Courthouse Steps: Jesner v. Arab Bank Decided

Litigation Practice Group Teleforum

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On April 24, Jesner v. Arab Bank was decided 5-4 in favor of the respondent. 

The petitioners in this case were surviving victims or families affected by a series of terrorist attacks that occurred over a 10-year period along the Gaza Strip and West Bank of Israel. Arab Bank knowingly accepted donations, paid suicide bombers' families, and maintained accounts for the terrorists who committed these acts. Arab Bank holds a small division in the United States, which it uses for money transfers. Petitioners claimed that since Arab Bank has connection to the United States they could sue the corporation for damages in U.S. federal court under the 1789 Alien Tort Act.

Prof. Samuel Estreicher and Prof. William Casto join us to discuss the decision.

Featuring:

Prof. William R. Casto, Paul Whitfield Horn Professor, Texas Tech University School of Law

Prof. Samuel Estreicher, Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law Co-Director, Institute of Judicial Administration, New York University School of Law

 

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Event Transcript

Wesley Hodges:                Welcome to the Federal Society Practice Group Podcast. The following podcast hosted by the Federal Society Litigation Practice Group was recorded on Monday April 30th, 2018 during a live courthouse step Teleforum conference call held exclusively for Federal Society members. Welcome to the Federal Society Teleforum conference call. This afternoon we are hosting a courthouse steps discussion on Jesner v. Arab Bank following the decision issued last week. My name is Wesley Hodges and I'm the associate director of Practice Groups at the Federal Society. As always, please note that all expressions of opinion are those of the experts on today's calls.

Wesley Hodges:                Today we are fortunate to have with us Prof Bill Casto who is the Paul Whitfield horn professor at Texas Tech University. Also with us is Professor Samuel Estreiche, who is the Dwight D Operman professor of law. The director for the center ... Uh, for labor and employment law and co director for the Institute Judicial Administration at the New York University School of Law.

Wesley Hodges:                After hearing from both of our speakers today we'll move to an audience Q&A. So, as they speak, please keep in mind what questions you have for uh, either the individuals, or for the case in general. We will have plenty of time to get to your questions. Thank you uh, both for speaking with us today. Bill, I believe the floor is yours to begin.

Prof. Casto:                         Yeah I'd be happy to. Hey gang this Bill Casto. I thought we'd learn something about the Alien Tort statute in the Jesner case today. Uh, so most of you all understand that it's terrorism case involving suicide bombers. You know part of the deal in signing on to this sort of short term job, is that you family will receive a significant monetary stipend if you complete the job to your employer's satisfaction. The stipend is clearly important and the defendant Arab Bank seems to have directly aided this project, by pro, processing the payment of the stipend.

Prof. Casto:                         And so uh, victims of suicide bombers have sued in United States co, courts. You know this case involves a simple, but very complicated statute that gives the federal district courts, subject matter jurisdiction over actions by "An alien for tort only committed in violation of the law of nations, or international law." I've been playing with this statute for over 30 years I'm astonished, but let me tell you. Just to organize your thinking, I'm not arguing pro or con here, but just to organize your thinking. It's good to think, remember that all complaints in federal court uh, as Julius Caesar might have said are divided into three parts.

Prof. Casto:                         The first part is always lays out subject matter jurisdiction. That's what 1350, the Alien Tort statute does. It gives the federal courts subject matter jurisdiction. Then in the main part of a complaint, you have to describe acts by the defendant that violate some law. Finally the ... Usually it's a short paragraph as we all know at the very end, you seek a remedy which uh, outlines the consequences of the defendant's unlawful acts. Now uh, under the Supreme Court decisions there are two questions. First, is there a clearly established principle of international law that makes the defendant's acts unlawful?

Prof. Casto:                         Second is there a remedy? By the way, in other words you see 1350 is simply subject matter jurisdiction. An important aspect of the complaint is that you have to establish that the defendant has act, violated international law. We all know that there are reasonable arguments on all sorts of issues and we certainly don't want federal judges to be lone [rangering 00:04:18] out there giving lee ... Reasonable interpretations of international law. That would give them a whole lot of legislative authority to uh, limit that authority the Supreme Court has said, "You know what? These principles of international law have to be very clearly established."

Prof. Casto:                         As a practical matter today uh, the principles of international law that would be enforceable under the statute are genocide, slavery and the slave trade and terrorism. There are all sorts of arguments about other things like, how about uh, assaults on the environment? Does that violate international law? Any federal judge would say I don't know and since it's not clearly established, there will be ... There's no legal violation. Now, our case involves terrorism, which I ... I would be quite willing to argue that terrorism uh, is a well established violation of international law. Technically involves aiding and assisting terrorism. What's going on is the Arab Bank is the pay master for the suicide bombers.

Prof. Casto:                         At least that's the allegation. Now uh, when you read the Supreme Court's decision, the Supreme Court ruled five to four, no foreign corporation liability under the act. Uh and the justices even said no foreign corporation liability under the act, all stressed the fact that, wow, when we hold the Arab Bank, which is a significant player in the country of Jordan liable. If we say that they may be held liable, that's going to create very serious foreign policy questions for uh, the United States.

Prof. Casto:                         All five justices emphasized we want to avoid these foreign policy considerations, therefore we want to ... We think the case should be dismissed. It's important to understand that they all said, "Oh there are two questions under ATS litigation. One is, is there a violation of clearly established international law. The justices who said dismiss the case said, "It's not ... We're not going to address that issue one way or another." They said, "We're going to the remedial issue, do we have discretion to enforce international law, to provide for the enforcement of international law against foreign corporations?"

Prof. Casto:                         Uh, by the way uh, Justice [Solito 00:07:35] specifically said in the footnote, "Hey we're not addressing domestic corporate liability at all. US corporate liability at all." Justice [Gorsuch 00:07:46] essentially said the same thing, the last part of his opinion. So, the issue presented is should we ... Should the justices create a remedy against foreign corporations, when that remedy might create serious foreign policy problems for the United States? I personally think they should create such a remedy. Gosh, I guess I'm on the losing side there. Uh, but uh, I'll turn it over to Professor Estreiche now.

Prof. Estreiche:                 Good morning. Uh Sam Estreiche from NYU. I don't have as long a uh, a speech to give as, as Bill does. Uh, this is the third of three cases in the Supreme Court, which I think uh, restricted the scope of the Alien Tort statute. You have to remember this was a statute, part of the ju, judiciary act of 1789 uh, at a, at a time when the country barely had a navy, did not have a standing army and was very, very uh, leery of getting embroiled in uh, conflicts with other countries.

Prof. Estreiche:                 The purpose and I think no one disagrees with this, the purpose of the Alien Tort statute was to provide a remedy uh, for wrongs committed uh, in US territory where the United States had a, had a duty to provide that remedy and if it didn't provide that remedy it would embroil itself uh, in a uh, frictions, or conflicts with other countries. That is the purpose of the ATS. Uh, however for the last uh, 30 years or so, I guess as long as Bill has been working on this. Uh, this statute which essentially lay dormant for [inaudible 00:09:35] ... Has been used as a uh, a, as a wedge, as a vehicle for uh, bringing human rights litigation uh, in the US courts.

Prof. Estreiche:                 Very often having absolutely nothing to do with the United States and certainly implicating no duty of the United States. So, take the facts of this case, the [gravment 00:09:53] of the plaintiff's complaint is not that the United States has defaulted on some duty owed to another state, but rather that the bank has not fully complied with internet, with US law on banking conventions. The United States says there was ultimately a settlement with the Arab Bank and now the Arab Bank is functioning in satisfaction of US obligations. That's essentially the theory of the complaint. Uh, that's where the Arab Banks liability comes in under their complaint.

Prof. Estreiche:                 Um, not uh, this case could've been thrown out on the grounds that was set, that were set in [inaudible 00:10:31] ... Earlier Supreme Court case where the court said that the ATS in general does not overcome the presumption against extra territoriality. That the case has to have some uh, connection with the United, with the United States. Territory with the United States interest. Uh and the case could've been thrown out on that ground. It, it wasn't because there was a conflict among the circuits over whether or not uh, corporate liability uh, uh, is available under the uh, Alien Tort statute.

Prof. Estreiche:                 I have a couple of quibbles with, with Bill's account. Uh, certainly the norm has to be invol ... It has to be a clearly established norm uh, under international law. And we would argue that also the class of defendants uh, has to be a class of defendants that is recognized as liable for ... Responsible for international law violations. This is a fast emer ... This is an emerging area, a mason area uh, and under the International Convention against the financing of terrorism. There is a recognition that when the manager of the corporation is involved in the international wrong doing, there should be a remedy provided.

Prof. Estreiche:                 It's not the kind of blunder bust corporate liability that has occurred under uh, Alien Tort Act litigation, where we're bringing in corporations on an aiding and abetting theory uh, because they're building roads in a country that has not been barred from uh, U, US corporate investment and bad things are happening on those roads, which was a good example of an earlier case that I have been involved in. Now I um ... The Supreme Court hole in the case, clearly the holes that foreign corporations can't be sued under the Alien Tort statute. I think the, uh, the reasoning of the opinion also reaches US corporations, but I recognize uh, that Justice Salito says that was an open question. I think at the end of the day it will be closed in, in the same way that has been uh, uh, closed in this case.

Prof. Estreiche:                 International law has not come to a consensus judgment that corporations should be liable for international law violations. That's the first prong uh, of the Sosa ruling. There is a norm against terrorism, but it's not clear that corporate lia ... Wrong doers are reached uh, under uh, customary international law. Whenever the, the international community has developed remedies for serious international wrong doing uh, until very, very recently uh, it has excluded corporate liability. So in Nuremberg, corporations were not liable. It is true that there are certain corporations that were considered uh, uh, uh, simply appendages of the Nazi regime and they were uh, as part of the occupation authority of the, of the armies of uh, the United States and the other allies.

Prof. Estreiche:                 Uh, they were denuded of their, of their assets. Uh, when the international uh, criminal court was created, corporate liability also was excluded. Now to excluded, because there is not a firm consensus on what to do with corporations. In many countries corporations are actually funded and run by the foreign state. And this is certainly true in China. We have a case in the Supreme Court right now on uh, what to do when the Chinese government claims that uh, Chinese corporations must engage in, in uh price fixing. The Chinese corporations all have parallel ladders of authority, which are comprised of the communist party members who are representatives of this state. That's one problem.

Prof. Estreiche:                 Another problem is how to fix the [inaudible 00:14:05], how to fix culpability with corporations, which on principle reason why the International Criminal Court uh, excluded corporations. I'm personally not against uh, an appropriate rule similar to the international financing convention rule uh, that would target uh, high level management decisions, knowing of the wrong doing and perpetuating it's occurrence. And that's something I think maybe the uh, the United States and some subsequent statute might uh, put in its law and maybe by international convention that could be uh, worked out. When the United States passed the statute in 1991 uh, involving human rights concerns, similar in scope to the Alien Tort statute, they attached liability only to natural individuals.

Prof. Estreiche:                 Uh, when the Supreme Court had a case involving the Biven's clause of action, or constitutional violations, again it attached responsibility only to individuals. Again, down the road going forward, there may be a basis for a US statute that expanded the scope of the torture victim protection act, but I don't think uh, we need to read the 1789 statute as doing that. Thank you.

Wesley Hodges:                Thank you professors. Professor Casto do you have any remarks before we move to Q&A for, I guess from Professor Estreiche?

Prof. Casto:                         Well just a few remarks and uh, uh, he, he ... Professor Estreiche has identified some very important issues. First of all on the history of uh, 1350, the Alien Tort statute, no one really knows what it was enacted for. Uh, it certainly enacted with very broad uh, uh, uh, words. It clearly was addressed to some specific problems. I suppose the argument that says it doesn't address today's problems, is that there's a negative inference of the statute, that it only addresses the problems that the founders thought out. Well things have changed a lot.

Prof. Casto:                         Professor Estreiche me, uh, mentions the torture victim protection act, which is probably best just to not talk about. It needlessly complicates things, but basically the act, Torture Victim Protection act codified a portion of this uh, common law cause of action.

Wesley Hodges:                I'm sorry I didn't hear you. Codified what Bill?

Prof. Casto:                         Codifies a portion of this common law cause of action. The, the, the act involved, a word and there were reasonable arguments going both ways on the word. Uh, the Supreme Court simply held that, oh the word individual and that statute means human beings not corporations. That's a perfectly reasonable interpretation. But you can't go from there and conclude that the entire congress intended to do that. It was just a judge doing a judge's duty. Uh, well I, I, I would love to uh, hear uh, questions from the audience.

Wesley Hodges:                Wonderful and Professor Estreiche do you have any comments before we move to Q&A?

Prof. Estreiche:                 Not at this point.

Wesley Hodges:                Then let's go ahead and open the floor.

Prof. Estreiche:                 I think it might be useful if we talked about open issues. So, one open issue is one [crosstalk 00:17:30] Profess Casto identified, which is whether US corporations are suitable under the Alien Tort statute. We talked about it. Uh, I think another question uh, would be um, the touch and concern requirements of [inaudible 00:17:46] uh, uh, you know what, what does that mean? What does a uh, defendant to do in connection with US territory, or, or US interest to trigger touch and concern. So, one issue I think would be uh, what about a uh, independent contractor's uh, conduct at a military base in another country? Uh, alleged to have uh, violated some international wrong.

Prof. Estreiche:                 Uh, is that uh, is that touching and concerning US interest? Another open question I have a student actually working on. Uh, if there is someone who is uh, say a torturer who is uh, been given uh, refuge in the United States. Uh, and on request the United States does not extradite that person. Uh, is there is a cause of action under the Alien Tort uh, statue for the failure to render that person over? Even though there's no general customary international obligation to render people over. Um, in response to extradition requests, but that's ... The fact pattern is very similar to what, what could have happened in [Philartica 00:19:01], if in fact uh, uh, the defendant in that case had not left the country. Had not been deported from the country I should say.

Prof. Estreiche:                 Um, those are two opening questions [crosstalk 00:19:13] I have to say.

Prof. Casto:                         Let me break in a second. I love the, the torture problem, because ...

Prof. Estreiche:                 Right.

Prof. Casto:                         ... In my view one of the very positive aspects of this whole cause of action is the United States has not become a retirement haven for international criminals. Uh, note, I wrote about this once. Remember when, was it Pappa Doc, or Baby Doc Duvalier was [crosstalk 00:19:39] running Haiti.

Prof. Estreiche:                 Right, right, right, right.

Prof. Casto:                         And remember the United States cut a deal for him to leave the country and uh, avoid a very vicious civil war. If the State Department had said, "Come to the United States." Clearly there should be no liability there, on the basis of I think, but I came down on it in terms of official immunity. The State Department should simply state "This is contrary to the deal we cut with, with Baby." I guess it was Baby Doc right?

Prof. Estreiche:                 Well there I agree with you Bill.

Prof. Casto:                         Yeah, yeah [crosstalk 00:20:22] ...

Prof. Estreiche:                 I'm just saying [crosstalk 00:20:22] ...

Prof. Casto:                         In other words ...

Prof. Estreiche:                 I see it as an open question, but I agree with you that when the United States has made assurances uh, uh, in order to uh, basically resolve a serious dispute they should be honored.

Prof. Casto:                         Exactly. And, and [crosstalk 00:20:38] ... For instance the uh, uh, uh, the South Africa problem.

Prof. Estreiche:                 Right.

Prof. Casto:                         If a, if a company, if a country is trying ... The uh, the truth commissions. If a country is seriously trying to grapple with a problem. We might not like the way they're grappling, but if a country is seriously trying to grapple with a problem, there should be no liability there

Prof. Estreiche:                 Right, right and also ... You know I think the fact pattern uh in this case is similar to that, because the United States uh, represented that the Arab bank had to grapple with it's responsibilities, but uh, maybe it come in on the discretion side. Wes, are there any questions, because you know I think Bill and I can, can talk, I think for a very long time together. (laughing) There's a lot to learn from Professor Casto.

Wesley Hodges:                And the same for you. Um, it looks like we do have three questions in the Que.

Prof. Estreiche:                 Oh great.

Wesley Hodges:                Callers calling in. Uh, let's go ahead and move to our first question.

Edward Williams:              This is Edward Williamson. Um, I apologize I'm not um, I've not read this opinion and I also, when I began poking at it and looked back and Kill Bill and realized and how rusty I gotten on that. Basically I have two questions. One, I felt in Kill Bill the court uh, dodged the issue of fallen corporate um, uh, liability and instead uh, basically decided that only you know the touching and concerning uh, point. Uh, and then so my first question is whether a pers ... A holding that's per se holding that corpora ... Foreign corporations cannot be defendants and does not [inaudible 00:22:26] the liability on the touching and concerning issue.

Edward Williams:              And the second is that um, um, this is Professor Casto the uh con, the concern expressed by um, the majority of the impact on foreign relations. Is this concern uh, consistent with the past um, uh, expressions in this area particularly by Justice Kennedy? And my impression is that the uh, submissions that the State Department makes in all these cases I think um, have pretty, pretty much gotten to the point that they were really kind of ig, ignored, at least I take it very easily. Uh, anyway.

Prof. Estreiche:                 Well let me first, just briefly the second. I think it is a per se holding that at least the foreign corporations are excluded from the Alien Tort act reach. I think Bill agrees with me there.

Prof. Casto:                         Yes I do.

Prof. Estreiche:                 It's an open question, whether US corporate uh, defendants can be reached. I think the logic of the court's decision does go that far, but it's a very strange decision, because it's splintered. And except of that one footnote in a, in a leader's opinion. I didn't fully (laughs) understand why it didn't all join the entire opinion, but uh, it is splintered uh, on some level. So the foreign corporate liability issue is still an open one. Uh, you know um, sorry the US corporate liability issue is still an open one uh, under the Alien Tort statute. And the question will be whether the reasoning of the court uh, answers that questions, or whether it's truly open.

Prof. Estreiche:                 I think at the end of the day it'll be, it'll be closed, but right now, given the [Elido 00:24:14] footnote it is open. What happened is that the second circuit uh, ruled for the Arab National Bank on corporate liability grounds, not on touch or concern uh, and uh, even though the Supreme Court had a complete record and could've decided uh, uh, this case, the Arab National Bank case on, on, on the fact that this was an entirely uh, extra territorial set of events that occurred in the West Bank in Jerusalem. It had nothing to do with the United States. Say for uh, these banking violations by the Arab Bank, which the United States says the Arab Bank now is in full compliance.

Prof. Estreiche:                 Uh, so the courts felt given the split in the circuits that uh, it should answer this question. But I, I think on US ... On foreign corporate liability it's a per se ruling. With respect to past experience with Justice Kennedy I need to look at that more closely. I do think the court is moving in general and I think Justice Briar has been a advocate here as well. Uh, in taking a, on a robust conception of comedy uh, and that the, the court uh, should be uh, leery of reading uh, broad uh, jurisdictional statutes to get uh, to get ... That have the potential to get the United States embroiled uh in controversies, where the litigation would be at variance with expectations of these foreign states.

Prof. Estreiche:                 I just don't know whether Justice Kennedy has always honored these concerns uh, can't speak to that.

Prof. Casto:                         Yeah I, my general impression is the Supreme Court as a whole gives great deference to uh, suggestion from the State Department. It's just that in many cases the State Department decides not to give clear suggestions as to what their position is.

Prof. Estreiche:                 Right.

Prof. Casto:                         Hey, we should look at this Alien Tort statute as enabling the courts to create a common law cause of action. Everyone agrees it's a common law cause of action. We apply common law reasoning. Everyone understands that if a common law court says the rule is X, in a situation where B is applicable. That is X is no liability in a situation where a foreign corporation is present. Then that decision simply does not provide a common law rule for another case, where the B uh, foreign corporation and diplomatic travails is applicable is not present. There are no foreign policy concerns when a US corporation is the defendant. There simply are none.

Prof. Casto:                         Uh, there inevitably might be issues where a US corporation reincorporates in Ireland for tax purposes. Does that mean it's no longer US corporation? Or where US corporation operates overseas with a wholly owned foreign corporation.

Prof. Estreiche:                 Right.

Prof. Casto:                         That's some difficult questions there.

Wesley Hodges:                And difficult questions and they raise similar concerns where all the events occur abroad and the litigation is at variance with the expectations of the foreign states involved in the region.

Prof. Casto:                         Right.

Wesley Hodges:                It's a technically open question. Do you have any views on Justice Kennedy and deferring to the State Department?

Prof. Casto:                         Uh, I think he probably does okay. And by the way I think probably there should be deference to the State Department, which is the President on foreign policy issues.

Prof. Estreiche:                 We agree there as well.

Prof. Casto:                         Uh, by the way notice this though. Suppose the US corporation is ... I'll just make something up. Is engaged in slavery in a third world country. Uh, in order to reduce cost of uh, harvesting natural resources and bringing those resources to the United States to sell in the US economy. To me, there is an astonishing connection between the United States and that situation. I would like to keep liability open for those, for that sort of despicable [crosstalk 00:28:59] ...

Prof. Estreiche:                 That was actually a question that Justice Kagen asked at the argument.

Prof. Casto:                         Yeah.

Prof. Estreiche:                 And uh, certainly uh, there, there are ways of reaching that conduct without the Alien Tort act uh, in terms of our, our trade policy, but I understand your point Bill.

Prof. Casto:                         Yeah. Here's another point. It could be that in some situation if there is a contact between the United States and the defendant. A significant combat, contact. It could be that State Courts could recognize State Tort actions and apply state laws as a matter of choice of law to the problem. And that would be totally outside of the Alien Tort statute.

Prof. Estreiche:                 Unless there's a kind of preemption argument that develops.

Prof. Casto:                         That's right, that's right.

Prof. Estreiche:                 But it wouldn't be from the Alien Tort statute I think [crosstalk 00:29:54] ...

Prof. Casto:                         No.

Prof. Estreiche:                 It would have to be similar of the source but uh ...

Prof. Casto:                         It would be like when the Massachusetts city said we won't contract Me and Mar. Uh, and the United States Supreme Court said that uh, uh [crosstalk 00:30:08] ...

Prof. Estreiche:                 They found, they found [crosstalk 00:30:09] ...

Prof. Casto:                         Yeah they found [crosstalk 00:30:11] ...

Prof. Estreiche:                 Right. That would be a foreign affairs preemption issue.

Prof. Casto:                         Yeah, sure it would.

Prof. Estreiche:                 I don't think it would turn, I don't think it would turn ... I agree with you that it would not turn on the reach of the Alien Tort [crosstalk 00:30:18] ...

Prof. Casto:                         No not at all.

Prof. Estreiche:                 It'd have to be other basis.

Prof. Casto:                         Was there another question?

Wesley Hodges:                Yes in fact we have three more questions in the cue.

Prof. Casto:                         Great.

Wesley Hodges:                So plenty of time and let go ahead and move to our next caller.

Carter Paige:                      Hi this Carter Paige. I uh, a fascinating discussion and I'm curious sort of [crosstalk 00:30:39] ...

Prof. Estreiche:                 Is this Carter Paige the luminary in the news.

Carter Paige:                      (laughs) Yeah it's that guy.

Prof. Estreiche:                 Okay.

Carter Paige:                      So, somewhat of a uh, related um, question in, in sort of reverse engineering this. And it, it reminds me a little bit about debates back in the 1990s in the UK, when they were doing their Human Rights Act and looking at jurisdiction between um, you know domestic law and enforcement of international treaty, particularly in uh, European Court of Human Rights. I'm just curious, just as sort of a uh, from a comparative law perspective. Is there any sort of other foreign jurisdictions where there has been similar activities? Um, particularly for uh, you know just ... Other than just in the, the narrow context of uh, just looking at from a domestic perspective here. I'm just wondering where there, whether there has been other um, activity?

Carter Paige:                      Is European court perhaps one of the main jurisdictions? I'm just curious to hear that, sort of where else there's been similar litigation.

Prof. Estreiche:                 Well I don't think there's a similar statute out there Bill can correct me if I'm wrong.

Prof. Casto:                         I think that's right.

Prof. Estreiche:                 Reports to provide a forum for uh, international human rights violations anywhere in the US, anywhere in the world. I just don't think that's the case.

Carter Paige:                      Are you, are you familiar with the Human Rights Act, the UK's 1990 [crosstalk 00:32:12] ...

Prof. Casto:                         One thing about the UK and EU is, they have a treaty with the EU.

Carter Paige:                      Yes.

Prof. Casto:                         At least they did (laughs), in which that treaty by domestic law, UK domestic law recognized the jurisdiction and power of the humanitarian court. So, that's a little different.

Carter Paige:                      Hm-mmm (affirmative).

Prof. Casto:                         Hey uh, one thing that's pretty clear under international law is that uh, the Netherland is free to punish a Netherland corporation. The UK is free to pub, punish a UK corporation ad the United States is free to punish a United States corporation. There's just no doubt at all about that. In [crosstalk 00:33:03] so far as international law is concerned.

Prof. Estreiche:                 Carter I don't know if that answers your question.

Carter Paige:                      Yeah it does. I mean it's, it's uh, there's a broad range of other questions, but it uh, it's interesting, so thanks a lot.

Wesley Hodges:                Well. it's good hearing from you. We have two more questions in the cue. Let's go ahead to move to our next caller.

Speaker 6:                           I just have a quick, twofer questions. One was the language touch and concern. Um, usually that language associate, associate with covenance, whether they run with the land so and so forth. Was their some suggestion that there is um ... And i guess this may be an easy question, but uh, but there is some conduct that uh, should not be engaged in by corporate and specifically banks. Um, is there some [inaudible 00:33:51] well hey this bank can't hold funds in an account for this particular, for this particular individual. They're engaged in a specific type of act, whether it falls under the uh, ATF, or whether it falls under some international law like Human Rights law?

Speaker 6:                           The type of question was just a matter of uh, uh, the uh ... It [inaudible 00:34:14] analysis um, which is related to the prior question, whether there is some ... What is established ... What is the minimum context? I think there was some discussion about whether or not the law ... If there is a US law at some point. If there is ... If there is not a US law at some point, can the international law be enforced? The question is whether it can be enforced without there being some I guess the language has to be concerns, but some minimal contact to establish jurisdiction for a US corporation to become subject to the uh, the ATF, or uh, a principle international human rights, or international law of human rights law?

Prof. Estreiche:                 No, let me, let me try my hand. I mean Bill I'm sure will have some additional points and I may not get every aspect of your questions. Touch and concern is from property law, though the Supreme Court gave no hint in Kiobel where it came up with this phrase. I think the point here is that there's a presumption against extra territorial application of the Alien Tort statute, but there can be circumstances that overcome that presumption, whether sufficient uh, US nexus with the dispute. I don't think you can read more into that than that. That's why Professor Casto was trying to come up with some examples, hypotheticals, where he saw US Nexus.

Prof. Estreiche:                 On the second question, minimal contacts. Minimum contacts is a requirement any time you, you bring an individual, or a corporation into a US court, for due process requirements. Um, and uh, I think uh, in the uh, in the Arab National Bank case uh, that was satisfied, because of the, the fact that they had a correspondent bank uh, in New York. Uh, I should point out that the second circuit has been pretty restrictive on whether or not having a correspondent bank outstanding a loan uh, is enough for, to satisfy minimum contact. A correspondent bank, I mean some sort of facility in the country uh, to facilitate a dollar base transactions.

Prof. Estreiche:                 Uh, and the second circuit has somewhat restrictive on that point. Um, but minimum contact is a requirement uh, for, as I said any time you bring an individual, or a corporation uh, into a, a US court. You may have had more in your question, but that's what I saw.

Speaker 6:                           Yeah, yes and I guess the, the last I was saying. I'm not to um, gosh stay on here too long, but it's just if, to, to the point of, if there is no US law on point uh, uh, or uh, if the US hasn't pined I guess in common law, in terms of addressing the international issue. Then how can ... I guess, how can the international ... How ... What would be the, the mechanism by which international law will be enforced in a US court? Um, uh, [crosstalk 00:37:18] ...

Prof. Estreiche:                 Well let me ... Most, most examples ... Most incidences of international law establish obligations between the United States and either the international tribunal, or other countries. There's not ... I don't think there's any general vehicle for bring international law claims into a US court. You have to sit within the reach or a particular statute. You have to have minimum contacts. Uh, if it, if you're, you're serving a violation of a treaty. You have to show that the treaty uh, of it's own force uh, has domestic enforcement. So, they're all bunch of restrictions on, on simple ... Suing for an international violation. Bill may have something more than that.

Prof. Casto:                         Yeah, here I hate to say the phrase conflict of laws, but generally speaking everyone in the world agrees that the United States should not create rules of conduct of how people treat each other in foreign countries. So US domestic law unbalanced does not create rules of conduct for foreign countries. The thing is international law does. Uh, international law says, if someone violates slavery in uh, uh, a foreign country. They're violating the rules of applicable in that, their own country. And so when we come to Alien Tort uh, litigation, what we have is the United States is applying rules that apply anyway in the foreign country as a matter of international law.

Prof. Casto:                         We're not telling them what they should and should not do. We're just providing a remedy and that's where the United States fits in to [crosstalk 00:39:06] ...

Prof. Estreiche:                 Do you disagree Bill that outside the Alien Tort Act and we've discussed that already.

Prof. Casto:                         Yeah.

Prof. Estreiche:                 There is no general vehicle. There is no general vehicle for bringing international law violations into the US courts.

Prof. Casto:                         I agree with that. I, I was just talking about the Alien Tort statute.

Prof. Estreiche:                 Right, right, but we've talked about that.

Prof. Casto:                         Yeah, yeah.

Speaker 6:                           Thank you, thank you so much [inaudible 00:39:27] can be a contract issue too. Thank you so much, I really appreciate your response.

Prof. Estreiche:                 Thank you. Thank you.

Wesley Hodges:                Thank you caller. It does look like we have one question left in the cue. If anyone else would like to ask a question before we end the call today, just please enter the * key and then the # key. Let's go ahead and move to our next caller.

Speaker 7:                           Thank you. This is Professor Selena Collares [inaudible 00:39:48] School of Law. I typically, when I teach cases like Sosa Kiobel and the Visor case. I typically find student puzzled with the you know uh, with the questions that they, that they seem to have a hard time understanding. The ATA is strictly a jurisdictional statute. Even after we go over the, the you know the distinction and I typically do a video of Cipro when we cover .... You know we do uh, jurisdictional statutes, remedial statute uh, uh, and substantive statues of distinctions. The three different type of statutes.

Speaker 7:                           They still have a hard time and I get asked questions like what particular individual conduct would satisfy the , the Kiobel or now the Arab Bank case if it's reliance on the presumption of against extra territoriality. And uh, they seem to mix the two meanings. The, the use, the use of presumption against extra territoriality as a, as an element for becoming jurisdiction in the federal court, versus the conduct itself as a, uh, uh, uh, as a violation of you know the, the, the law of nations as the statute originally states.

Speaker 7:                           So, what in your ... Do you, do you face this particular kind of, of, of questions? And, and uh, one way I try to deal with, with as you dealt with it in the previous questions is, by showing, look all these questions relating to conduct in connection with the United States are relevant to the territorial jurisdiction portion uh, you know of, of an opinion. You have to ... Uh, you can only exercise valid statutor ... Valid authority uh, uh, if you have jurisdiction of the defendant.

Speaker 7:                           But when the court calls attention for ATS, it's really uh, as a jurisdictional statue using the uh, presumption against extra territoriality. It's not looking at the, at the particular international prescription. So, do you uh, do, do you find the same kinds of, of questions in [crosstalk 00:42:20] in your students?

Prof. Casto:                         Hey uh, I'm basically a federal courts guy. I just got into this area, because I found it to be very interesting. Here's a good way to look at it. In your complaint you have to prove that the defendant violated a law that is international law. International law is the same everywhere, no matter where it's uh, transgressions take place. The territoriality has nothing to do with whether international law has been violated. It's about the remedy. International law has nothing to do uh, with the remedy. International law is violated okay? But the territoriality is all about the remedy. Will we extend the remedy?

Prof. Casto:                         So, there is no doubt in the Kiobel case that for instance if they can prove and say alleged, that Royal Dutch Shell was helicoptering kill teams into villages to murder and torture villagers, who were protesting environmental degradations. There's no doubt that violated international law. The thing is that uh, the remedy, the territoriality applies to the remedy and not to the uh, conduct regulating norm. That's what you got to get the students to understand.

Prof. Estreiche:                 Let me, let me just cut in a little bit. I think I disagree. I, I think that Justice Sooter merged these adoptions to some extent.

Prof. Casto:                         Yeah.

Prof. Estreiche:                 Uh, he said on the one hand that it's a jurisdiction only provision, because if they have to all appear initially in the Judiciary Act of 1789. But then he says that uh, there's a question of whether there's a cause of action. And maybe that's a merit's question only. So, I think the presumption against extra territoriality clearly goes to the merits. I don't know. I don't know if it's a jurisdictional question, nor is it purely a remedy question. But uh ... And I'm, I'm I think it may be waivable, although I don't think the Supreme Court has ever passed on that. Uh, but ... It certainly goes to whether there's a cause of action uh, and I think the court uh, and that's what the court did in Sosa.

Prof. Estreiche:                 And that is what I think what the court is, is doing here as well. Is there a cause of action against this particular class of defendant? So I think I answered the question as best as I can, but maybe, maybe Bill has some other [crosstalk 00:44:59] ... Bill has some other [crosstalk 00:44:59] ...

Prof. Casto:                         I, I more or less agree with you. The thing is a cause of action has two components. The norm and the remedy and without both, there's no cause of action. That's why I call ... There's no doubt that these allegations involve violations of international norms. There's just no doubt of that. The thing is, whether we provide a remedy uh, that's why I say extra [crosstalk 00:45:25] ...

Prof. Estreiche:                 Or a cause of action, just to put a different phrase on it, or a cause of action

Prof. Casto:                         Right, right.

Prof. Estreiche:                 Right. Now I want to ask you a question about the, about the, if I can, about the um, uh, foreign sovereign immunities act. The corporate Nexus requirements. Is that jurisdictional, or go to cause of action? So, I just had a case [crosstalk 00:45:44] which raises that issue.

Prof. Casto:                         I kind of think it's got to be jurisdictional.

Prof. Estreiche:                 Yeah I would think so as well. I would think so as well.

Prof. Casto:                         But, but sovereign immunity is a little different from your usual subject matter [crosstalk 00:45:57] ...

Prof. Estreiche:                 It, it is, it is, it is. I'm going to have to go folks, because I've got a meeting here with uh, one of my uh, uh, co teachers. Uh, thank you Wes very much.

Wesley Hodges:                Of course, thank you for joining us Professor Estreiche.

Prof. Casto:                         You know the Tort, Alien Tort statute says for Torts only right. Uh, that was put in specifically in 1789 to prevent the enforcement of the United States treaty with Great Britain that founded our independence. The treaty said all that's owed to uh, uh British merchants would be paid and we flagrantly disobeyed that treaty. The uh, tort only was put in there to prevent federal courts from providing a remedy for flagrant violations of a US treaty. Kind of interesting.

Wesley Hodges:                That certainly as. Well as uh, Profess Estreiche has made clear he has had to step off the call. Professor Casto do you have any other closing remarks before we finish the call today?

Prof. Casto:                         No, it's just that uh, to me the major battleground now in Alien Tort statutes litigation is going to be US corporations, or at least corporations who are wholly owned by US corporations. So, it'll be interesting.

Wesley Hodges:                Well thank you Professor Casto. On behalf of the Federal Society I'd like to thank our experts for the benefit of their valuable time and expertise today. We welcome all listener feedback by email and info@fedsoc.org. Thank you all for joining us. This call is now adjourned. Thank you for listening. We hope you enjoyed this practice group podcast. From materials related to this podcast and other Federal Society multi media, please visit Federal Society's website at fedsoc.org/multimedia.