Court Appoints Neutral Expert On Choice of Law Issues But Rejects Public International Law Concepts’ Applicability To Private Claims

Court Appoints Neutral Expert On Choice of Law Issues But Rejects Public International Law Concepts’ Applicability To Private Claims

 

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 things:

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, International 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.

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