Comments on: Talisman ATS 2nd Circuit Holding Issued

By: Oren

Oren — Mon, 05 Oct 2009 20:37:13 +0000

If Shell had kept the original number of airfields and not built any more after the first demanded use, Niger wouldn’t have stopped massacring its own people. They would have just flown out of fewer airfields.

Less effective war crimes are a net positive.

That is, Shell’s activities are causally linked to an increase in the government’s capability to commit war crimes, which is complicity as far as I understand it.

By: NickM

NickM — Mon, 05 Oct 2009 02:49:41 +0000

If Shell had kept the original number of airfields and not built any more after the first demanded use, Niger wouldn’t have stopped massacring its own people. They would have just flown out of fewer airfields.

I disagree that this is causally contributing, at least in the sense of “but-for” causation.

As for whether Niger would have lost more from a Shell pullout than Shell would have, probably so (unless they could have successfully brought in talent from other countries), but that might not have stopped the Nigerien government. Kleptocracies are notoriously bad at optimizing the welfare of their nations.

Nick

By: Kirk Parker

Kirk Parker — Mon, 05 Oct 2009 02:10:25 +0000

Dave N, Presbyterians from the US were one of four or five main mission groups working in Southern Sudan under the Anglo-Egyptian condominium.

By: Oren

Oren — Sun, 04 Oct 2009 21:31:56 +0000

Nick, they continued to build more airfields, after seeing that the previous ones were appropriated and used to commit war crimes and knowing that the new ones would also be used in such a fashion. That is the tort, in my opinion — continuing to engage in conduct that obviously and causally contributes to a continuing egregious violation of international law.

By the way, Shell was in a fairly powerful negotiating position with respect to the Nigerian “government”. There is no local expertise in keeping the oil flowing and no foreign capital reserves. Shell would lose significantly by unilaterally pulling out, but the government would hurt more.

This is irrelevant, of course, since there is no economic justification for complicity in war crimes anyway.

By: NickM

NickM — Sun, 04 Oct 2009 12:11:12 +0000

Oren – am I reading you correctly that you think Niger would have just taken the airfields over if Shell had refused (and then proceeded them to use the airfields to engage in murder of their own people), but that Shell should be liable under the ATS for not refusing?

I personally do not consider agreement when “asked” by a group of people holding AK-47s to be voluntary.

Nick

By: Oren

Oren — Sun, 04 Oct 2009 07:01:54 +0000

Nick, you are right — eminent domain is a de facto power conterminous with military control of a region. Longwalker, on the other hand, suggested that this is a de-jure power, an assertion absurd enough to merit snark but for some reason I felt like giving him a chance to cite.

Substantively, I think the ATS creates a liability in such a case in which a corporation voluntarily acquiesces to such a demand where, as in Shell’s case, where the violation of international law was (1) egregious, (2) obvious and (3) directly and causally supported by their actions.

While I support TDC’s assertion that companies should not land in tort for normal business activities, the standard put forth by the 2CA goes too far in excusing actions that I believe ought to be included.

By: NickM

NickM — Sun, 04 Oct 2009 03:44:53 +0000

Oren – do you think the Nigerien government would have left Shell alone if Shell had refused use of their airfields?
Turning down the local army when they demand to use your property is highly unwise, regardless of the legality of their actions.

Nick

By: Oren

Oren — Sat, 03 Oct 2009 20:34:50 +0000

Longwalker, I’m not aware of any provision of international law that allows the coercive appropriation of private property for government use. Please cite.

By: Longwalker

Longwalker — Sat, 03 Oct 2009 17:20:55 +0000

Oren : Shell was a “guest” in Niger. The Nigerian government had the right to use Shell’s airfields under international law as they were the “legitimate” government. Shell had two choices – comply with the Nigerian government or abandon all their holdings in Niger. The government would then confisticate their holdings and the company woujld have little or no recourse. Unless, you believe that the United States would “send in the Marines” as we did in the early part of the 20th Century.

By: Oren

Oren — Sat, 03 Oct 2009 16:38:06 +0000

troll, yeah, “normal business activities” are one thing. If a company recklessly disregards the fact that it is aiding or abetting war crimes (for instance, Shell in Niger allowed its airfields to be used by military planes that it knew were being used to terrorize civilian targets) then that’s a different category.

By: troll_dc2

troll_dc2 — Sat, 03 Oct 2009 14:15:43 +0000

We should not be involved in other countries’ internal disputes, no matter how much we feel sympathy. The idea that a corporation that engages in normal corporate activities for the purpose of furthering its own interests can be liable because it deals with a regime that does bad things to its people is a bad one–and not only because the boundaries are so fuzzy that lawful conduct under such a standard cannot be determined in advance. The human-rights lobby will denounce this decision, but our courts have other things to do than police the world.

By: Harry Eagar

Harry Eagar — Sat, 03 Oct 2009 13:31:48 +0000

That’s why they call it the “Christian and animist south.”

It’s a racial and religious divide.

The leader of the Christians, until he was killed, was a Ph.D. from Iowa State.

By: Quartz

Quartz — Sat, 03 Oct 2009 07:29:27 +0000

I think it’s ineresting

By: Dave N

Dave N — Sat, 03 Oct 2009 07:14:51 +0000

I didn’t realize there were any Presbyterians in the Sudan.

By: Hadur

Hadur — Sat, 03 Oct 2009 05:34:58 +0000

How many justices own stock in Talisman?