Warmest congratulations to OJ's very own Julian Ku, on his election to ALI - the American Law Institute. (For those unfamiliar with ALI and its work, this is a great honor in the American legal profession. Among other things, it produces the Restatements of Law, as well as model codes and annotated commentaries and "Principles" on various legal topics.)...
The debate over autonomous weapons is not so visible in the United States, but the ban campaign launched by Human Rights Watch a year ago - an international NGO coalition called the "Campaign to Stop Killer Robots" - has been quite active in Europe and at the UN, where a number of countries raised the issue in their statements to...
Guest commentary here at OJ by Adam N. Steinman (Seton Hall) on the Supreme Court's oral argument in Daimler AG v. Bauman, along with earlier comments on the case by John Bellinger at Lawfare, have been helpful to me - no expert in civil procedure, certainly - in understanding issues of jurisdiction in Daimler, Kiobel, and other such cases. As Professor...
Probably many of you are reading, as I am now, the just-released language of a draft UN Security Council resolution (reported by the press as P-5 approved) on Syria's chemical weapons. I'm particularly interested in this, as I'm talking tomorrow at ASIL's monthly brown bag lunch for Congressional staff on Syria and the use of force - it's a descriptive...
reverse the Ninth Circuit’s decision in Bauman v. DaimlerChrysler. The Justice Department argued that the Ninth Circuit’s 2011 decision finding personal jurisdiction in California over Daimler AG, a German company, for the actions of a subsidiary in Argentina, was “seriously flawed” and contrary to the Supreme Court’s subsequent 2011 decision in Goodyear. The brief faults the Ninth Circuit for trying to hold a foreign corporation with few contacts to California to “answer in that State for any claim against it, arising anytime, anywhere in the world.”The background to Bauman v. DaimlerChrysler, Bellinger explains, is that in May 2011 a Ninth Circuit panel
held that that Daimler AG, a German parent company with no operations or employees in the United States, could be sued under the Alien Tort Statute and the Torture Victim Protection Act (as well as common law and state law) by a group of Argentine nationals for human rights abuses allegedly committed by an Argentine subsidiary in collaborating with the Argentine government during the “Dirty War” in the 1970s, solely on the basis that a different U.S. subsidiary now distributes Mercedes Benz vehicles in the United States. Applying an agency theory, the panel concluded that Daimler AG had sufficient contacts with the state of California by virtue of the actions of its subsidiary Mercedes Benz USA to give California personal jurisdiction over the German parent , even though Mercedes Benz USA had no involvement with the alleged facts in Argentina.I agree with Bellinger that the likelihood, following Kiobel, is that the Court is moving to restrain jurisdictional assertions by Federal courts, and is pushing back toward stricter grounding in the traditional bases of jurisdiction by national courts. My own larger, political view is that this is connected to a perception that although broad assertions of US jurisdiction through such vehicles as the Alien Tort Statute over foreign parties for acts on foreign territory can certainly be framed as enforcing universal international law through national courts, it is better understood as assertions of something quite different - what I've sometimes called the "law of the hegemon." That is an increasingly contested position as a matter of international politics spilling over into international law, and between the rise of new great powers and the Obama administration's political embrace of decline, it seems to me unsurprising that the Obama administration would embrace a more traditional, much more restrictive understanding of jurisdiction. But it also seems the Court is also generally on board with this pull-back. As Bellinger says, many observers (me included) believe that
the Court would not have accepted the case unless it plans to reverse the Ninth Circuit. Conservative justices are loathe to miss an opportunity to try to curb the Ninth Circuit’s consistent efforts to be a world court, and the more liberal justices may have wanted to demonstrate (as Justice Breyer argued in his concurrence in Kiobel) that the extraterritorial reach of the Alien Tort Statute can be limited by other jurisdictional restrictions.I agree. Despite the obvious clash of approaches between the Roberts majority and the Breyer minority in Kiobel, they do have an important common ground - an intention to limit extraterritorial jurisdiction through a stricter application of the traditional bases of jurisdiction.
In the tooting my own horn department, the estimable David Bosco, who authors the outstanding "The Multilateralist" blog at Foreign Policy (and who is also my American University colleague in the School of International Service), conducted an interview a few weeks ago with the Heritage Foundation's Brett Schaefer and me on the United Nations. The idea was to ask how...
Congratulations to Julian and his co-author, George Conway, on their op ed this morning in the Wall Street Journal, "When Corporate Defendants Go On Offense." I commented a few days ago here at OJ on a long profile in the Washington Post on the involvement of the DC lobbying-law firm Patton Boggs on the side of the plaintiffs in the...
We haven't blogged recently here about the Chevron Ecuador case, but over the weekend the Washington Post carried a long analysis and profile by Business section reporter Steven Mufson on the state of play - focused particularly on a Washington insider part of the saga, the involvement of DC lobbying-law firm powerhouse, Patton Boggs. Patton Boggs has been an adviser...
The measure, which would have required that restaurants serve olive oil in sealed, clearly labeled and nonreusable containers, was meant to guarantee hygiene, according to the European Commission, the union’s executive body, which originally drafted the rules. It said the labeling would ensure the quality and authenticity of olive oils and also offer suppliers an opportunity to promote brand awareness, backers said. And the measure stood to benefit European olive growers, mostly clustered around the Mediterranean, in some of the countries hardest hit by the crisis in the euro zone. Fifteen of the union’s 27 governments supported the rule, including the major producers, Italy, Greece, Spain and Portugal. Portugal has had similar measures in place since 2005. But governments in the non-olive-producing north, including Germany, were opposed. Britain abstained.
The pushback was on classic EU terms, I guess we could say: Complaints that this sort of thing should never reach the level of the EU, and that individual states could deal with this kind of thing on their own:
The reaction was severe. Prime Minister Mark Rutte of the Netherlands condemned the measure, calling it “too bizarre for words” and not at all green. Criticism was particularly harsh in Britain, often the first among critics of the European Union’s reach. The olive oil rule was “exactly the sort of area that the European Union needs to get right out of, in my view,” Prime Minister David Cameron of Britain said Wednesday after a meeting of the bloc’s leaders in Brussels. “It shouldn’t even be on the table,” he said, immediately begging forgiveness for the wordplay.
Food safety is only partly the issue; from the standpoint of Europe's olive oil producers, the much bigger issue is brand recognition and quality assurance - assuring quality and authenticity of olive oils served, which is also to say, raising the price. But here the EU runs into a quite different problem; restaurants refilling olive oil bottles with oils of lesser quality is the least of the concerns about EVOO authenticity and quality. I've blogged in the past about the surprising (at least to me as an international business transactions professor) fact of massive adulteration of "extra virgin olive oil" both inside the EU and in the global export market. It's adulterated with either lower grade olive oil, or else the oil itself is mostly low grade olive oil heated to take out the bad flavors (heated oil is essentially flavorless), or else different plant oils altogether (such as cottonseed oil. It overwhelmingly happens at the producer, wholesaler, or distributor level, before it leaves the EU; it's pretty clear that the supermarkets, even specialty store chains such as Whole Foods, whether in the US or Europe, have no idea that the product is not what it says.
