Participants: I. The Problem

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1 Participants: Role-Playing Exercise 4 Diego Rodrigo v. Amerapetrol, Seguridad and the Republic of Colombia United States District Court CB (Wednesday, October 29, 2014) Lawyers for Plaintiff: Juan Pazmino, Geoffrey Louden Lawyers for the Defendants Amerapetrol & Seguridad: Stephanie Mazza, Jorge Mendia Lawyer for the Defendant Colombia: Brittany Singletary Lawyer for the United States: Brittany Singletary Federal District Court: the class. The aim of these role-playing exercises is to try to go over the material in a structured way that illustrates how human rights processes work. I will make some opening remarks and then turn it over to the panelists for the role-playing exercise. I d like the role-playing part of the class to operate with as little intervention on my part as possible, but I can intervene here and there if I think it s necessary. The major part of the exercise will be the lawyers statements. The questions are, however, very important as well. It s important for all members of the class to spend some time before class thinking of some potential questions, and to ask them during the question periods. I. The Problem As I m sure you ve noticed, the problem at CB is complex perhaps more so than the prior ones. We could probably easily devote two classes two it, but with some slight adjustments or clarifications it will be manageable within the confines of one class. A. The Parties and Procedural Status The parties are Rodrigo (plaintiff), Amerapetrol and Seguridad (defendants), and Colombia (defendant). In the problem, the United States is not a party, but has submitted a Statement of Interest to the court. The facts will be quite relevant to the arguments, of course. Remember that because this is a hearing on a motion to dismiss, the court will take the factual allegations of the complaint (see CB ) as true. There can be argument over the significance of the facts, but not about what actually happened. B. The Questions in the Casebook In general, the questions at CB should be very helpful in thinking through the claims and defenses. But the exercise itself doesn t necessarily require you to address every single one of questions there. For example, as the casebook states (CB 936), Rodrigo s claim is brought under the Alien Tort Statute (ATS or ATCA). He has not filed a claim under the Torture Victim Protection Act (TVPA). So Question 5 (CB ) doesn t need to be answered for this exercise. (This is a little unrealistic, since someone in Rodrigo s position would probably assert

2 both statutes as a basis for the claim.) Even so, the TVPA may not be irrelevant to the ATS claim, since there is a question whether it modified the ATS. C. The Major Legal Arguments The following are the major issues raised by the problem: 1. Tort in violation of treaty of the US or law of nations. The alleged wrongs to Rodrigo include being forced to work on the damaged pipeline for a month, and being tortured during the week he was detained. (Before Sosa, he might also have alleged arbitrary detention, but a week s detention probably wouldn t qualify now.) Do these actions constitute tort[s]... committed in violation of the law of nations or a treaty of the United States? Are these acts, in general: a. Violations of a treaty of the United States (to which Colombia is also a party): You can find information on Colombia s status regarding treaties relevant to torture and forced labor at CB 999 note 1. This part of the argument involves treaty interpretation and application in domestic court. Don t overlook Justice Souter s response in Sosa to the plaintiff s attempt to ground an international law norm against arbitrary detention on the ICCPR. b. Violations of customary international law or jus cogens. This involves making a customary law or peremptory norm argument and addressing its relevance in domestic court. In general, Question 2 (CB ) is very useful for this part of the problem. Remember that as the casebook mentions at CB (note 9), there is a question whether the TVPA is now the exclusive remedy for torture claims. Courts are somewhat divided. Since, in this hypothetical, Rodrigo hasn't filed a TVPA claim, it would be a problem for him if the TVPA is the exclusive basis for a torture claim. 2. Alien. Is Rodrigo someone who may sue under the ATS? (A pretty simple question, but it s part of showing the applicability of the ATS). 3. Overcoming the presumption against extraterritoriality. Is application of the ATS barred by the ruling in Kiobel? In some (but not necessarily all) respects this problem looks like the set of facts before the Kiobel court: corporations are being sued for human rights violations committed in Colombia against a Colombian national who now resides in the U.S. Keep in mind Chief Justice s Roberts summary On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. (Supp. 118, right hand column). The Problem does, however, contain some specific facts which may be relevant to the question of whether Kiobel can be distinguished. Amerapetrol is a U.S. corporation (CB 935). There are some relevant facts relating to Seguridad (a Colombian corporation) at CB 937 worth thinking about. (They are mentioned in connection with the service of process issue, but they are relevant to the question whether Kiobel is distinguishable.) SMUG v. Lively case may also be relevant to this issue (Supp ). 4. Liability of corporations. Assuming for the sake of argument that Kiobel can be distinguished (i.e., assuming that the presumption against extraterritoriality does not bar the claim here), there are two distinct sub-issues.

3 The first is a general one: may a corporation ever be held liable under the ATS and under what theory? (See CB ; Supp ). The second is, assuming for the sake of argument that a corporation can be held liable under international law, can Amerapetrol and Seguridad be held liable on these facts? In particular, consider: * The relationship between the Colombian government and Amerapetrol * The relationship between Amerapetrol and Seguridad * The relationship between Seguridad and the local paramilitary forces. What counts is not only the general relationships between these entities, but also other relevant facts. For example, the problem says that it was the Colombian military that forced Rodrigo to work on the pipeline, but it was uniformed men who detained and tortured him. Note also that Seguridad had sent a detachment of paramilitary troops to the pipeline area, and that they wore uniforms like those of Colombian troops. 5. Affirmative Defenses of Amerapetrol and Seguridad. a. Exhaustion of local remedies b. Forum non conveniens (CB ) c. Political question (CB (regarding Mujica), (note 4)) (1) What affirmative defenses to cover. There are at least three, listed above. As to exhaustion, the question is whether the TVPA might have modified the ATS to require exhaustion, or even if it didn't modify it, whether the court should "borrow" the TVPA's statute of limitations in deciding ATS cases -- and if so, were there "adequate and available" remedies in Colombia that Rodrigo didn't exhaust? Given time constraints, only the strongest one (as judged by counsel for Amerapetrol and Seguridad) should be asserted. (2) What affirmative defenses not to cover. (a) We ll assume that in fact there is valid personal jurisdiction over Amerapetrol and Seguridad. This eliminates the issues in Questions 6.a. and 6.b. (b) In addition, there is no statute of limitations issue here, because the events in question took place within the last 10 years. (It was sometime after March 2006 (see CB 936) that Rodrigo was forced to being work on the damaged pipeline.) So there's no need to worry about whether the statute of limitations in the TVPA would somehow apply here. 6. Defenses of Colombia a. Does Colombia have sovereign immunity under the Foreign Sovereign Immunities Act (FSIA)? (CB & DS ) This requires a careful look at the various exceptions to sovereign immunity. Note that section 1605(a)(7) will NOT apply, because (as the casebook tells you at CB 1007), Colombia is not on the list of designated sponsors of terrorism.

4 b. Act of state doctrine (CB ). Note that in reality Amerapetrol or Seguridad could also assert the act of state of doctrine as a defense. But it s better to divide the issues up this way. * * * There is, by the way, one other set of issues that in theory should be covered to be logically complete remedies. But in this exercise we will not cover what how compensatory damages should be determined, whether punitive damages should be available, or whether there is any other relief that would be appropriate. II. The Exercise A. Opening Arguments by Rodrigo s Lawyers (15-20 minutes) Pazmino (8-10 minutes): Louden (8-10 minutes): B. Questions for the Plaintiff's Lawyers (by the class) (5 minutes) C. Reply by Amerapetrol and Seguridad s lawyers (15-20 minutes) Mazza (8-10 minutes): Mendia (8-10 minutes): D. Questions to Amerapetrol and Seguridad (by the class) (5 minutes) E. Reply by Colombia s Lawyer (Singletary) ( (8 minutes) F. Questions to Columbia (by the class) (3 minutes) G. Statement by Lawyer for United States (Singletary) (5 minutes) Note: we re not assuming here that Colombia and the US are represented by the same counsel; these are two separate roles. H. Questions to the U.S. (by the class) (3 minutes) I. Rebuttal by Rodrigo s Lawyers (10 minutes) Louden (5 minutes): Pazmino (5 minutes): III. Class Discussion It may well be the case that we take up the entire class with the exercise, but if not, we can have a brief general discussion of the ATS and the TVPA -- whether it's a good idea to have these sorts of lawsuits in US courts.

5 Abuhoff Toth Loret de Mola Dubofsky Schwartz Georgalas Shami International Human Rights Law Problem 4 Wednesday, October 29, 2014 Lieb Guerrero Mizrahi Hito Diaz Glennie Neal Geraghty Gross Steiner Huguelet Note: The Class will function as the Court, asking questions of the lawyers. Shalolashvili Colombia United States Singletary