

stances, religious or political ideas, membership

or non-membership of a trade union, or language,

within the Spanish State (emphasis added).

A worker shall likewise not be subject to dis-

crimination on grounds of physical, mental or

sensory handicap, if he has the necessary skills to

do the job or engage in the employment in

question ....

-

va

UNITED KINGDOM

The Race Relations Act 1976 (1976 ¢. 74).

Discrimination by-employers

Art. 4. Discrimination against applicants and

employees

(1) It is unlawful for a person, in relation to employ-

ment by him at an establishment in Great Britain (em-

phasis added}, to discriminate against another . . .

(2) It is unlawful for a person, in the case of a person

employed by him at an establishment in Great Britain

(emphasis added), to discriminate against that em-

ployee...

The Sex Discrimination Act 1975 (1975 ¢. 65).

Discrimination by employers

Art. 6. Discrimination against applicants and

employees

(1) It is unlawful for a person, in relation to employ-

ment by him at an establishment in Great Britain (em-

phasis added), to discriminate against women .. .

(2) It is unlawful for a person, in the case of a woman

employed by him at an establishment in Great Britain

‘emphasis added), to discriminate against her. . .

6a

APPENDIX B

Selected provisions from the Saudi Arabian Labor and

Workmen Law of 1969. The complete text in English is

at Attachment B to Respondent Aramco’s brief in the

Fifth Circuit.

ARTICLE 2

The provisions of this Law shall apply to:

(a) Any contract under which any person undertakes

to work for the account of an employer under the

latter’s direction or control in consideration of a

wage.

(b) Contracts of apprenticeship (Industrial inden-

tures).

(ec) Workmen of the Government, local authorities,

charitable institutions, and public organizations.

ARTICLE 74

If the contract is cancelled for no valid reason, the

party who is prejudiced by such cancellation shall be en-

titled to an indemnity to be assessed by the competent

Commission, provided that such assessment shall take

into account actual and contingent material and moral

prejudice suffered by such party. ...

ARTICLE 83

The employer may not cancel the contract without ter-

mination award, advance notice or indemnity except in

the following cases, and provided that he gives the work-

man a chance to state his reasons for objecting to the

cancellation:

1. If, during or by reason of the work, the workman

has committed an assault against the employer or

against any of his supervisors.

Ta

. If the workman fails to fulfill the essential obliga-

tions arising from the labor contract, or to obey

legitimate orders, or if, in spite of being warned,

in writing, he deliberately fails to observe the in-

structions posted by the employer in a conspicuous

place for the safety of the work and workmen.

. If the workman is proved to have adopted a bad

conduct or to have committed an act affecting hon-

esty or honor.

. If the workman has deliberately committed any act

or negligence with intent to cause materia! loss

to the employer, provided that the latter shall re-

port the incident to the appropriate authorities

within twenty-four hours from the time of its

coming to his knowledge.

. If it is proved that the workman had resorted to

forgery in order to obtain the job.

6. If the workman is hired on probation.

. If the workman absents himself without valid rea-

son for more than twenty days in one year or for

more than ten consecutive days, provided that dis-

charge shall be preceded by a warning in writing

by the employer to the workman after ten days’

absence in the first case and five days’ absence in

the second.

. If it is proved that, without permission from the

person supervising his treatment, the workman has

left the hospital or any place provided for his treat-

ment. This shall not prejudice his right to such

compensation as he is entitled to under the provi-

sions on injuries and compensations set forth in

the Social Insurance Law.

. If it is proved that the workman has divulged the

industrial and commerciai secrets of the work in

which he is engaged.

8a

ARTICLE 160

Adolescents, juveniles and women may not be employed

in hazardous operations or harmful industries, such as

power-operated machinery, mines, quarries and the like.

The Minister of Labor shall, by decision, designate the

occupations and operations that are regarded as harmful

to health, or are apt to expose women, juveniles and ado-

lescents to given hazards requiring that their employ-

ment in such occupations or operations be prohibited or

restricted by special conditions. In no case may men and

women commingle in the place of work or in the acces-

sory facilities or other appurtenances thereto.

ARTICLE 161

Adolescents, juveniles and women may not be employed

during the night time which covers an interval of at

least eleven hours between sunset and sunrise, except in

the cases to be determined by decision of the Minister of

Labor in respect of non-industrial occupations and in

cases of force majeure.

ARTICLE 162

Juveniles and adolescents may not be employed for a

period exceeding six hours a day, and the exceptions pro-

vided for in Articles 150 and 152 of this Law shall not

apply to them.

ARTICLE 174

The Primary Commission for Settlement of Disputes

shall have exclusive jurisdiction to:

First, Reider final decisions on:

a. Labor disputes, the value of which does not exceed

three thousand riyals.

b. Disputes relating to the stay of execution of deci-

sions to terminate workmen, which are filed in ac-

cordance with the provisions of this Law.

9a

ec. Disputes relating to the imposition of fines or re-

quests for exemption from such fines.

Second: Render decisions of first instance on:

a. Labor disputes, the value of which exceeds three

thousand riyals.

b. Disputes pertaining to Labor injuries whatever the

amount involved may be.

c. Disputes pertaining to termination of service.

ARTICLE 176

The Supreme Commission shall have exclusive jurisdic-

tion to render final and definitive decisions in all dis-

putes referred to it on appeal and shal! likewise be con-

petent to impose upon the violators of the provisions of

this Law the penalties prescribed herein.