On Tuesday, October 25, a divided en banc US Court of Appeals for the Ninth Circuit waded into the muddy waters surrounding the question of whether corporations can be sued in US courts for violations of international human rights norms under the Alien Tort Statute ("ATS"), and muddied them further. In Sarei v. Rio Tinto, No. 02-56256 (9th Cir. October 25, 2011), the court, by a 7 to 3 vote, held that corporations can be held liable under the ATS for certain international law violations, and revived a long-running lawsuit against the UK-based mining multinational for genocide and war crimes, while affirming the dismissal of claims against the company for crimes against humanity and racial discrimination. The court addressed multiple issues regarding the interpretation and application of the ATS, and issued seven concurring and dissenting opinions.
The Ninth Circuit's decision came the week after the US Supreme Court agreed to decide whether corporations can be held liable under the ATS when it agreed to hear Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), as we reported here. In deciding Kiobel, the Supreme Court will likely resolve the split between the Second Circuit, which held in Kiobel that corporations cannot be held liable under the ATS, and the Seventh, Eleventh, DC and now Ninth Circuits, which have all held that corporations can be held liable under the ATS.
Until the Ninth...
