One breach, two losses. Does demurrage cover both?

Andrew Baker J today has said that it does not. In K Line PTE Ltd v Priminds Shipping (HK) Co, Ltd [2020] EWHC 2373 (Comm) the vessel was kept at the anchorage for some 31 days due to port congestion and lack of storage space ashore for the cargo. In consequence when the cargo of soyabeans was discharged it exhibited substantial mould and caking. This led to a cargo claim against owners who then settled and sought to recover from voyage charterers by way of damages for breach of their obligation to discharge within the laydays.

 Dicta of Sargant LJ in Reidar v Arcos [1927] KB 352, not the easiest of cases from which to extract a ratio, suggested that demurrage was the sole remedy for breach of that obligation, but that the case before him involved a breach of a separate obligation, a proposition applied by Potter J in The Bonde [1991] 1 Lloyd’s Rep 136). By contrast, Webster J in The Altus [1985] 1 Lloyd’s Rep 423 held that demurrage only had the effect of providing liquidated damages for a specific type of loss, the economic loss suffered by owners in the charterers exceeding the laydays for which they had paid in the freight. It did not cover other types of loss flowing from this breach. This was the view of Bankes LJ in Reidar. The contentious point was whether Atkin LJ had been with Sargant LJ or with Bankes LJ.

The academic writings were divided: Carver on Charterparties , Voyage Charters, and Shipping Law for the view of Sargant LJ; Scrutton contra for that of Bankes LJ; Schofield undecided; and Summerskill nowhere to be seen. After a long discussion as to whether precedent required him to follow The Bonde – it did not – Andrew Baker J held that damages could be claimed for the cargo claim resulting from the delayed discharge, notwithstanding the demurrage provision. He added that had he come to a different conclusion, there would have been no scope for implying an indemnity -owners’ second string to their bow.

One suspects this will come as an unpleasant surprise to charterers, but perhaps the bigger surprise is what owners were doing settling a claim which under the Hague Rules they would have had a good chance of resisting under Art IV (2)(q)  which provides an exemption as follows: “Any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.”  Deterioration of the cargo due to delay in discharge due to congestion would very likely constitute such a cause.

This looks like one for the Court of Appeal, and, maybe, the Supreme Court.

Double-bad news for Mauritius. It’s the wrong type of pollutant.

 

On July 26 the “Wakashio” grounded off Mauritius, breaking up on 16 August. So far about 1200 tonnes of bunker fuel has been released into the sea. For Mauritius this is an environmental disaster.

Civil liability for bunker oil pollution falls under the Bunker Oil Pollution Convention 2001, to which Mauritius is a party. The good news is that under the Convention, the shipowner is strictly liable and there is mandatory insurance, with a direct right of action against the liability insurance, in this case the Japan P&I Club.

The bad news is that art. 6 provides that owners may limit their liability in accordance with the Convention for Limitation of Liability for Maritime Claims 1976 or as amended.

The 1996 Protocol, significantly increases the  original limits in the 1976 Limitation Convention. However, it seems that Mauritius has not signed up to the 1996 Protocol.

Based on the gross tonnage of the vessel, apparently 101,932 tonnes, the limit for third-party claims including costs of prevention and clean up would be around $18m. Under the 1996 Protocol the limit would be $65m, based on the 2012 amendment to the LLMC 1996 limits, which entered into force in June 2015 and applied automatically unless objected to.

Had the oil spilled been from a laden oil tanker, the CLC and Fund regimes would have kicked in, with substantially higher limitation figures. Under the CLC the shipowner’s limitation figure would be around 65 million SDR,  US $91.65 million, with the Fund’s limitation figure being 203 million SDR, US $ 324.3 million.

 

Supremes give permission to appeal in big passage planning case.

On 30 July the Supreme Court gave permission to appeal in The CMA CGM Libra – an important case on the boundary between crew negligence and unseaworthiness under the Hague Rules. At first instance, and in the Court of Appeal, matters went against the owners and the master’s failure to correct the passage plan before setting out from a port in China had the result of making the vessel unseaworthy and the owners in breach of art. III(1) of the Hague Rules.

The limits of bill of lading holder liabilities to the carrier. Paying for stevedores doesn’t necessarily mean you are liable for delay in discharge.

In Sea Master Shipping Inc v Arab Bank (Switzerland) Ltd [2020] EWHC 2030 (Comm), HH Judge Pelling QC presided over an interesting case regarding the implied discharge obligations, under bills of lading, of receivers and banks. Parcels of soya bean meal were discharged in Lebanon in February 2017 under two switch bills which incorporated the terms of a voyage charter. The voyage charter provided for ‘charterer’ to pay demurrage, but recovery from charterers was stymied by the fact of their insolvency. So what about the bill of lading holder/s?  Clearly there was no obligation on the bill of lading holder to pay demurrage (see The Miramar), and the tribunal found accordingly. Owners advanced an alternative claim based on two implied terms, that the Bank and/or the Receivers would: take all necessary steps to enable the cargo to be discharged and delivered within a reasonable time; and/or discharge the cargo within a reasonable time. The tribunal found against owners on this and the implied terms claim was the subject of an appeal.

HH Judge Pelling QC agreed with owners that the first issue to be resolved was whether, as a matter of construction of clauses 10 and 11 of the Voyage Charter, the “Charterers/Receivers” were responsible for performing the task of discharging the cargo from the vessel. Clause 10 stated that “…Cargo is to be discharged free of expense to the Vessel…”.  Clause 11 provided “…Stevedores at discharging ports are to be appointed and paid for by the Charterers/Receivers”. He concluded that although charterers/receivers were to pay for discharging the cargo, that did not mean that they were responsible for discharging. This was made clear by the additional words of cl. 11: “In all cases, stevedores shall be deemed to be the servants of the Owners and shall work under the supervision of the Master.” These words made it clear that control of the exercise remained with the master on behalf of the owner, the default position at common law. This was further confirmed by cl.46 of the incorporated charter, which provided that:

“Stevedore’s damages, if any to be settled directly between owners and stevedores but charterers to assist Owners at their utmost. Master to notify, if possible, these damages in writing latest 48 hours after occurrence to Stevedores but Owners to remain ultimately responsible to settle same with the stevedores.”

This made sense only in the context of the appointment of stevedores by the receiver or charterer where the Owner remained responsible for discharge.

Turning to the second implied term – to discharge the cargo within a reasonable time – argued for by owners, the Judge concluded that the carriage contract did not lack commercial or practical coherence without such an implied Term. As between the Owner and the Charterer, the Owner chose to accept the risk of Charterer’s insolvency. To imply the Second Implied Term would be to imply a term that contradicted the express terms of the relevant agreement, the effect of which was, as found by the Tribunal, that “… demurrage should be payable by Agribusiness, not by the Bank or the Receivers”.

The Judge then rejected owners’ first suggested implied term – to take all necessary steps to enable the cargo to be discharged and delivered within a reasonable time. Owners contended at least implicitly that delivery was a collaborative process, and sought to imply the term relying on the principle summarised by Lord Blackburn in Mackay v. Dick (1881) 6 App. Cas. 251 at 263:

“I think I may safely say, as a general rule, that where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect. What is the part of each must depend on circumstances.”

However, neither delivery nor discharge depended on collaboration. Delay in claiming delivery within a reasonable time would lead to the consequences set out by Males J in The Bao Yue [2015] EWHC 2288 (Comm) [2016] 1 Lloyds Rep 320:

“It has been established for many years that if the bill of lading holder does not claim delivery within a reasonable time, the master may land and warehouse the cargo; that in some circumstances it may be his duty to do so; and that as a correlative right, the shipowner is entitled to charge the cargo owner with expenses properly incurred in so doing …[49] ”

The only collaborative element under this contract of carriage was the receiver’s obligation to appoint stevedores by operation of clause 11. However that did not make the implication of the the suggested implied term necessary or reasonable because (a) the express obligation to appoint was absolute in its terms and (b) there was an express agreed contractual mechanism contained in clause 20 of the Voyage Charter terms that applied in the event that discharge is delayed by the failure by the defendants to appoint stevedores. Even if there were an absolute obligation on the receivers to make a berth available, that did not lead to implying such a wide ranging general term. Such a duty would require only a very narrowly expressed implied term that required the receivers to make a berth available and it seems probable that a failure to do so would be subject to the demurrage machinery within the Contract of Carriage, although no decision was necessary on this issue.

Accordingly, owners’ appeal was dismissed.

The creditor in the looking glass. ‘Reflective loss’ principle confined to shareholder claims.

 

In July 2013 Marex Financial Ltd (“Marex”), obtained judgment for over US$5.5 million, plus costs of£1.65 million against various companies. Subsequently, one Mr Sevilleja allegedly procured the offshore transfer of over US$9.5 million from the Companies’ London accounts into his personal control and by the end of August 2013, the Companies’ assets were just US$4,329.48, such that Marex could not receive payment of its judgment debt and costs. The Companies were then placed into liquidation in the BVI with alleged debts in excess of US$30m.

Marex claimed damages from Mr Sevilleja in tort for (1) inducing or procuring the violation of its rights under the July 2013 judgment and orders, and (2) intentionally causing it to suffer loss by unlawful means. The Court of Appeal had found that the claims were barred by the rule against recovery of ‘reflective loss’ in Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204, noted here https://iistl.blog/2018/06/26/midsummer-blues-if-youre-a-judgment-creditor/ This laid down a rule of company law that a diminution in the value of a shareholding or in distributions to shareholders, which is merely the result of a loss suffered by the company in consequence of a wrong done to it by the defendant, is not in the eyes of the law damage which is separate and distinct from the damage suffered by the company, and is therefore not recoverable.. The Supreme Court in Sevilleja (Respondent) v Marex Financial Ltd (Appellant) [2020] UKSC 31, has now overturned that decision.

The majority concluded that the rule did not apply to claims brought by creditors of the company. Lord Reed concluded that the rule in Prudential seemed to be expanded in Johnson v Gore Wood & Co [2002] 2 AC 1, in which Lord Millett treated the “reflective loss” principle as a wider principle of the law of damages, based on the avoidance of double recovery. After reviewing subsequent cases, Lord Reed concluded that it was necessary to distinguish

“(1) cases where claims are brought by a shareholder in respect of loss which he has suffered in that capacity, in the form of a diminution in share value or in distributions, which is the consequence of loss sustained by the company, in respect of which the company has a cause of action against the same wrongdoer, and (2) cases where claims are brought, whether by a shareholder or by anyone else, in respect of loss which does not fall within that description, but where the company has a right of action in respect of substantially the same loss” [80].

Case one is barred by the rule in Prudential, regardless of whether the company recovers its loss in full, but in case two recovery is permissible in principle, although it may be necessary to avoid double recovery. The rule in Prudential did not apply to Marex, which was a creditor of the Companies, not a shareholder.

The minority also decided in favour of Marex but took a different view of the effect of Prudential. Lord Sales stated that the case did not lay down a rule that would exclude a shareholder’s recovery where, factually, the loss was different from that of the company.  The governing principle was avoidance of double recovery, as was the view of the Law Lords in Johnson (contrary to the view expressed by Lord Reed).

Although there was necessarily a relationship between a company’s loss and the reduction in share values that it causes, “the loss suffered by the shareholder is not the same as the loss suffered by the company” and there is no one-to-one correspondence between the two [132].” A shareholder ought not to be prevented from pursuing a valid personal cause of action; double recovery can be prevented by other means Even if the Prudential principle were accepted, it should not be extended to cover a case involving loss suffered by a creditor of the company.

 

Intransigent defendants: Prestige 4.0

Most parties who lose English court cases or arbitrations give in (relatively) gracefully. In the long and ongoing Prestige saga, however (already well documented in this blog: see here, here, here, and here), the French and Spanish governments have chosen to fight tooth and nail, something that is always apt to give rise to interesting legal points. Last Friday’s episode before Butcher J (SS Mutual v Spain [2020] EWHC 1920 (Comm)) was no exception, though in the event nothing particularly novel in the way of law emerged.

To recap, nearly twenty years ago the laden tanker Prestige sank off northern Spain, grievously polluting the French and Spanish coasts. Steamship Mutual, the vessel’s P&I Club, accepted that it might be potentially liable to direct suit up to the CLC limit, but pointed out that its cover was governed by English law, contained a “pay to be paid” clause and required arbitration in London. Nothing daunted, the French and Spanish governments came in as parties civiles when the owners and master were prosecuted in Spain, and claimed their full losses. The Club meanwhile protected its position by obtaining declaratory arbitration awards in England against both governments that all claims against it had to be arbitrated here; for good measure it then successfully transmuted these awards into High Court judgments under s.66 of the 1996 Arbitration Act (see The Prestige (No 2) [2013] EWHC 3188 (Comm). These decisions the French and Spanish governments blithely ignored, however; instead they took proceedings in Spain to execute the judgments they had obtained there.

In the present litigation, the Club’s claim (slightly simplified) was against both governments for damages for continuing the Spanish proceedings, based either on breach of the arbitration agreement, or in the alternative on failure to act in accordance with the s.66 judgments. The object, unsurprisingly, was to establish an equal and opposite liability to meet any claim asserted by the governments under their judgments in the Spanish proceedings.

The Club sought service out on the French and Spanish governments: the latter resisted, arguing that they were entitled to state immunity, and that in any case the court had no jurisdiction.

On the state immunity point, the Club succeeded in defeating the governments’ arguments. The proceedings for breach of the arbitration agreement were covered by the exception in s.9 of the State Immunity Act 1978 as actions “related to” an arbitration agreement binding on the governments. Importantly, Butcher J regarded it as unimportant that the proceedings did not relate to the substantive matter agreed to be arbitrated, and that the governments might be bound not by direct agreement but only in equity on the basis that they were third parties asserting rights arising from a contract containing an arbitration clause.

The proceedings on the judgments, by contrast, were not “related to” the arbitration agreement under s.9: understandably so, since they were based on failure to give effect to a judgment, the connection to arbitration being merely a background issue. But no matter: they were covered by another exception, that in s.3(1)(a), on the basis that the breach alleged – suing in the teeth of an English judgment that they had no right to do so – was undoubtedly a “commercial transaction” as defined by that section.

The judge declined to decide on a further argument now moot: namely, whether suing abroad in breach of an English arbitration agreement was a breach of a contractual obligation to be performed in England within the exception contained in s.3(1)(b) of the 1978 Act. But the betting, in the view of this blog, must be that that exception would have been inapplicable: there is a big and entirely logical difference between a duty not to do something other than in England, and an obligation actually to do (or omit to do) something in England, which is what s.3(1)(b) requires.

State immunity disposed of, did the court have jurisdiction over these two governments? Here the holding was yes, but only partly. The claim based on the s.66 judgments was, it was held, subject not only to the Brussels I Recast Regulation but to its very restrictive insurance provisions dealing with claims against injured parties (even, note, where the claims were being brought, as some were in the case of Spain, under rights of subrogation). Since the governments of France and Spain were ex hypothesi not domiciled in England, but in their respective realms, there could be no jurisdiction against them.

On the other hand, the claims based on the obligations stemming from the arbitration award were, it was held, within the arbitration exception to Brussels I, and thus outside it and subject to the national rules in CPR, PD6B. The only serious question, given that the arbitration gateway under PD6B 3.1(10) or the “contract governed by English law” gateway under PD6B 3.1(6)(c) pretty clearly applied, was whether there was a serious issue to be tried as to liability in damages. Here Butcher J had no doubt that there was, even if the governments were not directly party to the agreements and the awards had been technically merely declaratory of the Club’s rights. It followed that service out should be allowed in respect of the award claims.

Further than this his Lordship did not go, for the very good reason that he had no need to. But in our view the better position is that indeed there would in principle be liability under the award claims. If, as is now clear, an injunction is available on equitable grounds to prevent suit in the teeth of an arbitration clause by a third party despite the lack of any direct agreement by the latter, there seems no reason why there should not also be an ability to an award of damages, if only under Lord Cairns’s Act (now the Senior Courts Act 1981, s.50). Further, there seems no reason why there should not be a an implied obligation not to ignore even a declaratory award by suing in circumstances where it has declared suit barred.

For final answers to these questions we shall have to await another decision. Such a decision might even indeed come in the present proceedings, if the intransigence of the French and Spanish governments continues.

One other point to note. The UK may be finally extricating itself from the toils of the EU at the end of this year. But that won’t mark the end of this saga. Nor indeed will it mark the end of the Brussels regime on jurisdiction, since the smart money is on Brussels I being replaced with the Lugano Convention, which is in fairly similar terms. You can’t throw away your EU law notes quite yet.

Fear of Damage and the CMR

 

A recent decision from the court in Amsterdam, ECLI:NL:RBAMS:2019:10104, published 21 February 2020, is a reminder of two salient differences between the liability structure of the international road carriage convention, the CMR, and that under the sea carriage conventions: as regards what constitutes ‘damage’; as regards express contractual provisions varying the scheme of the convention.

Danone, were the shipper of dairy products from Germany to France. When the goods arrived in France it was found that the seal on the container had been broken and Danone destroyed the goods and claimed their full value and the cost of their destruction. The framework contract stipulated that Danone was entitled to destroy all goods in the case that the presence of persons in the trailer was suspected, and could invoice the full value of the goods plus destruction costs. The court decided that ‘damage’ in the CMR meant a substantial physical change in the state of the goods. The fact that the seal had been broken, which allegedly caused a decrease in the market value and marketability of the goods, was not characterised as ‘damage’ within the meaning of the CMR. Recovery of economic loss under CMR is restricted to the items referred to in art.23(4) “the carriage charges, Customs duties and other charges incurred in respect of the carriage of the goods”. By contrast, with carriage of goods by sea under the Hague Rules, a claim can subsist in relation to pure economic loss, such as the value of sound cargo destroyed due to fear of contamination by proximity to damaged cargo (The Ocean Victory Ltd. [1982] 2 Lloyd’s Rep. 88.).

Danone were also unsuccessful in referring to the specific provisions in their framework contract, due to art.41 of the CMR, because because they increased the mandatory liability of the carrier under the CMR.  Article 41 renders null and void derogations of CMR, whether for the benefit of the carrier or the sender. By contrast, art III(8) of the Hague Rules has only a one way effect in rendering null and void provisions which are for the benefit of the carrier, with art V preserving the effect of contractual provisions that benefit the shipper.

 

 

 

An odd decision over contribution, but no need to worry.

As they used to say as often as they could in the Hitch-Hiker’s Guide to the Galaxy, “Don’t panic!”

What rules govern contribution proceedings between tortfeasors? In Roberts v SSAFA [2020] EWCA Civ 926 a little boy, presumably a service child, was injured in hospital in Germany owing to SSAFA’s negligence. SSAFA claimed contribution from the MoD, alleging they were concurrently liable. The MoD said, correctly, that German law applied to the contribution proceedings and under German law they were out of time. SSAFA said yes, but then struck a remarkably nationalistic note. The English Civil Liability (Contribution) Act 1978, it argued, ought to apply to all proceedings in the English court even if the liability would otherwise be governed by foreign law: and since that said the claim against the MoD wasn’t statute-barred that was an end of it.

One decision directly in point, Arab Monetary Fund v Hashim [1994] CLY 3555, supported SSAFA; the law professors, by contrast, broadly supported the MoD. The Court of Appeal, after a lengthy analysis of the 1978 Act, came down on the side of SSAFA: on a proper interpretation the Act it, and its scheme of liability, were meant to apply to any proceedings brought here, full stop.

To put things neutrally, this blog would have been with the law professors. The decision will hardly do much for comity; nor does the result make much sense as part of a sensible scheme of private international law, since where it applies it is an open invitation to come and do some socially-distanced forum-shopping in England.

But, as we said at the beginning, don’t panic. The parties’ names in this case might well have been not Roberts and SSAFA but Jarndyce and Jarndyce: the events took place as long ago as 2000 (!). Since 2009 we have had a more sensible rule about contribution in Art.10 of Rome II, which essentially subjects contribution claims to the law governing the main tort. In just about every case you come across these days, barring outliers like this one, it will apply. Whatever else you may think of the EU, Rome I and Rome II are much better provisions than the common law rules they replaced; and even better than that, it seems a racing certainty they will they will continue serenely on post-Brexit. So litigation lawyers can pour that large gin and tonic with a clear conscience this evening.

Careful who you sell that ship to!

Safety in ship recycling has been a priority of the EU for more than seven years. Under EU Regulation 1257/2013, in force since 2018, there is a complex system of EU approval of ship recycling facilities, it being illegal to send an EU-registered ship for recycling to an unapproved facility (meaning as often as not a not-very-deserted beach in India or Bangladesh, where she is broken up essentially by hand). This Regulation is to be retained EU law post-Brexit, though from the end of this year it will be significantly narrowed, in that it will only apply to UK-registered vessels (i.e. pretty few).

But quite a lot of ship recycling is outside the regulation. A case in point was the Maran Centaurus, a vessel previously in the news as the victim of a high-profile Somali hijacking in 2009 that led to payment of a then-record ransom of about $7 million. Owned by Greek interests, at the end of her life she was reflagged to Palau and sold to a buyer for demolition, who in turn resold her to a beachside Bangladeshi concern. During demolition a worker operating in very dangerous conditions was killed. His widow rightly concluded that the demolishers were not worth powder and shot. She instead sued the owner’s managing agents, a UK company who acting under the owners’ instructions had arranged the sale, alleging that it should have been foreseeable that unless they took steps to ensure that the vessel ended up in the hands of responsible breakers she would be broken up — as she was — without any serious regard for worker safety. The agents denied fault and applied for a strikeout, on the basis that a seller of a ship owed no duty in respect of dangerous practices that might later occur in relation to her. This was not, they said, a case of damage caused by hazardous materials aboard the vessel injuring a worker: there was nothing more here than a sale indirectly to a person likely to have a less than satisfactory attitude to industrial safety.

This writer has quite a lot of sympathy for this view. But in Begum v Maran (UK) Ltd [2020] EWHC 1846 (QB) Jay J declined a strikeout, regarding it as highly arguable that, despite the vessel herself not being unusually hazardous, this was a case where the defendants had created a foreseeable risk of harm and as such potentially owed a duty of care to the worker concerned.

Note that this is not a holding that there was a duty of care: merely that the argument that there was one wasn’t a non-starter. Nevertheless, it should worry shipowners everywhere (and cause them to check on their insurance coverage). It might even extend further: for example, what of a shipowner who sells (or bareboat charters) a vessel to an operator known to have a dodgy safety record: the logic of the Maran case seems to apply here too, and if it is followed we cannot rule out liability in the seller or owner.

Admittedly the if might be a biggish one. We said that we had sympathy for the defendant’s argument. The chances are that this case will now settle so we won’t ever get a final answer here. But the defendants’ case is strong. The case for making owners responsible for policing the safety records of disponees is by no means obvious, any mote than it is obvious that in selling my car I should have to take care lest the buyer is a known drink driver. It may well be worth fighting this issue again if, as seems highly likely, it comes back to the English courts in another case.

The Alien Tort Statute on its deathbed? SCOTUS grants certiorari in two aiding and abetting cases.

The US Judiciary Act of 1789, 28 U. S. C. §1350. which is now known as the Alien Tort Statute, provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of of the law of nations or a treaty of the United States.” For nearly forty years it has been used as the gateway to bring suits in the US District Courts against individuals and corporations based on alleged violations of norms of international law.

The Supreme Court has three times considered the scope of the ATS: in Sosa in 2004 when it decided that the norms of the ‘law of nations’ had to be as well established as the three such norms in existince when the ATS was passed in 1789 (piracy, offences against ambassadors, violations of safe conducts); in Kiobel in 2013 when it decided that the ATS was subject to the presumption against extra-territorial application of US standards and; in Jesner v Arab Bank in 2018, when it decided that foreign corporations could not be subject to liability under the ATS. But what about US corporate defendants?

It now seems that there is a chance of killing off the ATS altogether, although ATS type claims could still be brought in the future as tort claims in the state or federal courts. On 2 July the US Supreme Court granted certiorari to hear appeals in two Alien Tort Statute decisions, involving claims against Nestle and Cargill alleging aiding and abetting forced labour by farmers in Côte d’Ivoire from whom they bought cocoa.

The questions presented, each of which is the subject of a circuit conflict, are:

  1. Whether a defendant is subject to suit under the ATS for aiding and abetting another person’s alleged violation of the law of nations based on allegations that the defendant intended to pursue a legitimate business objective while knowing (but not intending) that the objective could be advanced by the other person’s violation of international law.
  2. Whether the “focus” test of Morrison v. National Australian Bank, Ltd., 561 U.S. 247, 248 (2010), governs whether a proposed application of the ATS would be impermissibly extraterritorial under Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
  3. Whether there is a well-defined international-law consensus that corporations are subject to liability for violations of the law of nations.

The third question is particularly interesting in that this is the same issue as came before the Supreme Court of Canada in the strike out decision in Nevsun v Araya in its decision at the end of February 2020. Almost all the material on this issue derives from the decisions of US federal courts in ATS cases. As they say, “If you want to know about customary international law, ask an American lawyer.” – and you will get no definite answer on this one.