By Louis M. Solomon
A recent decision, Pallano v. AES
Corp., C.A. No. 9C-11-021 JRJ (Del. Super. Ct. July 2011) [enhanced
version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], addresses three issues that frequently face the litigation
practitioner or corporate draft men in international litigation: choice of
law; the use of experts for the determination of non-U.S. law; and the growing
use of public international law constructs in private litigation. The litigation
arises out of the alleged unlawful dumping of toxic waste in the Dominican Republic
by The AES Corporation and four of its wholly owned subsidiaries. Still, the
claims are by private individuals, not the government.
The Court ruled as follows, among other
First, the motion to dismiss made and
here being decided required numerous choice of law determinations to be made.
Instead of relying on the parties' Dominican Republic law experts, the Court appointed
an expert of its own. Throughout the opinion, where the parties' experts disagreed,
the Court refers to and relies on the "independent" expert appointed by the Court.
See for example where the Court says:
Because of the experts' conflicting opinions
on the Dominican law on this issue, the Court relies upon the court appointed independent
expert, Professor Rosenn, to provide an opinion regarding the rules governing accrual
of personal injury claims under Dominican law.
Second, the Court analyzed the interplay
between Delaware procedural law and non-U.S. (here Dominican Republic) substantive
law. A common and important place where this interplay shows itself is in
connection with the use of "borrowing statutes" for determining statute of limitations
and related defenses (for a discussion of the role of borrowing statutes, see our discussion in our e-book,
Practice: Topics and Trends; see also our blog posting on the choice of law/borrowing statute interplay).
Third, as other courts have held, the
Court here held that, when Delaware's borrowing statute mandates the application
of another jurisdiction's limitations period, "'the borrowed statute is accepted
with all its accoutrements,' including the rules governing when a claim accrues
and triggers the limitations period".
Fourth, on the issue of the application
of international law, the Court addressed the following statutes: the Basel
Convention, the Cairo Guidelines, the United Nations Norms on the Responsibilities
of Transnational Corporations and Other Business Enterprises with Regard to Human
Rights; United Nations Convention on the Law of the Sea; the Convention on the Prevention
of Marine Pollution by Dumping of Wastes and Other Matter; and the international
law against bribery. For each of these the District Court relied on the
Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004) [enhanced
version ]. And in each case, said the Court:
"The threshold question for a claim for
violation of international law is whether the claim 'rest[s] on a norm of international
character accepted by the civilized world and defined with a specificity comparable
to the features of the 18th-century paradigms,' i.e., the common-law prohibitions
against piracy and assaults on ambassadors'".
On this basis the Court dismissed each
of these claims for failure to state a claim.
International Practice Law Blog for more analysis of international
and foreign law issues.
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