Roger Alford has a post up at Opinio Juris commenting on the recent 9th Circuit opinion in Bauman v. Daimler-Chrysler AG. A 9th Circuit panel held last week in this case that the court did not have
personal jurisdiction over DaimlerChrysler Corporation AG because [corporation] did not have continuous and systematic contacts with the forum. The case of Bauman v. DaimlerChrysler AG arose out of the alleged kidnapping, detention and torture of Argentinian citizens in Argentina by Argentinian state security forces acting at the direction of Mercedes Benz Argentina. The plaintiffs sued the parent company, DaimlerChrysler AG, and the Ninth Circuit concluded that it lacked personal jurisdiction.
As Roger explains, given the facts, this conclusion is not at all surprising. More surprising, as he goes on to explain, is Judge Stephen Reinhardt's dissent, in which he argues that
promoting international human rights was a state interest that should factor into a finding of personal jurisdiction. Reinhardt first concluded that DaimlerChrysler AG had minimum contacts in the forum through its American subsidiary. He then examined whether it was reasonable to assert jurisdiction based on seven factors, including “the state’s interest in adjudicating the suit.”
This looks very much, Roger adds, like a forum non conveniens argument "dressed up as an assertion of personal jurisdiction." Indeed. However, a reason I was interested in reading this opinion is that much of my attention in Alien Tort Statute jurisdiction issues runs to subject matter jurisdiction and to whether the plaintiffs arguments make out bona fide Sosa violations of the law of nations, and whether the jurisidictional subject matter is met if the claimed violator is a corporation. I thus found it interesting to see a discussion of what kinds of contacts are required to reach personal jurisdiction, and then what the standard of reasonableness for the assertion of personal jurisdiction.
Update: Here's a short, interesting piece by Josh Goodman in the Harvard International Law Journal Online, proposing a way to resolve issues of aiding and abetting liability under the ATS, reaching to administrative law models. I have only read it quickly, and haven't formulated a firm view, but if you follow ATS issues, I'd say it's worth reading.
To any layman it would seem absurd that our courts
could not obtain jurisdiction over a billion dollar
multinational which is exploiting the critical New
York and American markets to keep its home production
going at a huge volume and profit. This perception
must have a bearing on our evaluation of
fairness. The law ignores the common sense of a situation
at the peril of becoming irrelevant as an institution.
With all due respect to Judge Reinhardt, to any layperson it would seem absurd that you could sue Mercedes-Benz in California for something it allegedly did in Argentina.
That depends on how "lay" that layperson is. Are we allowed to tell them that such a thing as the Alien Tort Statute exists without "un-laying" them? The fundamental idea that you state here is sound. There is no reason why Mercedes-Benz (or rather, the company: Daimler-Benz), cannot be sued in California, except that the court found they have insufficient ties to the forum. But that doesn't mean they can't be sued somewhere else in America for what they may or may not have done in Argentina.
Federal law allows prosecution of sex acts against minors committed abroad by US citizens.
They must be Marxists! Or at least the most be those Marxists who don't know they're Marxists. In fact, I can prove it: Look at how many "employee representatives" they have on their supervisory board!
It may be the right result. The party at fault is Mercedes Benz Argentina, and it is not obvious that a parent company should have liablity for the acts of its subsidiary in this case. Forum non conveniens also makes sense.
But, Daimler-Chrysler AG clearly has "continuous and systematic contacts" with California. From the opinion where not otherwise noted:
Daimler-Chrysler AG doesn't just have a U.S. subsidiary, it has a U.S. subsidiary with whom it has not only an investor relationship but a dealership arrangement. It routinely sends its agents to the United States and California to do business with the subsidiary, I suspect. As the dissent notes: "DCAG, for instance, has earned 45% of its annual revenue from its sales in the United States. 2.4% of its total sales in 2004 were in California." Further:
The case is a strong one for an en banc or SCOTUS reversal. The impact may be harmless in this case, but the doctrine it makes on general jurisdiction is very bad.
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