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Published online by Cambridge University Press: 27 February 2017
Peter C. Hansen, Esq. is Editor of International Legal Materials at the American Society of International Law. This abstract originally appeared in the Society's International Law In Brief, which is archived at <http://www.asil.org.>.
* 226 F 3d 88 (2nd Cir. 2000).
1 For purposes of this opinion relating to jurisdiction and forum non conveniens, we assume the truth of the allegations (while implying no views on the truth or falsity of the allegations).
2 Shares of Royal Dutch are traded directly on the New York Stock Exchange. Shell Transport's shares are traded indirectly in the United States; investors may purchase American Depository Receipts (ADR's) for shares of Shell, rather than shares themselves.
3 Owens Wiwa has since moved to Canada.
4 Because we hold that jurisdiction is properly exercised over the defendants on the basis of the activities of the Investor Relations Office, we do not reach any of the other jurisdictional issues raised by the plaintiffs. We express no views on the merits of any of their alternative arguments.
5 Grapsi testified that 100 of the 140 attendees at a December 1996 investor relations meeting for financial writers and members of the international community came from New York and only five came from other locations in the United States.
6 On the doctrine of double actionability, the parties refer primarily to Phillips v. Eyre, 1870 L.R. 6 Q.B. 1, and Dicey ' Morris, Conflict of Laws 1480 et seq. (12th ed. 1993).
7 On transmissibility, the parties refer to Dicey ' Morris, supra note 7, at 1521.
8 The parties cite to numerous sources discussing the contours of the act of state doctrine. See, e.g., Luthor v. Sagor 1921 3 K.B. 532, 548; Buttes Gas and Oil Co. v. Hammer (Nos. 2&3), 1981 3 All ER 616; Dicey ' Morris, supra note 7, at 108-11, 996-97; Dame Rosalyn Higgins, Problems ' Process 212 (1994). Subsequent to the briefing in this case, the House of Lords decided the twin appeals arising out of the arrest of Chilean Senator and former General Augusto Pinochet. The parties submitted a copy of that decision and letter briefs debating its meaning. See generally Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Pane Pinochet and Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (House of Lords Mar. 24,1999) (appeals from divisional courts of the Queen's Bench Division).
9 We read Guidi as allowing for the possibility that, under certain circumstances, the public interest factors favoring dismissal might (by themselves or in combination with inconvenience to the defendant not quite rising to the level of “opressiveness and vexation“) be strong enough to justify dismissal, notwithstanding the absence of “opressiveness and vexation.” See Guidi, 2000 WL 1158788, at *3 (stating the forum non conveniens dismissal against a U.S. citizen seeking to invoke a U.S. forum may be appropriate if defendant presents a “clear showing of facts which … make trial in the chosen forum inappropriate because of considerations affecting the court's own administrative and legal problems” (quoting Koster, 330 U.S. at 524)). Furthermore, Guidi's focus on the balancing of defendant's inconvenience against plaintiffs implicitly recognizes that, depending on the particular circumstances, the degree of inconvenience that dismissal would impose on a U.S. resident will vary.
10 The original purposes of the ATCA remain the subject of some controversy. The Act has no formal legislative history. In the most learned exposition of the statute's original purposes, Judge Edwards suggested that the statute was originally motivated by a desire to insure that claims by an alien against U.S. citizens or for incidents occurring in the United States were litigated in federal court rather than state court, so as to prevent the states from mishandling such cases and creating international incidents. See Tel-Oren, 726 F.2d at 782-83 (Edwards, J., concurring). Some scholars have suggested that the Act's original purpose may have been even narrower. For example, one 1995 article suggests that the statute was intended to remedy a single problem: torts committed by the crews of vessels in the course of stopping and boarding ships suspected of aiding the enemy in a time of war. See Joseph Modeste Sweeney, A Tort Only in Violation of the Law of Nations, 18 Hastings Int'l ' Comp. L. Rev. 445 (1995). Whatever the intent of the original legislators (a matter that is forever hidden from our view by the scarcity of relevant evidence), the text of the Act seems to reach claims for international human rights abuses occurring abroad. We reached the conclusion that such claims are properly brought under the Act in Filartiga, 630 F.2d at 880; Congress ratified our conclusion by passing the Torture Victim Protection Act, see H.R. Rep. No.102-367, at 4 (1991); reprinted in 1992 U.S.C.C.A.N. 84, 86; and we have since reaffirmed our conclusion, see, e.g., Kadic v. Karadzic, 74 F.3d 377,378 (2d Cir. 1996) (opinion denying rehearing) (rejecting argument that new scholarly evidence precludes broad interpretation of ATCA). Filartiga remains the leading case interpreting the ATCA. As Judge Newman stated four years ago,” [w]e have neither the authority nor the inclination to retreat from that ruling.” Id.
11 “Extra judicial killing” is defined as “a deliberated killing” not authorized by the judgment of a court “affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 28 U.S.C. § 1350 App. In this opinion, we use the word “torture” to include both torture and “extra judicial killing,” except where the context makes clear the more limited meaning is intended.
12 Plaintiffs argue that these statutes also raise a related but distinct U.S. policy interest in insuring that claims arising out of human rights abuses are adjudicated according to the standards of international law. In arguing for this principle, they assume that the law of nations necessarily provides the substantive standards for evaluating claims brought under the ATCA in situations where the underlying claims involve human rights abuses. While they may well be right that such a principle is implicit in the ATCA, the federal courts have never definitively resolved this choice-of-law question. Compare Xuncax, 886 F. Supp. at 180-83 (holding that international law provides substantive law for ATCA cases) with Tel-Oren, 726 F.2d at 777, 781-82 (Edwards, J., concurring) (suggesting that, while international law triggers jurisdiction under ATCA, tort laws of forum state might provide substantive causes of action), and In re Estate of Ferdinand Marcos, 978 F.2d at 503 (9th Cir. 1992) (approving district court procedure that based jurisdiction on international law but applied tort law of state where underlying events occurred); see also Filartiga, 630 F.2d at 889 (holding that ATCA establishes cause of action for violations of international law but requiring the district court to perform a traditional choice-of-law analysis to determine whether international law, law of forum state, or law of state where events occurred should provide substantive law in such an action). Because our decision regarding the, forum non convenient dismissal is based on other grounds, we need not reach this question.
13 As the Magistrate Judge noted in his report, the plaintiffs lack meaningful financial resources and will be substantially burdened by the expense of bringing this litigation in England. Nonetheless, he concluded that the plaintiffs’ lack of resources is a “neutral factor” because the plaintiffs have not established that it will be less expensive to try the case in New York than in England. The record, however, contains substantial evidence that trial in New York will be less expensive and burdensome for the plaintiffs. The plaintiffs have already obtained excellent pro bono counsel to litigate this matter in the courts of the United States; there is no guarantee that they will be able to obtain equivalent representation in England without incurring substantial expenses. Two of the plaintiffs lived in the United States when the action was brought. The cost and difficulties of relocating themselves to England for the duration of the litigation is likely to be onerous. Finally, the plaintiffs and their attorneys have already made substantial investments of time, money, and energy in pursuing this litigation in the U.S. courts. Requiring the plaintiffs to replicate them in the British courts would substantially increase their burden. For these reasons, we believe that the Magistrate Judge should have given greater consideration to the burden on the impecunious plaintiffs, rather than focusing his consideration of the convenience factors almost entirely on the convenience of the defendants.
14 The other considerations favoring retention of jurisdiction sufficiently outweigh the defendants’ claim for dismissal that we would reach the same result without consideration of the policy interest we have found to be expressed by the TVPA.
15 Defendants also urged below that the Netherlands was an adequate alternative forum and more convenient than the United States. Although the district court did not rule on the defendants’ request for dismissal in favor of a Dutch forum, we need not remand for consideration of this question, because dismissal in favor of trial in the Netherlands would share the disadvantages that have led us to reject the dismissal in favor of trial in England