Rachel Anderson's Law Blog

Corporate Liability Under the ATCA: Rio Tinto Revisited

2011-10-26T11:16:00.000-07:00

On October 25, 2011 the United States Court of Appeals for the Ninth Circuit, sitting en banc, decided Sarei v. Rio Tinto, PLC on Oct. 25, 2011 in an opinion written by Judge Schroeder. Rio Tinto V, No. 02-56256, slip op. (9th Cir. 2011), Sarei v. Rio Tinto, PLC (Rio Tinto V), __ F.3d. __, 2011 WL 5041927 (9th Cir. Oct. 25, 2011).

With regard to the applicability of the Alien Tort Statute, 28 U.S.C. §1350, to corporations, the court addressed two issues:

"whether the [Alien Tort Statute] itself bars all corporate liability, and to the extent it applies to private actors, permits liability only as to individuals" Rio Tinto V, slip op. at 19339 , __ F.3d at *6. and
"whether, if there is no overall statutory bar to corporate liability, the particular internationally accepted norm alleged to have been violated recognizes corporate liability." Rio Tinto V, slip op. at 19339 , __ F.3d at *6.

Alien Tort Statute Does Not Bar Corporate Liability, Opinion Part II(A)
Regarding the first issue, the Ninth Circuit majority adopted Judge Leval's concurring view in Kiobel v. Royal Dutch Petroleum Co.: “No principle of domestic or international law supports the majority’s conclusion that the norms enforceable through the ATS—such as the prohibition by international law of genocide, slavery, war crimes, piracy, etc.—apply only to natural persons and not to corporations, leaving corporations immune from suit and free to retain profits earned through such acts.” Rio Tinto V, slip op. at 19339 , __ F.3d at *6, quoting 621 F.3d 111, 153 (2010) (Leval, J., concurring). Cf. The United States Court of Appeals for the Second Circuit's majority opinion of the three-person panel in Kiobel holding that "[b]ecause corporate liability is not recognized as a “specific, universal, and obligatory” norm, see Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (internal quotation marks omitted), it is not a rule of customary international law that we may apply under the ATS." Id. at 145. The Ninth Circuit's ruling represents a split between the Second and Ninth Circuits on this issue. Rachel Anderson, Circuit Split on Corporate Liability under the ATCA Now at the U.S. Supreme Court, Oct. 27, 2011. The U.S. Supreme Court granted cert in Kiobel on October 17, 2011. Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011) (No. 10-1491). Rachel Anderson, U.S. Supreme Court Takes Up Issue of Corporate Liability for Human Rights Violations, Oct. 19, 2011. For more information about the circuit split go to Rachel Anderson, Circuit Split on Corporate Liability under the ATCA Now at the U.S. Supreme Court, Oct. 27, 2011.

Scope of Corporate Liability Under the Alien Tort Claims Act
Regarding the second issue, the Ninth Circuit majority concluded 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 V, slip op. at 19341, __ F.3d at *7. The Court noted that "[i]nternationally accepted norms must be “specific, universal, and obligatory.” Rio Tinto V, slip op. at 19333, __ F.3d at *2, citing Sosa v. Alvarez-Machain, 542 U.S. at 732 (citing with approval In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994))."

Claims of Genocide May Give Rise to Corporate Liability Under the Alien Tort Statute
The prohibition against genocide is sufficiently specific, universal, and obligatory. Rio Tinto V, slip op. at 19359-61, __ F.3d *17-23.

Definition of Genocide: Genocide is defined under the 1948 U.N. Genocide Convention and the 1987 U.S. Genocide Convention Implementation Act. Rio Tinto V, slip op. at 19361, __ F.3d at *17-18, citing United Nations Convention on the Prevention and Punishment of the Crime of Genocide ("Genocide Convention"), art II, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) and Genocide Convention Implementation Act of 1987 ("Implementation Act"), 18 U.S.C. §1091 et seq. It is also defined as a jus cogens norm under domestic law and international law. Rio Tinto V, slip op. at 19361, __ F.3d at *18, citing Genocide Convention, art II; the Implementation Act, 18 U.S.C. §1091(a); Rome Statute, art. 6; ICTY Statute, art. 4; and ICTR Statute, art. 2.
Universal and Obligatory Prohibition Against Genocide: The criminalization of genocide is indisputably a jus cogens norm. Rio Tinto V, slip op. at 19360, __ F.3d at *18, citing Restatement Third, §§ 404, 702; Siderman de Blake, 965 F.2d at 717; Rome Statute, art. 6; ICTY Statute, art. 4; ICTR Statute, art. 2.
HOLDING on Corporate Liability for Genocide: The Court held that: "Given that an amorphous group, a state, and a private individual may all violate the jus cogens norm prohibiting genocide, corporations likewise can commit genocide under international law because the prohibition is universal." Rio Tinto V, slip op. at 19363, __ F.3d at *20, citing Genocide Convention. Cf. Kiobel, 621 F.3d at 120.

Claims of War Crimes Give Rise to a Cause of Action and May Give Rise to Corporate Liability Under the Alien Tort Statute

Definition of War Crimes: "War crimes are defined primarily by the Geneva Conventions, to which the United States, along with at least 180 nations, is a party and which constitute part of customary international law." Rio Tinto V, slip op. at 19370, __ F.3d at *23, citing e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Exec. Rep. 101-30, at 15 (1990).
Universal and Obligatory Prohibition against War Crimes: War crimes, by their incorporation in the Geneva Conventions, are part of customary international law. Rio Tinto V, slip op. at 19369, __ F.3d at *24, citing, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Exec. Rep. 101-30, at 15 (1990) (“[T]he Geneva Conventions, to which the United States and virtually all other countries are Parties, . . . generally reflect customary interna- tional law.” "War crimes are also among the crimes of “universal concern” in Restatement (Third), § 404." Rio Tinto V, slip op. at 19370, __ F.3d at *24.
HOLDING on Corporate Liability for War Crimes: The Court held that: "international law extends the scope of liability for war crimes to all actors, including corporations." Rio Tinto V, slip op. at 19372, __ F.3d at 25. The court noted that "at least two district courts have found that corporations may be liable for war crimes under the ATS" and that the "Eleventh Circuit has noted that corporations may be liable under the ATS for war crimes claims." Rio Tinto V, slip op. at 19371-72, __ F.3d at 24-25, citing In re Xe Servs. Alien Tort Litig., 665 F. Supp. 2d 569; Wissam Abdullateff Sa’eed Al- Quraishi v. Adel Nakhla, 2010 U.S. Dist. LEXIS 76450, *92- 93 (D. Md. 2010); and Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1263 (11th Cir. 2009).

Claims of Crimes Against Humanity Arising from a Medical and Food Blockade Did Not Give Rise to a Cause of Action Under the Alien Tort Statute
"In the absence of [a recognized source of international law that qualifies a food and medical blockade as a crime against humanity], a food and medical blockade does not violate a specific internationally recognized norm within the meaning of Sosa." Rio Tinto V, slip op. at 19377, __ F.3d at *25.

Claims of Racial Discrimination Did Not Give Rise to a Cause of Action Under the Alien Tort Statute
The Court held that the norm prohibiting systematic racial discrimination is not sufficiently specific and obligatory to give rise to a cause of action under the Alien Tort Statute. Rio Tinto V, slip op. at 19378, __ F.3d at *28. The court found that there is not a sufficiently specific definition of "systematic racial discrimination" under the Convention on Racial Discrimination and that because the United States' ratification of the Convention declared that it was not self-executing, "the treaty alone does not establish a norm sufficiently specific, universal, and obligatory to give rise to a cause of action under the ATS, because the treaty provisions are not enforceable in our courts." Rio Tinto V, slip op. at 19378-79, __ F.3d at *28, citing International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969); U.S. Reservations, Declarations, and Understandings, International Convention on the Elimination of All Forms of Racial Discrimination, §III, 140 Cong. Rec. S7634- 02 (June 24, 1994); and Sosa, 542 U.S. at 735.

Claims of Apartheid May Give Rise to a Cause of Action Under the Alien Tort Statute
However, the Court distinguished racial discrimination from apartheid and notes that "a claim akin to apartheid would be cognizable under the ATS." Rio Tinto V, slip. op. at 19380, __ F.3d at *29.

Claims of Aiding and Abetting May Give Rise to a Cause of Action Under the Alien Tort Statute
Aiding and abetting may give rise to a claim under the Alien Tort Statute. Rio Tinto V, slip op. at 19342, __ F.3d at *7, citing Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d at 260; Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008).

Claims of Aiding and Abetting War Crimes May Give Rise to a Cause of Action Under the Alien Tort Statute
Purposive action in furtherance of a war crime constitute aiding and abetting and "[a]llegations of such purposive action are therefore cognizable under the [Alien Tort Statute]." Rio Tinto V, slip op. at 19373, __ F.3d at *26, citing Sosa, 542 U.S. at 732. Whether the mens rea of knowledge is required for aiding and abetting war crimes remains disputed. Rio Tinto V, slip op. at 19372, __ F.3d at *26.

Note: With the goal of making this information accessible to both the public and the legal community, this post cites to the slip opinion, which is publicly available on the Ninth Circuit website at http://www.ca9.uscourts.gov/datastore/opinions/2011/10/25/02-56256.pdf, and the Westlaw cite for this case.

July 2011 Bar Results

2011-10-23T08:30:00.000-07:00

The results of the July 2011 Nevada Bar Examination are in. Congratulations to all of the new members of the State Bar of Nevada who were sworn in at the October 19, 2011 ceremony in Reno and the October 21, 2011 ceremony in Las Vegas and to everyone who passed the bar exam!

Here are some of statistics:

Overall Pass Rate*

*This includes first-time student takers, repeat student takers, and attorneys licensed in other jurisdictions.

Overall: 66%

Boyd Alum: 81% - a new record for the law school!

First-time Student Takers

Overall: 79%

Boyd Alum: 87% - a new record for the law school!

Repeat Student Takers

Overall: 26%

Boyd Alum: 50%

Thanks to Jennifer Carr (Boyd '06), Director of the Academic Success Program at the William S. Boyd School of Law at the University of Nevada, Las Vegas for making this information available.

U.S. Supreme Court Takes Up Issue of Corporate Liability for Human Rights Violations

2011-10-19T08:59:00.000-07:00

On October 17, 2011, the U.S. Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011) (No. 10-1491). and 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). The cases are to be argued in tandem.

Kiobel v. Royal Dutch Petroleum presents two questions. No. 10-1491. First, "[w]hether the issue of corporate civil tort liability under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time." No. 10-1491. Second, "[w]hether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the Eleventh Circuit has explicitly held." No. 10-1491.

Mohamad v. Rajoub presents the question of "[w]hether the Torture Victim Protection Act, 28 U.S.C. § 1350 note § 2(a), permits actions against defendants which are not natural persons." No. 11-88.

Update: Ninth Circuit Decision Adds to Circuit Split
"In Sarei v. Rio Tinto, PLC, decided on Oct. 25, 2011, the Ninth Circuit 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 V, slip op. at 19341, __ F.3d at *7." Rachel Anderson, Corporate Liability Under the ATCA: Rio Tinto Revisited, Oct. 26, 2011. 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 V, slip op. at 19363, __ F.3d at *20 (citing 621 F.3d at 120). For more information about the circuit split go to Rachel Anderson, Circuit Split on Corporate Liability under the ATCA Now at the U.S. Supreme Court, Oct. 27, 2011. The Ninth Circuit decision adds on to the list of circuits (Fifth, Seventh, Eleventh, and District of Columbia) that have upheld corporate liability under the Alien Tort Statute.

Note: With the goal of making this information accessible to both the public and the legal community, this post cites to the slip opinion, which is publicly available on the Ninth Circuit website at http://www.ca9.uscourts.gov/datastore/opinions/2011/10/25/02-56256.pdf, and the Westlaw cite for this case.

New Incorporations Increasing in Nevada

2011-04-15T09:31:00.000-07:00

According to the Quarterly Business Report from Nevada Secretary of State Ross Miller posted on April 14, 2011, new entity filings in Nevada for the first quarter of 2011 have increased by 11.6% over the first quarter of 2010. The most significant increases were in filings for new Limited Liability Companies (LLCs) with 1,382 more LLCs filing as new entities in Nevada in the first quarter of 2011 than in the first quarter of 2010.

U.N. International Year for People of African Descent, 2011

2010-12-21T09:52:00.000-08:00

On 10 December 2010, the United Nations held a special event launching the International Year of People of African Descent, 2011. The United Nations declared 2011 the International Year for People of African Descent in resolution A/RES/64/169, which was adopted by the General Assembly on 18 December 2009.

Hat tip to: Vernellia Randall.

Research Customary International Humanitarian Law Online

2010-08-13T06:57:00.000-07:00

The International Committee of the Red Cross study on Customary International Humanitarian Law is now available online. For commentary, check out today's post by Diane Amann over at IntLawGrrls.

Nevada Ranked 47th for Business in 2010

2010-07-13T18:34:00.000-07:00

A CNBC Special Report ranked Nevada 47th for business competitiveness among the 50 states. In the ten categories in the study, Nevada only ranked above 20th in two categories, workforce (19th) and business friendliness (15th). Nevada was ranked at the bottom in two categories, economy (49th) and education (50th). In the other six categories, Nevada ranged from 31st to 40th. The other categories are cost of doing business, quality of life, transportation and infrastructure, technology and innovation, access to capital, and cost of living. CNBC's 2009 report and 2008 report are also available online.

Guest Blogging at The Conglomerate

2010-01-18T00:01:00.000-08:00

I will be guest blogging for the next two weeks at The Conglomerate, a group blog dealing with "business, law, economics, and society." Many thanks to Gordon Smith at BYU Law for inviting me. I will be blogging about my scholarship on Global Corporate Citizenship, the legal academy, and anything else that seems suitable for a post on The Conglomerate.

Lesbian soldier inching to asylum in Canada

2009-12-30T08:52:00.001-08:00

This human rights case is one to watch: Lesbian soldier inching to asylum in Canada by Amy Senier on December 30, 2009 at IntLawGrrls: voices on international law, policy, practice.

Posted using ShareThis

Toward Global Corporate Citizenship: Reframing Foreign Direct Investment Law

2009-11-11T11:15:00.000-08:00

I have posted the most recent draft of my article Toward Global Corporate Citizenship: Reframing Foreign Direct Investment Law on the Social Science Research Network.

Globalization in the form of foreign direct investment has not lived up to its promise to promote prosperity around the world. Many of the anticipated benefits to developing countries and their citizens have yet to materialize. True, laws promoting foreign direct investment contribute to technology transfer, increased tax revenues, and other economic benefits. However, existing laws are lax, one-sided, or limited in scope. They allow transnational corporations to cause harms like property damage, personal injury, and significant environmental damage. Insufficient protections and limited avenues for redress encourage transnational corporations to chase profits with limited concern for consequences.

I argue that modern foreign direct investment law is a vestige of the colonial era during which early forms of transnational corporations emerged. Unlike international trade law and despite the dramatic developments of the twentieth century, foreign direct investment law remains largely unchanged. Due to a lack of political will, prior multilateral efforts to implement comprehensive foreign direct investment law reforms have been largely unsuccessful. However, in recent years, growing political will has emerged under the umbrella of Global Corporate Citizenship and related movements. In this article, I posit that Global Corporate Citizenship is an opportunity to reframe and reform foreign direct investment law.

This article is part of a larger project on Law and Global Corporate Citizenship in which I analyze ways to reform the regulation of transnational corporations. In this series of articles, I identify gaps in the international and domestic regulation of transnational corporations, explore reasons for these gaps, set out a mandatory Global Corporate Citizenship framework for more comprehensive regulation, and develop proposals for the implementation of this framework.

I blogged about this article previously at IntLawGrrls on September 6, 2009 under the title Global corporate citizens & foreign investment.

Researching Nevada Business Cases

2009-11-03T08:45:00.000-08:00

Researching Nevada business cases presents some challenges. There is not one publicly-available statewide database for business cases. Making business cases and records more easily available will contribute to the development of a body of business case law, which can contribute to predictabilty and consistency.

Second Judicial District Court (Northern Nevada)

It is possible to search online for cases in the Second Judicial District Court, which is located in Washoe County. One way to do this is to use Contexte CourtConnect. However, some specific information about the case such as the last name or company name is necessary to run this type of search. It is also possible to search for Judge Adams's cases by searching the calendar for cases in his department, Department 6. Unfortunately, this list does not indicate whether the cases are business cases or other types of civil cases.

For current cases on the calendar, the Second Judicial District Court has links to business cases for Judge Adams and business cases for Judge Flanagan. With a case number, it is possible to search for information about a specific case here.

Eighth Judicial District Court (Southern Nevada)
It is possible to search online for case summaries and information for the Eighth Judicial District Court, which is located in Clark County. However, business cases are grouped together with other civil cases so it is not possible to initiate a search for only business cases. Business Court judges dockets include non-business civil matters in addition to business matters. This means that it is not possible to search for business cases using the judges names alone.
There are a variety of ways to search for business cases in the Eighth Judicial District. One way to search for case summaries is to search the District Court Civil Calendar for Clark County by "Judicial Officer," the name of the judge, and "Case Category," in this case civil. Then the results list should be sorted by "Hearing Type," in this case business court. This sorts the list of results so that all Business Court cases are listed first. Then this list can be used to identify the case numbers for business cases for that particular judge.
To access case and case summaries, it is necessary to return to the District Civil Records search page and use the a case number (or parties or attorneys) to pull up a register of actions with links to the minutes, which give a brief procedural summary of the case. Records for civil cases are only available at present through requests at the Las Vegas Justice Court Clerk's Office.

Hat tip to:

the research librarians at the Wiener-Rogers Law Library and Shana Brouwers (Boyd '11), a research assistant at the Law Library, for providing information on researching Nevada Business Courts, and
Cindy Fladagar in the technology department of the Second Judicial District for clarifying the process for confirming the process for researching business cases in the Second Judicial District Court.

Nevada Business Courts

2009-11-02T13:33:00.001-08:00

Nevada is one of fifteen states, including Delaware, that have specialized courts for business and complex litigation. The number of judges hearing business matters in Nevada is growing, which will allow the business courts to handle more cases. One of the benefits of business courts is that they can contribute to the development of a body of case law on business issues. Over time, the existence of a body of case law tends to contribute to increased predictability and consistency. However, to achieve these benefits, the body of case law must be accessible to business decision-makers and the lawyers who advise them. At present, as I will discuss in a future post, researching Nevada business cases is still an arduous and time consuming process compared to the ease of researching business cases in states with a longer history of business courts such as Delaware. Nevada has taken important steps in developing specialty business courts but there is still room for improvement when it comes to the ease of researching and access to case records and documents.

Southern Nevada
There are currently three business judges on the Eighth Judicial District Court, Judge Mark R. Denton (Dept. 13), Judge Elizabeth Gonzalez (Dept. 11), and Judge Kathleen Delaney (Dept. 25). Pursuant to Rule 1.61(c)(1) of the Eighth Judicial District's Rules of Practice, business court judges are designated by the Chief Judge. Business matters are randomly assigned to one of the business court judges. The business docket may include matters relating to Title 7 of the Nevada Revised Statutes (excluding Ch. 77) and matters where the amount in controversy exceeds $500,000 and relates to the Uniform Commercial Code, business torts, business franchises, or sale and purchase of businesses. (Rule 1.61(a))

The Eighth Judicial District Court is handling an increasing number of business cases. According to the Eighth Judicial District Annual Activity Reports:

Year....... Business Cases Filed .....% of All Civil Cases Filed
2008...................609.......................................2.2
2007...................404.......................................1.7
2006...................281........................................1.3
2005...................173........................................0.8
2004...................155........................................0.7
2003...................203........................................1.0
2002...................152........................................0.8
2001...................165........................................0.9

Northern Nevada
There are currently two business court judges on the Second Judicial District Court, Judge Brent Adams (Dept. 6) and Judge Patrick Flanagan (Dept. 7). Pursuant to Rule 2.1.5 of the Second Judicial District's Rules of Practice, business court judges are appointed for two-year terms by the Chief Judge and must have experience in business matters. If Judge Adams or Judge Flanagan is unable to preside over a matter for some reason, then the case may be assigned to one of the other business court judges on the Second Judicial District Court, Judge Steven P. Elliott (Dept. 10) or Judge Robert H. Perry (Dept. 9). Business matters are randomly assigned to one of the business court judges. The business docket may include corporate governance, trademark, and securities issues; shareholder suits, and disputes among business entities. (Rule 2.1.1)

I have not included statistics for Northern Nevada because the statistics section of the Second Judicial District Court's website, which includes the Annual Report of the Nevada Judiciary, is currently under construction.

Hat tip to:

Michael Sommermeyer, the Court Information Officer for the Clark County Courts, for confirming the appointment of the newest business court judge in the Eighth Judicial District, Judge Kathleen Delaney, and
Cindy Fladagar in the technology department of the Second Judicial District for clarifying the process for assigning cases to the business court judges.

July 2009 Nevada Bar Exam Update

2009-10-23T12:02:00.000-07:00

Congratulations to everyone who passed the Nevada Bar Exam!

The bar results for the July 2009 Nevada Bar Exam were released yesterday by the State Bar of Nevada. Hat tip to the comment by lawzvegas (Boyd '06) asking for some statistics on the results. Here are some of the numbers:

All Takers*
*This includes first-time student takers, repeat student takers, and attorneys licensed in other jurisdictions.
Overall: 63%
Boyd Alum: 74%

First-time Student Takers
Overall: 74%
Boyd Alum: 86% - a new record for the law school!

Repeat Student Takers
Overall: 28%
Boyd Alum: 33% (53% for participants in the Academic Success Program)

Thanks to Jennifer Carr (Boyd '06), Director of the Academic Success Program at the William S. Boyd School of Law at the University of Nevada, Las Vegas for making this information available.

Read more about the success of Boyd alum on the July 2009 Nevada Bar Exam here:
- UNLV Office of Public Affairs, UNLV Boyd Law School Graduates Achieve Highest Pass Rate on Nevada Bar Exam in School History, Oct. 28, 2009
- The Rebel Yell, Boyd Law Scores High, Oct. 29, 2009
- Nicole Lucht, Boyd grads doing better than ever on bar exam, Las Vegas Sun, Nov. 13, 2009
- Joseph W. Law, Boyd Raises the Bar, at Wild Wild Law Blog, Oct. 26, 2009

Human Rights Immunity or Accountability for Foreign Officials?

2009-10-17T07:52:00.000-07:00

On September 30, 2009, the U.S. Supreme Court granted certiorari in the case of Samantar v. Yousuf (No. 08-1555). This case is an opportunity for the Supreme Court to resolve questions regarding the scope of the immunity for foreign officials acting in their official capacity under the Foreign Sovereign Immunities Act (FISA), 28 U.S.C. § 1604. This case may have important implications for potential plaintiffs hoping to bring cases in the United States alleging human rights violations, for example for genocide, against current and former officials of foreign governments.

Under the FISA, "[s]ubject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter." The general exceptions under the FISA include when the foreign state has waived immunity, if there are direct contacts to the United States, certain admiralty cases, and when the case is brought by the foreign state itself. (28 U.S.C. §§ 1605 and 1607)

The specific questions presented in the Petition for Writ of Certiorari are:

1. Whether a foreign state's immunity from suit under the FISA extends to an individual acting in his official capacity on behalf of a foreign state.

2. Whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual's former capacity as an official acting on behalf of a foreign state.

The initial case, Yousuf v. Samantar, was brought in the United States District Court for the Eastern District of Virginia in 2004. In that case, the plaintiff, Bashe Abdi Yousuf, alleged that the defendant, Mohamed Ali Samantar, is responsible for "acts of torture, murders, war crimes and other crimes against humanity that occurred while Samantar occupied several 'high-ranking' positions 'in the notorious regime headed by Somalia's President Mohamed Siad Barre' during the 1980s." (Bashe Abdi Yousuf v. Mohamed Ali Samantar , Civil Action 1:04 CV 1360 (E.D.Va. Nov. 10, 2004)) The claims in Yousuf v. Samantar were brought under the Torture Victim Protection and the Alien Tort Claims Acts, 28 U.S.C. § 1350.

Hat tip to Pamela Merchant's post U.S. Supreme Court soon to hear Somalia human rights case on IntLawGrrls for bringing this case to my attention. Pamela is the Executive Director of the Center for Justice and Accountability. The Center for Justice and Accountability website also has an extensive collection of motions, brief, and oral arguments related to the Yousuf v. Samantar case and the Samantar v. Yousuf case.

Guest Blogging on IntLawGrrls

2009-09-06T08:41:00.000-07:00

I am guest blogging over at IntLawGrrls. IntLawGrrls is a fabulous blog that brings together the voices of women who teach and work in international law, policy, and practice. I am thrilled and honored to have this opportunity to join this amazing group of women. The welcome post by Diane Marie Amann is here. My first guest post today is on global corporate citizens and foreign direct investment. My second guest post today is about Mary Church Terrell, who I chose as my IntLawGrrls foremother.

Securities Class Actions on the Rise

2009-08-31T12:46:00.000-07:00

Before the recent subprime mortgage and financial crises, the number of securities class action filings was declining. However, increasing filings against foreign firms and financial services firms signal a changing, or perhaps changed, trend. The gaming sector has not been exempt from the recent spate of filings. Howard Stutz at the Las Vegas Review-Journal published an interesting article this past Saturday discussing recent filings in the gaming sector and quoting yours truly. Detailed information about securities class action filings, prosecution, defense, and settlement is available at the Securities Class Action Clearinghouse.

No New Corporations Sole in Nevada

2009-08-21T09:32:00.000-07:00

In Senate Bill No. 55, the 2009 Nevada Legislature amended the Nevada Revised Statutes (NRS) governing the incorporation of corporations sole. A corporation sole may be formed in Nevada "for acquiring, holding or disposing of church or religious society property, for the benefit of religion, for works of charity, and for public worship," pursuant to NRS Chapter 84. As of July 1, 2009, new corporations sole may only be formed in Nevada if they are a subsidiary of an existing corporation sole. After July 1, 2011, no new corporations sole may be formed in Nevada. Senate Bill No. 55 does not change the status of existing corporations sole.

Rebel Law

2009-07-30T09:55:00.000-07:00

UNLV law students recently created a great new web resource for incoming law students: Rebel Law. This is great example of the positive atmosphere and strong community spirit at the William S. Boyd School of Law. Congratulations to the creators of the Rebel Law web site!

Nevada Business Law Wiki

2009-07-29T08:57:00.000-07:00

I have started a Nevada Business Law wiki. Please contribute content to help build this site and create a collaborative community resource for business law in Nevada. Join this page or add content anonymously. If you are not sure what a wiki is, there is a great explanation of Wikis in Plain English on YouTube.

July 2009 Nevada Bar Exam

2009-07-28T14:39:00.000-07:00

The July 2009 Nevada Bar Exam begins today. The overall pass rate is generally between 62-65%. Take heart Boyd grads. The passage rate for Boyd alum taking the bar exam at this time last year was 83%. Good luck to all!

Business Licensing Transfer of Power

2009-07-27T19:19:00.000-07:00

The 2009 Nevada Legislature has taken further steps to consolidate responsibilities for business licensing in the office of the Nevada Secretary of State. Pursuant to Nevada Assembly Bill No. 146, the authority to issue state business licenses will be transferred from the Nevada Department of Taxation to the Nevada Secretary of State's office. The transfer will be effective on October 1, 2009. This transfer of responsibilities moves Nevada one step closer to the Delaware one-stop-shopping model for businesses.

Nevada Business Law

2009-06-22T14:23:00.000-07:00

Despite Nevada's growing popularity as a location for the incorporation of new businesses, Nevada business law resources are few and far between. There are some basic public resources: the Nevada Revised Statutes are available online and Nevada Secretary of State Ross Miller has developed a website to answer the question "Why Nevada?" The Nevada Law Journal, which is run by students of the William S. Boyd School of Law at the University of Nevada, Las Vegas, publishes Nevada Supreme Court Summaries, Nevada Supreme Court Commentaries, Nevada Legislative Summaries, and Nevada Legislative Commentaries. A local law firm, Lionel Sawyer & Collins, also publishes a guide entitled "Doing Business In Nevada: A Practical Guide." However, although Nevada has dedicated business courts and judges, case law is limited because lower courts in Nevada do not publish opinions and, in fact, often do not issue opinions. On this blog, I will post information about Nevada business law and, hopefully, create a space where practitioners and others will contribute their knowledge of business law in Nevada and engage in a useful discourse.