Amicus Curiae Brief — Kiobel v. Royal Dutch Petroleum Co.

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No. 10-1491

3n the Supreme Court of the Hnited States

ESTHER KIOBEL, ET AL.,

Petitioners,

Vv.

ROYAL DUTCH PETROLEUM CO., Er AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF THE FEDERAL REPUBLIC OF GERMANY

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

JEFFREY Harris

Counsel of Record

Max RIEDERER VON PAAR

WALTER E. Diercks

RuBIN, WINSTON, Diercks, Harris

& CooxE, LLP

1201 Connecticut AvE., N.W.

SUITE 200

WASHINGTON, D.C. 20036

(202) 861-0870

jharris@rwdhc.com

Counsel for Amicus Curiae February 2, 2012

Becker Gallagher - Cincinnati,OH - Washington, D.C. - 800.890.5001

i

TABLE OF CONTENTS

SS EP CUE ee eee ee iii

Interest of Amicus Curiae

The Federal Republic of Germany.............. 1

I CIN ccc dsicdesnveenseades 2

is +6 doc as 0 ¥e dca hads eenccunreeeuns 4

I. THE ISSUE OF CORPORATE CIVIL TORT

LIABILITY UNDER THE ALIEN TORT

STATUTE IS AN ISSUE OF SUBJECT

MATTER JURISDICTION. ................ 4

A. Determining the Proper Tortfeasor Under

The ATS Is An Issue of Subject Matter

I iid 6o sca ei ak< oe KOE ane Os 4

B. Determination Of A Proper Tortfeasor

Under The ATS As A Merits Question Would

Put An Unjustified Burden on the U.S. Legal

System And On Foreign Defendants...... . 7

C. Regardless Of Whether This Court Finds

The Issue Of Who Is A Proper Tortfeasor

Under The ATS To Be One Of Subject

Matter Jurisdiction, The Exercise Of Such

Jurisdiction Should Be Limited........... 9

1. Comity Requires U.S. Courts to Consider

Other Available Venues. ............. g

2. Exhaustion of Available Legal Remedies

Should be Required................. 14

‘3

3. Cautious And Limited Application Of The

ee ee SS ga tore

aL A eee

15

ili

TABLE OF AUTHORITIES

Cases

Adkins v. Duval County School Board,

oR ee ff fe ee |. |} 6

Allstate Life Ins. Co. v. Linter Group, Ltd.,

994 F.2d 996 (2d Cir. 1993)................ 10

Arbaugh v. Y & H Corp.,

ee a a's a av Nyy Woe aw we 7

Arriaza Gonzalez v. Thaler,

2012 U.S. LEXIS 574 (U.S. Jan. 10, 2012)..... 6

Bauman v. DaimlerChrysler Corp..,

644 F.3d 909 (9th Cir. 2011)............... 10

Baumgart v. Fairchild Aircraft Corp.,

981 F.2d 824 (Sth Cir. 1993)............... 13

Charlotte v. International Ass’n of Firefighters,

ee a ee Ss oa dab cake eee ereeas 5

Chudasama v. Mazda Motor Corp..,

123 F.3d 1353 (11th Cir. 1997).............. 8

Dresdner Bank AG v. Haque,

161 F. Supp. 2d 259 (S.D.N.Y. 2001). ....... 13

EEOC v. Arabian Am. Oil Co..,

ee a EE 6 is vnlcacwiceere mee 15

F. Hoffmann-La Roche Ltd. v. Empagran,

ey ES os onus ebb ahi Sete sale RG hes 15

iV

Gentile v. Wallen,

BOO P98 3635 (38 Cir. 1077)... 0. ce ccc cc eee 6

Henderson v. Shinseki,

ON Oe, ee ED, << d'c.c ese 0 e:0 oth 0 408 80 6,7

Khulumani v. Barclay Natl Bank Lid.,

504 F.3d 254 (2d Cir. 2007)..............-.. 10

Kiobel v. Royal Dutch Petroleum Co.,

ee brid Le a era 2

Martin v. Vogler,

1993 U.S. Dist. LEXIS 15878

1 8G @ se ere rae 13

Monegasque de Reassurances S.A.M. (Monde Re) v.

NAK Naftogaz of Ukr.,

158 F. Supp. 2d 377 (S.D.N.Y. 2001). ....... 13

Morrison v. Nat'l Austl. Bank Ltd.,

Me | rrr 11, 15

Morrison v. National Australia Bank Lid.,

Bay P.O 167 Ce Cle. BOGS)... we cc cece 11

Reed Elsevier, Inc. v. Muchnick,

Wo ee CD oie 0 oe noe twle le etetelavers 3,6

Sarei v. Rio Tinto, PLC,

2011 U.S. App. LEXIS 21515

I I oy cA eT he eS eta a el 5

Sarei v. Rio Tinto, PLC,

GG8 F238 GES (Oth Cir. BOOB). 2... cc cece ecen 14

v

Sinaltrainal v. Coca-Cola Co.,

578 F.3d 1252 (11th Cir. 2009).............. 4

Societe Nationale Industrielle Aerospatiale v.

United States Dist. Court for S. Dist.,

Rl, re nr es 9-10

Sosa v. Alvarez — Machain,

gtk Gt, | ee 2, 3, 4, 14, 16

Union Pac. R.R. v. Bhd. of Locomotive

Eng’rs & Trainmen Gen. Comm. of Adjustment,

i ree re 4

Statutes

German Civil Code § 823. ................ 11, 12

Be Ss OE ss aioe cane ots eeKus 3, 5,6

ers I Fass eos aos oa ed Sats oer passim

ar a od sew e's Gwe dreeie cuentas lenin 3, 5,6

Rules

Pe ee a re cate a che sahars ease e eaa ck hated aiasecita cies 7

German Code of Civ. P. 13, 17,32. ............ 12

1

INTEREST OF AMICUS CURIAE

THE FEDERAL REPUBLIC OF GERMANY

With the consent of the parties, The Federal

Republic of Germany submits this amicus curiae brief

in support of the Respondents. The letters of consent

have been filed with the Clerk of the Court. ’

The Government of The Federal Republic of

Germany is a strong defender of, and committed to,

the international rule of law, including the promotion

of human rights, and protection against human rights

violations.

The Federal Republic of Germany has consistently

maintained its opposition to overly broad assertions of

extraterritorial civil jurisdiction arising out of aliens’

claims against foreign defendants for alleged foreign

activities that caused injury on foreign soil. This

position is not one that has been lightly adopted by

The Federal Republic of Germany. The Federal

Republic of Germany believes that overbroad exercises

of jurisdiction are contrary to international law and

create a substantial risk of jurisdictional conflicts with

other countries.

The Federal Republic of Germany is concerned that

the failure by some United States courts to take into

account limitations on the exercise of their jurisdiction

when construing the Alien Tort Statute, 28 U.S.C.

' Pursuant to Supreme Court Rule 37.6, Amicus states that no

counsel for a party authored this brief in whole or in part and that

no person or entity other than Amicus, contributed monetarily to

the preparation or submission of this brief.

2

§ 1350 (“ATS”), has resulted in the assertion of subject

matter jurisdiction over suits by foreign plaintiffs

against foreign corporate defendants for conduct that

took place entirely within the territory of a foreign

sovereign and lack sufficient nexus to the United

States. Such assertions of jurisdiction are likely to

interfere with foreign sovereign interests in governing

their own territories and subjects and in applying their

own laws in cases which have a closer nexus to those

countries.

The Federal Republic of Germany files this amicus

brief to urge this Court to affirm the decision of the

Second Circuit Court of Appeals that the issue of civil

liability of a foreign corporate defendant is an issue of

subject matter jurisdiction and to reaffirm its prior

ruling in Sosa v. Alvarez — Machain, 542 U.S. 692, 712

(2004) (“Sosa”), that the ATS provides jurisdiction for

a “very limited category” of claims by alien plaintiffs

for injuries suffered outside of the United States.

Regardless of whether this Court finds the issue of the

liability of a foreign corporate defendant to be an issue

of subject matter jurisdiction, The Federal Republic of

Germany urges this Court to instruct the lower courts

that the power to adjudicate should only be exercised

in ATS cases brought by foreign plaintiffs against

foreign corporate defendants concerning foreign

activities where there is no possibility for the foreign

plaintiff to pursue the matter in another jurisdiction

with a greater nexus.

SUMMARY OF ARGUMENT

The Second Circuit’s majority opinion in Kiobel v.

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

2010), reh’'g denied, 642 F.3d 268 (2d Cir. 2011),

3

correctly decided that the question of whether a

corporate defendant can be sued under the ATS is a

question of whether the court has subject matter

jurisdiction. The Federal Republic of Germany does

not argue that the Second Circuit’s conclusion that it

did not have subject matter jurisdiction over the

corporate defendants was either correct or incorrect.

Rather, the thrust of this briefs argument is that the

issue is jurisdictional and not merits based. It is

settled that the ATS is strictly and only a

jurisdictional statute. Sosa v. Alvarez-Machain, 542

U.S. at 724 (“the ATS is a jurisdictional statute

creating no new causes of action.”). This alone

distinguishes this case from what Petitioners claim is

a conflict with this Court’s recent decision in Reed

Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010).

Petitioners’ argument that the question of whether a

corporation is a proper defendant concerns the reach

of the statute is correct, but when that statute is solely

a jurisdictional statute, the reach of the statute is

necessarily a question of whether the court has the

power to adjudicate the case, that is, whether the court

has subject matter jurisdiction. This position is

consistent with this Court’s jurisprudence holding that

in Title 42 U.S.C. § 1983 litigation, where subject

matter jurisdiction is provided in a separate statute

(28 U.S.C. § 1343), a suit naming a party who is not a

“person” pursuant to § 1983 is properly dismissed for

lack of subject matter jurisdiction.

Regardless of whether this Court determines that

the issue is or is not one of subject matter jurisdiction

over a corporate defendant under the ATS, this Court

should instruct the lower courts to refrain from

hearing such a case and to require that plaintiffs

exhaust their local remedies in accordance with the

4

principle of international comity in cases in which

there is no significant nexus to the United States and

where an appropriate foreign jurisdiction has an

interest that outweighs the interest of the United

States.

ARGUMENT

I. THE ISSUE OF CORPORATE CIVIL TORT

LIABILITY UNDER THE ALIEN TORT

STATUTE IS AN ISSUE OF SUBJECT

MATTER JURISDICTION

The Second Circuit correctly characterized the

question of potential liability of a corporation under

the ATS as question of subject matter jurisdiction.

This position is consistent with this Court’s holding in

Sosa that the ATS was intended as jurisdictional “in

the sense of addressing the power of the courts to

entertain cases concerned with a certain subject.” Sosa

v. Alvarez-Machain, 542 U.S. at 714 (“All Members of

the Court agree that § 1350 is only jurisdictional.”

Ibid. at 729.).

A. Determining the Proper Tortfeasor Under

The ATS Is An Issue of Subject Matter

Jurisdiction

This Court has defined subject matter as “a

tribunal’s power to hear a case, a matter that can

never be forfeited or waived.” Union Pac. R.R. v. Bhd.

of Locomotive Eng’rs & Trainmen Gen. Comm. of

Adjustment, 130 S. Ct. 584, 596 (2009) (citations

omitted). The ATS is unquestionably a jurisdictional

statute. Sosa, 542 U.S. at 729; Sinaltrainal v. Coca-

Cola Co., 578 F.3d 1252, 1262 (11th Cir. 2009).

5

Thus, the courts must look elsewhere to determine

what conduct is actionable and what persons or

entities are proper defendants under the ATS. That,

of course, in the case at bar includes the question

whether the alleged act is indeed an act that qualifies

as a tort under the ATS, and also whether a

corporation can be liable for committing such an act.

Sarei v. Rio Tinto, PLC, 2011 U.S. App. LEXIS 21515

(9th Cir. 2011) (“The proper inquiry, therefore, should

consider separately each violation of international law

alleged and which actors may violate it.”). Petitioners

argue that, in a case where there is a statute that

grants subject matter jurisdiction and another source

of law as to who may be a tortfeasor, the question of

who may be a tortfeasor “is a key element of the merits

of a plaintiffs claim; [and] not a question of subject

matter jurisdiction.” Petitioners’ Brief at 13. This

argument runs counter to well established

jurisprudence in a closely analogous situation.

This Court has encountered such a situation in civil

rights litigation where persons who are proper

defendants are defined in 42 U.S.C. § 1983 and subject

matter jurisdiction is granted in a separate statute, 28

U.S.C. § 1343. In those cases where a named

defendant is not a “person” pursuant to § 1983, the

case is properly dismissed for want of subject matter

jurisdiction and not for failure to state a claim. In

other words, the question of whether the defendant is

a proper person is a matter of subject matter

jurisdiction. Charlotte v. International Ass’n of

Firefighters, 426 U.S. 283, 285, n.1 (1976) (“As the

Court of Appeals noted, insofar as the suit was brought

against the city of Charlotte and the Charlotte City

Council, the District Court was without jurisdiction

under § 1343 since a municipal corporation is not a

6

‘person’ within the meaning of § 1983.”); accord,

Gentile v. Wallen, 562 F.2d 193, 195 (2d Cir. 1977)

(because a “municipality is not a ‘person’ under § 1983

and is therefore not amenable to suit, . . . [t]he district

court therefore lacked jurisdiction under § 1343(3), the

jurisdictional counterpart of § 1983.”); Adkins v.

Duval County School Board, 511 F.2d 690, 691 (5th

Cir. 1975) (because “county school board is not a

‘person’ within the meaning of that statute, the district

court dismissed the cases for want of subject matter

jurisdiction ....”). As in § 1983 litigation, the court

does not have the power to hear an ATS case unless

the court can affirmatively answer the question of

whether the named defendant is a person or entity

subject to the source of law creating the cause of

action. Under the ATS, the Second Circuit therefore

was correct when it determined that whether a

corporation could be held liable under the ATS is an

issue of subject matter jurisdiction.

Petitioners’ claim that the Second Circuit’s holding

in this regard conflicts with the recent cases decided

by this Court is misplaced. Those recent cases include:

Arriaza Gonzalez v. Thaler, 2012 U.S. LEXIS 574(U.S.

Jan. 10, 2012); Henderson v. Shinseki, 131 S. Ct. 1197

(2011); and Reed Elsevier, Inc. v. Muchnick, supra, 130

S. Ct. 1237. In these cases this Court was faced with

the issue of distinguishing between jurisdictional rules

and procedural “claims processing rules.” Henderson

involved the issue of whether a 120 day filing deadline

was a jurisdictional rule or a claims processing rule.

Arriaza Gonzalez involved the issue of whether

obtaining a Certificate of Appealability was a

jurisdictional rule or a claims processing rule. Reed

Elsevier involved the issue of whether registering a

copyright is a precondition to filing a copyright

7

infringement claim. Unlike the ATS, which is solely a

jurisdictional statute, these cases all involved statutes

which defined actionable claims. Here Congress, in

creating a jurisdictional statute, necessarily stated

“that a threshold limitation on a statute’s scope shall

count as jurisdictional,” because the scope of the

statute is solely and entirely jurisdictional. See

Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006).

The reach of the ATS must be jurisdictional and not

a claims processing rule, as the statute does not create

any claims. Therefore, without regard to whether the

Second Circuit correctly determined the existence of

subject matter jurisdiction, it did correctly decide that

the issue to be decided was one of subject matter

jurisdiction.

B. Determination Of A Proper Tortfeasor

Under The ATS As A Merits Question

Would Put An Unjustified Burden on the

U.S. Legal System And On Foreign

Defendants

One rationale that this Court has adopted for

strictly construing whether a rule is jurisdictional is

that “{j]urisdictional rules may also result in the waste

of judicial resources and may unfairly prejudice

litigants.” Henderson v. Shinseki, 131 S. Ct. at 1202.

In ATS litigation, failure to decide this issue at the

jurisdictional phase not only places a higher burden on

the already strained federal courts in the United

States, it also runs afoul of the goal of “just, speedy

and inexpensive determination of every action.” Fed

R. Civ. P. 1.

8

It is equally true that in ATS litigation foreign

defendants may have to engage in lengthy and

expensive legal proceedings, including, but not limited

to the discovery process, only to find out after having

spent hundreds of thousands of dollars in legal fees

and numerous valuable work hours that they are not

a tortfeasor under the ATS and, thus, the case must be

dismissed. “If the district court dismisses a

nonmeritorious claim before discovery has begun,

unnecessary costs to the litigants and to the court

system can be avoided. Conversely, delaying ruling on

a motion to dismiss such a claim until after the parties

complete discovery encourages abusive discovery and,

if the court ultimately dismisses the claim, imposes

unnecessary costs.” Chudasama v. Mazda Motor

Corp., 123 F.3d 1353, 1368 (11th Cir. 1997). Lastly, it

would invite forum shopping by the plaintiffs’ bar,

which views the U.S. system with its contingency fees,

punitive damages and (compared to other legal

systems) very broad and cost intensive discovery

process as an attractive venue to litigate against

corporations, in the hope that corporate defendants

can be forced into settlement to avoid out of control

legal fees.

Thus, if the determination of who is a proper

tortfeasor under the ATS is a matter of subject matter

jurisdiction, cases in which plaintiffs use artful

pleading techniques to claim the application of ATS to

any tort committed by foreign tortfeasors in a foreign

country against foreign victims will be weeded out at

an early stage and only those cases which are brought

legitimately under the ATS will go forward.

9

C. Regardless Of Whether This Court Finds

The Issue Of Who Is A Proper Tortfeasor

Under The ATS To Be One Of Subject

Matter Jurisdiction, The Exercise Of Such

Jurisdiction Should Be Limited

If this Court decides either that the issue before it

is not an issue of subject matter jurisdiction, or that it

is an issue of subject matter jurisdiction which grants

courts jurisdiction in cases involving corporate

defendants, this Court should be mindful of the impact

a broader application of the ATS has on the

sovereignty of other countries that have a strong

interest in governing their own subjects and

territories, and applying their own laws in cases which

have a closer nexus to those countries.

1. Comity Requires U.S. Courts to

Consider Other Available Venues

In particular, comity requires this Court to weigh

the interest of the United States in opening its courts

to civil trials against corporations under the ATS

against the interest of a foreign nation in which the

tort was committed’ or the alleged tortfeasor is

located. Comity refers to the spirit of cooperation in

which a domestic tribunal approaches the resolution of

cases touching the laws and interests of other

sovereign states. Societe Nationale Industrielle

Aerospatiale v. United States Dist. Court for S. Dist.,

* The Federal Republic of Germany is, of course, mindful that the

atrocious acts that lead truly aggrieved plaintiffs to sue under the

ATS are most often committed within jurisdictions without

adequate legal protection.

10

482 U.S. 522, 544 (1987). As a general rule, comity

may be exercised where “it is shown that the foreign

court is a court of competent jurisdiction, and that the

laws and public policy of the forum state and the

rights of its residents will not be violated.” Allstate

Life Ins. Co. v. Linter Group, Ltd., 994 F.2d 996, 999

(2d Cir. 1993) (citation omitted).

By way of illustration, the interest of The Federal

Republic of Germany in having cases that have little or

no significant nexus with the United States against

German corporations tried in German courts

outweighs the interest of the United States in such

litigation.* An unreasonable extraterritorial

application of the ATS could potentially interfere with

The Federal Republic of Germany’s sovereignty, thus

hugely affecting The Federal Republic of Germany’s

governmental interests in a way that is unacceptable.

No such interference should occur between two

countries like Germany and the United States, which

cooperate so closely in economic and political terms

and have the same goals in fighting violations of

human rights.

The Federal Republic of Germany has an inherent

interest in applying its laws and using its courts in

cases in which German defendants are accused of the

violation of international customary laws. The United

States, on the other hand, cannot claim a larger

interest in such cases that do not affect the United

* Recent ATS cases that involve German companies include

Bauman v. DaimlerChrysler Corp., 644 F.3d 909 (9th Cir. 2011)

and Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254 (2d Cir.

2007).

11

States. As Justice Stevens emphasized in his

concurring opinion in Morrison v. Natl Austl. Bank

Ltd., 130 S. Ct. 2869, 2892 (2010), “United States

courts ‘cannot and should not expend resources

resolving cases that do not affect Americans.” (quoting

Morrison v. National Australia Bank Ltd, 547 F.3d

167, 175 (2d Cir. 2008) (“we are an American court, not

the world’s court”)).

The Federal Republic of Germany’s legal system

allows plaintiffs to pursue violations of customary

international law by German tortfeasors in German

courts. The German laws on international jurisdiction,

private international law and the substantive law of

compensation ensure that victims of those torts that

are subject of the ATS can enforce their rights simply

and efficiently before the German courts in cases

involving those torts. German nationals and nationals

of other countries who are the victims of such torts are

entitled to file an action. German law does not

discriminate on the basis of nationality or the principal

place of residence of the victims of torts and German

procedural law provides all plaintiffs with the same

due process guarantee as United States law.

Section 823 of the German Civil Code provides that

a person (persons are natural persons and entities

with a legal persona like corporations) shall be held

liable for the violation of another person’s “life, body,

12

health, freedom, property or another right.” Sec. 823

(1) German Civil Code.“ German courts have

jurisdiction over these cases if the tort is committed in

Germany, or if the alleged tortfeasor has his or its

domicile in Germany. See Sec. 13, 17 and 32 German

Code of Civil Procedure. Other European countries

have similar provisions in their laws.

Unlike individuals, who can move from country to

country and hide, corporations are more easily tied to

a particular jurisdiction, t.e., the one in which they are

formed (incorporated) and/or the one in which they

have their registered office and/or in which they have

their principal place of business/center of

management. Most international corporations tend to

be formed in places like the United States and the

European Union whose legal systems provide due

process of law, because a corporation that is engaged

in international business needs not only a functioning

economic infrastructure in the country in which is has

its center of management or is incorporated, but also

a functioning legal system to accomplish its goals.

* Section 823

Liability in damages

(1) A person who, intentionally or negligently, unlawfully

injures the life, body, health, freedom, property or another

right of another person is liable to make compensation to

the other party for the damage arising from this.

(2) The same duty is held by a person who commits a

breach of a statute that is intended to protect another

person. If, according to the contents of the statute, it may

also be breached without fault, then liability to

compensation only exists in the case of fault.

13

It is reasonable to request that United States

courts exercise judicial restraint, under the principle

of international comity, and take into account the

availability of venues with a more significant nexus

before applying the ATS to torts committed on foreign

soil by foreign tortfeasors that injured foreign victims

and have no nexus to the United States. “Not only

considerations of the efficiency of our own judicial

system but principles of comity and the self-fulfilling

consequences of a pronouncement of deficiency in the

quality of justice in another state, compel judicious

restraint from our courts. . . .” Monegasque de

Reassurances S.A.M. (Monde Re) v. NAK Naftogaz of

Ukr., 158 F. Supp. 2d 377, 385 (S.D.N.Y. 2001).

While it certainly would be inappropriate to require

plaintiffs to exhaust their legal remedies in countries

which have a proven record of human rights violations

and no due process, it is certainly reasonable and

appropriate to require a victim of a tort committed in

a third country by a German tortfeasor to go to

Germany and utilize the legal system of the Federal

Republic of Germany to seek legal satisfaction.°

° U.S federal courts have found that the German court system

provides impartial tribunals or procedures compatible with the

requirements of due process of law. See Baumgart v. Fairchild

Aircraft Corp., 981 F.2d 824, 835 (5th Cir. 1993); Dresdner Bank

AG vu. Haque, 161 F. Supp. 2d 259, 263 (S.D.N.Y. 2001); Martin v.

Vogler, 1993 U.S. Dist. LEXIS 15878, at *2-5 (N.D. Ill. Nov. 9,

1993).

14

2. Exhaustion of Available Legal Remedies

Should be Required

The basic principles of international law require

that, before asserting a claim in a foreign forum, the

claimant must have exhausted any remedies available

in the claimant’s or opponent’s domestic legal systems,

and other available forums, such as international

claims tribunals, should be utilized to limit the

availability of relief in the federal courts for violations

of customary international law under the ATS. See

Sosa 542 U.S. at 733 n.21. ).° Where the nexus to the

United States is weak, courts should carefully consider

the question of exhaustion. Sarei v. Rio Tinto, PLC,

550 F.3d 822, 824 (9th Cir. 2008) (“Simply because

universal jurisdiction might be available, does not

mean that we should exercise it.”) (emphasis in

original).

Thus, a foreign plaintiff who sues a foreign

corporation in the United States for acts committed

outside the United States without a significant United

States nexus should be required to show that the

available legal remedies in the country of

incorporation or center of management are not

available to him. See Sarei v. Rio Tinto, PLC, 550 F.3d

at 831. (“Lack of a significant U.S. ‘nexus’ is an

important consideration in evaluating whether

plaintiffs should be required to exhaust their local

® The Torture Victim Protection Act requires that a plaintiff

exhaust adequate and available local remedies. Torture Victim

Protection Act § 2(b), Pub. L. No. 102-256, 106 Stat. 73 (1992)

(codified at 28 U.S.C. § 1350 (1994)).

15

remedies in accordance with the principle of

international comity.”).

Furthermore, there should be a strong presumption

against allowing courts of the United States to project

U.S. law into foreign countries through the de facto

fashioning of federal common law. This Court has

made it clear that there is a presumption that

Congress does not intend to extend U.S. law over

conduct that occurs in foreign countries, a limitation

that “serves to protect against unintended clashes

between our laws and those of other nations which

could result in international discord.” See EEOC uv.

Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (citation

omitted); see also Morrison v. Nat'l Austl. Bank Lid.,

130 S. Ct. at 2881 (“Results of judicial-speculation-

made-law--divining what Congress would have wanted

if it had thought of the situation before the court--

demonstrate the wisdom of the presumption against

extraterritoriality”). The same argument applies to

the projection of U.S. laws into foreign countries. To

rule otherwise would create “serious risk of

interference with a foreign nation’s ability

independently to regulate its own commercial affairs.”

F. Hoffmann-La Roche Ltd. v. Empagran, 542 U.S.

155, 165 (2004). While the violation of the law of the

nations in the context of ATS litigation is, at first

sight, not a commercial activity, cases brought against

corporations under the ATS will almost always claim

a commercial motive.

3. Cautious And Limited Application Of

The ATS Is Warranted

The Federal Republic of Germany urges this Court

to continue its cautious application of the ATS, as in

16

Sosa, where this Court made it clear that federal

courts should not recognize private claims under

federal common law for violations of any international

law norm with less definite content and acceptance

among civilized nations than the historical paradigms

familiar when the ATS was enacted. Sosa, 542 U.S. at

719, 732.

To widen the potential application of the ATS by

allowing United States courts to use their power to

recognize more actions as torts under the ATS and to

disregard comity and the exhaustion of foreign legal

remedies runs contrary to the “great caution” that this

Court has admonished the courts to use in exercising

their modest federal common law making authority

under the ATS. Sosa, 542 U.S. at 728.

CONCLUSION

Congress created a purely jurisdictional statute in

enacting the ATS. As such, the Second Circuit was

correct in holding that the issue of whether the ATS

covers corporate tortfeasors is one of whether the court

has subject matter jurisdiction. Even if this Court

disagrees, it should instruct lower courts to take into

account the availability of forums in other jurisdictions

with a greater nexus and require the exhaustion of

local remedies in those jurisdictions where

appropriate. This Court should be aware that

permitting the broad exercise of subject matter

jurisdiction by lower courts without a specific nexus

would result in a legal and economic climate that

would make it more difficult for corporations to engage

in international business. This Court, as one of the

world’s most influential, should take this opportunity

to ensure that the ATS is only used as a last resort for

17

limited causes of action in cases that have no

significant nexus to the United States.

Respectfully submitted,

Jeffrey Harris

Counsel of Record

Max Riederer von Paar

Walter E. Diercks

Rubin, Winston Diercks, Harris

& Cooke, LLP

1201 Connecticut Ave., N.W.

Suite 200

Washington, D.C. 20036

(202) 861-0870

Counsel for Amicus Curiae

The Federal Republic of Germany

February 2, 2012