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

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| Supreme SCout. U.S!

FILED

a JUM13 26% |

ORD No. 10-1491

VA ) . |

ae IN THE 7

Supreme Court of the United States

ESTHER KIOBEL, et al.,

Petitioners,

Vv.

ROYAL DUTCH PETROLEUM CoO., et ail.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE GOVERNMENTS OF THE

KINGDOM OF THE NETHERLANDS AND THE

UNITED KINGDOM OF GREAT BRITAIN AND

NORTHERN IRELAND AS AMICI CURIAE

IN SUPPORT OF NEITHER PARTY

IAIN MACLEOD DONALD I. BAKER

The Legal Adviser Counsel of Record

FOREIGN AND W. TODD MILLER

COMMONWEALTH OFFICE KIMBERLY SHAW

United Kingdom ISHAI MOOREVILLE

BAKER & MILLER PLLC

me oe LIJNZAAD 2401 Pennsylvania Avenue, NW

e Legal Adviser Suite 300

MINISTRY OF

Washington, DC 20037

FOREIGN AFFAIRS (202) 663-7820

The Kingdom of the .

dbaker@bakerandrniller.com

Netherlands

Attorneys for the Governments of the Kingdom

of the Netherlands and the United Kingdom of

Great Britain and Northern Ireland

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTION PRESENTED

“Whether and under what circumstances the Alien

Tort Statute, 28 U.S.C. §1350, allows courts to

recognize a cause of action for violations of the law of

nations occurring within the territory of a sovereign

other than the United States.”

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ....................0...:cccceeee i

TABLE OF CONTENTS ..................ccesecccsssceseeees ili

TABLE OF AUTHORITIES ..........0.........00:.:ee. vill

INTERESTS OF AMICI CURIAE ...................... 1

STATEMENT OF THE CASE ..............0..........04.

I. THE COURT’S DECISION IN SOSA

CONTINUED THE U.S. TRADITION

OF CAREFUL DEFERENCE TO

INTERNATIONAL LAW, BUT DID

NOT ADDRESS OR RESOLVE THE

CORE JURISDICTIONAL ISSUE

RAISED BY THIS AND MANY OTHER

POST-SOSA ATS CASES...................000655 8

A. The jurisdictional basis for any new

causes of action under the ATS

should be recognized with the same

level of universality and specificity as

the three original causes of action...... 9

B. Sosa did not raise the same level of

jurisdictional concern that this case

and Rio Tinto do, because there was

a sufficiently close nexus with the

| ERATE TE SA Cone ser ee NN eT LOO 10

(ili)

II.

Il.

TABLE OF CONTENTS—Continued

INTERNATIONAL LAW AND THE

DECISIONS OF THIS COURT ONLY

ALLOW THE EXERCISE OF EXTRA-

TERRITORIAL CIVIL JURISDICTION

WHERE THE CHALLENGED ACTS

AND/OR PARTIES HAVE A SUFFICI-

ENTLY CLOSE FACTUAL CONNEC-

TION TO THE FORUM STATE ..............

A. Establishing a_ sufficiently close

factual nexus to the forum State ........

B. The other bases that plaintiffs have

frequently used for ATS assertions of

jurisdiction fall short of the nexus

required by international law.............

C. The presence of a U.S. corporate

affiliate is not a sufficient basis to

establish U.S. jurisdiction over ATS

claims against a foreign parent or

affiliated corporation for unrelated

activities that have no effect in the

__|_ SAREE Renee re vr Seen Oe OORT Roe Ee

THE STATES SUBMITTING THIS

BRIEF APPLY IN THEIR OWN

COURTS JURISDICTION-LIMITING

PRINCIPLES CONSISTENT WITH

WHAT THEY ARE URGING THIS

COURT TO ACCEPT UNDER INTER-

NATIONAL LAW. ....0000.......cccesessceeeceeeeseees

A. The United Kingdom...........................

a I es

Page

TABLE OF CONTENTS—Continued

IV. ALLOWING U.S. COURTS, AT THE

BEHEST OF PRIVATE PLAINTIFFS,

TO EXERCISE BROAD EXTRATER-

RITORIAL JURISDICTION IN ALIEN

TORT STATUTE CASES OFTEN

INTERFERES WITH THE RIGHT OF

A NATION TO PRESCRIBE RULES

FOR AND ADJUDICATE DISPUTES

AMONG ITS OWN NATIONALS AND

RESIDENTS THAT OCCUR ON ITS

OWN TERRITORY ................... cece eee

A. A foreign State’s legitimate concern

about U.S. judicial interference with

its sovereignty is clearly illustrated

by the South African government’s

strong opposition to ATS claims

based on the Apartheid policies of the

predecessor government......................

B. The risks of improper interference

with the rights of foreign sovereigns

are significantly enhanced in ATS

(and other) cases because the U.S.

has chosen to adopt plaintiff-favoring

rules and remedies that other

nations do not accept.................-.0..005+-

C. There is ample evidence of interna-

tional disputes generated by the

efforts of private U.S. plaintiffs to

attack foreign parties for activities

I TIEN teeiririninteisesnndicissinseccinein

Page

TABLE OF CONTENTS—Continued

V. THIS COURT'S PRESUMPTION

AGAINST EXTRATERRITORIAL AP-

PLICATION OF U.S. STATUTES

RECOGNISED IN ARAMCO, EMPA-

GRAN, AND MORRISON EMBODIED

FUNDAMENTAL CONSIDERATIONS

OF INTERNATIONAL COMITY AND

SHOULD BE APPLIED TO THE

JURISDICTION GRANTED TO USS.

COURTS BY THE ALIEN TORT

iitantaseceonecnsinenieeadicnaningtibinnaanteitins

A. The strong presumption § against

extraterritorial jurisdiction rests on

concerns about international comity ..

B. International comity considerations

particularly weigh against exercising

U.S. extraterritorial jurisdiction in

SE ccaierssnidpnnnctitinnienianinestebenaticies

. The risks of jurisdictional disputes

among sovereigns would be reduced

if this Court were to require the use

of the exhaustion of local remedies

doctrine before a plaintiff could bring

an ATS claim based on conduct in

the territory of a foreign sovereign.....

Page

Vil

TABLE OF CONTENTS—Continued

VI. PROTECTION AGAINST HUMAN

RIGHTS ABUSES CAN BE MORE

FAIRLY AND EFFECTIVELY

ACHIEVED BY SEEKING INTER-

NATIONAL CONSENSUS AND CO-

OPERATION THROUGH TREATIES

THAN BY RESORT TO PRIVATE

CIVIL LITIGATION IN DISTANT

i cidiunid dniinetcniiihincnectssonnesidneniesinreninties

APPENDIX

APPENDIX A: Declaration by Penuell

Mpapa Maduna, Minister of Justice and

Constitutional Development of the Republic

of South Africa (July 11, 2003)........................

Page

vill

TABLE OF AUTHORITIES

CASES Page(s)

Alexander Murray, Esq. v. Schooner

Charming Betsy, 6 U.S. 64 (1804)............ 7

Alvarez-Machain v. U.S., 331 F. 3d 604

(9th Cir. 2003)...... seccienddabinshacidiieddiaidaiaaeniidaiinailtaaaiaes 8

Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975)................. 27

American Isuzu Motors, Inc. v. Ntsebeza,

ls as, I ED icncstcsctnsedeccnsisisenienie 3

Bell Atlantic v. Twombley, 550 U.S. 544

I TTITTITT shaishichnisiepiniainnieanaieaeiiehaebiebinchuneindeaiiiewamebiedin 27

Bauman v. DaimlerChrysler Corp., 676

F.3d 774 (9th Cir. 2011), pet. for cert.

filed, (Feb 6, 2012) (No. 11-965) ............... 5

Blackmer v. United States, 284 U.S. 421

I ciiosiiicenestnsehinialeiblidlishamptetadaabademioeianeenines 14

EEOC v. Arabian American Oil Company,

I HI eI iiccsscnsncincsncievinsccsscnneness 30, 31

F. Hoffmann-La Roche v. Empagran, S.A.,

ee ee re i iniscscntsnaiientensiiniiieinnnieionnis passim

Filartiga v. Pera-Irala, 630 F.2d 876 (2d

Rs oil delsiineicnce aeidatarnbearenbialanhadiciiemsilhdidssserinig 15, 16

Goodyear Dunlop Tires Operations, S.A. v.

Brown, 131 S. Ct. 2846 (2011).................. 18

Hartford Fire Ins. Co. v. Cal., 509 U.S. 764

UI cisccse echinacea daselehelnaiaidetiieteiitaiaia 13

Morrison v. National Australian Bank

Lid., 130 S.Ct: 2660 (3010)...................... passim

TABLE OF AUTHORITIES—Continued

Page(s)

Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th

Cir. 2011) (en banc), pet. for cert. filed,

80 U.S.L.W. 335 (Nov. 23, 2011) (No. 11-

eee ieuhsrwnnicihnsiascitsveniibinsaaséictabsiuendiinietnainiinindies 5, 11, 28, 36

Schooner Exchange v. McFadden, 11 U.S.

a inintivsninninsccsiesitveestasvnideeishpscctillaeasiiniinsvaeions

Sosa v. Alvarez-Machain, 542 U.S. 692

Ti intdiiinsdhinndiisididnidbpldiddssiemaniibideeaeeniéail passim

The Antelope, 23 U.S. (10 Wheat.) 66

The Apollon, 22 U.S. 362 (1824) ............0....

United States v. Yousef, 327 F. 3d 56 (2d

I MI iniccsiiasil clei erica piieiaiuslaiadaiunedamniaie

FOREIGN CASES

Anglo Norwegian Fisheries Case (U.K. v.

Nor.), 1951 1L.C..J. 116 (Dec. 18) ................

Armed Activities on the Territory of the

Congo (New Application: 2002), Judg-

ment, 2006 I.C.J. 6 (Feb. 3) ......................

Case Concerning the Arrest Warrant of 11

April 2000 (Dem. Rep. Congo v. Belg.)

eee

Decision of the Swiss Federal Tribunal of

22 May 2007 (Case number 4C.379/

2006), available at http://jumpcgi.bger.

ch/cgi-bin/Jum pCGI?id=22.05.2007_4C.

TN cctacideistetstesysin:dhinachaehdimapasibatcsiadismaianelbaaiéiben

Guerrero v. Moneterrico Metals Pic, {2009}

EER Aree ene ae renee

TABLE OF AUTHORITIES—Continued

Page(s)

Gulf Oil Corporation v. Gulf Oil Canada

Lid., {1980} 2 S.C.R. 39 (Canada) ............ 30

Immunities of The State (Germany v.

Italy: Greece Intervening), 2012 I.C.J.

(Feb. 3), available at http://www.icj-

cij.org/docket/files/143/16883.pdf ............. 16

Jones v. Ministry of Interior for the King-

dom of Saudi Arabia (2006] UKHL 26 .... 20

Lubbe and Others v. Cape Plc [2000)

ATI Gidea deancehetdhieessiabeeancieanalaeiiiiie 19

Mark v. Mark [2005] UKHL 42, [2005] 1

RSE EPR eL ea nen REN eo ae arene 15

The Nottebohm Case (Liech. v. Guat.),

ee Sees Te CIS, i cncetiiininecemeencintsiaaanmiain 11,14

Rb. Gravenhage [Court of First Instance of

the Hague] 21 maart 2012, m. nt. Van

der Helm, Case 400882/HA ZA 11-2252

(El-Hojouj/Derbal) (Neth.), available at

http://zoeken.rechtspraak.nl/resultpage.a

spx?snelzoeken=true&searchtype=ljn&ljn

EE ii ticnthinnichiningbicnninitisaniiiguaimanianesdmmetios 23

Rb. Gravenhage [Court of the Hague], 30

December 2009, JOR 2010, 41 m.nt. Mr.

RGJ de Haan (Oguro/Royal Dutch Shell

PLC)(Neth.) available at http://zoeken.

rechtspraak.nl/resultpage.aspx?snelzoek

en=true&searchtype=ljn&ljn=BK8616.... 21

TABLE OF AUTHORITIES—Continued

Page(s)

Rb. Utrecht [Court of First Instance of

Utrecht] 12 maart 2008, Case 241446/

HA ZA 08-27, available at http://zoeken.

rechtspraak.nl/resultpage.aspx?snelzoeke

n=true&searchtype=ljn&ljn=BC6477 ....... 22

Rio Tinto Zinc Corp. v. Westinghouse

Electric Corp., [1978] 2 W.L.R. 81 (H.L.

ER le RAR ec 7 OR ON 30

CONSTITUTION

8 Ro ee 6, Be | een 17

STATUTE

Alien Tort Statute, 28 U.S.C. §1350........... passim

RULES

ails Gls GFL SED sencdsncusiascciiinnessieccenes 27

A I a aia sale catia isaiilelicbidiiinidibiiabcinngsiaibigadie 27

FOREIGN STATUTES AND RULES

Dutch Code of Civ. P. Art. 7(1)..................... 21

Dutch Code of Civil Procedure, Article

9(b), Wetboek van Burgerlijke Rechts-

vordering, available at www.wetten.

overheid.nl/BWBR0001827/geldigheidsda

TE iciniicinnctucdinsiiiunsvnlinneninietenssine 21

Dutch Code of Civ. P. Art. 9(c)..................... 22

Foreign Extraterritorial Measures Act,

ee Oe: Mae NID vncincceccnssscnsncnianconss 29

Foreign Proceedings (Excess of Jurisdic-

tion) Act No. 3 of 1984 (Austl.) ................. 29

xil

TABLE OF AUTHORITIES—Continued

Page(s)

Protection of Trading Interests Act, 1980,

G. ES Gee veccocsntonntdheunighiatdbeeeae

Swiss Federal Code of Private Interna-

tional Law, Compilation of Swiss Laws

Peemer BOE.G, G6. B....cccccececocosccsecsceccocesees

Swiss Federal Code of Private Interna-

tional Law, Compilation of Swiss Laws

Number 291.0, art. 129...................cccesceees

U.K. Civil Procedure Rules, 1998, Part 6,

Practice Direction 6B-Service Out of the

Jurisdiction, available at http://www.jus

tice.gov.uk/courts/procedure-rules/civil//

SU Se ccicciccssccssescsmneseepintessiiannnnts

OTHER AUTHORITIES

A.I.M. van Mierlo, C.J.J.C. van Nispen.

M.V. Polak, Burgerlijke Rechtsvorde-

ring: de tekst van het Wetboek van

Burgerlijke Rechtsvordering voorzier

van commentaar (“Civil Procedure

Commentary on the Code of Civil

Procedure”) (Kluwer 3rd ed. 2008)...........

Bernard H. Oxman, Jurisdiction of States,

in Encyclopedia of Public International

Law (Rudolf Bernhardt, ed., 1997)...........

Brief for the Government of Canada as

Amicus Curiae Supporting Reversal, F.

Hoffmann-La Roche, Ltd. v. Empagran

S.A., 542 U.S. 155 (2004) (No. 03-724)

(filed Feb. 3, 2004) 2004 U.S. S. Ct.

IEEE ED GUID veniccnnvesmenincscectaniciinaaenin

xill

TABLE OF AUTHORITIES—Continued

Page(s)

Brief for the Republic of France as Amicus

Curiae in Support of Respondents,

Morrison v. National Australian Bank

Ltd., 130 S.Ct. 2869 (2010) (No. 08-1191)

(filed Feb. 26, 2010) 2010 U.S. S. Ct.

isa cccadcapasntoesncedons

Brief for the United States as Amicus

Curiae in Support of Petitioners, Ameri-

can Isuzu Motors, Inc. v. Ntsebeza, 128

S. Ct. 2424 (2008) (No. 07-919) (filed

Feb. 11, 2008), 2008 U.S. S. Ct. Briefs

SE RE

Brief for the United States as Amicus

Curiae Supporting Petitioners, Goodyear

Dunlop Tires Operations, S.A. v. Brown,

131 S. Ct. 2846 (2011) (filed Nov. 19,

2010) (No. 10-76) 2010 U.S. S. Ct. Briefs

a sceueneet

Brief of the Government of Japan as

Amicus Curiae in Support of Petitioners,

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

gran S.A., 542 U.S. 155 (2004) (No. 03-

724) (filed Feb. 3, 2004) 2004 U.S. S. Ct.

SD I sv cccccscsscsesscessosonsdtocserscscse

Brief of the Government of the Common-

wealth of Australia as Amicus Curiae in

Support of the Defendants-Appellees,

Morrison v. National Australian Bank

Ltd. ,130 S.Ct. 2869 (2010) (No. 08-1191)

(filed Feb. 26, 2010), 2010 U.S. S. Ct.

TE SL a

XlV

TABLE OF AUTHORITIES—Continued

Page(s)

Brief of the Governments of Australia and

the United Kingdom of Great Britain

and Northern Ireland as Amici Curiae

in Support of the Petitioners on Certain

Questions in their Petition for a Writ of

Certiorari, Rio Tinto PLC v. Sarei, pet.

for cert. filed, (No. 11-649) (filed Dec. 28,

Brief of the Governments of the Common-

wealth of Australia, the Swiss Confeder-

ation and the United Kingdom of Great

Britain and Northern Ireland as Amici

Curiae in Support of the Petitioner, Sosa

v. Alvarez-Machain, 543 U.S. 692 (2004)

(No. 03-339) (filed Jan. 23, 2004), 2004

U.S. S. Ct. Briefs LEXIS 910.................... 3

Brief of the Governments of the Federal

Republic of Germany and Belgium as

Amici Curiae in Support of Petitioners,

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

gran S.A., 542 U.S. 155 (2004) (No. 03-

724) (filed Feb. 3, 2004) 2004 U.S. S. Ct.

ee SIE FR icidtncsnannecnnenscdsunietninewiniien 4

Brief of the Governments of the United

Kingdom of Great Britain and Northern

Ireland, and the Kingdom of the

Netherlands as Amici Curiae in Support

of the Respondents (No. 10-1491) (filed

I a) 2, 34

xXV

TABLE OF AUTHORITIES—Continued

Page(s)

Brief of the United Kingdom of Great

Britain and Northern Ireland, Ireland

and the Kingdom of the Netherlands as

Amici Curiae in Support of Petitioners,

F. Hoffmann-La Roche v. Empagran,

S.A., 542 U.S. 155 (2004) (filed Feb. 3,

2004) (No. 03-724), 2004 U.S. S. Ct.

Be ITE beniisesecindeniintinnntectediuapeiienene

Bruno Simma & Andreas Th. Muller,

Exercise and Limits of Jurisdiction, in

The Cambridge Companion to Inter-

national Law 142 (James Crawford ed.,

Carl A. Cira, Jr., The Challenge of Foreign

Laws to Block American Antitrust

Actions, 18 Stan. J. Int’] L. 247 (1982).....

CMV Clarkson & Jonathan Hill, The

Conflict of Laws (Oxford University

, iiccicsnciiciiecwnnteciesmmiunniie

Curtis Bradley, Attorney General Brad-

ford’s Opinion and the Alien Tort Statute,

uploaded June 7, 2012, available at

http://papers.ssrn.com/sol3/papers.cfm?

ahatract iG sBOGIOB 1 ........ccccccccccccccccccscess:

Declaration by Penuell Mpapa Maduna

(Minister of Justice and Constitutional

Development of the Republic of South

Africa) with Letter to Judge John E.

Sprizzo of the U.S. Dist. Ct., S.D.N-Y.

2-3

SN Seay i inctteiiniccitiacncartinaiiiicidsiscibiimsita 24, 25, 26

xvi

TABLE OF AUTHORITIES—Continued

Page(s)

Emerich de Vattel, The Law of Nations

TT i iescnmsicniseiinensiisiieiiiiieneciansaaneenition 10

Human Rights Memorandum of the Dutch

Government ‘Responsible for Freedom’,

available at http://www.minbuza.nl/en/

key-topics/human-rights/dutch-human-

rights-policy/human-rights-strategy-

AEDS SPEEDO Nese See reas ein verse 1

Malcolm N. Shaw, International Law (6th

5, EESTI eae io enmee in te mee nerw 11

Restatement (Third) of Foreign Relations

Law of the United States (1987) ......... 12, 13, 14

Sir Robert Jennings & Sir Arthur Watts,

eds., Oppenheim’s International Law

Eee ee ne 12,14

Thomas H. Lee, The Safe-Conduct Theory

of the Alien Tort Statute, 106 Colum. L.

Ss Re TI icicstessicnienitepictciigunedcaiaioneciaitiont 10

xvil

TABLE OF AUTHORITIES—Continued

Page(s)

Tweede Kamer der Staten-Generaal,

Herziening van het procesrecht voor

burgerlijke zaken, in het bijzonder de

wijze van procederen in eerste aanleg,

kamerstukken II (“The Dutch House of

Representatives, Revision of the Civil

Procedure, specifically the rules of the

procedure in the first instance, Par-

liamentary Documents II”) 1999-2000,

available at https://zoek.officielebekend

makingen.nl/kst-26855-3.html?zoekcrite

ria=%3fzkt%3dUVitgebreid%26pst%3dSta

atsblad%257cStaatscourant%257cTracta

tenblad%257cParlementaireDocumente

n%26vrt%3dHerziening%2bprocesrecht

%2bburgerlijke*2bzaken%26zkd%3dIn

DeGeheleText%252.......... 0... ccc ccceccecee eee eees 21-22

U.K. Foreign and Commonwealth Office,

Business and Human Rights, http://www.

fco.gov.uk/en/globalissues/human-rights/

international-framework/businesy/ ........... 1

Vaughan Lowe and Christopher Staker,

Jurisdiction, in International Law

(Malcolm D. Evans ed., 3rd ed. 2010)..... 8

W. Kent David, The International View of

Attorney Fees in Civil Suits: Why is the

United States the “Odd Man Out” In

How It Pays Its Lawyers?, 16 Ariz. J.

Int'l & Comp. L. 361 (1999)...................... 28

XVill

TABLE OF AUTHORITIES—Continued

Page(s)

White Paper on Damage Actions for Breach

of EC Competition Rules, COM (2008)

Sra chihinniesstctla dieitciiseieimaspuresndeoasdagieiuibsaeisiaelimeiagale 27

William Glaberson, NAFTA Invoked to

Challenge Court Award, N.Y. Times,

Jan. 28, 1999, available at http://www.

nytimes.com/1999/01/28/business/nafta-

invoked-to-challenge-court-award.html?

pagewanted=all&src=pm..................000.000 28

INTERESTS OF AMICI CURIAE

The Governments of the Kingdom of the Nether-

lands and the United Kingdom of Great Britain and

Northern Ireland (“U.K.”) (collectively “the Govern-

ments”) are committed to the rule of law, including

the promotion of, and protection against violations of,

human rights. It has been the longstanding view of

the Governments that a State must protect the

human rights of those within its jurisdiction, and

must provide appropriate remedies for violations of

those rights.’

The Governments firmly believe that corporations

should not be able to act with impunity vis-a-vis

human rights issues, and that they should respect

human rights. Accordingly, the Governments have

recognized that the operations of corporations can

have both beneficial and detrimental impacts on the

enjoyment of human rights by those affected by their

operations and are engaged in multilateral dialogue

to determine how best to address this at the interna-

tional level.”

‘Pursuant to Supreme Court Rule 37.6, Amici Curiae state

that no counsel for a party authored this brief in whole or in

part and that no person or entity other than Amici Curiae, its

members, and its counsel contributed monetarily to the prepara-

tion of submission of this brief. Both Petitioners and Respond-

ents have granted their consent to the filing of all amicus briefs.

*For example, see U.K. Foreign and Commonwealth Office,

Business and Human Rights, http/Avww.fco.gov.uk/en/global-

issues/human-rights/international-framework/business/;, see also

chapter on freedom and prosperity in Human Rights Memoran-

dum of the Dutch Government ‘Responsible for Freedom’,

available at http://www.minbuza.nl/en/key-topics/human-rights/

dutch-human-rights-policy/human-rights-strategy-2011.

Nevertheless, just as international law imposes

human rights obligations on States, it imposes

restraints on the assertion of jurisdiction by one

State over civil actions between persons that primar-

ily concern another State. Jurisdictional restraints

are a fundamental underpinning of the international

legal order and are essential to maintaining inter-

national peace and comity. The Governments are,

therefore, opposed to broad assertions of extraterri-

torial jurisdiction over alien persons arising out of

foreign disputes with little, or no, connection to the

United States (“U.S.”). Such assertions of jurisdic-

tion are contrary to international law and create a

substantial risk of jurisdictional and diplomatic

conflict. They may also prevent another State with a

greater nexus to such cases from effectively resolving

a dispute.

As such, the Governments have maintained their

concern with the extraterritorial application of U.S.

law over a long period of time. They have expressed

their concern in numerous amicus briefs submitted to

this Court, including a brief by the Governments at

an earlier stage of these proceedings.’ The Govern-

ments, along with Ireland, filed a joint amicus brief

detailing similar concerns on the exercise of

extraterritorial antitrust jurisdiction by the U.S. in

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

155 (2004) (*Empagran”).* The U.K. also submitted a

‘Bnief of the Governments of the United Kingdom of Great

Britain and Northern Ireland, and the Kingdom of the Nether-

lands as Amici Curiae in Support of the Respondents (No. 10-

1491) (filed Feb. 3, 2012); Id. at 2-4, nn. 3-6.

‘ Brief of the United Kingdom of Great Britain and Northern

Ireland, Ireland and the Kingdom of the Netherlands as Amici

Curtae in Support of Petitioners, F. Hoffmann-La Roche ov.

joint brief with the Governments of Australia and

Switzerland dealing with extraterritorial jurisdic-

tional issues during this Court’s only prior considera-

tion of the Alien Tort Statute (“ATS”) in Sosa uv.

Alvarez-Machain, 542 U.S. 692 (2004) (“Sosa”).’

The Governments remain deeply concerned about

the failure by some U.S. courts to take account of the

jurisdictional constraints under international law

when construing the ATS, which in turn has led

those courts to entertain suits by foreign plaintiffs

against foreign defendants for conduct that took place

entirely in the territory of a foreign sovereign. In this

regard, for example, the U.K., Germany, Switzerland

and South Africa sent diplomatic notes to the U.S.

reasserting their opposition to a broad assertion of

extraterritorial jurisdiction in an ATS case based on

South Africa’s Apartheid history.”

This brief is intended to set out the views of

two nations that historically have been concerned

with the extraterritorial exercise of jurisdiction by

the U.S. courts because of its inconsistency with

international law. It echoes the views expressed by

other governments in ATS, antitrust and securities

Empagran, S.A., 542 U.S. 155 (2004) (filed Feb. 3, 2004) (No. 03-

724), 2004 U.S. S. Ct. Briefs LEXIS 104.

’ Brief of the Governments of the Commonwealth of Australia,

the Swiss Confederation and the United Kingdom of Great

Britain and Northern Ireland as Amici Curiae in Support of the

Petitioner, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No.

03-339) (filed Jan. 23, 2004), 2004 U.S. S. Ct. Briefs LEXIS 910.

“See Diplomatic notes in Appendices B-E, Brief for the

United States as Amicus Curiae in Support of Petitioners,

American Isuzu Motors, Inc. v. Ntsebeza, 128 S. Ct. 2424 (2008)

(No. 07-919) (filed Feb. 11, 2008), 2008 U.S. S. Ct. Briefs LEXIS

1311.

cases before this Court—-including the Governments

of Australia, Belgium, Canada, France, Germany,

and Japan.’ This brief is purely intended to set out

the Governments’ view of the most relevant interna-

tional legal principles and takes no position on the

underlying factual and legal disputes between the

parties to this particular case. Accordingly, the

Governments are filing this amicus brief in support of

neither party.

‘Brief of the Governments of Australia and the United

Kingdom of Great Britain and Northern Ireland as Amici Curiae

in Support of the Petitioners on Certain Questions in their

Petition for a Writ of Certiorari, Rio Tinto PLC v. Sarei, pet. for

cert. filed, (No. 11-649) (filed Dec. 28, 2011); Brief for the

Republic of France as Amicus Curiae in Support of Respondents,

Morrison v. National Australian Bank Ltd., 130 S.Ct. 2869

(2010) (No. 08-1191) (filed Feb. 26, 2010) 2010 U_S. S. Ct. Briefs

LEXIS 176; Brief of the Government of the Commonwealth of

Australia as Amicus Curiae in Support of the Defendants-

Appellees, Morrison v. National Australian Bank Ltd., (2010)

(No. 08-1191) (filed Feb. 26, 2010), 2010 U.S. S. Ct. Briefs

LEXIS 172; Brief of the Governments of the Federal Republic

of Germany and Belgium as Amici Curiae in Support of

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

U.S. 155 (2004) (No. 03-724) (filed Feb. 3, 2004) 2004 U.S. S. Ct.

Briefs LEXIS 112; Brief for the Government of Canada as

Amicus Curiae Supporting Reversal, F. Hoffmann-La Roche,

Ltd. v. Empagran S.A., (2004) (No. 03-724) (filed Feb. 3, 2004)

2004 U.S. S. Ct. Briefs LEXIS 105; Briet of the Government of

Japan as Amicus Curiae in Support of Petitioners, F. Hoffmann-

La Roche, Lid. v. Empagran S.A., (2004) (No. 03-724) (filed Feb.

3, 2004) 2004 U.S. S. Ct. Briefs LEXIS 106.

STATEMENT OF THE CASE

This case (which is quite different from Sosa

factually)* is typical of the ATS cases that have

proliferated in the lower courts since 2004. In such

cases, U.S. class action counsel have assembled a

class of foreign citizens or residents who have alleg-

edly been injured by actions of a foreign government

in its own territory; and most of the defendants in

these cases are foreign corporations that are alleged

to have encouraged, assisted, or participated in the

foreign government’s activities. Generally, as in this

case, the challenged conduct has no nexus to the U.S.

The corporations are the principal targets of these

cases because claims made directly against foreign

States or governments would be dismissed on

grounds of sovereign immunity.

SUMMARY OF ARGUMENT

This action, like Sarei v. Rio Tinto, PLC, 671 F.3d

736 (9th Cir. 2011) (en banc), pet. for cert. filed,

80 U.S.L.W. 335 (Nov. 23, 2011) (No. 11-649) (“Rio

Tinto”), is a typical post-Sosa ATS case.” It involves

claims that a large class of foreign citizens and

residents has been mistreated in the territory of a

foreign State—and that the plaintiffs should be

compensated by a substantial damages award for

alleged violations of “the law of nations” against non-

U.S. corporations that carried out business in the

territory of the foreign State. The attractiveness of

the U.S. as a forum for foreign plaintiffs can in part

* Sosa was a suit by a single Mexican citizen as a result of a

cross-border kidnapping by another Mexican citizen, alleged to

be acting on behalf of U.S. government officials.

"See also Bauman v. DaimlerChrysler Corp., 676 F.3d 774

(9th Cir. 2011), pet. for cert. filed, (Feb. 6, 2012) (No. 11-965).

be traced to decisions by the U.S. to accord private

plaintiffs a set of advantages that most other coun-

tries have not accepted. Acceptance of such cases

where there is no link to the forum concerned in-

creases the risk of forum shopping by foreign

plaintiffs, thereby circumventing the competent legal

system.

The Governments strongly believe that such alle-

gations of human rights violations should be dealt

with in an appropriate forum, respecting interna-

tional law principles of jurisdiction. In relation to

claims of a civil nature, the bases for the exercise of

civil jurisdiction under international law are gener-

ally well-defined. They are principally based on terri-

toriality and nationality. The basic principles of in-

ternational law have never included civil jurisdiction

for claims by foreign nationals against other foreign

nationals for conduct abroad that have no sufficiently

close connection with the forum State.

For the U.S. to allow the ATS to provide the basis

for such claims would clearly interfere with other

nations’ sovereignty and be plainly inconsistent with

international law and the concept of international

comity recognized by this Court in Sosa, Empagran,

and Morrison v. Nat'l Austl. Bank Ltd, 130 S. Ct.

2869 (2010) (“Morrison”). It could also interfere with

and complicate efforts within the territorial State to

remedy human rights abuses that may have occurred

within its own territory. |

Accordingly, the Court should apply its repeatedly

recognized presumption against extraterritorial juris-

diction to the ATS.

ARGUMENT

Ever since Chief Justice Marshall’s early decisions

involving international shipping disputes, this Court

has recognized that international law places im-

portant limitations on the ability of the U.S. to

exercise jurisdiction over overseas individuals and

situations. In 1804, this Court stated that “an act of

Congress »ught never to be construed to violate the

law of nations if any other possible construction

remains,” unless the act contains “express words or a

very plain and necessary implication” to the contrary.

Alexander Murray, Esq. v. Schooner Charming Betsy,

6 U.S. 64, 118 (1804).

Eight years later in Schooner Exchange ov.

McFadden, 11 U.S. 116 (1812), the Chief Justice’s

opinion for the Court made very clear that “[t|he

jurisdiction of the nation within its own territory is

necessarily exclusive and absolute...{and]...is suscep-

tible of no limitation not imposed by itself.” Jd. at 136.

In a third important early decision, The Antelope,

23 U.S. (10 Wheat.) 66 (1825), the Court emphasized

the equality of sovereigns: “No principle of general

law is more universally acknowledged, than the

perfect equality of nations. Russia and Geneva have

equal rights. It results from this equality, that no

one can rightfully impose a rule on another.” Zd. at

122.

These basic principles are as important today as

they were in the era when the ATS was enacted, and

they have an importance that goes beyond the mere

adjudication of a particular dispute. As one respected

commentator has explained, “(t]he legal rules and

principles governing jurisdiction have a fundamental

importance in international relations, because they

are concerned with the allocation . . . of competence

to regulate daily life — that is, the competence to

secure the differences that make each State a distinct

society.”*”

I. THE COURT’S DECISION IN SOSA CON-

TINUED THE U.S. TRADITION OF CARE-

FUL DEFERENCE TO INTERNATIONAL

LAW, BUT DID NOT ADDRESS OR

RESOLVE THE CORE JURISDICTIONAL

ISSUE RAISED BY THIS AND MANY

OTHER POST-SOSA ATS CASES

Sosa was an ATS lawsuit filed by a Mexican

national against another Mexican national, Jose

Francisco Sosa, for a cross-border kidnapping from

Mexico to the U.S., which was allegedly carried out at

the behest of U.S. government officials. Sosa, 542

U.S. at 697. See also Alvarez-Machain v. U.S., 331 F.

3d 604, 608 (9th Cir. 2003) (summarizing factual

background).

This Court dismissed Alvarez-Machain’s ATS claims

because his allegations of unlawful detention, for no

more than a day, were not considered to be a viola-

tion of any universally accepted, and clearly defined,

international law norm. Sosa, 542 U.S. at 738. Since

Sosa was the first modern ATS case that the Court

had accepted, it was necessarily concerned with the

need to define what types of acts might be considered

violations of the “law of nations” in the present era,

and showed careful deference to international law

rules in determining the existence, and scope, of any

such international norms.

"Vaughan Lowe and Christopher Staker, Jurisdiction, in

International Law 314 (Malcolm D. Evans ed., 3rd ed. 2010)

(emphasis in original).

The Court understood that recognizing new causes

of action for overseas conduct could lead to conflicts

among sovereigns over: (i) what constitutes violations

of international law, (ii) which sovereign(s) had the

right to try to take responsive action in their courts,

and (iii) what kind of civil remedies might be

appropriate. Any “attempts by federal courts to craft

remedies for the violation of new norms of

international law” raise “risks of adverse foreign

policy consequences” and “should be undertaken, if at

all, with great caution.” Jd. at 727-28.

A. The jurisdictional basis for any new

causes of action under the ATS should

be recognized with the same level of

universality and specificity as the three

original causes of action

The Court concluded that the ATS, when enacted,

was meant to provide remedies for three types of

offenses: violation of safe-conducts, infringement of

the rights of ambassadors, and piracy. Id. at 724.

Crucially, Congress’ decision in 1789 to provide aliens

with remedies for these three types of violations did

not conflict with the territorial sovereignty of any

other nation. For these three original causes of

action provided for by the ATS, it was also accepted

that procedurally each nation could exercise jurisdic-

tion over those specific claims.

At the time of the ATS’ enactment, it was accepted

that any nation could punish or provide a remedy for

acts of piracy on the high seas."' It was also generally

agreed that ambassadors serving abroad should have

a remedy in foreign courts if they suffered a tort or

" Sosa, 542 U.S. at 762.

their property rights were violated.” Lastly, every

nation was obliged to honor grants of “safe-conduct”

within their sovereign territory, or foreign territory

they controlled in wartime.”

Sosa’s requirement that new rules of international

law be clearly accepted and defined internationally

before constituting the proper basis for an ATS claim

should also apply to the identification of a proper

jurisdictional basis for any new claims. Even where

there is evidence of agreement amongst States,

through State practice and opinio juris, that certain

acts can constitute the violation of international

rules, that consensus does not also mean that a State

may, as of right, exercise extraterritorial jurisdiction

over those acts. Instead, there must be correspond-

ing agreement amongst States that such an exercise

of jurisdiction is permitted by an identifiable princi-

ple of jurisdiction under international law.

B. Sosa did not raise the same level of

jurisdictional concern that this case

and Rio Tinto do, because there was a

sufficiently close nexus with the U.S.

In Sosa, the plaintiff was kidnapped in Mexico, but

transported across the border to the U.S. against his

Emerich de Vattel wrote in 1758 that “[w)hoever offers any

violence to an ambassador, or any other public minister, not

only injures the sovereign which whom this minister represents,

but he also hurts the common safety and well-being of nations;

he becomes guilty of an atrocious crime towards the whole

world.” Emerich de Vattel, The Law of Nations 529 (1805 edition).

" Vattel wrote that “he who promises security by a safe-

conduct, promises it where he is master, not only in his territo-

ries but likewise where any of his troops may be.” Id. at 482.

See generally Thomas H. Lee, The Safe-Conduct Theory of the

Alien Tort Statute, 106 Colum. L. Rev. 830 (2006).

will, allegedly under the direction of U.S. officials.

Id. at 697-98.

The fact that some of the events in question

occurred on U.S. territory provided a factual nexus

with the U.S. that is totally absent from this case,

Rio Tinto and most of the other post-Sosa ATS cases

decided by the U.S. courts. The risk of conflict with

another sovereign nation is much less likely where

the U.S. is providing an ATS remedy for those in-

jured by acts committed by individuals on U.S. soil

(whether wholly or partially).

Il. INTERNATIONAL LAW AND THE DECI-

SIONS OF THIS COURT ONLY ALLOW

THE EXERCISE OF EXTRATERRITORIAL

CIVIL JURISDICTION WHERE THE

CHALLENGED ACTS AND/OR PARTIES

HAVE A SUFFICIENTLY CLOSE FAC-

TUAL CONNECTION TO THE FORUM

STATE

The Governments contend that it is now widely

accepted that an internationally recognized principle

must be identified before a State can exercise

extraterritorial civi] jurisdiction. In order for the

ATS to apply to “a cause of action for violations of the

law of nations occurring within the territory of a

sovereign other than the U.S.,” as the Court framed

the pending question, the cause of action must be

based on a close connection with the U.S. by virtue of

‘* The modern International Court of Justice has required

States to prove a relevant basis of jurisdiction. See The

Nottebohm Case (Liech. v. Guat.), 1955 1.C.J. 4 (Apr. 6). See

also Anglo Norwegian Fisheries Case (U.K. v. Nor.), 1951 I.C.J.

116 (Dec. 18), and Malcolm N. Shaw, International Law 656 (6th

ed. 2008).

one of the commonly recognized principles of jurisdic-

tion (e.g. nationality).

It is clearly established that the basis for jurisdic-

tion is always grounded in a sufficiently close nexus

to the forum State. The only exception is universal

criminal jurisdiction. Accordingly, it is axiomatic

that the exercise of civil jurisdiction by a State

will always depend on “there being between the

subject matter and the state exercising jurisdiction a

sufficiently close connection to justify that State in

regulating the matter and perhaps also to override

any competing rights of other States.””

Two such nexuses are well-known and widely

recognized under international law: territoriality and

nationality. Each State may regulate activity that

occurs in its own territory (the “territorial principle”

of jurisdiction)."" It may also exercise extraterritorial

jurisdiction in relation to the conduct of its nationals,

or domiciled individual residents (the “nationality” or

“active personality principle”). ’

Jurisdiction has sometimes—but not regularly—

been accepted where the necessary nexus could be

based on some other principle. One of these allows

extraterritorial jurisdiction based on the nationality

of the victim (the “passive personality principle”),

although this has primarily been limited to the exer-

Sir Robert Jennings & Sir Arthur Watts, eds., Oppenheim's

International Law 457-58 (9th ed. 1992) (emphasis added); See

also Bernard H. Oxman, Jurisdiction of States, in Encyclopedia

of Public International Law (Rudolf Bernhardt, ed., 1997).

" See The Apollon, 22 U.S. 362, 370 (1824).

Restatement (Third) of Foreign Relations Law of the United

States (hereinafter, “Restatement”) § 402(2) (1987).

cise of criminal jurisdiction." In addition, this Court

has sometimes allowed for exercise of U.S. extra-

territorial jurisdiction under the _ internationally

controversial “effects doctrine”, where the nexus was

that certain overseas activities had a substantial

adverse effect within the U.S. See, e.g., Hartford

Fire Ins. Co. v. Cal., 509 U.S. 764, 796 (1993). The

“protective principle” of jurisdiction also allows for

criminal jurisdiction over foreign acts that threaten a

nation’s national security.”

International law imposes the requirement of a

sufficiently close nexus to the forum asserting juris-

diction, in order to minimize conflicts between States

and to prevent forum shopping by plaintiffs and

defendants rushing to obtain judgments in a forum

that favors their own interests.

The one exception to the requirement of a suffi-

ciently close nexus to the forum State, to date, is the

so-called “universality principle”, which has been

clearly confined to the context of criminal jurisdic-

tion, and allows each State to exercise jurisdiction

over a limited category of crimes so heinous that

every State has a legitimate interest in their repres-

sion, regardless of the absence of a sufficiently close

connection to the perpetrator, the victim, or the crime

itself.

Passive personality jurisdiction allows criminal jurisdiction

“over acts that harm a State’s citizens abroad.” United States v.

Yousef, 327 F. 3d 56, 91 n.24 (2d Cir. 2003).

" Restatement, § 402(3), cmt. f.

A. Establishing a sufficiently close factual

nexus to the forum State

The foregoing principles of jurisdiction mean that

in order for the ATS to allow “a cause of action for

violations of the law of nations occurring within the

territory of a sovereign other than the United States,”

the cause of action must be based on a sufficiently

close connection with the U.S.

Thus, the Governments respectfully submit that

the principle of nationality of the defendant (or

“active personality jurisdiction”) is a proper basis on

which the U.S. may apply the ATS extraterritori-

ally.” This principle of jurisdiction is very clearly

asserted (and accepted) in State practice, and is well

established in international law. Sir Robert Jennings

& Sir Arthur Watts, eds., Oppenheim’s International

Law, § 138 at 462 (9th ed. 1992); Restatement of

Foreign Relations, § 402(2); Blackmer v. United

States, 284 U.S. 421, 437 (1932). In The Nottebohm

Case, the International Court of Justice (“ICJ”)

clarified that this well-established principle of juris-

diction requires “a legal bond having as its basis a

social fact of attachment, a genuine connection of

existence, interests, and sentiments, together with

the existence of reciprocal rights and duties” (empha-

sis added).*' Accordingly, the Governments consider

” The nationality principle of jurisdiction is also sometimes

referred to as the “Active Personality” Principle. Bruno Simma

& Andreas Th. Muller, Exercise and Limits of Jurisdiction, in

The Cambridge Companion to International Law 142 (James

Crawford ed., 2012) (stating that the “Active Personality principle

entitles a state to assert jurisdiction over crimes committed by

its nationals abroad”).

“The Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4, 23

(Apr. 6).

that the extraterritorial application of the ATS to

acts committed by American individuals, corpora-

tions, and other U.S. entities in foreign sovereign

territory, would be consistent with international law.

Some scholars have suggested this is in fact what

Congress did.”

This active personality jurisdiction could also be

potentially applied to acts committed abroad by an

alien U.S. resident so long as a “genuine connection”

between the defendant and the U.S. could be

established. Accordingly, in historic cases, such as

Filartiga v. Pera-Irala, 630 F.2d 876 (2d Cir. 1980),

where the defendant was physically in the U.S. when

served with the lawsuit, and had been resident in the

U.S. for more than nine months before he was served,

it may be possible to prove the requisite close connec-

tion to establish active personality jurisdiction over

the individual where there is a clear legal bond

between him and the forum State.” Furthermore, in

Filartiga there had been an unsuccessful effort to

“Curtis Bradley, Attorney General Bradford’s Opinion and

the Alien Tort Statute, uploaded June 7, 2012, available at

http://papers.ssrn.com/sol3/papers.ctm?abstract_id=206392 1.

” Filartiga v. Pena-lrala, 630 F. 2d at 878-89. The defendant

in Filartiga was not a legal resident, but an alien who had

overstayed his visa and was scheduled for deportation. /d.

However, it is now accepted that domicile can still be acquired

where residence may be unlawful. For example, in the U.K., the

House of Lords has ruled that domicile can be acquired in such

circumstances. See Mark v. Mark (2005) UKHL 42, {2005} 1 A.C.

98. “In matters of civil status as opposed to political status, it is

in everyone's interests that the affairs of long-term residents are

governed by the laws of the country with which they are so

closely connected. It is not a matter of the person benefitting

from unlawful action: domicile gives rise to liabilities as well as

rights.” CMV Clarkson & Jonathan Hili, The Conflict of Laws

318 (Oxford University Press 4th ed. 2011) (emphasis added).

initiate a criminal action in Paraguay, which could

be considered an attempt at exhaustion of local

remedies (discussed infra at p. 33-34). Jd. at 878.

Given these realities, the Governments are not

suggesting that Filartiga be overruled.

B. The other bases that plaintiffs have

frequently used for ATS assertions of

jurisdiction fall short of the nexus

required by international law

Nonetheless, the ICJ has recognized that the type

of universal civil jurisdiction argued for by plaintiffs

in ATS cases “has not attracted the approbation of

States generally.” An allegation of an abuse of a

“jus cogens” norm committed anywhere in the world,

cannot alone justify the civil jurisdiction of the U.S.

courts.” Such jurisdiction, without any underpinning

of a clear connection with the forum (i.e. truly

“universal” jurisdiction), is only well established in

the criminal context.

Although universal criminal jurisdiction is permit-

ted in respect of a narrow category of international

norms, it does not give rise to a corresponding basis

for civil jurisdiction. International law does not

“ Case Concerning the Arrest Warrant of 11 April 2000 (Dem.

Rep. Congo v. Belg.), 2002 I.C.J. 3, 9 48 (Feb. 14) (“Arrest

Warrant Case”) (Opinion of Judges Higgins, Kooijmans and

Buergenthal).

“See immunities of The State (Germany v. Italy: Greece

Intervening), 2012 L.C.J. 4 95 (Feb. 3) available at http://www.

icj-cij.org/docket/files/143/16883.pdf (citing Armed Activities on

the Territory of the Congo (New Application: 2002), Judgment,

2006 1.C.J. 6, 449 64, 125 (Feb. 3)) (allowing foreign court pro-

ceedings to progréss against a sovereign nation presents a

fundamental conflict with that nation’s sovereignty, and there-

fore, the question of immunity must be decided at the beginning

of the claim).

develop through automaticity; it deveiops through an

accumulation of State practice.

Importantly, it is widely recognized that criminal

and civil jurisdiction are two distinct regimes. Extra-

polating universal civil jurisdiction from the exist-

ence of universal criminal jurisdiction is not a proper

application of international law: in particular, it is

not consistent with the way in which international

law develops. Such a principle must first be well-

established and practiced by States to emerge as a

new basis of civil jurisdiction vader international

law.

To allow extraterritorial jurisdiction in civil matters

to be solely dependent on the allegations made in the

claim would force each court to consider the merits at

the outset, and would allow plaintiffs to circumvent

the international law requirement of a clear factual

nexus with the forum “simply by skilful construction

of the claim.””

C. The presence of a U.S. corporate

affiliate is not a sufficient basis to

establish U.S. jurisdiction over ATS

claims against a foreign parent or

affiliated corporation for unrelated

activities that have no effect in the U.S.

The Governments consider that this Court’s deci-

sions under the Due Process clause of the 14th

Amendment to the Constitution are entirely con-

sistent with international law; and thus, there is no

basis for a nation to exercise general jurisdiction over

a foreign corporation for activities having no close

connection with the forum without its consent. See

* Id. J 82.

Goodyear Dunlop Tires Operations, S.A. v. Brown,

131 S. Ct. 2846 (2011). In Goodyear, the Court asked

“are foreign subsidiaries of a United States parent

corporation amenable to suit in state court on claims

unrelated to any activity of the subsidiaries in the

forum State?” Id. at 2850. The Court answered with

a unanimous “no”. Jd. at 2851. In order to establish

“general jurisdiction” over a foreign corporation, its

contacts with the forum must be “so continuous and

systematic as to render [it] essentially at home in the

forum State.” Jd. at 2851.

The Solicitor General’s Amicus Brief supporting

the Defendants in Goodyear emphasized that, “[A]

State’s excessive assertion of general jurisdiction

potentially threatens particular harm to the United

States’ foreign trade and diplomatic interests.””’

lil. THE STATES SUBMITTING THIS BRIEF

APPLY IN THEIR OWN COURTS

JURISDICTION-LIMITING PRINCIPLES

CONSISTENT WITH WHAT THEY ARE

URGING THIS COURT TO ACCEPT

UNDER INTERNATIONAL LAW

The courts of the U.K. and the Netherlands would

not allow the plaintiffs to bring the kind of “foreign

cubed” tort case typified by this action Rather, the

courts in each nation generally insist on a sufficiently

close nexus with the forum based on the territoriality

or active personality principles.

” Brief for the United States as Amicus Curiae Supporting

Petitioners, Goodyear Dunlop Tires Operations, S.A. v. Brown,

131 5. Ct. 2846 (2011) (filed Nov. 19, 2010) (No. 10-76) 2010

U.S. S. Ct. Briefs LEXIS 2114 at *12.

A. The United Kingdom

The English courts will only exercise civil jurisdic-

tion where: (i) there is a connection between the

defendant and England; or (ii) there is a connection

between the substance of the claim and England; or

(iii) the parties have agreed or submitted to the

jurisdiction of the English courts. Thus, a claimant

may not initiate tort proceedings in England against

a foreign defendant, unless the damage has either (a)

been sustained within the jurisdiction, or (b) resulted

from an act committed within the jurisdiction.”

However, the English courts may sometimes exer-

cise jurisdiction over certain tort claims against a

U.K.-incorporated parent company for acts com-

mitted by its foreign subsidiaries abroad, where the

parent company actively supervised or participated

in the foreign activity giving rise to the claim. Two

examples illustrate situations where the English

courts have allowed a claim based on such active

personality jurisdiction:

e In Lubbe and Others v. Cape Pic [2000] UKHL

41, a group of South African workers made a

negligence claim against a U.K.-incorporated

parent company on the basis that the parent

company exercised de facto control over the

operations of its South African subsidiary.

Since the parent company was incorporated in

the U.K. and exercised a degree of control over

“CMV Clarkson & Jonathan Hill, The Conflict of Laws 59,

(Oxford University Press 4th ed. 2011).

” U.K. Civil Procedure Rules, 1998, Part 6, Practice Direction

6B, 4 3.109), available at http://www.justice.gov.uk/courts/pro

cedure-rules/civil//rules/pd_part06b.

the subsidiary, there was a sufficiently close

nexus with that State.”

e In Guerrero v. Moneterrico Metals Pic, (2009)

EWHC 2475, an injunction was sought against

another U.K.-incorporated parent company,

alleging that it was negligent in protecting

environmental protesters during the opening

of a copper mine in Peru owned by its wholly-

owned foreign subsidiary. In this case, the

parent company’s personnel directly par-

ticipated in the running of the mine and its

board of directors retained responsibility for

risk management.

Importantly, the English courts will not take

jurisdiction over civil claims that foreign individuals

or foreign corporations committed “violations of inter-

national law” outside the U.K. Indeed, the House

of Lords has explicitly rejected arguments that the

English courts have jurisdiction in such cases,

stating:

“there is no evidence that states have recognised

or given effect to an international law obligation

to exercise universal jurisdiction over claims

arising from alleged breaches of peremptory

norms of international law, nor is there any

consensus of judicial and learned opinion that

they should. This is significant, since these are

sources of international law.” ”

"In addition, the corporate defendant in this case did not

challenge the jurisdiction of the Court.

" Jones v. Ministry of Interior for the Kingdom of Saudi

Arabia |2006] UKHL 26, para. 27 (leading judgment of Lord

Bingham).

B. The Netherlands

The Netherlands also recognizes tort jurisdiction

based on the territorial and active personality princi-

ples.” Based on the latter, the Netherlands already has

a pending case brought by Nigerian plaintiffs against

Royal Dutch Shell and its Nigerian subsidiary, in

which the Court exercised extraterritorial jurisdic-

tion over the Nigerian subsidiary because it had per-

sonal jurisdiction over the Dutch parent corporation. *

Dutch courts may, but only very rarely, exercise a

special “forum of necessity” jurisdiction when a civil

case outside the Netherlands appears to be impossi-

ble.“ The exercise of such jurisdiction is available in

extreme circumstances, such as natural disasters or

* A.I.M. van Mierlo, C.J.J.C. van Nispen, M.V. Polak, Burger-

liikke Rechtsvordering: de tekst van het Wetboek van Burgerlijke

Rechtsvordering voorzien van commentaar (“Civil Procedure

Commentary on the Code of Civil Procedure”) (Kluwer 3rd ed.

2008). This general approach can be found in other civil law

jurisdictions. F.g., tort jurisdiction in Switzerland requires that

(i) the acts concerned occurred on Swiss territory; or (ii) the

defendant is a resident of Switzerland (natural person) or

incorporated in Switzerland (corporations).“ Swiss Federal

Code of Private International Law, Compilation of Swiss Laws

Number 291.0, art. 129.

“ Rb. Gravenhage |Court of the Hague], 30 December 2009,

JOR 2010, 41 m.nt. Mr. RGJ de Haan (Oguro/Royal Dutch Shell

PLC\Neth.) available at http-//zoeken.rechtspraak.nl/resultpage.

aspx?snelzoeken=true&searchtype=ljn&ljn=BK8616. The Court

exercised jurisdiction under Article 7(1) of the Dutch Code of Civil

Procedure.

“See Dutch Code of Civil Procedure, Article %b), Wetboek

van Burgerlijke Rechtsvordering, available at www.wetten.

overheid.nl//BWBR0O00 1827/geldigheidsdatum-02-06-2012.

civil war, as a result of which the judiciary in a

country is not in a position to perform its functions.”

In addition, the Dutch courts may also exercise

jurisdiction under the “forum of necessity” basis if

two criteria are met. First, there must be a sufficient

connection with the Dutch legal sphere and second, it

would be unacceptable to demand from the plaintiff

that he submits the case to the judgment of a foreign

court.” A sufficient connection with the Dutch legal

sphere exists, for example, if the plaintiff has his or

her habitual residence in the Netherlands at the time

an action is brought before the court.”

The judgment of March 21, 2012, in the Hague

District Court is an example of such a case and is

consistent with international law limits on jurisdic-

“ Tweede Kamer der Staten-Generaal, Herziening van het

procesrecht voor burgerlijke zaken, in het bijzonder de wijze van

procederen in eerste aanleg, kamerstukken II (“The Dutch

House of Representatives, Revision of the Civil Procedure,

specifically the rules of the procedure in the first instance,

Parliamentary Documents II”) 1999-2000, 26 855, nr. 3, p. 42,

available at https://zoek.officielebekendmakingen.nl/kst-26855-

3.html?zoekcriteria=%3fzkt%3d Vitgebreid%26pst%3dStaatsblad%

257cStaatscourant%257cTractatenblad%257cParlementaireDocu

menten*26vrt%3dHerziening% 2bprocesrecht% 2bburgerlijke%2

bzaken%26zkd%3dInDeGeheleText%252. In fact, we have been

able to locate only one case in which Article &%b) jurisdiction has

been exercised by a Dutch court since its adoption on January 1,

2002; and that case involved Dutch citizens as both plaintiff and

defendant. Rb. Utrecht [Court of First Instance of Utrecht] 12

maart 2008, Case 241446/HA ZA 08-27, available at http://

zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchty

pe=ljn&ljn=BC6477.

” Dutch Code of Civil Procedure, Article 9c), supra note 34.

* Tweede Kamer der Staten-Generaal, supra note 35, at 43.

tion.” In this case, the plaintiff was a Bulgarian

citizen who resided in the Netherlands and filed a

lawsuit against individual Libyan citizens for acts

that took place in Libya. However, in that case,

Libya was the only alternative forum and the Hague

District Court proceeded on the basis that it was not

an adequate alternative forum that could administer

the dispute. But the Hague District Court did assess

the claims in accordance with Libyan law.

The “forum of necessity” concept also appears in

some other civil law jurisdictions, but such jurisdic-

tion generally cannot be invoked unless there is some

genuine factual nexus to the forum.”

“ Rb. Gravenhage [Court of First Instance of the Hague] 21

maart 2012, m. nt. Van der Helm, Case 400882/HA ZA 11-2252

(El-Hojouj/Derbal) (Neth.), available at http://zoeken.rechtspraak.

nl/resultpage.aspx?snelzoeken=true&searchty pe=ljn&ljn=BV9748.

“ Switzerland offers a particularly instructive example. Thus

Article 3 of the Swiss Federal Code of Private International Law

establishes a so-called “forum of necessity” in a case where two

conditions precedent are met: (i) legal proceedings are not possi-

ble in foreign fora where clear and sufficient links exist; and (ii)

there is a genuine link between the case and Switzerland.

Swiss Federal Code of Private International Law, Compilation

of Swiss Laws Number 291.0, art. 3. The requirement of a

sufficient link to Switzerland is strictly applied. Thus, in the

one known tort case in which Article 3 has been invoked by the

plaintiff, no legal proceedings were possible where the tort(s)

had occurred; and yet the Swiss Federal Tribunal refused to

declare Swiss courts competent since there was no sufficient

link to Switzerland. Decision of the Swiss Federal Tribunal of 22

May 2007, para. 3.4 (Case number 4C.379/2006, available at

http:/jumpcegi.bger.ch/cgi-bin/JumpCGI?id=22.05.2007_4C.379/

2006).

IV. ALLOWING U.S. COURTS, AT THE

BEHEST OF PRIVATE PLAINTIFFS, TO

EXERCISE BROAD EXTRATERRITO-

RIAL JURISDICTION IN ALIEN TORT

STATUTE CASES OFTEN INTERFERES

WITH THE RIGHT OF A NATION TO

PRESCRIBE RULES FOR AND ADJUDI-

CATE DISPUTES AMONG ITS OWN

NATIONALS AND RESIDENTS THAT

OCCUR ON ITS OWN TERRITORY

Because they regard the choices of legal processes

and remedies as such important sovereign rights, the

Governments object to the efforts of U.S. litigators

and judges to bypass the legal systems of other

sovereigns by deciding civil cases involving foreign

parties where there is no significant nexus to the

U.S. This was true in Empagran, it was true in

Morrison, and it is true here.

A. A foreign State’s legitimate concern

about U.S. judicial interference with

its sovereignty is clearly illustrated by

the South African government’s strong

opposition to ATS claims based on the

Apartheid policies of the predecessor

government

The internationally-reviled Apartheid system gen-

erated a substantial number of large ATS class

actions brought on behalf of the majority of South

Africans who could qualify as Apartheid victims.

These cases were principally against some interna-

tional and South African banks and mining compa-

nies charged with aiding and abetting the Apartheid

governments during their four decades of power.

The South African Government strongly opposed

the continuation of these cases in a declaration

submitted to the District Court by its Minister of

Justice and Constitutional Development, the Honor-

able Penuell Mpapa Maduna on July 11, 2003.“

Minister Maduna explained that the new “govern-

ment deliberately avoided a ‘victors’ justice’ approach

to the crimes of apartheid and chose instead

one...informed by the principles of reconciliation,

reconstruction, reparation and goodwill.”*’

The South African Government opposed the pend-

ing ATS cases because they conflicted with its “recon-

ciliation, reconstruction, reparation and goodwill”

program in several fundamental ways. First, they

directly interfered with “the right of the government

to define and finalize issues of reparations, both

nationally and internationally” by “set[ting] up

the [ATS] claimants as a surrogate government.”*

Secondly, by singling out certain companies as

defendants, the cases interfered with “[t]he gov-

ernment’s policy...to promote reconciliation with and

business investment by all firms, South African and

“See Declaration by Penuell Mpapa Maduna (Minister of

Justice and Constitutional Development of the Republic of

South Africa) dated July 11, 2003 and attached to his letter

of the same date to Judge John E. Sprizzo of the U.S. District

Court for the Southern District of New York (“Maduna Dec-

laration”), available at http://www.courtappendix.com/kiobel/

protests/PDFs/2003-07-11%20-% 20South% 20Africa.pdf. For the

convenience of the Court, it is attached as Appendix A to this

brief.

“Id. para. 3.2.1 Apparently the Reconciliation Commission

provided reparations to over 20,000 victims. /d. para. 3.2.3

“ Id. para. 7.

foreign...”*’ Thirdly, “{plermitting this litigation to go

forward will, in the government’s view, discourage

much-needed direct foreign investment in South

Africa and thus delay the achievement of our central

goals.””*

When President Thabo Mbeki submitted the final

report of the Reconciliation Commission to Parlia-

ment, his words on his government’s reaction to the

faraway ATS litigation in New York could not have

been clearer:

“(W]e consider it completely unacceptable that

matters that are central to the future of our

country should be adjudicated in foreign courts

which bear no responsibility for the well-being of

our country and the observance of the perspec-

tive contained in our constitution of the promo-

tion of national reconciliation.”

B. The risks of improper interference

with the rights of foreign sovereigns

are significantly enhanced in ATS

(and other) cases because the U.S.

has chosen to adopt plaintiff-favoring

rules and remedies that other nations

do not accept

This issue is not confined to ATS cases. The pre-

sent case is one example of many in which foreign

plaintiffs have sought to bring an essentially foreign

dispute before U.S. courts, as they did in the cases

giving rise to this Court’s Empagran and Morrison

" Id. para. 8.1.

‘Id. para. 12.

“ Speech on Apri! 15, 2003 quoted in the Maduna Declaration

at para. 3.2.3.

decisions involving the antitrust and securities laws.

These plaintiffs seek to obtain the benefit of rules

that the Governments and most other foreign sover-

eigns have not accepted.“

The special litigation advantages available in the

U.S. are very familiar to this Court. First, the so-

called “American rule” on litigation costs requires

each side to bear its own costs—rather than requiring

the losing plaintiff to reimburse some or all of the

successful defendant’s costs (and vice-versa)."’ The

Governments regard the “loser pays” costs rules that

prevail in their own courts as an important safeguard

against marginal or frivolous litigation. Secondly,

the generally broader discovery available to plaintiffs

in the U.S. will tend to drive up the non-reimbursable

litigation costs that an ultimately successful defend-

ant will still have to bear.” Thirdly, the constitu-

tional right to a jury trial in a civil case is generally

not available elsewhere. Fear of large jury verdicts

has been well recognized as a source of concern to

large foreign corporations (hence driving them to

* See, e.g., the European Commission’s discussion of efforts to

achieve more balanced private litigation rules in its White Paper

on Damage Actions for Breach of EC Competition Rules, COM

(2008) 165.

" See Alyeska Pipeline Service Co. v. Wilderness Society, 421

U.S. 240, 252 (1975).

“ See Bell Atlantic v. Twombley, 550 U.S. 544 (2007) (where

this Court cited the burdens of discovery as one of the reasons

for imposing enhanced standards on what a plaintiff had to be

able to plead in order to survive a motion to dismiss under Fed.

R. Civ. P.12(b)(6)).

settlements). Fourth, punitive damages are avail-

able in the U.S., but generally are not allowed

elsewhere.” Fifth, the “opt out” class action system

provided for in the U.S. under FRCP Rule 23 and its

State law counterparts has not been accepted by most

other countries.” Finally, the U.S. has chosen to

allow a much broader system of results-based con-

tingent fees than the Governments and most other

sovereigns have allowed in their court systems;” and

this feature, when coupled with the “American rule”

on costs, helps generate the kinds of large class

actions that one sees in this case and Rio Tinto.

These rules and practices promote the kind of

international forum shopping by foreign class action

” See William Glaberson, NAFTA Invoked to Challenge Court

Award, N.Y. Times, Jan. 28, 1999, available at http://

www.nytimes.com/1999/0 1/28/business/nafta-invoked-to-challen

ge-court-award.html?pagewanted=all&src=pm (two leading U.S.

international trade experts “noted that business leaders in other

countries have for years complained that America’s large jury

verdicts make investment here unpredictable”).

“Id. The $400,000,000 punitive damage award by a Missis-

sippi jury on top of an actual damages award of $100,000,000

forced the Canadian defendant company into bankruptcy and

prompted the NAFTA claim.

“Other countries that have authorized some form of

collective redress still apply their normal “loser pays” cost rules

as a way of discouraging opportunistic class litigation. This is

true of the U.K. which has an “opt-in” class action system, and

is equally true of the Netherlands and Australia, which are two

of very few countries that allow class actions on an “opt out”

basis.

“ 'W. Kent David, The International View of Attorney Fees in

Civil Suits: Why ts the United States the “Odd Man Out” In How

It Pays Its Lawyers?, 16 Ariz. J. Intl & Comp. L. 361, 381-88

(1999) (discussing international disfavor with the contingency

fee system and highlighting foreign alternatives).

plaintiffs that this Court has seen in cases such as

Empagran and Morrison, as well as this case and Rio

Tinto. As long as the U.S. continues to provide a

unique plaintiff-favoring system, this Court must

continue to play its traditional role of guardian of

international comity.

C. There is ample evidence of interna-

tional disputes generated by the

efforts of private U.S. plaintiffs to

attack foreign parties for activities

outside the U.S.

The Governments and other States have had first-

hand experience in dealing with what they regarded

as entirely inappropriate exercises of U.S. extra-

territorial jurisdiction by courts and, occasionally, by

legislatures. Fortunately, such disputes seem to have

become considerably less frequent and dramatic in

recent years.

But the lessons of history should not be ignored. In

the late 1970s and early 1980s, the private U.S.

Uranium Antitrust Cases caused the Parliaments of

the U.K., Australia, Canada and several other nations

to enact so-called “blocking statutes”, empowering

their governments to prevent their nationals from

complying with the discovery orders of U.S. courts.”

The disadvantages can flow the other way too.

Foreign courts have also rejected discovery requests

made by U.S. parties under the Hague Convention,

“ See, e.g., Foreign Proceedings (Excess of Jurisdiction) Act

No. 3 of 1984 (Austl.) and Protection of Trading Interests Act,

1980, c. 11 (U.K.), Foreign Extraterritorial Measures Act, R.S.C.

c. F-29 (Canada); see generally Carl A. Cira, Jr., The Challenge

of Foreign Laws to Block American Antitrust Actions, 18 Stan. J.

Int'l L. 247 (1982).

when the foreign court regards the U.S. case as being

based on improper assertions of extraterritorial juris-

diction.”

The Governments hope that these kinds of disputes

can be minimized in the ATS area if this Court

continues to give substantial weight to international

comity when making this important decision on

extraterritorial jurisdiction for U.S. courts (as it has

done in Morrison and the earlier cases discussed in

the next section of this brief).

V. THIS COURT’S PRESUMPTION AGAINST

EXTRATERRITORIAL APPLICATION

OF U.S. STATUTES RECOGNISED IN

ARAMCO, EMPAGRAN, AND MORRISON

EMBODIED FUNDAMENTAL CONSIDER-

ATIONS OF INTERNATIONAL COMITY

AND SHOULD BE APPLIED TO THE

JURISDICTION GRANTED TO USS.

COURTS BY THE ALIEN TORT STATUTE

A. The strong presumption against

extraterritorial jurisdiction rests on

concerns about international comity

In Empagran and Morrison, this Court enunciated

a clear presumption against a cause of action created

by a federal statute being construed to allow suit

in the U.S. courts by foreign plaintiffs for injuries

suffered abroad. It emphasized the “longstanding

principle of American law ‘that legislation of Con-

gress, unless a contrary intent appears, is meant to

apply only within the territorial jurisdiction of the

United States.” Morrison, 130 S.Ct. at 2877, quoting

“See Rio Tinto Zinc Corp. v. Westinghouse Electric Corp.,

[1978] 2 W.L.R. 81 (H.L. 1977) (U.K.); Gulf Oil Corporation v.

Gulf Oil Canada Ltd., [1980] 2 S.C.R. 39 (Canada).

EEOC v. Arabian American Oil Company, 499 U.S.

244, 248 (1991). This avoids the “serious risk of

interference with a foreign nation’s ability inde-

pendently to regulate its own commercial affairs.”

Empagran, 542 U.S. at 165 (2004).

The Petitioners’ argument that, “(t]he presumption

against extraterritoriality does not apply to jurisdic-

tional statutes...” is incorrect.” There is no reason

why the risks to international comity are somehow

less when a statute is labeled “jurisdictional” rather

than “substantive”. The Governments respectfully

suggest that the concerns about “unreasonable

interference with the sovereign authority of other

nations”” apply equally when a federal court is

exercising its statutory jurisdiction over common law

claims for “the modest number of international law

violations with a potential for personal liability.”

Sosa, 542 U.S. at 724.

Additionally, piracy on the high seas is different

from activities that take place on the territory of

another sovereign, and does not generate the kinds

of potential conflicts among sovereigns that the

presumption against extraterritoriality is meant to

guard against. Justice Breyer noted in his Sosa

concurrence that “in the 18th century, nations

reached consensus not only on the substantive princi-

ple that acts of piracy were universally wrong but

also on the jurisdictional principle that any nation

that found a pirate could prosecute him.” Jd. at 762.

“ Petitioners’ Supplemental Opening Brief at 34 (No. 10-

1491) (filed June 6, 2012) (“Pet.’s Br.”).

* Empagran, 542 U.S. at 164 (2004).

B. International comity considerations

particularly weigh against exercising

U.S. extraterritorial jurisdiction in

ATS cases

Extraterritorial claims in ATS cases are particu-

larly likely to generate international disputes among

sovereigns because of the essential nature of these

claims. In virtually every extraterritorial case,

the plaintiffs allege violations of the “law of nations”

by a foreign government which the defendant cor-

poration is alleged to have aided or abetted. This

kind of foreign sovereign involvement was not present

as a complicating factor in Aramco, Empagran, or

Morrison when the Court invoked the comity-driven

presumption against extraterritorial application of

ambiguous U.S. statutes.

Moreover, such extraterritorial ATS claims will be

very difficult (and sometimes impossible) for a U.S.

district court to try effectively. Critical evidence will

mostly be located abroad, often in the hands of a

challenged sovereign. Almost any private defendant,

regardless of whether a foreign or U.S. national, will

face great difficulty in obtaining (or even find it

impossible to obtain) evidence needed to defend

themselves against the relevant allegations, given

such evidence is likely to be situated in the

jurisdiction where the events occurred, including the

evidence of any third party eye witnesses to the

alleged wrong who still reside in the country where

the wrong occurred.

C. The risks of jurisdictional disputes

among sovereigns would be reduced if

this Court were to require the use of

the exhaustion of local remedies

doctrine before a plaintiff could bring

an ATS claim based on conduct in the

territory of a foreign sovereign

Even if not necessary to the current decision, this

case may offer the Court the opportunity to clarify

the application of a principle that should be applied

in ATS cases involving claims of extraterritorial

jurisdiction. In Sosa, this Court acknowledged the

principle of exhaustion of local remedies and con-

firmed that it “would certainly consider this require-

ment in an appropriate case.” 542 U.S. at 733 n. 21.

This is an appropriate case.

The principle of “exhaustion of local remedies” only

becomes relevant (as an additional requirement)

after the District Court has found that the ATS

claims both (i) have sufficient factual nexus to the

U.S. to satisfy the minimum public international law

limits on the exercise of domestic jurisdiction by

U.S. courts and (ii) fall within the narrow class of

international wrongs foreseen by this Court in Sosa.

The Governments submit that the application of the

“exhaustion of local remedies” principle does not

generate jurisdiction that would not otherwise exist

in a U.S. court.

The principle of “exhaustion of local remedies”, like

the presumption against extraterritorial effects, has

been applied by U.S. courts to show respect for the

different choices that other sovereigns make on how

to resolve disputes within their own jurisdiction. In

other words, this has been applied as means of

minimizing jurisdictional conflicts with the courts of

other States, to uphold international comity.

In these circumstances, the Governments’ position

is that, before a U.S. court is permitted to create

common law liability based on some infringements of

the “law of nations”, it ought to be obliged to consider

whether the place where the alleged violation oc-

curred has a system for redressing such a wrong.

Furthermore, the court ought to be obliged to

consider whether another State has a closer nexus to

the dispute—namely, superior access to evidence

and/or the presence of nationals or residents as

defendants within its jurisdiction. In the current

case, if there were sufficient nexus to establish U.S.

jurisdiction (which the Governments believe there is

not), then respect for international comity should

require the District Court to defer to other fora which

have a sufficiently close connection to the facts in this

case.

VI. PROTECTION AGAINST HUMAN RIGHTS

ABUSES CAN BE MORE FAIRLY AND

EFFECTIVELY ACHIEVED BY SEEKING

INTERNATIONAL CONSENSUS AND CO-

OPERATION THROUGH TREATIES THAN

BY RESORT TO PRIVATE CIVIL LITIGA-

TION IN DISTANT COURTS

The Governments fully supported the work of the

Special Representative of the UN Secretary General

on Business and Human Rights, John Ruggie, and

the UN endorsement of his work in the UN Guiding

Principles on business and human rights. The

Governments also support international mechanisms

such as the OECD Guidelines for Multinational

Enterprises, which they believe can play an im-

portant role in the promotion of a corporate culture

consistent with human rights.” The Governments

continue to be committed to this process of multilat-

eral dialogue.

‘

However, it has been the longstanding view of the

Governments that the most effective way to ensure

that there is no impunity for human rights abuses is

to encourage and strengthen States to comply with

the human rights obligations owed to those within

their jurisdictions. Importantly, in many circum-

stances, international human rights law imposes a

positive obligation on States to regulate corporations

within their territory so they are prevented from

committing human rights abuses against individuals

or other private parties. This is not just a legal

technicality: the Governments are concerned that, by

allowing ATS claims with little nexus with the U.S.,

some States might be given reason to down-play or

even ignore their own responsibilities for implement-

ing their human rights law obligations. They will also

come under less pressure to provide a remedy for,

and indeed prevent, abuses, if plaintiffs have

recourse to redress elsewhere.

To conclude, the Governments believe that it is

entirely appropriate and desirable for a State to

provide legal sanctions and remedies for human

rights victims in its national courts where the wrong

has taken place on its territory or was undertaken by

some individual or entity properly subject to its

jurisdiction under international law (e.g., under the

’ For a list of references to efforts by the United Kingdom

and Netherlands to promote international human rights, see

Brief of the Governments of the United Kingdom of Great

Britain and Northern Ireland, and the Kingdom of the

Netherlands as Amici Curiae in Support of the Respondents

(No. 10-1491) (filed Feb. 3, 2012) at p. 26-27 nn. 37-40.

nationality principle). These efforts can be quite

varied based on particular circumstances in the

country involved. Conversely, to permit international

forum shopping of the type epitomized by this case,

Rio Tinto, and numerous other ATS cases, will

diminish the pressures and incentives on States to

actually provide effective human rights remedies. In

addition, in its current form, the ATS will also

interfere with a State’s actual efforts to remedy past

wrongs within its own territory or which have been

committed by its nationals.

Respectfully submitted,

IAIN MACLEOD DONALD I. BAKER

The Legal Adviser Counsel of Record

FOREIGN AND W. TODD MILLER

COMMONWEALTH OFFICE KIMBERLY SHAW

United Kingdom ISHAI MOOREVILLE

LIESBETH LIJNZAAD BAKER wi MILLER PLLC

The Legal Adviser 2401 Pennsylvania Avenue, NW

Suite 300

MINISTRY OF

FOREIGN AFFAIRS

The Kingdom of the

Netherlands

Washington, DC 20037

(202) 663-7820

dbaker@bakerandmiller.com

Attorneys for the Governments of the Kingdom

of the Netherlands and the United Kingdom of

Great Britain and Northern Ireland

June 13, 2012

APPENDIX

{LOGO} Kp117032

Our reference:

3/26/8/1 (HMS)

MINISTRY: JUSTICE AND CONSTITUTIONAL

DEVELOPMENT REPUBLIC OF SOUTH AFRICA

Private Bag X276, Prétoria, 0001, Tel: (012) 315

1761/2/3 or 315 1332, Fax: (012) 321-1708

Private Bag X256, Cape Town, 8000,

Tel: (021) 465 7506/7, Fax: (012) 465 2783

[Filed S.D.N.Y. July 23, 2003]

The Honourable Mr Justice John E Sprizzo

United States District Judge

United States Court House

500 Pear! Street

New York, New York 10007

UNITED STATES OF AMERICA

Dear Judge

(a) SOUTH AFRICAN APARTHEID LITIGATION

(MDL NO. 1499)

(b) KHULUMANI & OTHERS (03-4524)

I write to convey to the Honourable Court through

my enclosed declaration the views of the Government

of the Republic of South Africa regarding the South

African apartheid litigation pending before the Court.

Respectfully yours

/s/ I

DR P M MADUNA, MP

MINISTER

* Annexure

DECLARATION BY PENUELL MPAPA MADUNA

I am the Minister of Justice and Constitutional

Development of the Republic of South Africa

and a member of the cabinet of President

Thabo Mbeki. I am an admitted attorney of the

High Court of South Africa and hold the

degrees of B.Juris, LL.B, LL.M as well as a

LL.D in constitutional law.

I make this declaration to set forth the South

African government’s (“the government”) view

of various cases pending in the United States

courts against corporations that did business

with and in South Africa during the apartheid

period, including those cases consolidated under

the caption, In Re South African Apartheid

Litigation, MDL No. 1499 (S.D.N.Y.) and In Re

Khulumani & others, CV 02 5952 (E.D.N.Y.) It

is the government’s submission that as these

proceedings interfere with a foreign sovereign’s

efforts to address matters in which it has the

predominant interest, such proceedings should

be dismissed.

By way of background, the Republic of South

Africa is one sovereign democratic state

founded on the values of human dignity, equal-

ity, non-racialism, non-sexism, supremacy of

the Constitution, and the rule of law, universal

adult suffrage and a multi-party system of

democratic government to ensure accountabil-

ity, responsiveness and openness. Under South

Africa’s 1996 Constitution, the Constitution is

the supreme law of the Republic. Under the

Constitution, the judicial authority of the

3.2

3.2.1

Republic is vested in the courts, which are

independent and subject only to the Constitu-

tion and the law, which they must apply

impartially and without fear, favour or preju-

dice. No person or organ of state may interfere

with the functioning of the courts, while all

other organs of the state, through legislative

and other measures, must assist and protect

the courts to ensure their independence, im-

partiality, dignity, accessibility and effective-

ness. An order or decision of a court binds all

persons to whom and organs of state to which

it applies. South Africa has a well developed

judicial system, with the Constitutional Court

at its apex and the Supreme Court of Appeal

as the final court of appeal in non-constitu-

tional matters. Judgments of the Constitu-

tional Court and, indeed, the Supreme Court of

Appeal, are widely admired for their independ-

ence and incisiveness and are frequently

referred to in judgments of other final courts of

appeal internationally.

The 1993 interim Constitution, which paved

the way for South Africa’s first democratic

government in 1994, made provision for the

establishment of a Truth and Reconciliation

Commission (“the TRC”) in order to establish

the truth in relation to “past events”, the cir-

cumstances under which gross violations of

human rights occurred and to make such find-

ings known. The purpose of the TRC was not

simply to provide an account of the apartheid

system, but to document gross violations of

all human rights abuses, irrespective of their

3.2.2

3.2.3

perpetrators, and to make provision for am-

nesty for those who made full disclosure of

such politically-motivated human rights viola-

tions and to provide reparations for the victims

of such abuses. In 1995, Parliament enacted

legislation to establish the TRC formally. In

taking these constitutionally-mandated steps,

government deliberately avoided a “victors’

justice” approach to the crimes of apartheid

and chose instead one based on confession and

absolution, informed by the principles of recon-

ciliation, reconstruction, reparation and good-

will.

The 1993 Constitution and the Promotion of

National Unity and Reconciliation Act, 1995,

which established the TRC, was based on a

conscious agreement by all political parties in

South Africa to avoid Nuremberg-style apart-

heid trials and any ensuing litigation.

The TRC completed its work in March 2003. It

granted amnesty to many perpetrators of gross

violations of human rights on a cross-party

basis. It also recommended financial repara-

tions for some 20,000 victims of such abuses.

In his address to Parliament on 15 April, 2003,

on the tabling of the TRC Report, President

Thabo Mbeki on behalf of the government,

observed that:

“In the recent past, the issue of litigation

and civil suits against corporations that

benefited from the apartheid system has

sharply arisen. In this regard, we wish to

reiterate that the South African Government

is not and will not be party to such litigation.

In addition, we consider it completely un-

acceptable that matters that are central to

the future of our country should be adjudi-

cated in foreign courts which bear no respon-

sibility for the well-being of our country and

the observance of the perspective contained

in our constitution of the promotion of

national reconciliation”.

3.2.4 It is my respectful submission that the govern-

3.3

ment’s views on matters which fall within its

sovereign domain should be respected in all

forums.

I believe that it is important for the court to

understand the context in which these cases

are brought. The litigation appears to suggest

that the government of which I am a member,

has done little or nothing about redressing the

ravages of the apartheid system, which, while

formally and institutionally terminated by the

election of the Mandela government on 27

April 1994, continue to live with us and will,

unfortunately, continue to endure for many

years to come. It likewise fails to appreciate

the mandate under which South Africa’s first

democratic government was elected and how it

has gone about executing this mandate since

1994. In order to assist the court, I set out

briefly the details of this below.

In addition to institutionalising enforced racial

segregation, and denying the majority the

franchise, the apartheid system sought system-

atically to exclude most South Africans from

access to adequate education, health care,

housing, water, electricity, land and commu-

nications, while likewise excluding it from

proper participation in the economy. The Afri-

can National Congress-led government, under

the leadership of former President Mandela,

was elected in 1994 by the previously apart-

heid-excluded majority on a programme spe-

cifically to redress the legacy of apartheid. The

government’s programme, based on the recon-

struction and development of the South Afri-

can economy, accordingly had and continues to

have as its central plank the fundamental

transformation of South African society. It

does so by attempting to rehabilitate the lives

of the previously disadvantaged through the

promotion of non-racialism, equality and social

justice. The implementation of this policy, as

will be seen below, has been and continues to

be achieved through wide-ranging legislative

reforms to transform South African society. In

other words, what the government is attempt-

ing to do is to repair the damage caused by the

apartheid system through a broad programme

of socio-economic reparations which has at

its heart, the betterment of the lives of the

previously disadvantaged.

South Africa’s 1996 Constitution, which the

African National Congress was instrumental

in drafting, gives effect to government policy to

redress the wrongs of the apartheid system, by

not only prohibiting all forms of discrimina-

tion, but also by guaranteeing the right of all

South Africans to access to housing, education,

health care and related social services. Under

the Constitution, the government is obliged to

meet these socio-economic rights within the

5.2

5.3

5.4

limits of its resources. The central importance

of these provisions of the Constitution is,

however, transformative and redistributive, in

order to enable all South Africans to overcome

the legacy of apartheid, through the creation of

a more just and egalitarian society. Although,

the government has obviously not met all of its

1994 goals, its record, faced with the realities

of a globalised economy is, I submit, impres-

sive.

In education, the spending disparity on white

and black learners (18:1 in 1970 was reduced

to 3:1 by 1993) was eliminated by racially

integrating schools while at the same time,

directing the bulk of state expenditure to the

neediest schools. In addition, free primary and

secondary level education will be available to

the poorest 40% of the population from 2004.

Government remains committed to reducing

adult illiteracy.

Skewed land ownership is being addressed

through legislation which provides for the

restitution of land taken from black South

Africans under race-based legislation first in-

troduced in 1913. Further laws provide for the

redistribution, with state assistance, of some

30% of commercial farming land to emerging

black farmers.

Social pensions (equalised prior to 1994) have

now been extended to many more beneficiaries

and supplemented by school feeding schemes,

free medical treatment at state hospitals for

pregnant women and children under the age of

six, and a child support grant. Substantial

increases have been made in providing state

5.5

financial support, especially to children, with

more than eight million people expected to

receive social assistance grants by 2005 com-

pared with 2.7 million in 1997. Government is

currently rolling out state financial support for

children between the ages of seven and four-

teen years, over a seven year period.

At the same time, government has adopted a

range of legislative measures aimed at over-

coming racial inequality, including the Em-

ployment Equity Act of 1998, and the Preferen-

tial Procurement Policy Framework Act of

2000. The vast bulk of the Promotion of Equal-

ity and Prevention of Unfair Discrimination

Act of 2000, came into effect on 16 June, 2003.

A good example of achieving majority par-

ticipation in the economy is the Minerals and

Petroleum Resources Development Act of 2002,

which is due to come into force in late 2003.

This vests all mineral rights in the state and

grants new mining licences to applicants in

return, among other things, for comprehensive

endeavours to promote black economic empow-

erment. The objectives here include the trans-

fer of ownership to black South Africans of at

least 26% of equity or operating assets within

ten years under a broad-based mining charter

agreed with the South African mining indus-

try. Likewise, a Black Economic Empowerment

Bill, intended to promote black economic em-

powerment in other sectors through measures

such as affirmative action, preferential pro-

curement, and equity transfers in favour of

black South Africans, is currently before the

South African Parliament.

While the government’s job is to govern in a

way which is best for the people as a whole, it

cannot ignore the fact that it is the successor

government to the apartheid government and,

as such, bears primary responsibility for the

rehabilitation and improvement of the lives

of the people whom the claimants claim to

represent.

The decision taken by Cabinet not to support

the litigation was not taken lightly. The

Cabinet only took this decision after an

extensive discussion both at Cabinet commit-

tee level and in the full Cabinet in which I

participated fully. The principal reason for the

Cabinet’s decision was that as the Mandela

government in 1994 and the Mbeki govern-

ment in 1999 were both elected by an over-

whelming majority of the population, on a

programme of thorough socio-economic trans-

formation aimed at redressing the legacy of

apartheid, it would make little sense for the

government to support litigation, which not

only sought to impose liability and damages on

corporate South Africa but which, in effect,

sought to set up the claimants as a surrogate

government. Accordingly, on 16 April 2003, the

Cabinet, after extensive discussion of the

matter at Cabinet committee level, resolved

that:

“It remains the right of the government to

define and finalise issues of reparations,

both nationally and internationally. In this

regard, it is imperative for the government

to clearly express its views on attempts to

undermine South African sovereignty through

8.2

10a

actions such as the reparations lawsuit filed

in the United States of America by a US

lawyer, Mr Ed Fagan, against two South

African mining firms and the participation of

South African lawyers in such procedures.”

The government’s policy is to promote recon-

ciliation with and business investment by all

firms, South African and foreign, and we re-

gard these lawsuits as inconsistent with that

goal. Government’s policies of reconstruction

and development have largely depended on

forging constructive business partnerships. Its

1996 Growth, Employment and Redistribution

(“Gear”) strategy further acknowledged the

importance of the private sector that faster

economic growth offers the only way out of

poverty, inequality, and unemployment, that

such growth is driven by both foreign and local

private sector investment, and that govern-

ment’s principal role is to create an enabling

environment for such investment. This market-

friendly strategy regards business as _ the

engine of economic growth.

The re-entry of South Africa to global capital

and export markets post-1994, together with

the government’s exemplary fiscal and mone-

tary policy record, have resulted in an increase

in economic growth to 2.5% per annum from

1994-2002, compared with the paltry below 1

per cent per annum growth of the previous

decade. Importantly, private sector fixed

investment has responded to the improved

environment, rising some 4.3 per cent per

annum since 1993.

8.3

8.4

lla

The improved growth performance is still less

than what is required to address successfully

all the socio-economic legacies of apartheid—

especially unemployment. But, together with

the government’s redirection of existing ex-

penditure, it has enabled important progress to

be made in addressing historical inequalities

and poverty.

In addition to the government performance set

out in 5, the recently released 2001 census,

together with figures from the South African

Reserve Bank, provide evidence of further

important progress:

e real disposable income per capita of house-

holds (at constant 1995 prices) rose from R8

640 in 1994 to RY 271 in 2002, reflecting an

increase of 7.3%;

e from April 1994 to February 2003, close on

1.5 million houses had either been built or

were under construction with the help of

the government’s subsidy for low-income

first-time buyers. The number of formal

dwellings increased from 4.3 million in

1996 to 6.2 million in 2001, an increase of

44%. Further, formal houses constituted

48% of the total number of dwellings in

1996 and this proportion rose to 56% in

2001;

e the number of households using electricity

for lighting increased from 5.2 million in

1995 to 7.8 million in 2001, an increase of

50%. While 57% of all households used

electricity for lighting in 1996, this propor-

tion had risen to 70% by 2001;

12a

e¢ the number of households with access to

clean water increased from 7.2 million in

1996 to 9.5 million in 2001, an increase of

31%. As a result, by 2001 85% of all South

African households had access to piped

water within 200 metres of their homes;

¢ In 1996, the number of people aged between

5 and 24 who were studying at an educa-

tional institution was 11.8 million while in

2001 the number had risen to 13.7 million:

an increase of 16%. The number of people

aged 20 or over who have Grade 12 or have

completed high school rose from 3.5 million

in 1996 to 5.2 million in 2001, an increase

of 50%.

The government accepts that corporate South

Africa is already making a meaningful con-

tribution to the broad national goal of reha-

bilitating the lives of those affected by apart-

heid. Over and above its existing corporate

social investment programmes, business has

been in partnership with the government in

the R1-billion (approximately US $ 133-million)

Business Trust. Over five years, this business

led initiative has improved the lives of 2.5

million disadvantaged South Africans through

focused programmes of human capacity build-

ing and employment creation. Further initia-

tives in partnership between business and

government, as well as other social actors, are

being prepared with concrete commitments

having been made in a number of fields at the

government’s June 7, 2003 Growth and Devel-

opment Summit attended by leading repre-

sentatives of government, business and labour.

10.

11.

13a

At the summit, business agreed with govern-

ment and labour to invest R145 billion (US

$19 billion) in the automotive, chemical,

mining and oil sectors over the next five years.

The remedies demanded in the current litiga-

tion in the United States—both the specific

requests (such as for the creation of a histori-

cal commission and the institution of affirma-

tive action programmes) and the demand for

billions of dollars in damages to be distributed

by the US courts—are inconsistent with South

Africa’s approach to achieving its long term

goals. In this regard, I refer further to the

earlier discussion on the TRC and its estab-

lishment in 3.2. As indicated above, the gov-

ernment has its own views on appropriate

reparations policies and the appropriate alloca-

tion of resources to develop our economy. I

would also make the point that matters of

domestic policy which are pre-eminently South

African should not be pre-empted by litigation

in a foreign court.

It is also the view of the government that the

issues raised in these proceedings are essen-

tially political in nature. These should be and

are being resolved through South Africa’s own

democratic processes. Another country’s courts

should not determine how ongoing political

processes in South Africa should be resolved,

not least when these issues must be dealt with

in South Africa. In addition, the continuation

of these proceedings, which inevitably will

include massive demands for documents and

testimony froth South Africans involved in

various sides of the negotiated peace that

12.

13.

l4a

ended apartheid, will intrude upon and disrupt

our own efforts to achieve reconciliation and

reconstruction.

Permitting this litigation to go forward will,

in the government’s view, discourage much-

needed direct foreign investment in South

Africa and thus delay the achievement of our

central goals. Indeed, the litigation could have

a destabilising effect on the South African

economy as investment is not only a driver of

growth, but also of employment. One of the

structural features of the South African econ-

omy, and one of the terrible legacies of apart-

heid, is its high level of unemployment and its

by-product, crime. Foreign direct investment is

essential to address both these issues. If this

litigation proceeds, far from promoting eco-

nomic growth and employment and thus

advantaging the previously disadvantaged, the

litigation, by deterring foreign direct invest-

ment and undermining economic stability will

do exactly the opposite of what it ostensibly

sets out to do.

I understand that under United States law,

courts may abstain from adjudicating cases in

deference to the sovereign rights of foreign

countries to legislate, adjudicate and otherwise

resolve domestic issues without outside inter-

ference, particularly where the relevant gov-

ernment has expressed opposition to the

actions proceeding in the United States, and

where adjudication in the United States would

interfere with the foreign sovereign’s efforts to

address matters in which it has the predomi-

nant interest. The government submits that its

15a

interest in addressing its apartheid past pre-

sents just such a situation.

I declare, under penalty of perjury, under the laws of

the United States, that the foregoing is a true and

correct statement.

Signed on 11th July 2003.

/s/ Penuell Mpapa Maduna

PENUELL MPAPA MADUNA

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