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The opposition of the U.S. State Department and the government of Canada to a lawsuit against a Canadian oil company over human rights abuses in the Sudan was not enough to convince a federal judge to dismiss the case. Southern District of New York Judge Denise Cote said that a “Statement of Interest” from the U.S. government expressing concern over problems that might be caused by allowing the suit against the oil company to proceed failed to persuade her to decline jurisdiction in the case of The Presbyterian Church of Sudan v. Talisman Energy, Inc., 01 Civ. 9882. Cote’s ruling was the latest of several in the case, which was brought under the Alien Tort Statute, 28 U.S.C. 1350. The suit claims that Talisman joined with the government of Sudan in a campaign of genocide, crimes against humanity and other violations of international law. The oil company, which no longer operates in the Sudan, allegedly acted in tandem with the government on military operations, including the clearing of oil exploration territory and a campaign of ethic cleansing. The Canadian government sent a “Statement of Interest” to Cote claiming the lawsuit would have a “chilling effect” on trade by Canadian companies in the Sudan and would complicate Canadian foreign policy and its “stick and carrot” approach to persuading the Sudanese government to peacefully resolve internal disputes in the country. While the U.S. government’s own statement submitted to the court took no position on the merits of the litigation, it shared the Canadian government’s concern “about the difficulties that can arise from the expansive exercise of jurisdiction by the federal courts” under the Alien Tort Statute. The letter states “when the government in question protests that the U.S. proceeding interferes with the conduct of its foreign policy in pursuit of goals that the United States shares, we believe that considerations of international comity and judicial abstention may properly come into play.” Concerns about the proper reach of the statute are especially strong, the State Department said, where, as here, “a foreign government has interposed a specific and strong objection … [and] claims regulatory and jurisdictional competence over its nationals and the conduct in question,” and the lawsuit has little connection to the United States. And the State Department argued that the statute, which has been used over the last few decades to sue international corporations for their links to the activities of harsh foreign regimes, should only be invoked in disputes that directly affect the rights of aliens living in the United States or for acts that take place on U.S. soil. POLITICAL QUESTIONS Cote’s opinion dealt with the appropriate weight to give both statements of interest and the impact of the U.S. letter in light of the so-called “political question doctrine,” which calls for judges to abstain on issues best left to their elected counterparts in government. She cited the 2nd U.S. Circuit Court of Appeals Kadic v. Karadzic, 70 F.3d 232 (1995), a case involving crimes in the former Yugoslavia, as stating that, “an assertion of the political question doctrine by the Executive Branch [would be] entitled to respectful consideration, [but] would not necessarily preclude adjudication.” Addressing the appropriate weight to give Canada’s letter, she said the letter “does not argue that Talisman’s presence in the Sudan was pursuant to Canadian government policy or that this lawsuit requires a judgment to be rendered about any past Canadian policy,” and the letter “explicitly denies any view as to the merits of this lawsuit.” On Talisman’s argument that the lawsuit interferes with Canada’s “constructive engagement” trading policy toward the Sudanese government, she said, “This lawsuit does not concern a Canadian company exporting to and engaged in trade with the Sudan, but a Canadian company operating in the Sudan as an oil exploration and extraction business.” “Moreover,” she said, “the allegations in this lawsuit concern participation in genocide and crimes against humanity, not trading activity.” “While there is no requirement that a government’s letter must support its position with detailed argument, where the contents of the letter suggest a lack of understanding about the nature of the claims in the ATS litigation, a court may take that into account in assessing the concerns expressed in the letter,” Cote said. As to the U.S. State Department’s letter, she said, “Given the commitment by the United States to the Sudan peace process, it is telling that the United States has not advised this Court that the continuation of this lawsuit will adversely affect the Government’s relations with Canada or threaten the goal of achieving peace in Sudan.” In other cases, she said, the State Department “has not hesitated to warn courts where it believes continuation of a lawsuit will affect a foreign government’s policy to the extent it would disturb U.S. relations with that foreign government or would adversely affect U.S. efforts to promote peace … “ CRIMES AGAINST HUMANITY But there was another factor in the judge’s decision not to drop the case: ” … the United States and the international community retain a compelling interest in the application of the international law proscribing atrocities such as genocide and crimes against humanity.” A court may dismiss a lawsuit that raises the possibility of interference with a nation’s foreign policy, she said, “particularly when that foreign policy is designed to promote peace and reduce suffering,” but only where it is “warranted as a matter of international comity,” and where “the nexus between the lawsuit and that foreign policy is sufficiently apparent and the importance of the relevant foreign policy outweighs the public’s interest in vindicating the values advanced by the lawsuit.” Assistant U.S. Attorney David S. Jones represented the government. Legal Advisor William H. Taft IV and Assistant Legal Advisor David P. Stewart represented the State Department. Attorneys with Berger & Montague in Philadelphia, Anderson Kill & Olick in New York and Lieff, Cabraser, Heiman & Bernstein in New York and San Francisco represented the plaintiffs. Attorneys with the Lovells firm represented Talisman.

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