Introduction
In October 2021, Justice Secretary Dominic Raab spoke of his (and his party’s) dissatisfaction with the state of human rights law in the UK, claiming that it was open to abuse by dangerous criminals seeking to ‘prevent [their] deportation’ in contravention of public interest.1 As such, he promised to ‘overhaul’ the existing Human Rights Act so as to return ‘common sense’ to the justice system.2 In December 2021, he unveiled his new ‘Bill of Rights’, which aims to ‘[restrict] the rights available to those subject to deportation orders’ and thus potentially targets all foreign nationals resident in the UK.3 This proposal, which aims to unfairly restrict rights (such as the right to life)4 available under our existing justice system, demands an analysis of how the law could and should respond in safeguarding human rights in England. While commentators have typically focused on how public law may respond to such threats,5 I hope to highlight how private law, specifically tort law, can help to protect and bolster our human rights that have recently come under threat.
In combating this new threat, I suggest a novel solution that accounts for the international nature of the cases likely to be affected by this change. This proposal draws inspiration from the United States (‘US’) and their peculiar Alien Tort Statute (‘ATS’).6 While the current regime of English tort law does already play a role in the protection of our human rights (such as recent tort developments in the law of privacy),7 it should continue to strengthen and expand this role, especially in relation to multistate cases where the lex loci delicti (the law of the place in which the tort was committed) and residence of the tortfeasor differ from each other.
I begin with an overview of arguments for involving tort law in the protection of human rights, and why this is justified. The next section discusses the case law of the ATS and the core principles of its mechanism. The final section debates the viability of importing the ATS, or an ‘international tort’, into UK law, concluding that any potential issues with implementation can be resolved.
Justifying Tort Law’s Role in the Protection of Human Rights
Jurisprudence on the protection of rights has typically centred around the state and ‘public law’ (the law governing vertical relationships of power) due to the state’s monopoly of force.8 This has given rise to the ‘public’ and ‘private’ law divide, which has characterised much of early legal scholarship. However, changes to power dynamics between non-state entities with the rise of corporations, organisations, and private groups, have caused such traditional justifications to lose normative force. The increasing number of situations where multinational corporations escape domestic capture of business-related human rights abuse, coupled with the privatisation of previously ‘state-like’ functions and institutions, may now justify the intervention of private law into spheres of rights protection.9 Furthermore, even without these administrative changes, John Gardner argues that the law as a whole is essentially a ‘public good’, which helps to facilitate and guide our everyday social interactions.10 Private litigation does not exist in a vacuum between parties, and should be seen as a way of upholding the public good of our ‘just legal system’.11 Such a position can be clearly seen in the various public interest considerations that the judiciary have accepted in arriving at their decisions on tort law cases, such as in Hill v Chief Constable of West Yorkshire, which considered the efficient functioning of police authorities,12 and Coventry v Lawrence, which took into account the general public interest in awarding remedies,13 amongst other cases.14 As a result of these new developments, commentators such as Lord Bingham have stated that tort can serve as a ‘vehicle’ to protect human rights, given its close connection with the protection of individual autonomy.15 Here, tort law protects rights in a ‘negative manner’: it creates a minimum floor of rights in the form of ‘remedies for certain acts and omissions judged to be unacceptable’.16 Cees van Dam even goes so far as to argue that the whole of tort law works to protect the same kinds of rights that human rights does.17 Similarly, a report from the Special Representative of the Secretary-General of the United Nations on human rights states that the foundation of international human rights rests on the ability of states to prosecute ‘non-state abuses’,18 placing the protection of human rights within the domain of private law.
Given such broad support for tort law to play a bigger role in protecting human rights in the UK, it seems then that it is time for tort law to respond appropriately and further cement such a role. However, the English judiciary has been cautious in developing the common law in accordance with the jurisprudence of the Strasbourg court.19 This is seen in the case of Michael v Chief Constable of South Wales,20 where Lord Toulson on behalf of the majority restated Lord Brown’s argument in Smith that tort law should not develop a parallel route to secure rights under the European Convention on Human Rights (‘ECHR’).21 Lord Toulson advocated for a strict separability between the regimes of human rights law and tort law on the basis that they generate claims that are fundamentally different in nature – the former for the sake of upholding a minimum standard of rights; and the latter for the compensation of loss.22 However, this argument should be rejected at the outset because it is predicated on the strict distinction between private and public law as elucidated above when, in reality, such a distinction can be said to no longer exist. Indeed, in both the judgments of Smith and Michael, there were powerful dissenting opinions from Lord Bingham,23 and Lord Kerr and Lady Hale respectively,24 who all supported a more progressive development of the law in line with Convention principles.
Another argument against the expansion of tort law into human rights law is that it is activism outside the remit of the judiciary. In other words, if tort law were to explicitly be for the protection of our rights, it should be for Parliament to determine what those rights are and how they should be protected.25 However, ‘activism’ of the Court is no new phenomenon. Indeed, Conor Gearty argues that judges have long performed legislative functions, albeit characterised as mere re-development of existing rules, and so have the ability to continue ‘legislating’ tort law under the Human Rights Act 1998 (‘HRA’).26 Furthermore, there also seems to be some statutory basis to ground an expansion of the ambit of tort law to secure the protection of human rights. In the case of Osman v UK,27 a successful challenge was made on the grounds of a breach of Article 6 ECHR.28 It was held that the way the House of Lords had systematically refused to consider the liability of the respondent police organisation as a result of the blanket immunity given to police authorities, restricted the applicant’s right of access to justice and thus, contravened the UK’s ECHR obligations.29 While this does not necessarily mean that any instance where tort law bars access to justice for a given claimant entails a breach of Article 6 obligations, any tortious claims which purport to increase access to justice in the UK have a strong statutory foundation under the HRA. Coupled with supporting statements from two of the UK’s pre-eminent judges (Lord Bingham, Senior Law Lord in his time; and Lady Hale, President of the Supreme Court in her time), and one of the most ardent judicial defenders of rights in the UK (Lord Kerr),30 it is time for tort law to develop in line with the UK’s human rights obligations moving forward.
Nonetheless, critics championing judicial restraint do make a strong point that developments to the law should not be so brazenly carried out by an undemocratic body. As such, Gearty tempers the progressive tort law project by stating that any rights-related development by the courts should abide by a doctrine of ‘proportionate intrusion’.31 This would be done through a strict test: first, it must be the fault of the law (in failing to properly protect one of three ECHR principles: civil liberty, respect for human dignity, and legality)32 which warrants an intervention by the courts; and second, the power to intervene must actually be within the court’s remit.33 Given that Osman seems to provide jurisprudential basis for the court to develop tort law in accordance with human rights, fulfilling the second limb, it leaves only the difficult first limb to be addressed. The difficulty here is that conceiving the level of ‘fault’ necessary for the judiciary to intervene seems to be a futile effort that produces arbitrary standards. However, Gearty’s first limb can be reformulated into a test which demands that the law only intervene where it is justified in doing so – he theorises that it can only do so where the law has failed to protect one of the three aforementioned principles. It shall instead be shown that the ATS is justified in engaging extraterritoriality for a different, but arguably as strong a reason as Gearty mentions – access to justice, in a similar vein to Osman.
The Mechanism of the ATS
The most pertinent question that needs to be addressed at this stage is what exactly the ATS provides for. Plainly, the text of the statute states that ‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’34 It purports to give US tort law extraterritorial reach by providing redress to foreign nationals for torts committed against them, so long as they are in violation of a treaty of the US, or international law. I note that, while this seems to give unlimited jurisdiction for foreign nationals to bring tort claims in US courts (even against foreign defendants), it has now been narrowed for use against defendants resident in the US. There are two important aspects of the ATS for the purpose of this article: its jurisdiction; and scope. The jurisdiction of the ATS refers to the kinds of torts falling within its ambit, while the scope of the ATS refers to the extent of its extraterritoriality.
Beginning with jurisdiction, the paramount case which used the ATS as a statute for human rights litigation was Filártiga v Peña-Irala.35 Two Paraguayan citizens sought a claim in negligence against a Paraguayan policeman for causing the death of one of the claimant’s relatives, but were unable to bring a claim in the Paraguayan court as the policeman had fled to the US. The claimants then brought a claim in the US under the ATS for a ‘violation of the law of nations’, citing various international treaties such as the United Nations Declaration Against Torture, and the Universal Declaration of Human Rights, amongst others.36 The Court of Appeal of the Second Circuit held that the prohibition against torture was a customary international law of human rights, and so the ATS mechanism was triggered.37 The jurisdiction of the ATS was subsequently narrowed in Sosa v Alvarez-Machain38 to three ‘historical’ international torts: ‘violation of safe conducts [torture], infringement of the rights of ambassadors, and piracy.’39 Sosa can be said to have taken an originalist interpretation of the ATS as these were the only three international norms that were specifically enforceable at the time of the enactment of the ATS in 1789.40 However, Sosa did not close the door by making the three torts exhaustive, and described a two-step test to create a new cause of action: firstly, it must be shown that the tortious act violates a norm that is ‘specific, universal and obligatory’ under international law;41 and secondly, that the circumstances must be extraordinary enough to warrant judicial bypass of the legislative arm of policy-making.42 To elaborate further on the latter test, it was stated that Sosa’s second limb is a high bar for claimants to overcome as it would fail if the Court had a ‘single sound reason’ to defer to Congress on the creation of a new cause of action.43 Key considerations of the Court in keeping such a high bar were to maintain the separation of law-making powers between the judiciary and Congress, as well as foreign policy considerations that would result from the application of extraterritoriality – a matter which should be left to the ambit of the executive.44
The other important aspect of the ATS is its scope, which was clarified in the Supreme Court (‘USSC’) case of Kiobel v Royal Dutch Petroleum Co.45 The question of extraterritoriality was revisited in Kiobel as the USSC wanted to clarify the extent to which the ATS had extraterritorial effect. The Court ultimately held that there would be a presumption against extraterritoriality, for similar foreign policy reasons as mentioned above.46 The relevant test to then overcome such a presumption was whether the tortious act in question did ‘touch and concern [the US]…with sufficient force’ to displace said presumption, thus narrowing its scope significantly.47 While this meant that most of the cases post-Kiobel failed due to the tortious act occurring abroad,48 there were some cases that did succeed, with one specific example being Al Shimari v CACI Premier Technology, Inc.49 In interpreting whether a tortious action did ‘touch and concern’ the United States, the Court held that the headquartering and incorporation of the tortfeasor in the US (the respondent was a civilian military contractor that was contracted by the Federal government, and had de facto control over relevant US military forces) was strong enough to warrant it as having ‘touched’ and ‘concerned’ the US, fulfilling the Kiobel jurisdiction test.50 This seems to highlight the geographical importance of the facts of the case,51 while Judge Keenan went further by stating that the identity of the tortfeasor52 and their relationship to the US was also relevant to the Kiobel test.53
A potentially problematic aspect of the ATS is with regard to who can be sued under its ambit. In the case of Jesner v Arab Bank,54 the USSC denied a finding of liability for foreign companies through the mechanism of the ATS, as they were afraid that ‘plaintiffs may well ignore the human perpetrators and concentrate instead on multinational corporate entities’.55 Similar points were raised in Kiobel, which supposedly foreclosed corporate liability for both domestic and foreign corporations.56 Importantly, Justice Kennedy in Jesner was of the opinion that the foreclosure of liability applied to all corporations including domestic ones, though this view was not shared by the other Justices.57 The reasoning behind such a narrow judgment seems to rest on two interrelated arguments: firstly, international law has not recognised corporate liability for human rights violations in the manner demanded by the first limb of Sosa; and secondly, due to the non-recognition, there is no basis to hold domestic corporations liable for the acts of their human employees under international law.58 If this were to be the case, it would make the implementation of the ATS in the UK a fruitless endeavour: corporations being immune from lawsuits under the ATS would mean that claims would be limited to individual tortfeasors, who may not have the means of compensating the myriad of damages suffered by claimants for loss of life, destruction to the environment, or more. Nonetheless, Tyler Becker disagrees with Justice Kennedy’s judgment, and argues that the international law doctrine of ‘aiding and abetting’ has recognised the existence of corporate liability for human rights violations in a manner that is ‘specific, universal, and obligatory’, as required by Sosa.59 Additionally, Justice Kennedy failed to explain in detail why it must be international law that governs the scope of the ATS. In Sosa, the Court employed an analysis of an American common law perspective of the ‘law of nations’ as understood and accepted at the time of the ATS’s enactment, to limit the number of ‘international’ torts actionable under the ATS.60 There is no reason then that the applicable doctrine of corporate liability, a doctrine whose existence in US law was confirmed by Justice Kennedy himself,61 should fall solely under international law.
Indeed, it is this lacuna in Justice Kennedy’s reasoning that may have led the question of the liability of domestic corporations under the ATS to not be settled.62 In Estate of Alvarez v Johns Hopkins University,63 it was held that domestic corporations could be sued by foreign claimants under the ATS, and that rather than issues with foreign policy, the ATS would even promote harmony between nations.64 A possible indicator of the question remaining unsettled comes from the USSC case of Nestlé; here, the Court could have answered the question of domestic corporate liability in a determinative manner, but refused to do so as it was unnecessary based on the facts.65 This seems to leave the question of domestic corporate liability open to interpretation, with a good outlook for a favourable interpretation: Justices Gorsuch and Alito felt that the ‘original understanding’ of the ATS did not bar suits against domestic US corporations, though Justices Sotomayor, Kagan and Breyer only implicitly gave support for such an interpretation.66
Given this summary of the ATS’s mechanism, the key lessons are as follows. Firstly, the jurisdiction of the ATS is intended to be limited to certain torts, with any expansion in jurisdiction left primarily to the legislative branch, unless extraordinary circumstances warrant judicial intervention.67 Secondly, there should be a strong presumption against extraterritoriality, though this presumption can be defeated.68 Examining the existing case law of the ATS may establish how this dual principle of ‘extraordinary circumstances’ and ‘justification against extraterritoriality’ can link back to Gearty’s test. Firstly, while the ATS may not directly ‘protect’ the three principles mentioned by Gearty, it is clear that the US judges have as a major concern – the ability to provide redress for claimants using the ATS.69 Arguably, US Justices have allowed foreign claimants to trigger extraterritoriality of US law to enable them to seek compensation where they would not normally have been able to do so under the principle of access to justice. Secondly, the narrow jurisdiction of the ATS and its strict tests of scope justify the extraordinary nature of its extraterritorial application. This speaks to the ‘proportionate intrusion’ that is demanded by Gearty’s test as the Justices have been careful to develop the ATS in a manner which only enables the most justified and deserving claimants to make use of the ATS. However, in importing the ATS into English law, the simple fulfilment of a test does not speak to whether the project shall be successful, or even effective in achieving the goal of protecting the system of rights. As such, we now turn to discuss the key obstacles in transposing the ATS into English law.
Transposition into English Law: Complements and Conflicts
In analysing whether the implementation of the ATS into English will be successful, both practical and ideological issues will be addressed.
Practical Issues
Perhaps the most obvious and important issue accompanying the implementation of the ATS is whether it is even possible to completely replicate a foreign statute in the English legal system without significant changes to its content. Here, potential jurisprudential differences of the US and UK courts could lead to the operation of the ATS being vastly different from what has been discussed above. This is particularly so when considering the jurisdiction of the ATS, namely the three historical torts of ‘violation of safe conducts [torture], infringement of the rights of ambassadors, and piracy’ in Sosa.70 The difficulty lies in the fact that the jurisdiction of the ATS was based on an originalist understanding of the text at the time it was passed. Obviously, such an interpretation cannot be accepted in UK courts as there is no basis to accept an understanding derived from American socio-legal contexts. Nonetheless, this should not be seen as an obstacle to implementation, but rather, an opportunity to re-interpret the ATS to have a broader appreciation of torts, or even provide a determinative answer to the question of liability for domestic corporations, thus opening a pathway to further bolster human rights in the UK. Moreover, it is only the jurisdictional portion of the ATS (three historical torts) which is idiosyncratic to the US. The case law on its scope can remain mostly intact as persuasive authority on how it operates.
A second practical issue is the ATS’s possible conflict with existing choice of law rules relating to service of claims out of jurisdiction.71 UK Civil Procedural Rules (‘CPR’) for the courts dictate that claimants may only serve a claim under tort in the English courts by showing that: (1) the damage they suffered, or will suffer, was in such jurisdiction (England); or (2) that the damage they suffered, or will suffer, resulted from an act which was committed, or likely to be committed, in such jurisdiction.72 The quandary here is that either the courts will have to significantly narrow the scope of the ATS as per Practice Direction 6B, or change the CPR completely to suit the ATS’s mechanism. I do not wish to endorse a radical departure from English choice of law, and I will instead argue that the existing case law on the scope of the ATS will not be limited under the CPR. Under the ATS, tortious acts ‘touch and concern’ the country (in this case, the UK) when claims can establish geographical proximity, or show that the tortfeasor has a relationship of sufficient propinquity with the UK (though these factors are non-exhaustive).73 In the case of human rights litigation through tort law, most, if not all, claimants will be suing corporate defendants and so, will have to establish corporate liability alongside the aforementioned factors. Corporate liability would thus act as a bridge between the ‘touch and concern’ test and section 3.1 of Practice Direction 6B – once it is established that the corporate defendant is liable for the tortious act, it would mean that they also ‘committed’ the tort by virtue of their control of the actual tortfeasor.74
Ideological Issues
A particularly difficult issue to contend with is whether an extension of tort law is necessary here – if extraterritoriality were to be considered for the purpose of human rights litigation in English law, it seems more appropriate to provide such extraterritoriality to human rights law instead. The response here is twofold. Firstly, as discussed in the introduction, it is my goal to elaborate on how specifically private law, and not human rights law, can help contribute towards the protection of human rights in the UK. Secondly, the reason for focusing on tort law is to create a mechanism parallel to human rights so as to bolster the latter in the worst-case scenario where a threat to the system (such as those that Dominic Raab’s proposed reforms aim to tackle) occurs. Moreover, creating a parallel claim alongside human rights law also provides additional legal mechanisms for claimants seeking redress in the UK courts. Notably, they will have a whole host of tort law principles to help establish liability, loss, and remedies that may not have been available under human rights law.
Conclusion
By introducing the American ATS, and making a case for its implementation in the UK, I have shown that tort law can help protect our human rights. While the success of the ATS project ultimately hinges on the political will of Parliament to transpose the ATS into English law, I remain cautiously optimistic about such an endeavour – the growing concerns and dialectics on the contemporary loss or weakening of rights occurring across the world presents a timely opportunity to consider how every branch of the law can contribute towards protecting the sanctity of our humanity.
I would like to thank Professor Emmanuel Voyiakis for his insightful comments on this piece, alumni editors for their tireless work, my dear friends in the editorial team, the publications team, and the LSE Law Review for the opportunity to publish this piece. All existing mistakes and errors remain my own.
[1] Dominic Raab, ‘2021 Speech to Conservative Party Conference’ (Conservative Party Conference, London, 5 October 2021) <https://www.ukpol.co.uk/dominic-raab-2021-speech-to-conservative-party-conference/> accessed 16 February 2022.
[2] ibid.
[3] United Kingdom Ministry of Justice, ‘Plan to reform Human Rights Act’ (gov,uk, 14 December 2021) <https://www.gov.uk/government/news/plan-to-reform-human-rights-act> accessed 16 February 2022.
[4] ibid.
[5] For example, the recent oral evidence given on the reforms. Joint Committee on Human Rights, Oral evidence: Human Rights Act Reform (HC 2021-22, 1033).
[6] 28 US Code §1350 – Alien’s action for tort (ATS).
[7] See, for example, Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22.
[8] Stefan Somers, ‘Protecting Human Rights in Horizontal Relationships by Tort Law or Elaborating Tort Law from a Human Rights Perspective’ (2015) 2 European Human Rights Law Review 149, 150.
[9] Daniel Augenstein, ‘Torture as Tort? Transnational Tort Litigation for Corporate-Related Human Rights Violations and the Human Right to a Remedy’ (2018) 18 Human Rights Law Review 593, 594.
[10] John Gardner, Torts and Other Wrongs (Oxford University Press 2019) 310.
[11] ibid 311.
[12] Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049.
[13] Coventry v Lawrence [2014] UKSC 13.
[14] See further Peter Cane, The Anatomy of Tort Law (Bloomsbury Publishing 1997).
[15] Tom Bingham, The Business of Judging: Selected Essays and Speeches (Oxford University Press 2000) 171.
[16] ibid.
[17] Cees van Dam, European Tort Law (2nd edn, Oxford University Press 2013) 223.
[18] UNHRC ‘Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie – Business and human rights: mapping international standards of responsibility and accountability for corporate acts’ (19 February 2007) 4th Session UN Doc A/HRC/4/35 para 18.
[19] Smith v Chief Constable of Sussex [2008] UKHL 50, [138].
[20] Michael v Chief Constable of South Wales [2015] UKSC 2.
[21] Smith (n 19) [136]-[139].
[22] Michael (n 20) [127].
[23] Smith (n 19) [58].
[24] Michael (n 20) [184]-[186] (Lord Kerr). See also [192]-[196] (Lady Hale).
[25] See, for example, Bingham LJ (as he then was) in Kaye v Robertson [1991] FSR 62, stating that despite regret at defects within the law, only Parliament could give approval to enact such a paradigmatic change in the law.
[26] Conor Gearty, ‘Tort Law and the Human Rights Act’ in Tom Campbell, Keith Ewing and Adam Tomkins (eds), Sceptical Essays on Human Rights (Oxford University Press 2001) 243.
[27] Osman v United Kingdom App no 23452/94 (ECtHR, 28 October 1998).
[28] Right to a Fair Trial.
[29] Osman (n 27) para 154.
[30] See, most recently, Lord Kerr’s opinions in Re an application by the NIHRC for Judicial Review (NI) [2018] UKSC 27; and R (on the application of Elgizouli) v Secretary of State for the Home Department [2020] UKSC 10.
[31] Gearty (n 26) 255.
[32] ibid 253.
[33] ibid 256.
[34] ATS (n 6).
[35] Filártiga v Peña-Irala 630 F2d 876 (2d Cir 1980) (United States Court of Appeals for the Second Circuit).
[36] ibid 880.
[37] ibid 884.
[38] Sosa v Alvarez-Machain 542 US 692 (2004) (United States Supreme Court).
[39] ibid 724.
[40] See George Edward White, ‘A Customary International Law of Torts’ (2007) 41(2) Valparaiso University Law Review 755, 763-775, for a historic analysis of the reasoning in Sosa.
[41] Sosa (n 38) 732.
[42] ibid 726.
[43] Nestlé USA Inc v Doe 593 US (2021) (United States Supreme Court).
[44] ibid.
[45] Kiobel v Royal Dutch Petroleum Co 133 S Ct 1659 (2013) (United States Supreme Court).
[46] ibid 1664.
[47] ibid 1669.
[48] Karima Tawfik, ‘To Touch and Concern the United States with Sufficient Force: How American Due Process and Choice of Law Cases Inform the Reach of the Alien Tort Statute after Kiobel’ (2016) 37(3) Michigan Journal of International Law 539, 544.
[49] Al-Shimari v CACI Premier Technology, Inc 758 F3d 516 (4th Cir 2014) (United States Court of Appeals for the Fourth Circuit).
[50] ibid 530-31.
[51] It is interesting to note that the tortious act occurred in the territory of Iraq, which was held by the Court to be a state with no sovereign. Normally, where there is no potential conflict between US laws and another country’s laws, there would be no presumption of extraterritoriality under the ATS, as confirmed by Kiobel (n 45) at 1667. However, the Court nonetheless held the presumption still applied, which makes the considerations in Al Shimari relevant to the ‘touch and concern’ test nonetheless.
[52] The tortfeasors were external military contractors headquartered and incorporated in the US, that were hired by the US military to conduct interrogations against the claimants.
[53] Al Shimari (n 49) 527.
[54] Jesner v Arab Bank, PLC 138 S Ct 1386 (2018) (United States Supreme Court).
[55] ibid 1405.
[56] Tyler Becker, ‘The Liability of Corporate Directors, Officers, and Employees Under the Alien Tort Statute After Jesner v Arab Bank, PLC’ (2020) 120(1) Columbia Law Review 91, 92.
[57] Jesner (n 54) 1402.
[58] ibid.
[59] Becker (n 56) 102-103.
[60] Sosa (n 38) 714-725.
[61] Jesner (n 54) 1405.
[62] Isaac Ramsey, ‘Hidden Renvoi: The Search for Corporate Liability in Alien Tort Statute Litigation’ (2019) 107(6) California Law Review 2071, 2088.
[63] Estate of Alvarez v John Hopkins University 373 F Supp 3d 639 (D Md 2019) (United States District Court of Maryland).
[64] ibid 648-49.
[65] Nestlé (n 43) Concurring Opinion of Gorsuch J.
[66] ibid 1940.
[67] ibid.
[68] William S. Dodge, ‘Understanding the Presumption Against Extraterritoriality’ (1998) 16 Berkeley Journal of International Law 85, 112.
[69] Nestlé (n 43) Concurring Opinion of Sotomayor J.
[70] Sosa (n 38) 724.
[71] Civil Procedure Rules Practice Direction 6B para 3.1.
[72] ibid.
[73] Kiobel (n 45).
[74] For further discussion of the test for corporate liability and how it is established, see Vedanta Resources Plc v Lungowe [2019] UKSC 20.
Tai Shen Wong
LLB (LSE) ’22, Obligations Law Notes Editor of the LSE Law Review 2020-21 and Private Law Notes Editor of the LSE Law Review 2021-22