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Author Topic: A hard case = bad law
James
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Babbler # 5341

posted 05 August 2005 05:25 PM      Profile for James        Edit/Delete Post  Reply With Quote 
Presbyterian Church of Sudan v. Talisman et. al.

While it is impossible, I think, not to support the plaintiffs in this case, I fear that the Ontario Superior Court may be setting a dangerous precedent in favour of even further extraterritorial over-reaching by U.Sian justice.

excerpts follow

quote:
Pitt J.

REASONS FOR JUDGMENT

INTRODUCTION
[1] Applications to grant judicial assistance in civil cases to foreign courts, especially those with procedural regimes similar to our own, are generally routine. This application, however, is far from routine, as it involves the assumption of jurisdiction by a United States court on the basis of a seldom, if ever, used U.S. statute, the Alien Tort Claims Act, that is considered by some in the legal community to represent a marked departure from generally accepted principles of private international law. The Act, passed by the first Congress of the United States in 1789, provides that:

The district court 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.

OVERVIEW
[2] The applicants, the Presbyterian Church of Sudan and other current and former residents of Sudan, are engaged in a civil action against Talisman Energy Inc. and the Government of Sudan undertaken in the United States District Court for the Southern District of New York. In the current applications, they seek oral and documentary evidence from the respondent, Richard Rybiak, as well as documentary evidence in the possession of the respondents Terrance and Jennifer Taylor. The applications were brought pursuant to s. 60 of the Ontario Evidence Act, R.S.O. 1990, c. E.26 and s. 46 of the Canada Evidence Act, R.S.C. 1985, c. C-5 for an Order giving effect to the Requests for International Judicial Assistance issued on January 19, 2005 and October 26, 2004 respectively, by Judge Cote of the Southern District of New York. The defendant, Richard Rybiak, opposes the application, and Talisman Energy Inc. sought and was granted intervenor status. Terrance and Jennifer Taylor do not oppose the application.

[3] I shall deal with both applications in theses reasons


quote:
] Richard Rybiak is the former manager of Human Resources and Administration for Talisman (Greater Nile) B.V., in the Republic of the Sudan, which was a subsidiary of Talisman at the times material to the U.S. action. The applicants allege Rybiak, in this capacity, was uniquely positioned to observe Talisman’s interaction with the Government of Sudan, as well as its operations in the Sudan.

[8] Terrance Taylor and Jennifer Taylor are the brother and sister, respectively, of the late Ian Taylor who was formerly Talisman’s Community Development Manager in Sudan. The applicants seek to obtain the documents that were in the possession of Ian Taylor prior to his death that related to Talisman’s operations in Sudan. The Taylors are not opposing the application and have agreed to produce the documents in their possession in the event of a Court Order or a waiver by Talisman of a confidentiality agreement it had with Ian Taylor.

[9] The Rybiak and Taylor applications were heard on June 8, 2005, one following the other.



quote:
The granting of an order to give effect to letters rogatory is a matter of discretion of the Court. In Friction Division Products Inc. v. E.I. Du Pont de Nemours & Co. (No. 2) reflex, (1986), 56 O.R. (2d) 722 (H.C.J.) at 732, cited with approval in Fecht v. Deloitte & Touche (Gen. Div.), supra at 194, Osborne J. (as he then was) set out some of the factors to be considered by the court when exercising its discretion:

Before an order giving effect to letters rogatory will be made, the evidence (including the letters rogatory) must establish that:

(1) the evidence sought is relevant;

(2) the evidence sought is necessary for trial and will be adduced at trial, if admissible;

(2) the evidence is not otherwise obtainable;

(3) the order sought is not contrary to public policy;

(4) the documents sought are identified with reasonable specificity;

(5) the order sought is not unduly burdensome, having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried here.

Other factors may also be relevant to the determination in each particular case.



quote:

[14] Thus, in considering its discretion to grant the letters rogatory, the court must consider whether the request is contrary to the public policy of Canada or is otherwise prejudicial to Canadian sovereignty or to the private interests of Canadian citizens. (See: France (Republic) v. De Havilland Aircraft of Canada Ltd. reflex, (1991), 3 O.R. (3d) 705 at 718 (C.A.))

[15] The onus is on the applicant to establish the necessary elements for an affirmative exercise of judicial discretion to enforce letters rogatory. Freedman and Harney in “Obtaining Evidence from Canada” (1987) 21 U.B.C.L. Rev. 351 at 378, suggest that the evidentiary burden to establish a possible infringement of an aspect of international interest may, as a practical matter, rest with the party opposing the enforcement of the letters rogatory. Nonetheless, the final onus is on the applicant.

[16] The Canadian government has expressed concerns about the American court’s taking of jurisdiction in this matter, submitting that the U.S. action frustrates the government’s policies vis-à-vis Sudan. These concerns were included in a diplomatic letter from the Embassy of Canada in the United States to the U.S. Department of State, dated January 14, 2005. It is helpful to set out the contents of the Canadian letter at some length. The following are excerpts:

Canada reiterates its overriding concerns regarding the extraterritorial application of the Alien Tort Claims Act to activities of Canadian corporations that take place entirely outside the US and in particular, the current application of the Alien Tort Claims Act against a Canadian corporation, Talisman Energy brought by the Presbyterian Church of Sudan in the US District Court, Southern District of New York (“Talisman case”).

As stated in its earlier diplomatic note, Canada is opposed, in principle, to broad assertions of extraterritorial jurisdiction over Canadian individuals and entities arising out of activities that take place entirely outside of the state asserting jurisdiction. Under international law, the limitations on the extent to which any single nation can extend its own jurisdiction are generally recognized as flowing from the sovereignty and equality of nations. Territoriality is universally recognized in international law as a primary ground for asserting jurisdiction. International law has developed a number of additional grounds for asserting jurisdiction that are based on the need for a ‘substantial and genuine’ connection to the nation asserting jurisdiction. In the Talisman case, there is no connection with the US either through the plaintiffs or the defendants or the location where the alleged actions took place.

… The ‘Talisman case’ is problematic because it involves a US court acting with respect to the foreign policy power of the executive authority of the Canadian government, an area of prerogative where courts are normally expected to defer. This assumption of extraterritorial jurisdiction by a US court constitutes an infringement in the conduct of foreign relations by the Government of Canada.

… Canada has taken the foreign policy decision to use access to trade support services as an incentive in support of the Sudan peace process. Canada has devoted considerable diplomatic and financial resources to promoting a peaceful resolution of the disputes wracking Sudan. The Prime Minister has visited Sudan, as have other ministers and senior officials with the objective of constructive engagement with the Sudanese to address short and long term problems in Sudan…

… Canada has thus taken the foreign policy decision to use trade support services as both a stick and a carrot in support of peace.

The inducement for Sudan if they achieve peaceful resolution of their internal disputes will be the reinstatement of trade support services. However, the impending US court action removes that inducement…

Through the extraterritorial application of the Alien Tort Claims Act, US courts assumption of jurisdiction creates a “chilling effect” on Canadian firms engaging in Sudan and the ability of the Canadian government to implement its foreign policy initiatives through the granting and denial of trade support services. This action infringes on Canada’s conduct of foreign policy and on its relations with other states.

…

For all the reasons noted above, the Government of Canada considers the assumption of jurisdiction by US courts over Talisman, on the basis of the Alien Tort Claims Act raises serious foreign policy issues.

This letter was submitted to the New York District Court on March 15, 2005, appended to a Statement of Interest in the action of the United States government



quote:
20] The respondent, Rybiak, asserts that the Alien Tort Claims Act should “not be treated as an American imperial fiat to which this Court owes deference”. (Factum of respondent (Rybiak), para. 23) Rather, he questions whether the court should support litigation based on “an American ‘long arm’ statute with respect to events occurring entirely outside the United States”. (Factum of respondent (Rybiak), para. 6) Rybiak notes that the applicants do not challenge the assertion that Canadian courts would be adequate alternative fora. Thus, Rybiak submits that the declarations of Canadian foreign policy should be accorded substantial deference in the court’s exercise of discretion.

quote:
The Public Policy Issue

[39] It would no doubt have been simpler to deal with such an application if the defendant corporation were American rather than Canadian.

[40] The concerns expressed in the diplomatic note from the Canadian Embassy in the United States were directed to the United States State Department. They were not, as they should not have been, directed to this court, nor to the respondents. The objective of the diplomatic note, it seems to me, was to alert the United States Government to the sensitivity of the sovereignty aspect of the issue to the Canadian Government. That has been done. Whether the United States Government does or does not take any action to deal with the concerns expressed by Canada, is not an issue for this court.

[41] I noted earlier the applicants’ observation that the case will proceed whatever the decision rendered by this court. Disclosure of documents and answers to questions that are useful for a case ensure that trials are conducted fairly and efficiently. See Glegg v. Smith & Nephew Inc., [2005] S.C.J. No. 29 at para. 22 (S.C.C.). Since the case is proceeding to trial in any event, this court clearly has an interest in it being conducted fairly.

[42] As Dickson J. said in R. v. Zingre, supra, it is upon the comity of nations that international legal assistance rests. The Supreme Court of Canada has recently expressed that crimes against humanity are the types of issues that require a unified international approach. (Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] S.C.J. No. 39 at para. 178 (S.C.C.))

[43] It is my view that, while the Canadian government’s concern as to the American court’s jurisdiction is well-founded and an important consideration, it is not sufficient, and was likely not intended to override the principles of comity, and the applicants’ right to the evidence to conduct a fair trial. The compliance with the request for documents and answers to questions that are useful for the case is not contrary to the public policy of Canada.

[44] The Government of Canada is clearly not pleased, and I am sure for good reasons, that the New York court is the forum chosen to prosecute this action. It would, nevertheless, be in the Canadian public interest that the New York trial judge, who obviously intends to adjudicate on the matter, have before her evidence that would enhance, at least, the fairness of trial.

The Issue of the Interest of Private Individuals

[45] I do not share the view of the respondent that the request is so overly broad as to unduly burden Rybiak such that it is an affront to Canadian sovereignty.

[46] The main action is extraordinary. In many respects, it breaks new ground. The process will likely present difficulties to Mr. Rybiak. He will perhaps not be in a position to provide all the information required, whether oral or documentary. Nevertheless, I believe the factors set out by Osborne J. in Friction Division Products Inc., supra, and under Rule 30.10 as set out by Blair J. in Fecht, supra, support a granting of the request.

[47] It does not appear from the materials before me that, for example, the applicants have deposed any other persons from the Sudanese subsidiary, Talisman (Greater Nile) B.V. In contrast to Fecht, supra, the documents requested are relevant and sufficiently connected to the issues in the main action. The production of documents may be inconvenient, but is not so burdensome as to outweigh the compelling reasons for permitting the examination and production to proceed. The respondent, Rybiak, had counsel for these proceedings and will undoubtedly have counsel present at the time of the discoveries.

DISPOSITION
[48] The letters of request are granted in both proceedings.

[49] Talisman shall have equal participation rights with the applicants in any examination of Richard Rybiak, and any productions of documents from Richard Rybiak or Jennifer Taylor, pursuant to the enforcement of the letters of request.

[50] It is also ordered that the implied undertaking rule apply to any such examinations and productions.

COSTS
[51] Subject to any agreement between the parties, brief written submissions on costs are to be made within 20 days of the release of these reasons



From: Windsor; ON | Registered: Mar 2004  |  IP: Logged
M. Spector
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posted 18 August 2005 02:49 AM      Profile for M. Spector   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
This case is actually the opposite of the maxim "hard cases make bad law."
quote:
That maxim refers to situations in which a judge or jury may be so moved by the specific allegations, the politics or some other aspect of the case, that they end up making bad law by molding the law to reach their desired result. Source
Pitt J. was obviously sympathetic to the "over-reaching extraterritoriality" argument. He set out extensive excerpts from the Canadian government's diplomatic note to the US State Department [para. 16] and said the concerns expressed therein were "well-founded" [para. 43].

The judge resisted the temptation to try to "mold" the law to suit his own sympathies. The issue before him was the narrow one of whether to comply with letters rogatory issued by the New York court, and the result of his decision could only have an effect on the amount of evidence that would be available to the New York court. He noted that it was beyond his power to put an end to the New York legal proceedings [paras. 17, 25, 41]. He also noted that the concerns expressed by the Canadian government regarding jurisdiction did not raise any issue about whether the evidence sought by the New York court was properly disclosable, as a matter of public policy [para. 24].

Since the case was going to proceed anyway despite Canada's and the judge's own misgivings about extraterritoriality, it was in the public interest that the New York court at least have access to all the evidence [para 44]. His decision was based on precedent [para. 46] and the factors to be considered under Rule 30.10, especially the principle of comity. It "should not be taken as an acknowledgement of the jurisdiction of the New York court" [para. 25]. At the same time, the Ontario Court was in no position "to act as an appellate court" in respect of the foreign court's decision to issue letters rogatory [para. 37].

I think this case was correctly decided, and to reject the letters rogatory would have set a bad precedent.


From: One millihelen: The amount of beauty required to launch one ship. | Registered: Feb 2005  |  IP: Logged
Carter
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Babbler # 8667

posted 18 August 2005 07:01 AM      Profile for Carter        Edit/Delete Post  Reply With Quote 
quote:
From the Ontario Superior Court judgment:
[4] The main action was commenced as a putative class action brought by the applicants on behalf of themselves and similarly situated non-Muslim, African residents of certain areas in southern Sudan who allege to have been damaged by acts of genocide, war crimes, extra-judicial killing, forced displacement, military bombings and assaults on civilian targets, confiscation and destruction of property, enslavement, torture and rape related to the oil exploration and extraction activities of Talisman and the Government of Sudan. Talisman is said to have collaborated with and aided and abetted the government of Sudan in respect of those acts.
quote:
From a Southern District of New York denial of Talisman's motion to dismiss, 01 Civ. 9882, March 19, 2003:
Talisman commenced its operations in Sudan in October 1998. See id. at P 28. Plaintiffs contend that Talisman worked with the Government to devise a plan of security for the oil fields and related facilities. See id. at P 26. Talisman hired its own military advisors to coordinate military strategy with the Government. See id. at P 26. Specifically, Talisman would have regular meetings with Sudan's army intelligence unit and the Ministry of Energy and Mining during which the parties would discuss "how to dispose of civilians" in areas in which Talisman intended to operate. Id. at P 32. Based on the joint Talisman-Government strategy, "Government troops and allied militia engaged in an ethnic cleansing operation to execute, enslave or displace the non-Muslim, African Sudanese civilian population from areas that are near the pipeline or where Talisman wanted to drill." Id. at P 26. Talisman was and is aware that Government's "protection" of oil operations entailed "ethnic cleansing" or genocide, including the murder of substantial numbers of civilians (including women and children); the destruction of civilian residences and villages; and the capture and enslavement of civilians who survived the military attacks. See id. at P 33.
M. Spector's post is of course correct, but I would also go further and take issue with James' (and the Canadian government's) contention that the Alien Tort Claims Act, and the exercise by a federal court in New York of jurisdiction over Talisman, are examples of "extraterritorial over-reaching." The ATCA is currently being narrowed so severely that it's, if anything, under-reaching; and American jurisdiction over Talisman is in fact not extraterritorial at all.

The ATCA was originally passed (in 1789) so that American federal courts could provide a desperately-needed forum for claims alleging violations of the universally-recognized norms comprising the "law of nations," mostly involving torts against diplomats and ambassadors, piracy on the high seas, etc. The Ontario court is about 25 years out of date when it says that the ATCA is "seldom, if ever, used," because since 1980 it's been frequently invoked in lawsuits alleging violations of the modern "law of nations," namely customary international law norms against genocide, crimes against humanity, etc. Often the US is the only forum available for these claims, as the countries in which the acts occurred may not have functioning legal systems, the countries in which these corporations are based may have ridiculously plaintiff-unfriendly legal systems, or whatever.

American conservatives hate the ATCA, of course, and have been working hard to emasculate it. For reasons too complicated to get into here, Justices Scalia, Thomas, and Rhenquist would read it as applicable only to violations of the law of nations as it existed in 1789, and even the court's majority now, since last year, requires an extremely stringent test before anything can be recognized as a customary international law norm under the ATCA. So the question is whether or not the acts which Talisman is alleged to have committed (genocide, war crimes, etc., etc.) fall within the scope of the ATCA, which a conservative judiciary is narrowing to almost nothing. And if they're so heinous and so contrary to universally-accepted human rights norms that they do fall within it, is that really such a bad thing?

Perhaps the most important reason why the ATCA is absolutely not an unjustified, legally-imperialistic overreach is that it confers only subject matter jurisdiction for these torts. For an American court to hear a case, it also needs to legitimately have personal jurisdiction over the defendant. A Canadian company that wants to limit itself to the Canadian or European market and not do business in the US can commit as many human rights violations in the Sudan as it wants; it cannot be sued in the US, under the ATCA or anything else. It's only when a company deliberately avails itself of the protections of the American legal system by transacting a substantial amount of business in the US that it becomes subject to civil suit in American courts - not a particularly unfair trade-off, one would think. Talisman is a mammoth, behemoth of an oil company that does business throughout the world, including having not one but two wholly-owned subsidiaries in the United States. But now it's complaining (as is the Canadian government, with money generously donated to the cause by Canadian taxpayers) that the country it does so much business in and derives so much financial benefit from is allowing it to be sued for ethnically cleansing areas of the Sudan it wanted to drill in.

The Canadian government's position is that the US should be able to exercise personal jurisdiction over foreign companies that transact business there only for the torts they commit in the US, and not for the far graver torts they commit in countries without functioning legal systems. That's a view which is shared by most European governments; by large corporations; and in all likelihood by the Bush administration itself. But I think it's wrong. And at the very least, Talisman was well aware when it started doing business in the US that it was making itself vulnerable to lawsuits for any crimes against humanity which it might later decide to commit, even if they took place in other countries. And it (allegedly) did all this stuff anyway. Personally, I'm very much opposed to a vindictive "do the crime, do the time" approach to criminal law; but I think that a "do the tort, pay the money" approach to civil law is completely different, and eminently justified. Because the alternative is "do the tort, keep the unjust profits."

At any rate, this particular Ontario judgment is not really about all this, it's only about a discovery request. Which makes it even more puzzling that people are crying legal imperialism. It's up to each country's own legal system to formulate rules regarding when it will enforce a foreign country's judgments and requests for evidence, and when it won't. The Ontario Superior Court set out the list of factors it was considering (burdensomeness, public policy, etc.), and decided that in this case, on balance, the documents should be turned over. And it was right.

Now, if the US were to invade Canada to seize these documents by force, that would be legal imperialism. But that would never happen. Getting large oil companies to return some of the profits they've made from crimes against humanity is not exactly #1 on this administration's list of priorities.


From: Goin' Down the Road | Registered: Mar 2005  |  IP: Logged
James
rabble-rouser
Babbler # 5341

posted 18 August 2005 07:43 AM      Profile for James        Edit/Delete Post  Reply With Quote 
O.K., Carter, I wasn't alive to this limitation -
quote:
For an American court to hear a case, it also needs to legitimately have personal jurisdiction over the defendant. A Canadian company that wants to limit itself to the Canadian or European market and not do business in the US can commit as many human rights violations in the Sudan as it wants; it cannot be sued in the US, under the ATCA or anything else. It's only when a company deliberately avails itself of the protections of the American legal system by transacting a substantial amount of business in the US that it becomes subject to civil suit in American courts - not a particularly unfair trade-off, one would think.

which makes it somewhat more palitable. Still, I'd much sooner have seen the plaintiff bring it's action in the Canadian courts, which it admits would have been a completely suitable and appropriate forum. I simply have so little faith in the U.S. legal system, (such fear and loathing of it, really), that I hate to see our own courts co-operate in any way with it extending it's jurisdiction to Canadians, even Canadians as contemptible as Talisman.


From: Windsor; ON | Registered: Mar 2004  |  IP: Logged
Carter
rabble-rouser
Babbler # 8667

posted 18 August 2005 09:41 PM      Profile for Carter        Edit/Delete Post  Reply With Quote 
quote:
O.K., Carter, I wasn't alive to this limitation -
I can hardly blame you, seeing as the letter from the Canadian embassy (quoted in the Ontario decision) doesn't exactly play up that angle, to put it extremely mildly. In fact, I would almost go so far as to say it's deliberately misleading. This, for instance: "In the Talisman case, there is no connection with the US either through the plaintiffs or the defendants...". Saying that Talisman (the defendants) have no "connection" to the US, even though they transact huge amounts of business there and have two wholly-owned American subsidiaries, is absurd. And this: "the Government of Canada considers the assumption of jurisdiction by US courts over Talisman, on the basis of the Alien Tort Claims Act raises serious foreign policy issues" is misleading. The ATCA is a grant of jurisdiction over the subject matter of this case; jurisdiction over Talisman (the defendants) flows not from the ATCA but from the company's substantial presence in the United States.

quote:
Still, I'd much sooner have seen the plaintiff bring it's action in the Canadian courts, which it admits would have been a completely suitable and appropriate forum. I simply have so little faith in the U.S. legal system, (such fear and loathing of it, really), that I hate to see our own courts co-operate in any way with it extending it's jurisdiction to Canadians, even Canadians as contemptible as Talisman.
I think you're putting too much stock in the fiction of corporate citizenship, though. Talisman does business throughout the world, including substantial business (and two subsidiaries) in the US. It's "Canadian" only to the extent that American corporations are "Delawarites" because that's where they happen to be incorporated. Ordinary Canadians, for instance those who don't happen to be multinational corporations, don't have to be worried about being sued in the United States. Unless they're physicially present in the US and get tagged by a process server there, American courts simply don't have jurisdiction over them.

Also, plaintiffs usually choose to sue in the available forum that's most advantageous to them; I don't see what's wrong with that. Anyone who's outraged that they chose to sue in the US even though Talisman is headquartered in Canada should be equally outraged that, having chosen the US, they sued in New York rather than Utah or Washington (where Talisman's two subsidiaries are headquartered). And that seems an unlikely source of outrage. What on earth should they be expected to do other than try to sue in the forum where they'll be most likely to win?

Now I'm not denying that the US casts a wider net than most other countries when it allows companies present within it to be sued for torts committed elsewhere. But there are other situations in which the US casts a narrower net than other countries. For instance, you can be sued in the UK if you're a "necessary party" to a British lawsuit, even if you've never been to the UK and have no connections or contacts with it whatsoever. That could never happen in the US: It would be unconstitutional. Different legal systems have different rules about personal jurisdiction in civil cases; the American rules just happen to be somewhat less favorable to multinational corporations.

Anyway, I don't blame you for feeling "fear and loathing" for the American legal system - that's perfectly warranted - but it's the criminal rather than the civil side which is the problem. And, somewhat counterintuitively, the requirements for an American criminal court to exercise jurisdiction over you are far less stringent than the requirements for an American civil court to do so. In other words, we should save our outrage for the Emery case, where it's warranted.

[ 18 August 2005: Message edited by: Carter ]


From: Goin' Down the Road | Registered: Mar 2005  |  IP: Logged

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