Oct 262012
 

On Thursday, the New York Times published an investigative article chronicling the dramatic increase of wealth Chinese Prime Minister Wen Jiabao’s relatives have experienced during Jiabao’s tenure. Journalist David Barboza’s wrote:

 Many relatives of Wen Jiabao, including his son, daughter, younger brother and brother-in-law, have become extraordinarily wealthy during his leadership, an investigation by The New York Times shows. A review of corporate and regulatory records indicates that the prime minister’s relatives — some of whom, including his wife, have a knack for aggressive deal making — have controlled assets worth at least $2.7 billion.

Unsurprisingly, Chinese officials did not welcome the news.  Within hours, the Chinese government blocked access to the Times.  According to the Times:

By 7 a.m. Friday in China, access to both the English- and Chinese-language Websites of The Times was blocked from all 31 cities in mainland China tested. The Times had posted the article in English at 4:34 p.m. on Thursday in New York (4:34 a.m. Friday in Beijing), and finished posting the article in Chinese three hours later after the translation of final edits to the English-language version.

This is not the first time the Chinese government has tangled with the Times, and in recent months, Chinese regulators have also targeted companies including Google and Bloomberg.  China’s censorship and government control have prompted many Western companies, including Google, to move their business assets (i.e. web servers) outside of mainland China.  Perhaps even scarier for most Americans, Human Rights Watch notes that Chinese government still ensures that their nation remains Facebook and Twitter-less.

Obviously, maintaining these Human Rights and Free Expression restrictions does not bode well for the nation’s long-term success.  (In fairness, China has made some progress by recently passing their first mental health law.)

However, this issue also directly affects international business relations.  In addition to trade regulations, investment policies, etc., the Chinese government’s restrictive policies on expression pose challenges for foreign companies and investors.  As Western businesses, such as the New York Times, continue to explore the Chinese market, they risk damaging the integrity of their brand in exchange for access to a very large/emerging population.

For the most part, western media outlets have not succumbed to Chinese pressure and have, in my opinion, adopted a long-term strategy that hinges, at least in part, on expanding Chinese freedoms.

This struggle has not only been seen with the Times, Google, and Bloomberg, but also with corporations such as Apple, Microsoft, Time Warner, and the Walt Disney Company.  For instance, media companies such as Disney finds themselves working to end piracy while attempting to introduce their characters/products to the Chinese market.

I believe, or at least hope, that Western business advancements in China will ultimately help provide Chinese citizens with greater freedoms and more transparency.  As always, the greatest champion of expanding free expression and personal liberty is access to information.

Mar 062012
 

Last week, I blogged about Kiobel v. Royal Dutch Petroleum Company, which was argued before the United States Supreme Court.

The issue was whether the Alien Tort Act allows foreign plaintiffs to sue US corporations for certain human rights violations; however, questioning ventured into the broader question of whether United States Courts could ever hear human rights cases when the alleged abuses occurred outside the United States.

It turns out that the Court may want to address the broader question.  The Court has asked the parties to file additional briefs and appear for reargument.  The Court ordered:

This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. The supplemental brief of petitioners is due on or before Thursday, May 3, 2012. The supplemental brief of respondents is due on or before Monday, June 4, 2012. The reply brief is due on or before Friday, June 29, 2012. The time to file amicus curiae briefs is as provided for by Rule 37.3(a). The word limits and cover colors for the briefs should correspond to the provisions of Rule 33.1(g) pertaining to briefs on the merits rather than to the provision pertaining to supplemental briefs.

Mar 022012
 

 

  • I blogged yesterday about the US Supreme Court hearing a case regarding foreign plaintiffs suing under the Alien Tort Act.  Law.com published an interesting article that discusses the exchange and the judge’s perceived hostility towards the plaintiffs.
  • Chevron is pleased that an international arbitration tribunal has ruled that it has jurisdiction to hear Chevron’s claim against Ecuador.  The tribunal took its lead from treaty law.  This was not unexpected, and the saga continues…
  • Human Rights abuses in Syria continue to dominate world news, and today the United Nations Human Rights Council voted to condemn the Syrian regime’s continual abuses against it’s citizens.  The vote was 37 to 3.  Among the three nations voting no, China and Russia have continually blocked the UN from taking decisive action in this matter.  For now, the world will continue to watch the images from Syria in horror.
Mar 012012
 

 

On Tuesday, the United States Supreme Court heard oral arguments in a case brought by Nigerian Plaintiffs against a Shell Oil subsidiary.  The issue is whether 28 USC §1350, commonly known as the Alien Tort Act, allows foreign plaintiffs to sue US corporations for certain human rights violations.

According to the transcript and media reports, the oral arguments were broad and shifted between the previously mentioned issue to whether United States courts can hear human rights cases where the alleged violations are committed abroad.

The Alien Tort Act states: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The Act has not been historically used to hold US companies liable in US courts; however, there has been an increased trend to try to use the Act in this manner.  Just last July, I highlighted a similar case between Indonesian plaintiffs and Exxon Mobil.

Should the Court hold that US companies can be liable for human rights violations, multinational corporations will potentially face much greater scrutiny and will be forced to make changes to business practices, including how they respond to human rights accusations abroad.

Then again, multinational corporations could get their way, and Congress could eliminate the Alien Tort Act altogether.  (Send in the lobbyists…)

The New York Times and ABC News do a fairly good job at chronicling the issue and oral arguments.  For those wanting a more in depth account, a full transcript of the oral argument before the Court can be found at the Court’s website.

 

Feb 282012
 

Attorneys routinely assist clients in disputes with business entities; however, when the business entity involved is a foreign-based company or subsidiary, successfully resolving the dispute may be more complicated than you think.

Many foreign companies have offices and assets in the United States, but many do not have substantial US-based holdings (i.e. cash and other assets).  When this occurs, American plaintiffs often have limited options.

Many US plaintiffs sue a foreign-based company in a United States court.  If the plaintiff wins, there are legal safeguards to assist in collecting their judgment, but they are not always beneficial.  Often, even after the plaintiff attempts to enforce the judgment under international treaties, the plaintiff is left empty-handed.

Before entering a substantial transaction or business relationship with a foreign entity, it can be beneficial to dutifully research whether the company is foreign-based and whether or not they have a substantial presence within the United States.  This type of due diligence is especially important when conducting transactions on-line.

If you find yourself in a dispute with a foreign-based entity, it may be beneficial to consult a knowledgeable attorney dealing in litigation with foreign-based companies.   They will be able to help you determine whether you have a high probability of collecting a judgment, should you be victorious in court.

The information in this blog post is not intended to serve as legal advice or as a guarantee, warranty, or prediction regarding the outcome of any legal matter.  The information is subject to change and may be incomplete and/or contain errors.  Do not rely on this information without consulting a qualified attorney to discuss the specific facts relating to your case.

Feb 242012
 

Here is a brief update on the multi-jurisdictional dispute between Chevron and Ecuadorian plaintiffs:

You might remember that Ecuadorian plaintiffs accused Chevron (well, technically Texaco until Chevron bought Texaco) of dumping waste and causing illness in their country.  The case moved from the United States to Ecuador and back to the United States.  Each side has been trading shots, with Chevron claiming it did not receive a fair trial in Ecuador.

As I previously reported, Chevron is faced with an $18 billion judgment by an Ecuadorian court.  In an effort to block enforcement of the judgment, Chevron got a US arbitration firm to freeze the Ecuadorian judgment.  Of course, this week the Ecuadorian court rejected the arbitrator’s decision (surprise!).

The dispute may be movin’ on up… a federal court has referred Chevron’s appeal to the United States Supreme Court.

This saga is long from over and could impact the liability of United States based companies operating abroad.  This saga is long from over…

[A link to the news sans legal analysis can be found here.]

Feb 232012
 

For decades, the United States was considered a leader in international law and human rights, and the American public largely supported their government’s efforts in developing and abiding by international law.

While America’s commitment to international law and human rights has never been beyond reproach, many Americans’ view of international law has recently soured.  According to the Centre for Research on Globalization:

“Americans are increasingly embracing policies that undermine the international rule of law, with self-identified liberals, in particular, seemingly reversing their positions on matters such as the Guantanamo prison camp, extrajudicial assassinations and arbitrary detention.” (link)

This shift in perspective is likely caused, at least in part, by the rise of international terrorism and the Bush and Obama administrations’ practices of long-term detention, use of military tribunals, and targeted assassinations.

Americans’ decreasing support appears to be motivated by fear.  American resistance to international principles stem from a belief that such laws weaken the country’s defense and leave it vulnerable.  Much of this fear is related to many Americans’ negative view of Middle Eastern culture and their fear of Islamic-based Sharia law.  In many respects, Sharia law is oppressive, violent, and a barrier to free society.

While this fear is not wholly unreasonable, it is crucial that America does not retreat too far.  Americans must remember the benefits of international law.

International principles create a framework for nations to negotiate and adjudicate disputes, create economic opportunities, and hold oppressive and abusive political and military leaders accountable.  Unfortunately, this framework becomes more tenuous when dealing with international groups acting independent of a nation state; however, even when one nation or group violates or threatens international standards, America must hold itself and it’s peers to the standards of international law.

Of course, nothing is ever this black and white, especially in the international arena, but America has a legal and moral obligation to support well-founded rules of international law.

Jul 082011
 

 

 

“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or treaty of the United States.” 

 

This single sentence, 28 USC § 1350 and more commonly known as the Alien Tort Act, provides US District Courts to hear cases brought by non-US citizens on international tort issues.  The Act has been used to bring cases against United States corporations such as Coca-Cola, Chevron, and in 2007, Yahoo!

 

Today a Federal D.C. Circuit Court of Appeals allowed a group of fifteen Indonesian villagers to continue a case against Exxon Mobil.  The plaintiffs claim that Exxon’s security forces tortured and murdered them and their families between 1999 and 2001.  More factual information can be found in Jonathan Stempel’s news report for Reuters.

 

While the appellate panel voted two to one to allow the case to move forward, there was disagreement over the interpretation of the Alien Tort Act.  The majority viewed the Act as allowing jurisdiction for claims that occurred on international soil while the minority held the view that the tort in issue must occur in the United States.  It sounds like an issue that could be ripe for the US Supreme Court.