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Thursday, October 27, 2011

Circuit Split on Corporate Liability under the ATCA Now at the U.S. Supreme Court

By Professor Rachel Anderson

The U.S. Supreme Court granted cert in Kiobel v. Royal Dutch Petroleum on October 17, 2011. 621 F.3d 111 (2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011)(No. 10-1491).  This means that, among other things, the Supreme Court will be deciding a split between the Second, on one side, and the Fifth, Seventh, Eleventh, and District of Columbia Circuits, and now also the Ninth Circuit, on the other side, on whether corporations can be held liable for torts committed in violation of the law of nations or a treaty of the United States under the Alien Tort Statute, 28 U.S.C. § 1350.  In Kiobel, which was decided by the Second Circuit on September 17, 2010, the majority of a three-person panel held that “the customary international law of human rights has not to date recognized liability for corporations that violate its norms.” 621 F.3d 111, 125 (2010). In Sarei v. Rio Tinto, decided by the Ninth Circuit on Oct. 25, 2011, the majority of the Ninth Circuit sitting en banc held that "a violation of a sufficiently established international norm" could give rise to a cause of action for corporate liability under the Alien Tort Statute. Rio Tinto, slip op. at 19341, __ F.3d at *7.  As is noted in the opinion itself, "this holding puts [the Ninth Circuit majority] at odds with the Second Circuit majority in Kiobel." Rio Tinto, slip op. at 19363, __ F.3d at *20 (citing 621 F.3d at 120).  For more information about the Ninth Circuit’s holding in Rio Tinto go to Corporate Liability Under the ATCA: Rio Tinto Revisited, Oct. 26, 2011. Kiobel will be argued in tandem with Mohamad v. Rajoub, 634 F.3d 604 (D.C. Cir. 2011), cert. granted, 80 U.S.L.W. 3059 (U.S. Oct. 17, 2011)(No. 11-88).  For more information about the questions presented by these two cases go to U.S. Supreme Court Takes Up Issue of Corporate Liability For Human Rights Violations, Oct. 19, 2011.