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Weekend Roundup: January 18-25, 2014

This week on Opinio Juris, Julian discussed the US' funding (along with the EU and the UK) of a team of investigators gathering war crimes evidence in Syria and why that effort would probably not lead to any prosecutions. Chris pointed out a trend with regard to in cyber(in)security with his post on zero-day exploits, noting that the "money in the market...

Guest Post: Steinman–SCOTUS Decision in Daimler AG v. Bauman: Constitutional Limits on General Jurisdiction

[Adam N. Steinman is Professor of Law and Michael J. Zimmer Fellow at Seton Hall University School of Law. This contribution is cross-posted at Civil Procedure & Federal Courts Blog.] Last week the Supreme Court issued its decision in Daimler AG v. Bauman, a case covered earlier here and here and here. In many ways, the case resembles Kiobel v. Royal Dutch Petroleum, last Term's decision on the Alien Tort Statute (ATS). The Daimler plaintiffs had brought claims under the ATS against Daimler—a German company headquartered in Stuttgart—for human rights and other violations committed by Daimler's Argentinian subsidiary during the "dirty war" of the 1970s and 1980s. The Supreme Court's decision in Daimler, however, is all about personal jurisdiction, and it is not limited to the ATS context. The Ninth Circuit had held that Daimler was subject to general personal jurisdiction in California based on the activities of its American subsidiary, MBUSA. Because it involves general jurisdiction, Daimler is an important follow-up to the Court's 2011 decision in Goodyear Dunlop v. Brown. Writing for a unanimous Court in Goodyear, Justice Ginsburg explained that general jurisdiction over corporations is proper "when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." In Daimler, all nine Justices conclude that it would be unconstitutional for California to exercise general jurisdiction over Daimler. Justice Ginsburg again writes for the Court, although Justice Sotomayor writes a separate concurrence that disagrees with much of Justice Ginsburg's reasoning. Parts of the decision—and some of the areas of disagreement—are harder than usual to follow because the parties either conceded or forfeited a number of potentially important points during the course of the litigation [See p.15]. That said, the most significant parts of the Daimler decision address three issues:

(1) When can a subsidiary's activities in the forum state be attributed to the parent for purposes of general jurisdiction? (2) More generally, when is a corporation subject to general jurisdiction under the Goodyear standard? (3) What role (if any) do the so-called "reasonableness" factors play in the general jurisdiction context?

The majority opinion does not provide much affirmative guidance on the first question, although Justice Ginsburg rejects the Ninth Circuit's approach. The Ninth Circuit had attributed MBUSA's contacts to Daimler using an "agency theory," which "rested primarily" on the premise that "MBUSA's services were 'important' to Daimler, as gauged by Daimler's hypothetical readiness to perform those services itself if MBUSA did not exist." [p.17] Justice Ginsburg reasons that this view "stacks the deck, for it will always yield a pro-jurisdiction answer." [p.17]. Nor—on these facts—could attribution be based on Daimler's "control" over MBUSA. According to the Ninth Circuit,

New Email Address

Posting has been a bit light lately and will continue to be light for a while, because I am in the process of relocating to London. If you would like to contact me, please use my new SOAS email address: kh33@soas.ac.uk. I am not sure how long I will be able to get emails at my Melbourne address....

Weekly News Wrap: Monday, January 20, 2014

Your weekly selection of international law and international relations headlines from around the world: Africa A senior UN official has given warning of the risk of genocide in the Central African Republic without a more robust international response to communal bloodshed in which at least eight more people have died. The EU is expected to send troops to help stabilize the situation. The UN...

Weekend Roundup: January 4-17, 2014

In the past fortnight on Opinio Juris, Kevin wasn't convinced by the Muslim Brotherhood's argument that can accept the ICC's jurisdiction on an ad hoc basis because it is still Egypt's legitimate government. He also discussed the OTP's motion to challenge Rule 134quater and the Trial Chamber's decision to conditionally excuse Ruto from continuously attending his trial in The Hague. Julian gave the US...

Obama’s NSA Reform: Foreigners Get Protections, Too

From the third paragraph of President Obama's implementation of surveillance reforms (Presidential Policy Directive/PPD-28). [O]ur signals intelligence activities must take into account that all persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and that all persons have legitimate privacy interests in the handling of their personal information. The primary operative provision of the...

Global Military Justice Reform

Excited to see news of a new blog by former National Institute of Military Justice head Gene Fidell on military justice systems worldwide. Here's a description: Developments in the field of military justice have been coming at an extraordinary pace for the last several years, both in the United States and around the world. Some of these developments have been...

Reflections on UN Law Making

Last week at the American Association of Law Schools (AALS) annual conference I had the honor of speaking on a panel on UN Law Making, with Mahnoush Arsanjani, formerly of the UN Secretariat, Kimberly Prost, Ombudsperson for the Al Qaida sanctions regime, and Pablo Castillo-Diaz, of UN Women.  A summary of the matters discussed by the panel is available here. Our...