Kiobel (IV): Precedent-setting Dutch Civil Universal Jurisdiction Case

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

One of the peculiarities of the Alien Tort Statute is its mix of cosmopolitan conceptions of justice with American exceptionalism. Under the ATS the U.S. has been the only nation in the world allowing for universal jurisdiction (“UJ”) in civil suits. So while enforcing international law has been the justification for these suits, it has been a mode of enforcement otherwise unseen around the world.

That changed a tiny bit today with a precedent-setting decision in the Netherlands, that awarded damages in a civil suit brought by a Palestinian man against Libyan officials for torture that took place in Libya – the notorious and bizarre fraudulent persecution of foreign medical workers for infecting patients with AIDS. (And this is when Qaddafi could still be seen in polite company.)

So what does this ruling mean for the ATS, and particularly the extraterritoriality issue to be argued in Kiobel? At first, it would seem to bolster the plaintiff’s case, by making civil UJ seem (very marginally) less anomalous. But it also cuts the other way, perhaps more strongly. The argument that there is no other forum where these serious wrongs can be redressed has underpinned broad notions of the ATS, both with regards to UJ extraterritoriality and corporate liability. Now, the danger of “impunity” has abated. Now a federal judge must now ask in a UJ ATS case – why wasn’t it brought in the Netherlands? What if the Netherlands is actually physically closer to the conduct (as in Kiobel)? Isn’t the Netherlands where all the international lawyers are? Does plaintiff’s presumptive choice of forum apply to UJ cases?

12 Responses

  1. UPDATE: This gets better. I was just reminded (courtesty of twitter, see @EVKontorovich) that the Dutch strongly opposed the exercise of UJ in ATS cases, filing an amicus brief in Kiobel that said:

    [T]he lower courts appear to have gone further than the established jurisprudence allows. .. the lower courts have both asserted jurisdiction with regard to a wider category of such violations, and in relation to facts in which a “sufficiently close connection” to the U.S. is entirely absent.

    I would think the Dutch ruling would greatly weaken the usefulness of the Dutch/British amicus briefs to the Kiobel defendants. It is particularly embarrassing that the defendant is Royal Dutch Shell – apparently Holland knows “can dish it out, but …can’t take it no more,” to quote Edward G. Robinson’s Rico character. This all underscores a broader point about UJ – there are several cases of nations exercising UJ, but very few of them submitting to it uncomplainingly.

  2. First of all, I would point out that in this case there seems to have been universal jurisdiction based on a treaty. Treaties can overrule customary law, that doesn’t seem very contradictory.

    Secondly, I’m not sure I follow the last paragraph of your original post. Surely the use of universal jurisdiction is based on the idea that one place is as good as another? There might be an argument for forum non convenience, but as long as that doctrine cannot be applied, the court that is seized with the case is stuck with it. Right?

  3. Having looked at the ruling some more (it is very short, because it is a ruling in absentia), the basis of the court’s jurisdiction is art. 9(c) of the Code of Civil Procedure. This provision allows for jurisdiction when the case is still “sufficiently connected with the Dutch legal order” and when “it would be unacceptable to ask of the plaintiff that he bring the case before a foreign court”.

    The former criterion is met by the fact that the plaintiff is habitually resident in the Netherlands, and the latter because, at the time the case was brought, on 27 July 2011, the civil war in Libya was still going on.

  4. Kiobel are US residents from what I can see, refugees from Nigeria from what I understand where the harm is said to have occurred.  So now why is the Netherlands a better place where this is a multinational with offices all over the world operating through subsidiaries or directly also  in the US and the plaintiffs have much less wherewithal ?

  5. Prof. Davis,
    I think the problem with noting how “Kiobel are US residents from what I can see” is that it takes the requisite “alien” aspect out of the Alien Tort Statute.
    Your argument regarding the Netherlands can be directed to the reprisal theory underpinning the passage of the ATS and how a Dutch court holding a Dutch citizen liable for universally cognizable wrongs committed toward an alien could not (or, at least, should not) offend any other nation.

  6. @Joshua: It’s the citizenship/residence of the defendants that is the problem. Kiobel are the plaintiffs.

    @Benjamin G. Davis: Traditionally, the courts with jurisdiction are the court of the jurisdiction where the alleged tort occurred and the court of the jurisdiction where the defendant has citizenship and/or is habitually resident. I know that in domestic US cases there tends to be a much looser “sufficient ties to the jurisdiction” approach, but that’s got nothing to do with the rest of us. Under the rules followed by the bulk of the world, as codified for example in the EU Brussels I Regulation, this case should have been brought in Nigeria, in the UK or in the Netherlands.

  7. Mr. Holterman,
    I realized that Kiobel (along with the others) is a plaintiff.  I was merely trying to highlight the problem with a U.S. court looking to whether the plaintiff is a current U.S. citizen in its jurisdictional analysis for this statute.  It’s because such an inquiry would defeat the purpose of having a statute intended only to allow aliens to bring claims in tort in American federal courts.  It was not intended to benefit only those aliens who reside or eventually become citizens of the United States.

  8. Mr. Holterman – Thank you for your insight into the case. One of the best things about the European practice of not publishing reasoned opinions is that it makes us American law profs feel less parochial with our limited linguistic breadth.

    On the merits, one of the arguments made for ATS corporate liability/extraterritoriality is that closing those doors would leave plaintiffs with no where else to file (not in Kiobel necessarily, but in ATS cases in general). This is not a strictly legal argument, but rather a policy/emotional one: U.S. courts are the last chance for justice. But if they’re not, as the Dutch case shows, the argument drops away.

    Moreover, if one thought the drafters of the ATS intended to allow for UJ in certain cases, it is far from clear that they would have seen this as mandatory, that is not, subject to various forms of abstention, forum non conveniens, etc. Forum non conveniens has been problematic in ATS cases because the other forum is often non conveniens in that they tortured you. But now with Holland to choose from, the question of where such cases should go seems one that demands looking into.

  9. @Martin Holterman “Traditionally, the courts with jurisdiction are the court of the jurisdiction where the alleged tort occurred and the court of the jurisdiction where the defendant has citizenship and/or is habitually resident.”  – Yes I understand these approaches to jurisdiction.  Yes I understand that under the Brussells Regulations these are to be exclusive.  But, those rules are not the only rules that might speak to UJ. 

    All I am saying is that normally each court determines its jurisdiction under its own law and – as you note – the rule under the Brussells Regulation is not the American rule.  This is of course part of the freedom sovereigns have. 

    The Brussels Regulation is of no moment to non-EU member states that assert concurrent jurisdiction. 

    As to reprisals, the US Congress is free to limit the ATS anytime it wants.  But, until it does so, it is what it is. 

    If Shell does not like this, then maybe Shell or the Netherlands should make sure Shell does not act in a way that gets Shell accused of colorable claims of violation of peremptory norms.


  10. Prof. Davis,

    I don’t really think your point addresses the concern that reprisals were the first and foremost thing on Congress’s mind when it passed the statute. Allowing the Second Circuit to reinvent the statute almost two hundred years after it was enacted and then justifying that reinvention by saying that Congress can change the statute if that’s what they want to do isn’t a school of statutory interpretation that I’m familiar with.

    Congress did do exactly what you propose with regard to the TVPA of 1991 (passed in 1992), but the intention of the Congress in 1991 was to codify Filartiga’s result and to “comply” with the CAT (although NO other signatory country ever interpreted the CAT to require something akin to the TVPA). Even still, that augmentation of 1992 should not be used to interpret the meaning and intention of a statute enacted in 1789. If reprisal was on the mind of the First Congress back when the statute was enacted, it should be just as much on the mind of those reading it today.

    Ignoring this legislative history does the First Congress an injustice. Similarly, replacing international norms against extrajurisdictionality with a lofty vision of how international law should be practiced (but is not practiced in such a way anywhere else in the world) doesn’t accord with the normal rules of statutory construction.

  11. @ Joshua

    “Ignoring this legislative history does the First Congress an injustice.”

    Being ignorant of it may be, but ignoring it may be not.  There are nearly 90 years of decisions concering the Federal Arbitration Act and a Supreme Court Decisional Law that has very little if anything to do with the legislative history of the 1925 Congress that passed it.  Maybe it is that experience of judicial activism by different Supreme Courts in different formations for so many years that has made me less concerned about legislative history interpretation and more focused on policy space.  I recognize that this may appear as a nonsequitur to you, but given the central role of arbitration in dispute resolution in the US on both a domestic and an international level, the policy approach of the Supreme Court in that space in the way it views a statute has some appeal to me.  For example, purportedly pure text decisions like Prima Paint that would support purportedly pure text visions of the ATS rather than the legislative history visions in either space.

    No doubt I am deformed by my experience, but “whoops” there it is.

    As to fears of reprisals of the First Congress from the late 18th century, in the early 21st century, the fears do not seem particularly relevant given the dominant US role in the world today.  A current Congress is free to repeal or amend.

    Not that I have any faith in the likelihood of this type of approach winning the day given the ideologies driving the profoundly rightist though not necessarily judicially conservative court.


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