U.K. Judgment Creates Jurisdictional Upheaval in International law

03/07/12

The UK Court of Appeal has passed a recent judgment that domestic courts may refuse to recognize a judgment passed in another Convention country, if the alleged foreign judgment fails to respect fair trial principles embodied in Section 6 of the Human Rights Act, 1998, U.K. This comes at a time when experts in U.S. are deeply debating the application of the Alien Tort Statute and whether a U.S. corporation or citizen can be sued within U.S. for acts committed on foreign soil.

It is also significant to add, just as an instance of disparity that remains in the jurisprudence of different countries that share direct and indirect international treaties, that a European nation, Moldova, has passed a law this week that requires mandatory castration of foreign pedophiles.

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And in its reasoning for the law, Moldova has clearly indicated that a significant number of perpetrators come from the U.S. It is well known in all legal circles of the world that law enforcement, evidence, and courts may be misled or may reach erroneous conclusions quite often, and the prospect of even one innocent being caught, tried, and castrated on foreign soil is unpalatable.
However, if the U.S. courts wash their hands off acts of U.S. entities perpetrated on foreign soil, as radical changes of the Alien Tort Statute could imply, it may lead to increased insecurity of U.S. citizens stepping outside the country.

The issues in the U.K. judgment and that in the U.S. debate may seem apparently unrelated, but both deal with issues of sovereignty, of protection of state citizens and entities, and jurisdictional questions upon acts crossing the borders of nations. Both impinge upon international law, and would guide the applications of state sovereignty and court jurisdiction in the international arena with legal and financial implications.

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Without going into the long story of the U.K. Court of Appeals ruling and its reason to strike down a judgment issued by the Ukraine Supreme Court, it would be prudent to quote the principal reasoning used to lay down the applicability of law in this case. In its judgment the U.K. Court of Appeals held:

“There is … a distinction in principle between a decision that resolves an issue of substantive law and a decision reached by a procedure that violates the fundamental human right to a fair trial.

… it is thus clear that, in an exceptional case where the procedure of the court first seised has resulted in a defendant being prevented from putting his case to the court, Article 27(1) of the Brussels Convention can justify a refusal to enforce the resultant judgment on grounds of public policy.”

However, this is exactly the reasoning foreign litigants claim to sue U.S. entities on U.S. soil under the Alien Tort Statute, that coming from a weaker economy, they are denied the right to a fair trial and procedural lapses arising from corporate influence. Food for thought.