In the wake of U.S. Supreme Court’s cert grant in Kiobel v. Royal Dutch Petroleum, the U.S. Court of Appeals for the Ninth Circuit has issued its second en banc opinion in Sarei v. Rio Tinto, which it had earlier tried to avoid by referring the case to mediation.
No wonder: yesterday’s opinion, which addressed multiple issues raised by the parties and at least one issue that the parties did not raise, reads like a virtual catalog of contested questions surrounding the interpretation and application of this 1789 provision from the First Judiciary Act.
All this in the context of a lawsuit originally filed in the year 2000 against the Rio Tinto mining company for its alleged role in genocide, war crimes, crimes against humanity, and racial discrimination against residents of Papua New Guinea's island of Bougainville.
I previously blogged at IntLawGrrls about an “emerging circuit split” in corporate ATS cases. This split is now manifest, which no doubt accounts at least in part for the Supreme Court’s decision to tackle the threshold question of corporate liability under the ATS in Kiobel (and the distinct question of whether liability under the Torture Victim Protection Act is limited to natural persons, presented by Mohamad v. Rajoub).
The Ninth Circuit’s opinion is much more wide-ranging:
► On the question of whether corporations can ever be held liable under the ATS, seven out of eleven judges sided with Judge Pierre Leval’s concurrence in Kiobel, which answered this question in the affirmative (slip op. at 19339-41). The Ninth Circuit therefore joins the District of Columbia Circuit in Doe v. ExxonMobil, the Seventh Circuit in Flomo v. Firestone, and the Eleventh Circuit in Romero v. Drummond, in holding that corporations may be found liable under the ATS in appropriate circumstances.
Although these circuit courts have reached the same result through different reasoning, I have argued here, and more recently here, that “the attribution of individual conduct to a corporate entity for the purpose of ascribing legal liability” under the ATS is properly governed by domestic law, meaning that it is somewhat beside the point in this context to ask whether “corporations” as such can or cannot violate international law.
►As Pepperdine Law Professor Trey Childress has indicated, the same Ninth Circuit majority also held in Sarei that the adjudication of transitory torts under the Alien Tort Statute does not violate a statutory presumption against extraterritoriality (slip op. at 19334-39) (or, I might add, international law constraints on the extraterritorial application of U.S. law, since the conduct-regulating norms being applied under the ATS come from international law).
► In addition, in response to an argument raised by the dissent, the majority found that claims relating to violations of international norms that meet the test of universal acceptance set forth in Sosa v. Alvarez-Machain “arise under” federal law for Article III purposes (slip op. at 19342-51).
► Finally, although the majority left open the question of whether knowingly as opposed to purposefully aiding and abetting an international law violation would give rise to liability under the ATS (slip op. at 19373), it held that at least purposeful aiding and abetting is actionable. Judges Harry Pregerson and Johnnie B. Rawlinson wrote separately in support of a knowledge standard (slip op. at 19384-89) and are (in my view) correct in pointing out that, even if one adopts the Rome Statute for the International Criminal Court as a guide to aiding and abetting liability under international law (which is questionable), the Rome Statute does not support a higher purpose standard in the context of aiding and abetting crimes committed by groups.
All in all, it promises to be an eventful Supreme Court term for those interested in international law in U.S. courts.
In the meantime, upcoming events touching on these issues include:
► A panel on emerging issues in ATS litigation at the American Society of International Law midyear meeting at UCLA on November 4;
► A discussion of transnational tort liability for multinational corporations  in which Hofstra Law Professor Julian Ku and I will comment on a paper by Chicago Law Professor Alan Sykes, at the Georgetown Law Journal’s Centennial Symposium on November 17; and
► The ASIL International Law in Domestic Courts Annual Interest Group Meeting at Brigham Young University Law School on December 16 (details to be posted online soon).
(cross-posted at Opinio Juris)