Amicus Curiae Brief — Am. Isuzu Motors, Inc. v. Ntsebeza, 128 S. Ct. 2424 (2008) (No. 07-919)

FILED

%G 6) FEB 1 1 2008

OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

AMERICAN ISUZU MOTORS, INC., ET AL.,

Petitioners,

v.

LUNGISILE NTSEBEZA, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF AMICUS CURIAE OF

HAYWARD D. FISK, WILLIAM GRAHAM,

ERNEST T. PATRIKIS, CLIFFORD B. STORMS

and ATLANTIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

ARTHUR F. FERGENSON MARTIN S. KAUFMAN

ANTHONY P. COLES Counsel of Record

PETER D. SHARP Atlantic Legal Foundation

DLA Piper US LLP 2039 Palmer Avenue

1251 Avenue of the Americas Larchmont, NY 10538

New York, NY 10020 (914) 834-3322

(212) 335-4500

TABLE OF CONTENTS

Re Cr CI iaatnebasinadecassornsdsseizesosnennasniaain i

TERRE IE FART RUE ED nnsnsnscesesesssscccncaceccsnstensanas lll

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

SUMMARY OF ARGUMENT...............ccccceeseesssssssseees 4

AGIFATIRIREGE ssvsenccscisrbvigitsaiistclnapesvsajpinenitanaisaiasenimiaints 7

I. The Continued Pendency of these Actions is

Destructive of the Interests Protected by

Chae Tmt GE SONG ii cictccecnsntihtedisabanndssacsvasssense 7

A. Importance of the Comity Doctrine and

the Circuit Split Over its Application.......... 7

1. General Principles of Comity.................. 7

2. Circuit Split on Comity ..........c.cccccssccccsees 8

B. The Continued Pendency of These

Actions Constitutes an Affront to the

Ongoing Efforts by South Africa to

Define its Future and Address

AS BIE isdiicnrornknastiiadanssansiscaboiians 13

1. South Africa’s Interest in Addressing

the Legacy of Apartheid Free From

U.S. Judicial Intervention.............. ee 14

2. Courts Have Recognized the

Importance of Comity Deference

Under Similar Circumstances .............. 17

3. The Interests of South Africa

Warrant Immediate Dismissal on

CRD SE Or I oicsskcs Sasasenncinittecene 18

il

C. Comity Requires Dismis.al in Deference

to the Considered Cooperation and

Laws Among the Community of Nations

to Encourage Commerce In and With

Apartheid South Africa in Order to

Affect Reform Through “Constructive

io aac cscsncausetbiuasacouacesedesse 21

Il. The Scope of Collateral Consequences

Implicated by Continued Adjudication of

These Actions Warrants the Considered

Attention of This Court..................... aacoideebisioeal 25

ass oad aansi.cstteweyesiasicladnecvchekenaatone 28

TABLE OF AUTHORITIES

Cases

Bi v. Union Carbide Chems. & Plastics Co.,

984 F.2d 582 (2d Cir. 1993) .................. 17, 18, 21

Bigio v. Coca-Cola Co.,

DOO FB SOG GG Cir. ZOOL) aan cccicvccccccccccccsccecscesse 8

Bigio v. Coca-Cola Co.,

448 F.3d 176 (2d Cir. 2006),

cert. denied, 175 S. Ct. 1842 (2007).................. 11

Crosby v. Natl Foreign Trade Council,

Ue I assis ciinicnsscdssasciaeadoccnscccases 4, 26

Emory v. Grenough,

Be ee olan canis panctennassenbapeoanaenionabnia 7

Gross v. German Found. Indus. Initiative,

456 F.3d. BGS CSG City DOGG) oiiiccsccsccescss...0005.: asaw Ma

Hartford Fire Ins. Co. v. California,

Ge HE CI i csheacncschctevissasvankaveleassodnncsivabs 9

Hilton v. Guyot,

SE Sa I A ois hss nsigavasensseacndtaareccantaviabinioks 7

Hines v. Davidowitz,

Re es MU Es wisi seach hav ad iccaap een ince aiaes 26

ill

iV

In re Maxwell Commc’n Corp.,

93 F.3d 1036 (2d Cir. 1996) .................... 2, 10, 22

In re Nazi Ezra Cases Against German

Defendants Litig.,

129 F. Supp. 2d 370 (D.N.J. 2001)........ 13, 17, 18

JP Morgan Chase Bank v. Altos Hornos

De Mexico, S.A. de C.V., :

BaF Fe ae es DOD): oeicscisicrscccncisicccnisiccats 9

Jota v. Texaco, Inc.,

DF Be BO CALs VOD sivceiciccassnscadsnacsccvescane 8

Sarei v. Rio Tinto, PLC,

S87 FO 2iGS (OCR Cir. 2007) «0.0.5 .ccccccnecsccvnscsess 10

Sinochem Intl Co. v. Malaysia Intl Shipping Corp.,

See Es Ase PE CE EA itscieis paanavbinansdanatviodanntccacs 19

Société Nationale Industrielle Aérospatiale

v. U.S. Dist. Court for the S. Dist. Of Iowa,

GE RE Se TOO EE essen icciscanvinetndensdcdsnssesocacs 9, 21

Sosa v. Alvarez-Machain,

ee i I whicisaiissvccsnecccscadvsandedsradzans 4,5,6

Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004)....... ai, 34, 30,

Other Authorities

Arthur Fergenson and John Merrigan, “There They

Go Again” The Trial Bar’s Quest for the Next ....

Litigation Bonanza, BRIEFLY..., Vol. 11, No. 1

(National Legal Center for the Public Interest,

rg ti A, Easiness as cdcsikitiane 12

Joseph G. Finnerty III & John Merrigan, Op-Ed.,

Legal Imperialism, WALL ST. J.,

NUS MT ish at ksi sicdansinecbDrcdineneiminolanis 25

Michael D. Goldhaber, The Death of Alien Tort,

PTR SAA BEG BIO eins cscicvarcsscssesccescasiavecisene 25

Hessel R. Yntema, The Comity Doctrine,

65 Mich. L. Rev. 9, 10-16 (1966)..............00020.. 8

INTEREST OF AMICI CURIAE!

The individual amici have a profound and long-

lasting interest in the operations of international

trade and commerce. As present and former general

counsei for United States-domiciled companies with

interests across the globe, they know as well as any

that the delicate and protean web of international

business relations depend in large measure on the

respect that nation states show each other. When a

co-ordinate branch of the Government of the United

States interferes with the sovereignty of another

country, and in doing so also rejects an international

consensus established by other sovereigns, the

United States is rendered unreliable, untrustworthy

and ax inconstant international partner. That is

what the Second Circuit has done in this case. It has

failed to follow the wisdom of a panel of its own,

writing eleven years before:

Comity argues decidedly against the

risk of derailing [international]

cooperation by the selfish application of

our law to circumstances touching more

directly upon the interests of another

forum. It should be remembered that

1 This brief is filed with the written consent of all parties.

Counsel for amici timely served the ten-day notice required by

Rule 37.2(a) on counsel of record for the parties. No counsel for

any party authored this brief in whole or in part. Apart from

amici or their counsel, the Strategic Affairs Committee of Tie

Executive Office of the Government of Dubai made a monetary

contribution to the submission or preparation of this brief.

2

the interest of the system as a whole —

that of promoting a “friendly

intercourse between the sovereignties”

— also furthers American self-interest,

especially where the workings of

international trade and commerce are

concerned.

In re Maxwell Commc’n Corp., 93 F.3d 1036, 1053

(2d Cir. 1996) (bankruptcy) (citations omitted).

Hayward D. Fisk has been corporate Vice

President, General Counsel and Secretary of

Computer Sciences Corporation with responsibility

for all legal activities since February 6, 1989.

Previously, he was Vice President and Associate

General Counsel for Sprint Corporation. Mr. Fisk

served, by Commission appointment, on advisory

councils to the Federal Communications

Commission. He was President of the Southern

California Chapter of the American Corporate

Counsel Association in 1999 and currently serves on

the national boards of the American Corporate

Counsel Association and the American Society of

Corporate Secretaries.

William Graham served as Senior Vice President,

General Counsel and Secretary of Bethlehem Steel

for 11 years and was a member of Bethlehem's

senior management team and managed a large law

department responsible for handling the full range of

corporate legal matters. He is currently a partner in

Connell Foley LLP, of New Jersey.

Ernest T. Patrikis was Senior Vice President and

General Counsel of American International Group

from 1998 to 2006. Prior to that he served at the

Federal Reserve Bank of New York for 30 years,

where he was First Vice President, the Bank's

second ranking officer, and an alternate member of

the Federal Open Market Committee, the Federal

Reserve's monetary policymaking group. Mr.

Patrikis served as a member of the staff of the

President's Working Group on Financial Markets

and as a member of the Committee on Payments and

Settlement Systems of the G-10 central bank

governors; he chaired legal projects for the G-10

central bank of governors and the Basle Committee

on Banking Supervision. Mr. Patrikis is currently a

partner in a large international law firm, based in

New York. Mr. Patrikis is a Vice Chair of the

International Practice Section of the New York State

Bar Association. Additionally, Mr. Patrikis is a

member of the advisory committee of the Business

Council for the United Nations, a member of the

New York Stock Exchange and the NASDAQ legal

and compliance advisory committee and a member of

the Council on Foreign Relations.

Clifford B. Storms was Senior Vice President,

General Counsel and a member of the board of

directors of CPC International Inc. (now Bestfoods)

from 1988 to 1997; prior to that he served in various

legal capacities with CPV, including Vice President,

Legal Affairs and Vice President and General

Counsel. He was a member of Advisory Committee,

4

Parker School of Foreign and Comparative Law,

Columbia University. He is also a past president

and member of the executive committee of the

Association of General Counsel.

Atlantic Legal Foundation is a not-for-profit, non-

partisan public interest legal foundation whose

mandate includes the advocacy in the courts of

principles of the rule of law, limited government, and

private enterprise. In pursuit of that mandate, the

Foundation served as counsel of record for 28

distinguished former public servants — retired

President Gerald R. Ford and former Secretaries of

State, Defense, Treasury Commerce, senior members

of Congress responsible for United States foreign

policy and trade policy, former National Security

Advisors, Presidential chiefs of staff, and U. S. Trade

Representatives in Crosby v. Natl Foreign Trade

Council, 530 U.S. 363 (2000). The Foundation

believes that the rule of law that it advocates is

jeopardized by the inconsistent application by

United States courts of the core principle of comity,

being the modus by which sovereign nation states

maintain a system of international relations based

on mutual respect.

SUMMARY OF ARGUMENT

In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004),

this Court’s sole case addressing the Alien Tort

Clams Act (“ATS”), this Court identified various

threshold issues constraining exercise of U.S. court

jurisdiction over extraterritorial conduct in order to

5

limit the destructive impact on _ international

relations such cases invariably risk.

Among these threshold issues, Justice Breyer

identified international comity, noting its

importance in assuring that “the potentially

conflicting laws of different nations will work

together in harmony, a matter of increasing

importance in an ever more interdependent world”

and that “[s]uch consideration is necessary to ensure

that ATS litigation does not .undermine the very

harmony that it was intended to promote.” Id. at

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

judgment) (internal quotations omitted). Despite the

importance of comity in ATS litigation, there is a

split among the courts of appeal regarding the

appropriate standard for its application that, in

itself, warrants the consideration of this Court.

The instant matter presents a paradigmatic case

for dismissal on the basis of comity. The Republic of

South Africa has expressed its vehement opposition

to the continued pendency of this case and called for

its dismissal in deference to its programs and

policies it has enacted to address the legacy of

apartheid and set the democratic future of its nation.

By failing to afford the Government of South Africa

the deference it is due, the Second Circuit invades

the sovereignty of an allied country through the

perpetuation of these lawsuits.

The ongoing affront to the sovereignty of South

Africa is not the sole basis for a comity dismissal.

6

The consensus of the community of nations strongly

encouraged economic engagement with and in

apartheid South Africa in order to encourage reform

and peaceful betterment of its people through a

policy of “constructive engagement.” Plaintiffs may

not, ex ante, rewrite the controlling law of nations to

impose liability for acts the community of nations

considered and encouraged at the time. The

sovereign actions of the United Kingdom, Germany,

Switzerland and others in the European community

are entitled to appropriate deference. The courts of

this country violate accepted principles of comity by

refusing to dismiss this case now.

Also critical among the threshold issues to

address, this Court has recognized “the possible

collateral consequences of making international

rules privately actionable argue for judicial caution.”

Id. at 727. The risk of collateral consequences and

“the potential implications for the foreign relations

of the United States of recognizing such causes

should make courts particularly wary of impinging

on the discretion of the Legislative and Executive

Branches in managing foreign affairs.” Jd. The

majority below, ignoring this admonition, held: “It

was error for the district court to consider these

collateral consequences in the context of deciding

preliminarily whether it had jurisdiction to hear this

case under the” ATS. (App. 17a n.12.) The Court of

Appeals was wrong: “collateral consequences” of

continued adjudication must be considered at the

outset, and in this case require the attention of this

Court.

J

ARGUMENT

I. The Continued Pendency of these Actions is

Destructive of the Interests Protected by

the Doctrine of Comity

A. Importance of the Comity Doctrine and

the Circuit Split Over its Application

1. General Principles of Comity

International comity is the long-standing tenet of

the Law of Nations limiting “[t]he extent to which

the law of one nation, as put in force within its

territory, whether by executive order, by legislative

act, or by judicial decree, shall be allowed to operate

within the dominion of another nation.” Hilton v.

Guyot, 159 U.S. 113, 163 (1895). The importance of

comity to the law of nations has been recognized

since the earliest ‘ys of the United States: in the

absence of cor ty, “nothing would be more

convenient in th. promisciuous [sic] intercourse and

practice of mankind, than that what was valid by the

laws of one place, should be rendered of no effect

elsewhere, by a diversity of law.” Emory uv.

Grenough, 3 U.S. 369, 370 fn (1797) (“By the

courtesy of nations, whatever laws are carried into

execution, within the limits of any government, are

considered as having the same effect every where, so

far as they do not occasion a prejudice to the rights

of the other governments, or their citizens.”).?

oe

Comity is “the recognition which one nation

aliows within its territory to. the legislative,

executive or judicial acts of another nation.” Bigio v.

Coca-Cola Co., 239 F.3d 440, 454 (2d Cir. 2001)

(quoting Hilton, 159 U.S. at 164). Under the

principles of comity, United States courts “ordinarily

refuse to review acts of foreign governments and

defer to proceedings taking place in foreign

countries, allowing those acts and proceedings to

have extraterritorial effect in the United States.”

Jota v. Texaco, Inc., 157 F.3d 158, 159-60 (2d Cir.

1998).

2. Circuit Split on Comity

The courts of appeal have foundered in providing

consistent guidance in how comity is to be applied,

even as the United States faces a complex and

interrelated world of commerce and geopolitics. The

root of this confusion stems from the fact that, as

2 The importance of comity to the international legal regime

predates the formation of the United States. The doctrine first

evolved in Europe from the “obvious need to harmonize the

multiplicity of local customs and laws on a more rational

basis” resulting from the “progressive development of orderly,

centralized government and the expansion of commercial

relations” during the twelfth century. Hessel R. Yntema, The

Comity Doctrine, 65 Mich. L. Rev. 9, 10-16 (1966) (tracing the

emergence and significance of the comity doctrine in Western

Europe).

9

applied in different contexts, comity implicates

greatly different interests.

In the modern era, this Court has addressed the

standards for international comity only in the

context of limits on the extraterritorial reach of U.S.

regulatory statutes. See, e.g., Hartford Fire Ins. Co.

v. California, 509 U.S. 764 (1993) (extraterritorial

reach of Sherman Act); see also Société Nationale

Industrielle Aérospatiale v. U.S. Dist. Court for the S.

Dist. of Iowa, 482 U.S. 522 (1987) (extraterritorial

reach of Federal Rules of Civil Procedure). In such

instances, the comity inquiry is more akin to a choice

of law analysis. When Congress intended a

regulatory law to apply extraterritorially, comity will

limit that application only when “there is in fact a

true conflict between domestic and foreign law.”

Hartford Fire, 509 U.S. at 798 (further citing

Restatement (Third) Foreign Relations Law § 403).

In the absence of more specific guidance from this

Court, the Ninth Circuit has adopted the same

“actual conflict” and Restatement factors in all

comity inquiries, even those that do not involve the

3 Given the divergent standards as applied in different

contexts, Judge Korman termed comity “a doctrine more easily

invoked than defined.” (App. 93a.) As characterized by another

Second Circuit panel, “the doctrine has never been well-

defined, leading one scholar to pronounce it ‘an amorphous

never-never land whose borders are marked by fuzzy lines of

politics, courtesy, and good faith.” JP Morgan Chase Bank v.

Altos Hornos De Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir.

2005) (affirming comity dismissal).

10

extraterritorial application of U.S. regulatory law.

See, e.g., Sarei v. Rio Tinto, PLC, 487 F.3d 1193,

1211-12 (9th Cir. 2007) (rehearing en banc

pending).4

Recognizing that the Restatement test is ill-

suited for determining appropriate deference to

foreign interests in an ATS case, a growing number

of circuit courts have articulated alternate

standards. In 1996, the Second Circuit, although not

in an ATS case, rightly observed that comity “may

describe two distinct doctrines: as a cannon of

construction, it might shorten the reach of a statute;

second, it may be viewed as a discretionary act of

deference by a national court to decline to exercise

jurisdiction in a case properly adjudicated in a

foreign state.” In re Maxwell Commc’n Corp., 93

4 In Sarei, the comity question arose in the context of ATS

claims against mining companies asserted by citizens of Papua

New Guinea injured by government forces in the course of a

ten-year civil war surrounding a mining development. The

New Guinea Government, looking to address issues of war and

peace within its borders, enacted a “Compensation (Prohibition

of Foreign Proceedings) Act” in 1995 prohibiting “the taking or

pursuing in foreign courts of legal proceedings in relation to

compensation claims arising from mining projects and

petroleum projects in Papua New Guinea.” Although the Ninth

Circuit held that the District Court did not abuse its discretion

in dismissing on the basis of comity, it nonetheless reversed

and remanded for further consideration of the issue. 487 F.3d

at 1211-12, n.22 (further noting that “whether the presence of a

conflict is a predicate inquiry, or simply one factor in a

multipart inquiry, is academic here, as the district court did not

abuse its discretion in identifying a conflict”)

11

F.3d at 1047 (noting that in the context there

presented, conflicting bankruptcy regimes, the

distinction was academic).

The Eleventh Circuit recently found in an ATS

case that comity can be _ applied either

“retrospectively” or “prospectively.” Ungaro-Benages

v. Dresdner Bank AG, 379 F.3d 1227, 1238 (11th Cir.

2004). “When applied retrospectively, domestic

courts consider whether to respect the judgment of a

foreign tribunal or to defer to parallel foreign

proceedings.” Yet, “[w]hen applied prospectively,

domestic courts consider whether to dismiss or stay

a domestic action based on the interests of our

government, the foreign government and _ the

international community in resolving the dispute in

a foreign forum.” Id. (affirming comity dismissal in

deference to a German extra-judicial remedy for

WWIl-era claims arising out of Nazi persecution). In

2006, also in an ATS case, the Second Circuit

expressly rejected the Restatement-derived test

regarding comity: “That test is used to determine

whether a court should apply United States law

extraterritorially, but that is not in issue here.

Rather, the only issue of international comity

properly raised here is whether adjudication of this

case by a United States court would offend ‘amicable

working relationships’ with Egypt.” Bigio v. Coca-

12

Cola Co., 448 F.3d 176, 178 (2d Cir. 2006) (citations

omitted), cert. denied, 175 S. Ct. 1842 (2007).

In light of this circuit split and the increase in

unmanageably-large class action suits in US.

federal courts seeking to challenge exclusively

foreign conduct — conduct best addressed by, and in

many instances already actively being addressed by,

those foreign sovereigns directly affected — persons,

entities and governments around the world would

benefit greatly from guidance regarding this critical

threshold issue. Nor is this merely one of those

conflicts which, arising naturally through the

operation of geographically diverse circuit courts,

can be appreciated as a natural consequence of a

federal system where different outcomes in different

areas of our country are acceptable, Rather, the

audience in these cases is the world, and other

nations have a legitimate expectation that the

United States, including our courts, will speak with

one voice. The sovereignty that foreign nations

exercise in addressing matters within their own

borders means that unpredictable and sometimes

conflicting results issuing from application of

5 The Third Circuit, although professing skepticism of the

Eleventh Circuit’s test for “prospective” comity, recently

applied it. See Gross v. German Found. Indus. Initiative, 456

F.3d 363, 394-95 (3d Cir. 2006).

6 See, e.g., Arthur Fergenson and John Merrigan, “There They

Go Again” The Trial Bar’s Quest for the Next Litigation

Bonanza, BRIEFLY..., Vol. 11, No. 1 (National Legal Center for

the Public Interest, Wash., D.C.), Jan. 2007.

13

divergent standards by U.S. courts diminishes the

standing and respect for the United States in the

international community. It is imperative that this

Court establish consistent principles of comity and

resolve the circuit split.

B. The Continued Pendency of These

Actions Constitutes an Affront to the

Ongoing Efforts by South Africa to

Define its Future and Address

Apartheid’s Legacy

This case presents exactly the issue at the root of

the emerging circuit split: international comity

deference to ongoing judicial and other remedies

adopted by a foreign sovereign to address defining

issues of national importance. In no instance is the

need for judicial deference on the basis of comity

more imperative than when a sovereign nation has

taken resovonsibility for issues within its borders and

implemented ongoing programs to address the needs

of its own citizens:

To permit the validity of the acts of one

sovereign state to be reexamined and

perhaps condemned by the courts of

another would very certainly “imperil

the amicable’ relations between

governments and vex the peace of

nations.”

In re Nazi Era Cases Against German Defendants

Litig., 129 F. Supp. 2d 370, 387-88 (D.N.J. 2001)

14

(quoting Oetjen v. Cent. Leather Co., 246 U.S. 297,

303 (1918)).

The democratically-elected government of South

Africa, with the overwhelming mandate of its people,

is actively addressing the legacy of apartheid.

Nothing could be more central to South Africa

defining its own future as a nation. In direct and

unyielding terms, South Africa’s most senior

governmental officials, in fora ranging from the

proceedings below to debate in South Africa’s own

National Assembly, have stated that the continued

pendency of these lawsuits in the United States is

directly contrary to, and destructive of, their

reconciliation efforts. The South African people have

fought and sacrificed beyond measure — through the

ravages of colonialism and apartheid — for the

freedom to chart their own future.

By failing to embrace immediately the comity to

which the Republic of South Africa is entitled and

instead permitting these cases to continue, an

affront on that country’s sovereignty, the Second

Circuit perpetuates the very harms comity would

prevent.

1. South Africa’s Interest in Addressing

the Legacy of Apartheid Free From

U.S. Judicial Intervention

South Africa’s interest in defining its own future

free from foreign interference is cloquently set forth

in the record. As explained in the sworn declaration

15

of South Africa’s Minister of Justice and

Constitutional Development, the two post-apartheid

governments of South Africa, “both elected by an

overwhelming majority of the population,” were

chosen to lead based on a “programme of thorough

socio-economic transformation aimed at redressing

the legacy of apartheid.”?’ This program, the

declaration explains, is based on ongoing legislative

reforms to effect a “fundamental transformation of

South African society’ (App. 301la) based on

“principles of reconciliation, reconstruction,

reparation and_ goodwill” while _ deliberately

eschewing “victor’s justice” and “Nuremberg-style

apartheid trials and any ensuing litigation.” (App.

299a.)

The Government of South Africa in its amicus

filing before the Second Circuit concluded: “These

foreign litigations fundamentally interfere with

South Africa’s independence and sovereignty and

intervene in its internal affairs, including its right

under international law to address its apartheid past

and to develop policies for its future in the nanner it

deems most appropriate.” (App. 290a.) “It is the

South African Government, not a foreign court, that

is responsible for these matters, particularly the

7 (Statement of Brigitte Sylvia Mabandla, Minister of Justice

and Constitutional Development of the Republic of South

Africa, Oct. 13, 2005, App. 304a) (quoting Decl. of Penuell

Mpapa Maduna, Minister of Justice and Constitutional

Development of the Republic of South Africa, sworn to July 11,

2003)).

16

future well-being of the nation, and that must

answer to the people for its policies.” (/d. at 291a.)

Most recently, on November 8, 2007, the

President of South Africa, Thabo Mbeki, specifically

addressed the Second Circuit’s decision at issue im

this case in open debate before the South African

National Assembly. Reiterating his government’s

position, President Mbeki stated that it is

“completely unacceptable that matters that [are]

central to the future of our country should be

adjudicated upon in foreign courts which [bear] no

responsibility for the wellbeing of our country and

the observance of the perspective contained in our

Constitution on the promotion of national

recenciliation.” (App. 312a-13a.) He further

explained that, by opposing these lawsuits, “[w]hat

we are defending is the sovereign right of the people

of South Africa to decide their future.” (App. 316a.)8

8 The decision of the Government to oppose these lawsuits —

“litigation which not only sought to impose liability and

damages on corporate South Africa but which, in effect, sought

to set up claimants as a surrogate government” — was the

subject of extensive discussion at the Cabinet committee level

in 2003, following which the Government resolved: “It remains

the right of the government to define and finalise issues of

reparations, both nationally and internationally. . . [I]t is

imperative for the government to clearly express its views on

attempts to undermine South African sovereignty through

actions such as the reparations lawsuit filed in the United

States.” (App. 304a-05a.)

17

2. Courts Have Recognized the

Importance of Comity Deference

Under Similar Circumstances

Those courts that have confronted this issue

recognize the particular importance of comity where,

as here, a foreign sovereign enacted comprehensive

and exclusive programs for resolving issues of

national importance within its borders. See, e.g.,

Ungaro-Benages, 379 F.3d 1227; Bi v. Union Carbide

Chems. & Plastics Co., 984 F.2d 582 (2d Cir. 1993);

In re Nazi Era Cases Against German Defendants

Litig., 129 F. Supp. 2d 370.

In Ungaro-Benages, the Eleventh Circuit

affirmed the comity .“‘smissal of WWIlI-era claims

arising out of Nazi Germany in deference to a

German foundation created as the exclusive forum

for such claims on the strength of “the interests of

[the U.S.] government, the [German] government

and the international community in resolving the

dispute in a foreign forum” as well as “the adequacy

of the alternate forum.” 379 F.3d at 1238.

In Bi, the Second Circuit affirmed dismissal of

claims regarding the Bhopal, India disaster, finding

that “[t]o grant the victims ... , most of whom are

citizens of India, access to our courts when India has

set up what it believes to be the most effective

method of dealing with a difficult problem would

frustrate India’s efforts.” 984 F.2d at 586.9 The

9 Although not decided on the basis of comity per se, the

principles articulated by Judge Newman are particularly

18

Second Circuit rightly stated: “[Wlere we to pass

judgment on the validity of India’s response to a

disaster that occurred within its borders, it would

disrupt our relations with that country and frustrate

the efforts of the international community to develop

methods to deal with problems of this magnitude in

the future.” Jd. The Second Circuit further

recognized the importance of “deferring to the

statute of a democratic country to resolve disputes

created by a disaster of mass proportions that

occurred within that country” and that “[ajny

challenge appellants may have to the settlement

must be made through the legislative or judicial

channels that are available in India.” Id.'°

3. The Interests of South Africa Warrant

Immediate Dismissal on the Basis of

Comity

Continuation of this action despite South Africa’s

strong objections invoking comity perpetuate the

very harms the doctrine’ should prevent.

applicable to the comity analysis and frequently ciced in that

context. See, e.g., Ungaro-Benages, 379 F.3d at 1238; (App.

94a, 101a-03a (Korman, J., dissenting)).

10 See also In re Nazi Era Cases Against German Defendants

Litigation, in which the Federal District Court for the District

of New Jersey found that it was “not in a position to question

whether the payment structure” of Germany’s exclusive

foundation for WWlIlI-cra claims “is either adequate or legal.”

129 F. Supp. 2d at 388. Rather, any such challenge must be

made either “by the courts of Germany, or alternatively some

challenge might be made through diplomatic channels.” Jd.

19

Cf. Sinochem Intl Co. v. Malaysia Intl Shipping

Corp., 127 S. Ct. 1184 (2007) Gudicial economy

poorly served, and primary purpose of forum non

conveniens doctrine subverted, by delaying dismissal

of suit, best addressed elsewhere, for costly and

protracted inquiry into personal or subject matter

jurisdiction). In circumstances as presented here,

“the prudent and just action for a federal court is to

abstain from the exercise of jurisdiction.” Ungaro-

Benages, 379 F.3d at 1238 n.13.

The procedural device employed by the Second

Circuit to avoid addressing the comity issue —

relegating a “full airing of prudential concerns”

arising from the invasion of South Africa’s

sovereignty to a future of motion practice — is a

species of legalism that breeds distrust of and ire

towards the United States and its legal system

abroad. (App. 14a n.8.) President Mbeki quoted

directly from Judge Korman’s dissent in open debate

before the National Assembly:

“A decision te hear these cases in a US

court would reflect the worst sort of

judicial imperialism . . . and send the

message that the United States does

not respect the ability of South African

society to administer justice by

implying that US courts are better

placed to judge the pace and degree of

South Africa’s national reconciliation.”

Judge Korman is right.

20

(App. 317a.) Having cast off the oppression of

colonialism and apartheid, it is no surprise that the

free government of South Africa would not look

kindly on the “judicial imperialism” of the United

States.

Given the unequivocal position of the

democratically-elected government of South Africa

and the operation of its ongoing, society-wide

programs to remedy the legacy of apartheid, the

choice remains whether to afford South Africa the

respect it is due or to continue this case before the

courts of our federal system. The doctrine of comity,

the important interests of international relations

and mutual respect among nations it exists to

protect, and the fundamental right of a foreign

sovereign to address critical issues of national

importance within its own borders free from

interference by the U.S. Judiciary, dictate a prompt

dismissal."!

" In some other case, in which the interests of the United

States counseled against dismissal, this could become a more

nuanced inquiry. Here, however, where the United States

Government has joined in seeking dismissal of this action in

deference to the programs and policies of the Government of

South Africa (as well as the diplomatic protests and concerns of

other interested nations), the decision to dismiss becomes

inescapable. (See, eg., App. 236a-82a, US. Government

Statement of Interest supporting dismissal of action submitted

to United States District Court, Southern District of New

York.)

21

C. Comity Requires Dismissal in Deference

to the Considered Cooperation and Laws

Among the Community of Nations to

Encourage Commerce In and With

Apartheid South Africa in Order to Affect

Reform Through “Constructive

Engagement”

The critical international interests to be

protected through exercise of comity in this case go

beyond the sovereignty of South Africa and affect our

relations with other friendly governments.

In today’s ever more connected world, many of

the most difficult challenges we face — terrorism,

ethnic strife, human trafficking, the narcotics trade

— require collective action and _ innovative

cooperation among nations. It is of paramount

importance to the United States and the community

of nations as a whole to promote and encourage such

cooperation. Diplomatic consensus can be delicate

and hard-won, and judicial intervention into these

webs of consensus infinitely destructive. The insight

of the Second Circuit in an earlier case rings true: a

U.S. court must not accept jurisdiction to adjudicate

claims regarding extraterritorial conduct where it

would “frustrate the efforts of the international

community to develop methods to deal with

problems of this magnitude in the future.” Bi, 984

F.2d at 586; see also Société Nationale Industrielle

Aérospatiale v. U.S. Dist. Court for the S. Dist. of

Towa, 482 U.S. 522, 555 (1987) (noting comity’s role

in preserving “the systemic value of reciprocal

22

tolerance and good will”) (Blackmun, J. concurring);

In re Maxwell Commen Corp., 93 F.3d 1036, 1053

(2d Cir. 1996) (comity in the “interest of the system

as a whole” and “furthers American self-interest,

especially where the workings of international trade

and commerce are concerned”).

From the 1960s through the fall of the apartheid

government of South Africa in the early 1990s, there

was intense national and international political

debate regarding the appropriate economic policy

towards South Africa in order to bring about an end

to apartheid. There were compelling and heart-felt

arguments on both sides of the debate. But the

consensus among Western nations - and the

government of each of defendants’ home countries,

all key allies of the United States — was that

continued economic dealings with apartheid South

Africa, a policy of “constructive engagement,” was

the best means of affecting positive change.

The governments of major western democracies

not only permitted, but encouraged continued

economic ties with South Africa, subject to certain

arms embargoes and restrictions on trade in limited

goods. For example, “the UK Government adhered

to a policy of constructively engaging with South

Africa, while employing selective embargoes on

nuclear and military co-operation and_ specific

imports and exports, as the most effective means of

23

effecting change.”!? “German law and _ policy

reflected affirmative decisions not to impose any

blanket prohibition on loans to, investments in, or

commerce with South Africa”!% These laws and

policies were consistent with those of both other

western governments and of the United Nations

Security Council:

Like Germany, these governments and

international organizations not only

wanted Apartheid to end, but also

wanted to avoid (i) worsening the

widespread poverty among South

Africa’s black population; (ii) creating

strife and civil war in South Africa; and

(i111) losing South Africa as a cold war

ally. They wrestled with policy choices

to satisfy these sometimes competing

goals. Although many _ states

participated in an arms embargo and

some eventually implemented limited

embargos on certain commodities, these

governments and organizations

considered and rejected an international

12 (Declaration of the Rt. Hon. Lord Robin Renwick of Clifton

KCMG, dated 9 July 2003, 4 8, submitted as part of the

Appendix of Declarations and Cited Public Materials in support

of Defendants’ Motion to Dismiss, SDNY Docket # 43 (“SDNY

App.”) Al-13, A00000006.) Lord Renwick, among other things,

was the UK Ambassador to South Africa (1987-1991) and

Ambassador to the United States (1991-1995).

13 (Declaration of Rudolph Dolzer, dated 9 July 2003, 4 3,

SDNY App. A14-30, A00000016.)

24

prohibition against companies engaging

in business, investment or financial

transactions with South Africa or South

African companies.'4

In light of the nearly-universal encouragement of

investment in South Africa, Judge Sprizzo below

rightly concluded that “under the framework set

forth by the Court in Sosa . . . doing business in

apartheid South Africa is not a _ violation of

international law that would support jurisdiction in

federal court under the” ATS. (App. 207a.)

International comity requires deference to laws

and policies of nations such as the U.K.,. Germany

and Switzerland, and respect for the successful

engagement of the international community to

formulate a coherent economic policy towards

apartheid South Africa. The future of international

cooperation with the United States would be placed

in doubt should plaintiffs’ decades-later efforts to

enact a retroactive boycott suffice to abrogate the

controlling international legal regime.

14 (Id. § 4.) (See also Declaration of Mathias-Charles Krafft,

dated July 4, 2003, 4 5, SDNY App. A31-41, A00000035 (“In

Switzerland . . . the appropriate economic policy towards

apartheid was the subject of much debate. The prevailing view

that emerged . . . was that broad-based economic sanctions

would not promote social justice or bring about the peaceful

dismantling of apartheid.”).) There was a simi ar debate, with

similar outcome, in the U.S. Congress. (See, e.g., United States

Department of State, Report to the Congress on Industrialized

Democracies’ Relations With and Measures against South

Africa (May 12, 1987), SDNY App. A42.)

25

Il. The Scope of Collateral Consequences

Implicated by Continued Adjudication of

These Actions Warrants the Considered

Attention of This Court

ATS cases are closely followed by the

international business community as a bellwether

regarding efforts to export massive, contingency-

driven U.S. class action litigation to the world.!®

The expansive exposure to potential ATS actions

set by the Second Circuit’s ruling establishing aiding

and abetting liability places the international

business community is an untenable position. On

the one hand, a multinational corporation may

choose to comply with the official policies of Western

democracies to promote economic and social reform

in countries through economic engagement, even

though those countries may have less than perfect

human rights records, and assume the risk of being

sued in the United States as a surrogate for foreign

actors beyond the jurisdiction of U.S. courts. Or the

corporation may choose to avoid economic

participation in such countries and, with similar

actions from other corporations, effectively cede

these markets and political influence to countries

that may not be as sensitive as the United States

and its allies to the plights of the governed. These

6 See, e.g., Joseph G. Finnerty III & John Merrigan, Op-Ed.,

Legal Imperialism, WALL ST. J., Feb. 28, 2007, at A15; Michael

D. Goldhaber, The Death of Alien Tort, AMER. LAW., July 2006,

at 71.

26

are matters best left, as a matter of constitutional

architecture and common sense, to the political

branches.

This Court has stated the importance of the

political branches’ sole authority under’ the

Constitution to determine when and under what

conditions to permit commerce with repressive

states. See Crosby v. Natl Foreign Trade Council,

530 U.S. 363, 377 (2000); Hines v. Davidowitz, 312

U.S. 52, 67 (1941). The same is true with respect to

U.S. policy toward South Africa.!6

The Second Circuit's sweeping holding that the

ATS universally provides for aiding and abetting

liability (with no regard to whether the underlying

violation of international law contemplates

secondary liability, requires state action, or extends

to private actors or corporate entities and without

reaching agreement on any substantive standards to

'© For many decades, United States foreign policy maintained that

investment in and commerce with South Africa was critical to bringing

about a peaceful end to apartheid, and that withdrawal “would have a

dispiriting effect on many of those very people who are working hardest

for change. (See, e.g., U.S. Corporate Activities in South Africa:

Hearings and Markup on H.R. 3008, H.R.. 3597, and H.R. 6393 Before

the Subcomms. on Int'l Econ. Policy and Trade and on Africa of the H.

Comm. on Foreign Affairs, 97th Cong. 70-71 (1981) (prepared statement)

(SDNY App. A182, A00000684-85); The Anti-Apartheid Act of 1985:

Hearings on S. 635 Before the Subcomm. on Int'l and Monetary Policy of

the S. Comm. on Banking, Housing, and Urban Affairs, 99th Cong. 59

(1985) (testimony of Kenneth Dam, Deputy Secretary of State,

Department of State) (SDNY App. A190, A00000692).)

27

guide or limit complaints)!7 opens wide the

courthouse doors to a proliferation vf global ATS

actions challenging conduct limited only by a

plaintiffs’ imagination.

7 (See, eg., App. 52a, 55a-56a (Katzmann, J. concurring)

(rejecting proposition that availability of aiding and abetting

liability under ATS must be based on a “norm-by-norm

analysis” and holding “a private actor may be held responsible

for aiding and abetting [a] violation of a norm that requires

state action or action under color of law’).)

28

CONCLUSION

The petition for a writ of certiorari sould be

granted.

Martin S. Kaufman

Counsel of Record

Atlantic Legal Foundation

2039 Palmer Avenue

Larchmont, NY 10538

(914) 8384-3322

Of Counsel:

ARTHUR F.. FERGENSON

ANTHONY P. COLES

PETER D. SHARP

DLA Piper US LLP

1251 Avenue of the Americas

New York, NY 10020

(212) 335-4500

February 11, 2008