 Welcome back. Welcome to this afternoon's session. A very brief introduction of the panel of this afternoon. On my far left is Andoids Corta. He is a general manager at Corta, a local company, a local, a Spanish company that produces, as I understand it from their website, a particular type of screws, which they sell to major machine tool companies all over the world. So this, also from our discussion this morning I think this already gives an indication how nice it is to have him on the panel this afternoon. On my left also is Professor Fausto Pokar. I will introduce him more elaborately just now. First of all, before I get to that, I would like to just quickly say what is on the agenda for this panel. Firstly, we'll hear a perspective of Professor Pokar for about 20 minutes, then we'll have room about 10 minutes for questions and discussion with the panel with the audience, so I hardly invite you to participate in that. After that, we will turn to a discussion of the two cases that are central to this panel. Two cases in which EU corporate defendants have sought to be held liable before non-EU courts for human rights violations perpetrated in third countries. First, though, we turn to Professor Fausto Pokar. Professor Fausto Pokar is an Italian law professor and I'm very honored to introduce you. He is a professor of international law from the University of Milan where he is also served as the Dean of the Faculty of Political Sciences and as the Vice Rector. But he is also the former president of the International Criminal Tribunal for Yugoslavia and he currently still serves as a judge in the appeals chamber of the Yugoslavia Tribunal as well as of the Rwanda Tribunal. Now, Professor Pokar has a longstanding experience in UN activities, in particular in the field of human rights and humanitarian law. And among other things, he has served as a member and also as the chairman of the Human Rights Committee under the International Covenant on Civil and Political Rights. Considering Professor Pokar's illustrious career and his vast experience in the field of human rights law and international criminal law I think it will be particularly interesting to hear his views on the business and human rights debate. So without further ado, I would like to now gladly give the floor to Professor Pokar. We have a presentation to which I would only add just to justify my presence here, maybe, that most of my career was in private international law, actually. So there is something that goes in that direction in the discussion we will have today. But first let me thank the organizers of this, particularly my friend, Roger Struvia, for inviting me to this very interesting conference on business and human rights. I will try in the limited time I have to put some questions more than give answers because I believe the current situation, legal situation and not only legal, even a soft law situation, does not allow to give many, many answer final answers at least. And some depend, of course, on the cases we will be discussing, maybe more in detail, but I have to make reference to them in order to put the questions I want to put for the discussion. First, as we are in the field of judicial remedies for protection of human rights and they will not speak of non-judicial remedies, because I think other panels will have dealt and will deal with this matter. I would like to draw, without going into details, your attention to the principles that have been adopted by the Human Rights Council on the issue of human rights and transnational corporations and other business enterprises. These principles are not the law, of course, are an assessment however of practices that may be taken into account. As these are principles adopted by the UN body, they are drafted in a way that leaves quite a lot of margins of interpretation. First, they don't put obligations. They are drafted as principle always with the word should and never with a must even when they speak of state's obligation that could require a must, a shell and not a should. But that's the way of drafting a prudent document like principles by the Human Rights Council. But on that as far as judicial remedies are concerned, I would like to draw your attention particularly to principles, I don't know whether you have them, 25 and 26, 25 explaining that states under the obligation to control the activity of corporations and avoid through judicial and non-judicial means, or legislative means, that abuses are not carried out in the territory or under the jurisdiction within the jurisdiction of the state by corporations conducting their business. And it refers to within the jurisdiction or on the territory. So it's clear. The fundamental principle is clear. However, when you come to the following provision, principle 26 it refers to appropriate steps to be taken by states to ensure the effectiveness of judicial mechanism when addressing business-related human rights abuses, including considering ways to reduce legal practical and other relevant barriers that could lead to a denial of access to remedy. The accent is put on access to remedy. The main point is whether victims of abuses are entitled to bring a case before a court for remedy. And the Special Rapporteur when commenting on this provision adds a comment saying that it would be appropriate, one of these barriers is where claimants face a denial of justice in a whole state and cannot access home state courts regardless of the merits of the case. So the Special Rapporteur probably accepted the general approach that was to limit jurisdiction, but himself was the idea that one should go beyond and eliminate barriers to access to justice even when the abuses occur outside of the state. That's just to show that in the document we should not use it too strictly and take into account that probably it's a sort of compromise that was made by the states because the Human Rights Council is a council of states. So to agree on something is not very easily, it's already a miracle I think the principle like that have been adopted and endorsed by the Human Rights Council. Now why say that? Because the main, one of the main issues we have in front of us is to discuss how far victims, alleged victims of violation can bring a case in court of state A against a corporation. When that corporation has committed crimes that are responsible for abuses, human rights abuses in a different country, in another state. And there is in principle no real connection with the states where the abuses have been committed and the country where the court sits. Of course there may be a general connection which is the presence of the corporation in the country. Or a subsidiary of the corporation or a part of one of the many branches of the corporation in the country. But is that sufficient to base jurisdiction? And can jurisdiction be based in a country or the country of the court approach even if there is no such contact at all. And you have simply a claimant bringing an action and bringing a case for reparation of these violations by the corporation and there is no link. Of course you would need normally at least the presence of assets of the corporation because otherwise a claim doesn't make sense and nobody will bring a claim against the corporation where you cannot then enforce. But that may be even the case because there may be treaties that allow for enforcement in other countries automatically. It's not excluded completely. But can we have jurisdiction where there is no contact? So the cases we have to discuss today have approached this problem and they come the jurisprudence comes from the United States essentially because there was as of the 18th century in the United States a rule, a rule the Alien Thought Act or the Statute where it said that the district court shall have original jurisdiction in any civil action by an alien for a tort, only for torts, not conduct committed in violation of the love nations or a treaty of the US. That means that jurisdiction was based only on the fact that abuse was in violation either of a treaty but more generally of the love nations maybe custom and international law. So any abuse could be brought in principle under this provision and indeed after one century where this or more, more than one century, almost two centuries where this provision remains dormant once a case was brought against a person for crimes committed in a South American country and the fact is that this was not a case against the corporation however it was a case of the individual but the court in the Philartic case indeed endorsed this approach there was general jurisdiction on this simply based on that then they start with the restrictions and the restrictions concern corporations essentially not individuals but not really individuals who have problems and there are too many restrictions I think that are important maybe many other aspects but I will refer to two one is the restriction that jurisdiction could be based on this rule only if we are dealing with most serious violations so they cognize universal by international law and that was the SOSA case that established that in 2004 established and then we have the case we discussed today the Keogel case where the Supreme Court put an additional restriction and that's very important for corporations because it said essentially that in fact jurisdiction exists only if there is a nexus with the United States but what nexus? a nexus concerning the tort so part of the activity of the illegal activity must have been either committed in the United States or be strictly connected with the United States life to be open this possibility but essentially in the case at hand it is said that part of the activity must have been carried out in the United States so there is a nexus which is stronger there was a nexus in the case because the plaintiffs were residents in the United States but as you probably know in the United States the law the residents of the domicile of the plaintiff placed no role in jurisdiction in establishing jurisdiction there is a contrary to any principle of U.S. law to retain jurisdiction on the plaintiff's residence or domicile so the court spoke of a presumption of not extraterality of the law so the old law could not act in an extraterritorial way there must be a territorial link with the state of course there was a subsidiary of the company of this huge company in the United States so that general jurisdiction existed but it was not sufficient according to the court was a split decision that went 5 to 4 I think exactly was 5 to 4 and the minority challenged essentially the existence of the presumption of extraterritorial of the reality of the law but as it is this was the decision does this impact and how does this impact on the principle of universal jurisdiction when you have a human rights violation the court does not say that but in fact it does in fact it does because if you say that you need another link it's no more universal jurisdiction there must be there is another restriction so universal jurisdiction is allowed only if there are links in the forum states which is a big restriction a great restriction as compared with the Filardica case for instance now my questions are the following is a restriction of this kind justified when the serious violation of human rights recognized by human rights law are at issue and that's the real question because accepting I don't answer completely the question I don't think we have a complete answer now but by accepting this view are not U.S. courts permitting foreign multilateral corporations to do business in the United States provided they are correctly in the United States although they misbehave abroad is there not a link that is difficult that should not that provide an access because in fact allowing companies to take jurisdiction for the violations abroad in a way are we covering these violations when profit may be made out of these violations that can help the business in the United States well that's the question that I want to put to put to you interestingly in the case there were amicus courier briefs and what I don't want to do all of them but just to put the accent on two of them one is the European Commission brief European Commission brief was with the respondents essentially said well you should not allow jurisdiction in this case extraterritorial jurisdiction should not be recognized maybe only in cases of international crime such as torture or genocide well it's very restricted the idea I mean international crimes is one thing torture and genocide of course are international crimes but the list of international crimes is enough to look at the status of the international criminal court is long from here to there so are all the cases in which the crime recognized under the ICC statute the position of the commission is not very clear in this respect and then it is justified to limit universal jurisdiction only to violation we constitute criminal abuses under international law if the problem and I go back to the beginning is access to justice are you limiting access to justice to crimes when there is a violation constituting a crime in international law or the problem of access to justice is a general problem is the human right that should be ensured in any situation I mean when there is a denial of justice in another country and strangely enough after a few years the commission changed its view because in fact in proposing the recast of the brassos regulation inserted the possibility of a forum necessitatis in any case in which access to justice is not recognized in a foreign country this was rejected by European Parliament but the commission took that position and rightly so probably so there is some contradiction in the position in the European position the other case is Germany again in favor of the respondents but went a bit further because it said that jurisdiction should be allowed where there is no possibility for the foreign plaintiffs to pursue the matter in another jurisdiction with a greater nexus now what does this mean that rightly the German brief refers to the access to justice when there is a possibility of denial of justice we have jurisdiction but it says with a greater nexus means there must be some nexus or not it's not very clear in the position of Germany it would go in the direction of the recast of brassos but with some well this is the situation but what is the EU doing in the same case what would the EU do if you look at the current legislation the harmonized legislation concerns only defendants domiciled in the country and if a company is domiciled in the European Union there is jurisdiction if you have jurisdiction either at the place of the damage or at the place of the harmful act so this part is excluded but under the general clause of jurisdiction can you go beyond possibly yes but it's not very well done when corporations are outside of the union the union has not taken a position but states can do whatever they want so they could in their legislation adopt different approaches and I conclude with a reference with a reference to the position again contradictory in a way taken by the United States because when in the Hague Catherine knows very well we were discussing a project for a worldwide convention on jurisdiction and judgment in civil and commercial matters the question of the human rights regulation was raised by the United States delegation who came to the conclusion and even said very clearly in which an exception from the prohibited grounds of jurisdiction were not made in cases of human rights which is a clear cut contradiction with the position taken later by the Supreme Court what is now the position of the US administration but certainly we are in a situation in which all what we have in front of us raises more questions than answers unless we can find the answers here in this debate thank you very much Professor Pokar for that very interesting view on in fact the cases that we will be discussing later a little bit more as well I think you raise a number of very intricate and also very interesting points and one of the main points as a general point is I think a very valid question if as a country you have companies operating on your soil so you have the benefits of those companies undertaking economic activities within your territory should you not then also step up and assume jurisdiction if those same companies or companies within the same group cause damage to people on planets in third country so that's I think a very general point that you make that is a very valid question also to put to the audience just now if you could allow me I would just have your thoughts on one other brief that was also submitted in the Kiehobel case and this brief was submitted by the Dutch and English governments together and they actually said I mean obviously in the Kiehobel case the case against Shell, Shell is an Anglo-Dutch company so the English and Dutch governments obviously had a huge stake in this case and they also wrote a brief to the Supreme Court saying they were much stricter than the European Commission, they were very strict actually they said if you assume jurisdiction in this case that is a violation of public international law because that is a violation of sovereignty they didn't say who's sovereignty, I'm not saying also I agree with the brief but this is what they said, this is a violation of sovereignty of the other states involved, I assume they meant Nigeria unless they were saying that it was their sovereignty because they wanted to litigate this case that is what they wanted to say, so I was just wondering if you have any thoughts on that Yes I can give you my thoughts on that, I didn't mention the Dutch British brief because I don't think it's really reliable in this case because they were parties as you said it's a Dutch-British corporation so they had an interest, a clear interest and I believe the brief is decreated by the interest, I don't think there is a violation of any sovereign prerogatives of other countries, we have to bear in mind that under international law strictly speaking a country may exercise the restriction whenever that country wants there is no limit except if there are international rules prohibiting, but I don't see any rule at the moment in the world, we are still at the position taken correctly by the Peppen Court of International Justice in 1927 in the Lotus case where the court clearly said that under international law there is no restriction to grounds for jurisdiction used by state A or B unless there is a prohibitive rule of international law which is essentially rules of immunities, now of course if the case were brought against another state the problem might be a problem of immunities, might be it's still to be discussed the international court of justice decided in a case against the state, that's Italy versus Germany for crimes committed by the Nazi but of course Italy was acting in diplomatic protection essentially of Italians that brought the case immunity will come in and there are immunities so there is no case, Germany will have no case to answer that's the position of the IGJ, this remains the work of the Lotus case, the problem is whether when you have international crimes the rule of immunity should prevail over other rules but that's a different question of course, everybody may have his views on that but I don't think the brief of the Netherlands and Britain was really to the point thank you, you're not defending me at all not at all I think what is really interesting and after just making this one remark I'll open up to the rest of the panel and the audience, I think what's really interesting is that the Dutch English brief shows in these cases I mean the Kielberg case was really the poster child case for trade interests versus human rights interests basically the brief of the government was motivated by trade interests by protecting their own and I think that is one of the issues that really became really clear in this case and what also became really clear is how because this is a civil case, it's a case between two private parties between individuals and a company so usually governments would not mind too much about these types of cases, leave it to the field of private international law to be dealt with in this case all of a sudden all these governments start interfering so it shows us also how high profile these civil liability cases against multinationals may be, I think that's very interesting I think there is an approach of states but that's in general a sort of concern not to disturb other countries or not, but not to disturb the business because it's clear that if one country interferes then the others will interfere too and probably this is what motivated the withdrawal or the position of the European Parliament in not letting the Brussels proposal and the commission going on to the concern that in international relations it's better to keep quiet but this of course leaves companies to do what they want and to disregard human rights so that's the consequence I would now really give everyone the opportunity, perhaps Mr. Corta, I'm not sure if you this is very technical, legal and story, so I don't know if you want to react otherwise maybe there are questions also from the audience and I'm sure there will be some questions directed at you as well so first of all, good afternoon to everybody thank you for Global Months for invitation to be here so really I'm not familiar with all these laws so I will do my best to do my opinion but let's say that I am coming from and my company is a family company and not very related to this multinational company we face all these things about multinational a little bit far from us, so it's not related to us that's the first point I would like to be clear on that and that's the only thing that I would like to say yes for the beginning, so I don't want to go further for questions and let's Does anyone from the audience have any questions perhaps? I'm sure, yeah So Catherine Kisigin from Paris Judge Pucar alluded to it but I would like to insist on the point which has also kind of a ripple effect with the remedy with the third pillar of the Rugby Principles and I'm just putting some more construction of what you said, you said that basically in Europe member states of the European Union have the power presently as European law stands to do more than what European law does and this is a very important point which is most of the time misunderstood by member states themselves and this is the difference between applicable law and jurisdiction in jurisdiction member states can do better and some have the tools to do better and some states and actually I have a hard time finding the exact information on how many states do have that rule but I am speaking now for those of you who are not entirely familiar with European law, I'm speaking about Article 6.1 of the Brussels regulation which basically says and in the recast in the new regulation it's Article 8.1, it says change numbers so it makes things a bit more complicated but this is a rule which allows a court to take jurisdiction on a number of defendants, co-defendants in the same claim and I'm thinking of course of Shell mother company in the Netherlands and the Nigerian subsidiary in Nigeria so let's imagine that we have the Kiehubel case but instead of being before the US courts it is before a European court if that were in France we do have such a rule in our common law which means that if you want to sue Total French mother company in French courts plus it's subsidiary outside the EU who has committed no of course they would never have committed anything but this is just as hypothetical, something outside the European Union then France would take the jurisdiction on both companies and in fact I see your hesitation and one aspect which is still discussed in practice is do you need to show for jurisdiction purposes a link and I am saying no, you need to show a link later on when you are dealing when the court is dealing with the liability but not at the jurisdiction level there is no duty in doctrine to insist on that point and nobody does so I'm really concerned and I would like to hear Professor Pucar on this I don't know, it may be wrong of course in assessing the law but the principle of the 6.1 or 8 today you apply with the defendant and the other also in the union are doing the equivalent of course you could do it I think at the moment of jurisdiction you don't have it's a question of merits in my view on the merits why you don't have a case but you don't have to show you have a case at the moment of jurisdiction we have time for one other question before I turn to more description of the cases, is there anyone else who would like to pose a question at this stage? Thank you very much Mr. Pucar do you think that the universal jurisdiction should be the right approach in some cases on business and human rights? I think it could be a remedy actually that states could provide the right approach in some cases I think it could be a remedy actually that states could provide the right approach in some cases that states could provide in appropriate cases because at the end it's universal and not because you normally would have accept the situation of enforcement in other countries that I mentioned earlier but normally you would have in any case a defendant in the country so you are using universal jurisdiction as to the abuses committed in another country in any event over the corporation so universal would be when you have no link whatsoever but if you have the presence it's like in criminal matters if you have the defendant in the country you have a link in any case if the violation is a violation of an international rule that could be enforced by anybody like in criminal matters why should not use it the universal jurisdiction in criminal matter has not been invented by judges recently is clearly stated in the Geneva Conventions of 1949 the Geneva Conventions are based on the doctrine of universal jurisdiction because they list each convention, the four convention a number of grave breaches of the conventions and on these grave breaches the states parties of the conventions that is all the states essentially have the obligation to exercise jurisdiction over criminals that are in their country irrespective of whether they committed a crime so that is clearly stated already 60 years ago is not a recent invention that states never applied it as a different issue but from the legal point of view is an opportunity they can use and I would see no problem in exporting it to the question of business because at the end when you have this serious international violations even restricting to that I will go beyond but even restricting international violations the important approach is that violation of this kind should not be tolerated should not be unpunished and especially should not be the basis of profit because that should not be an exploitation of the violation in order to make money so I think it will be entirely justified I think there are many more interesting things to say about it and I hope we will get a chance to do that just now so this is the two cases that we will also be discussing in this panel and you have gotten a case description this is quite intricate cases both of them what I would just like to do is just take a brief moment to just sort of sketch the broader context within which these two cases played out and I think Professor Polkar has actually really helped me because you already sketched some of the broader context what Western societies have been seeing over the past two decades is a trend towards a growing trend towards transnational civil liability claims brought against transnational corporations in their home countries for harm caused to people and planet in developing host countries and these foreign direct liability cases as I often like to call them are typically initiated by host country citizens who often with the help of NGOs turn to these Western society courts in order to get a more adequate level of protection of their human rights, their health safety and their local environment then they feel they can get in their own country or before their own courts and one of the key features of these cases and there are many interesting features is that the plaintiffs typically seek to hold accountable not just the actors directly involved so the local subsidiaries or the local subcontractors but also the parent companies of the multinational corporations involved and this raises a number of really interesting legal questions as well. Up until now the far majority of these cases have been brought before US federal courts on the basis of the alien tort statute that Professor Polkar also spoke on just now. So this is an ancient US statute it dates back to 1789 and it was rediscovered in the 1980s by human rights activists who sort of found out that this sort of statute that had never really been used might provide a legal basis for civil claims before US federal courts in relation to international human rights violations perpetrated anywhere in the world. Now at first the claims that were brought as so the human rights activists started to use this statute and at first the claims that they brought were mostly targeted at individual perpetrators of human rights violations but from the mid 1990s onwards some really clever lawyers decided no we might also try not just to put claims against individuals but also against corporate entities and so from the mid 1990s onwards more and more claims on the basis of the 80s were brought before US federal courts against multinational corporations doing business in countries in Africa, Asia, South America etc. And one well known example that you might all be aware of apart from the two cases that we'll discuss just now because these are two examples. But one other example are the claims that were brought against a score of multinationals including Ford, General Motors, IBM but also for instance the German Rheinmetall Group for their alleged involvement in the human rights violations perpetrated by the South African apartheid regime. Now the trend towards these cases does not remain confined to US federal courts. Claims have also and increasingly be brought before US state courts but also before courts in other western societies and think of think you know I'm just naming a few, Australia, Canada, UK, Sweden and the Netherlands. In the absence of an equivalent for this 80s alien tort statute in these countries these claims have usually been based on more general principles of tort law and a tort of negligence in particular. And what is also interesting and interesting difference and other difference is the focus of these cases that have been brought not on the basis of the 80s have also not have this strong focus on international human rights violations. Most of the cases brought outside the US have been about violations of the environment or violations of health and safety standards. And I'll just name two very well known examples. The one is the claim that are the claims against Trafigura that were brought before the High Court in London by victims of the Probo Koala Toxic Waste Dumping Incident in the Ivory Coast. And the other example of course are the claims that are currently pending before the DHay Court of Appeals against Shell in relation to damage caused by oil spills from Shell operator pipelines in the Nigerian Niger Delta. Now these foreign direct liability cases, these civil claims, these transnational civil claims potentially play a crucial role in exploring the hard law edges of soft law instruments like the UN framework on business and human rights. And as Professor Pokar rightly pointed out just now this is a soft law instrument that obviously is very important but may not work as well when we're dealing with corporate corporations that do not take their responsibilities when it comes to respecting the human rights of people in third countries as seriously as some other companies. But in order for these cases to play a role in this context obviously it's very important is the feasibility, the legal feasibility of bringing these claims. And this legal feasibility of bringing these claims is mainly determined by four factors. The first factor is whether the home country court where the matter is brought has jurisdiction to hear the claim. The second question is does which national system of tort law will the court if it has jurisdiction will it apply in determining the validity of the claims. The third factor that's very important is what are the conditions for liability that are connected to the legal basis upon which the case is brought. And then the fourth and perhaps most important factor in the potential success of these cases are to what extent are the practical and procedural circumstances in the foreign country conducive to this type of litigation. Now obviously and this is where we turn to the cases up until recently there were two main reasons for bringing for the fact that most of the cases so far have been brought in the United States. There are maybe three. One of them was the alien tort statute with which it all began and which created a certain precedent for these types of cases. The second one is the fact that up until recently U.S. courts were relatively liberal in ATS space for regular ability cases in assuming jurisdiction over these cases. And the third reason obviously is the fact that practical and procedural circumstances in the EU tend to be, sorry in the U.S. tend to be much more conducive to this type of litigation than are the practices in EU member states. Having said this I would like to turn now and very briefly because I would like to leave some room for discussion very briefly to the two cases in front of us and this is the slide that we're going to keep right. So the first case is the Kyobel versus Royal Dutch Petroleum case and this was a case against Shell basically that was brought by a number of Nigerians in relation to Shell's alleged involvement in human rights violations perpetrated by the Nigerian military government in the 1990s and the Nigerian military government at that time was cracking down on a number of environmental activists who were protesting against the environmental degradation in the Boneyland region of the Niger Delta caused by oil exploration activities there. And serious human rights violations were perpetrated in that context and obviously there was a problem to sort of sue the Nigerian government at least in Nigeria and in other countries as well. So what happened is these events caused international outrage but they also caused civil claims being brought in the US against Shell which was alleged of having aided and abetted the human rights violations perpetrated by the Nigerian government and these claims were based on the alien towards statute. And two separate cases were brought and the Kyobel case is the later case and the former case was the Weaver versus Shell case and that was actually settled out of court in 2009 but the Kyobel case carried on and some really interesting sort of legal precedents were set in the Kyobel case. At some point the case went up to the second, the court of appeals for the second circuit and that court came with the issue of verdict in which it basically raised a question that had never been raised in that way before in any of the cases brought against nationals based on the alien towards statute and the appeals court said can a case even be brought against corporate defendants on the basis of this statute because according to the appeals court corporate liability has not been universally recognized in public international law. This is what the appeals court said. So the appeals court said throw out this case because you cannot bring claims against multinationals on the basis of this statute. Well that was obviously, I mean that was a big thing that would have meant no corporate ATS cases anymore in relation to human rights violations. So the plaintiffs appealed and the Supreme Court granted cert in this case. What was interesting is that Supreme Court was supposed to say something about the question of corporate liability under the alien towards statute. Well the Supreme Court in March 2012 said well that's a very interesting question but I think there's a more interesting question and that question is what is this case doing in a US court? We're dealing with a case against an Anglo-Dutch company. The case is being brought by Nigerians and the case is being brought in relation to human rights violations that have taken place in Nigeria. So why are we even involved in this case? So the Supreme Court basically raised the question of the international reach of the alien towards statute. And it raised that question. The parties briefed the court. There were lots of amicus briefs. We heard about that and in the end the Supreme Court decided that this bringing cases like these which have very little contacts with the US legal order are actually barred by the US presumption against extraterritoriality. And it basically held that the ATS can only be used as a legal basis for claims relating to norm violations that have occurred within the United States. So clearly in most of these cases that is not the case because in most of these cases it is really about norm violations, human rights violations perpetrated in third countries in developing host countries. I think for this I'll leave it at that for the Cuba case because you've already said a lot about that. Then turning to the other case, to the other case. So these are both cases about jurisdiction. But the difference between them is that the Cuba case was the question about the ATS, how do we interpret the ATS. The alien towards statute is a statute of subject matter jurisdiction. It's basically a statute that says when can the federal US courts get involved. So this also has something to do with the US federal systems. When can the US federal system, when can the US federal courts say something about these cases. And the result of the Cuba case was that in a very limited number of cases, at least when we're talking about cases against multinationals for violations in third countries. But there was also another matter and this matter was never really picked up in the Cuba case because the Cuba case was all about how to interpret the alien towards statute. What it didn't deal with was the question of personal jurisdiction. Which is a different, it's a different question. It's a question under what circumstances can a court in the US, any court or a court in another country assume jurisdiction over a particular claim against a particular defendant for particular activities that have connections also to other states. And interestingly this is where the Daimler case comes in. Which was decided also by the Supreme Court after the Cuba case. And the Daimler case was about also a sort of similar complaint of complicity of Daimler German company in human rights violations perpetrated in Argentina during the dirty war. And this case was brought in the US. Daimler is a German company. It was brought in the US because Daimler has a subsidiary in the US. This was not the one who allegedly perpetrated the human rights violations in Argentina. That was an Argentinian subsidiary. So this case really was all about, wasn't about the ATS anymore. It was all about personal jurisdiction. Under what circumstances can courts assume personal jurisdiction over these types of cases. So it has a broader scope because this is not anymore only about ATS based cases. It's also about state cases. Cases multinationals brought before US state courts on the basis of general principles of tort law. Because they're also the question of personal jurisdiction would arise. And in this case what happened, and I'll keep that very brief because it's very technical but we can go in it much deeper if anyone in the audience wants this. But what happened in the Daimler case is basically that the US Supreme Court in that case then really narrowed the scope of personal jurisdiction of US courts. Before like I said jurisdiction used to be one of the reasons also for bringing these cases in the US. Rules on personal jurisdiction used to be a little bit more liberal than they are in the European Union. Now with the Daimler case what actually happened is that the personal jurisdiction those liberal personal jurisdiction rules in the US have been narrowed actually I think to a situation that is very similar as the one in the European Union meaning that a court will assume jurisdiction personal jurisdiction in a case if the defendant is domiciled within the US state where the case is broad or if the harmful activities, the harmful conduct has taken place on the territory of that state. This is where I would want to leave it for my introduction in these two cases. I think they raised really interesting questions and what I think is the most interesting question is obviously these are two cases that greatly narrow down the perspectives for bringing these types of suits before US courts although it is obviously still possible. But it also means that we may see more of these cases before non-US courts meaning also in the EU member states. And considering the fact that we have a nice Spanish audience today I haven't seen any Spanish cases but I would be really interested to hear if you see any prospects for cases being brought in Spain for instance. But this is just my question to you and I suppose maybe you have also questions to us so I would like to invite you to ask us any questions that you want or enter into discussion on these matters. Well that cannot be possible unless it is so complicated that it is really difficult. But I mean as far as I am aware there are no cases at present in Spain so to kick this off then at least it's a common that tries to bring certain things together that have already been discussed by the panel in the relationship between public and private international law. One of the things that were mentioned is that in the curable context is that there is a potential concern here with US courts adjudicating these cases interfering with the internal affairs of other states. So there is a potential concern with the state sovereignty. To complement this or to look at this from the other side I would like to go back to something that Professor Pocassette in the very beginning about international human rights law as public international law and the duty to provide remedies. And the question of extraterritorial jurisdiction is that there is a potential concern here of public international human rights law. Because there the question arises is that what obligations the state has towards third country nationals if any. And if we accept that there are these obligations for example more recently suggested by various of the UN treaty bodies then these obligations would include obligations to provide remedies i.e. to have a civil procedure and jurisdiction rules and private international law that enable third country nationals to bring these cases. A pertinent example is when the UK reformed their rules on legal aid there was a concern raised that this would make it more difficult for third country nationals in the business and human rights area to bring these cases and that was taken up by I believe it was the committee on the convention against racial discrimination that said well the UK should make sure that it has a judicial system that enables third country nationals to bring claims against multinationals that are incorporated in the UK jurisdiction. And this is to emphasize the point again a matter of public international human rights law. So the question of human rights obligations the state of the United Kingdom has as a matter of international law. Just to compliment a bit on what you've already said thank you. Well actually thank you for your comment. Actually it inspired another question in me but obviously this is about international human rights norms but we're talking about enforcement in national states because at present we still in this international legal order set this morning as well where the main paradigm is that of sovereignty and we don't have any treaty bodies actually capable or able to deal with these cases right there are no possibilities and so this is actually something I would really ask to like to ask Professor Pokar. We're seeing two cases here about human rights violations perhaps even international crimes and so they're brought on the basis of tort law before national courts. Obviously that's the second best solution because that's why we get this whole discussion over jurisdiction or not and I was wondering if do you see a role in the near future or the more distant future for international civil or international criminal tribunals or the bodies under other international treaty bodies to deal with cases such as these. Well I do not know because the human rights system is based on the violation of states so that's the only defendant possible is the state before a human rights body and the human rights court even this transport system I mean the defendant is the state the plaintiff may be a company but the defendant must be a state so that's all the enforcement is based on that of course it could be changed but it needs to be changed as to criminal so all the current courts whether at Hock or the international criminal court statute provides for individual criminal responsibility only so only individuals can be brought before the court not corporations even if they commit crimes but of course the representative of the corporation could be brought before a court being responsible for the violations of the government it should be himself to be brought before the court I don't think there has been any attempt to change the situation as I mentioned earlier the only case I know of a criminal case against the corporation against the company is in the special tribunal for Lebanon but it's not on the main jurisdiction it's on a contempt case where a company allegedly committed a media company defused documents have been defused so it was a contempt case the contempt of our case and the indictment went against the company and there was a big debate inside it was the jurisdiction was restricted to individual responsibility or corporate responsibility was also coming to play and of course it's a different case where it's not the crime that's being committed it's a different it's a different situation it's an ordinary crime contempt crime against humanity as such so but that's the only case in which the tribunal is not yet has not taken a position because there is a there are two cases the first instance went in the sense of excluding jurisdiction against corporation the appeal went in favor but in the second case the first instance insisted and the appeal has not come out yet so maybe they will change because the panel is changing so they may take a different position I don't know I would just like to ask the audience if there is any questions from Mr. Korda and if not from the audience I have a question can I ask my question okay great because this is obviously this is a difficult panel for you to be in because you have a small to medium sized enterprise is that correct yes and so we were talking before and you said okay well you know we just produce in Spain you have a certain project that you produce and you operate in Spain right so and but then I asked on and I said okay but who do you sell your screws to and how does that work and do you and then the question becomes because just to bring this back to the more general sort of business humor rights more general less legal context I think that in your company is there awareness of the fact I mean do you have any idea what the company that you sell the screws to what they do with the screws I mean as I asked you I mean do you know if they make tanks with the screws or do they make palms and is this something that you do you feel pressure from the government or maybe from international developments in this field to be aware of those yeah Andrew what happens with your product yes as I told you we are an SME and what we feel is a big pressure because we feel that we have a lot of laws from all kind of laws we have tax laws we have labor laws we have ecological laws today we heard from commissioner that will be coming personal data law will come in and we are making us afraid of it again even one much more law for us so sometimes the small and medium-sized companies we feel that we cannot concentrate in our job so in Europe we are over regulation and the companies as most medium-sized companies cannot be overlooking all these extra regulations and how we can manage a company with since with 10 people 20 people is the media of the average of the companies in Europe how we can protect these companies and as I think that we already we face that we'll have enough regulations and I will say that we need more effective regulations maybe not more but we'll use less but more effective regulations you give me an example I think I cannot be aware of what they are doing my all customers I have thousands of customers all around the world I cannot know what they are doing with my with my product well I can notice what I do with my with my products in my activity but not my what my customers are doing around this already is so so few regulations about the you talk about tanks or whatever there is double use regulation already in Europe then already the companies are double checking about these double use regulations for example and a lot of companies they are suffering these double use regulations because they are over focused and any products they are doing this double check and it's over checking all their activity and it's difficult to compete how we compete the small medium-sized companies all around the world okay I think the rights are there but how we can compete with Chinese or Americans or Russian companies they are not respecting human rights anymore I think my point of view is that European companies we must respect human rights in Europe as an example for the rest of the of the of the of the companies all around the world and when we travel with our companies and with our business all around the world we must be like for the rest of the companies how we can they can manage their companies related to human rights your point and the difficulties that a small company has however going back to the question that has been asked shouldn't you take a sort of due diligence in looking where your product goes because if your product may be used probably on for many things for many purposes but you never had this suspect for instance that one customer may use them for an illegal product you cooperate to that illegality I say in your interest because there will be in a case you will be safe remember the case of Nuremberg in which the producer of gas sold the gas to the party to the Nazis that was used in the camps for killing the denies and that was a case of course a seller of gas says gas for for heating but okay and the case was no it's difficult just to make an example but the defense was based on the fact we were asked and told this was gas for heating and in that case could be a valid defense if you know that if you don't know there is rumours that it's used for different because your product was used for other things but for example we should take to Albert Einstein to the courts because of Irohima bomb so that doesn't work I think that in that point nobody is thinking about putting the example Albert Einstein as a guilty or something as homocyte or whatever but I think it looks like companies are always from the starting point always are guilty so as a starting point I'm not saying that it's not a position comparing with the same situations it's much easier to look as guilty to a company than any other fuel I say Albert Einstein but I think it's not fair to be the comparison I agree okay why did you make me this question it would have come anyway so whether it was Lisbeth or somebody else in the room I was waiting just to leave so I'm safe one thing is you also have, I'm sorry it's an addition into the accountability that you have as a company is to look at the source of the material where does the iron or whatever produce your screws are coming you have the blood diamond and now I learned there is even blood chocolate I'm a chocolate lover and I'm terrified now at buying chocolate not knowing where the chocolate comes from but anyway the second thing is you are a member of an industry federation you have a trade union you have a collective help why don't you use that collective help they can help you doing that it's not entirely on your shoulders but you should use the collective strength of your federation to do this as a collective matter and in addition you also have the contractual means, yes sorry Lisbeth, she's looking at me she wants me to stop do you have human rights closers in your orders in your purchase orders in the documents that your company are issuing this is not difficult this is voluntary I think your final word was the best point it's voluntary okay but I didn't understand but first question but the second one I'm in the trade association in Europe for the machine tools although we are trying to do but we are not able to get close to the regulation people to ask them about our situation and we are not getting this support from the regulation and from the politicians so we have different point of view I like ending on this note for this panel because it clearly shows the contrast between our legal ambitions and the ambitions of preventing human rights abuse, remedying human rights abuse and the practical problems that may corporations run into even when trying to do good but it's really difficult to know what you should do to do good on that note I would like to ask you all to take a couple of minutes, two, three minutes to stretch your legs breath of fresh air outside this room and then come back for the next panel thank you very much and thank you very much for the panel as well