Ten Years and Counting: Ninth Circuit Refers Sarei v. Rio Tinto to a Mediator

Ten years ago today, plaintiffs filed an Alien Tort Statute (“ATS”) suit against Rio Tinto Plc alleging that they were the victims of numerous violations of international law as the result of Rio Tinto’s mining operations on the island of Bougainville, Papua New Guinea.  Almost ten years later, on October 26, an en banc panel of the Ninth Circuit Court of Appeals referred the proposed class action, Sarei v. Rio Tinto, to a mediator “to explore the possibility of mediation.”  Sarei v. Rio Tinto, 02-cv-56256 (9th Cir. October 26, 2010) (.pdf).

The selected mediator is scheduled to report before the end of November whether the case will proceed to mediation or whether it should be returned to the en banc panel of the Ninth Circuit for further consideration. 

In its long history, this case has already been before the Ninth Circuit several times.  In an earlier decision, Sarei v. Rio Tinto, 550 F.3d 822 (9th Cir. 2008), the Court had remanded the case to the District Court for the Central District of California, stating that certain claims brought under the ATS “are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law.”  In July 2009, the District Court declined to find that a prudential exhaustion requirement was appropriate given the nature of the plaintiffs’ claims.   

There is certain merit to the Ninth Circuit’s attempt to find an alternate resolution to a case that could drag on for many years before reaching final resolution.  In a separate statement, Judge Reinhardt observed that “[i]f the mediation succeeds, we will simply have helped to resolve a complex legal dispute of great importance to the various litigants by means of a peaceful settlement rather than through extended litigation.” 

A recent paper (.pdf) published by the Corporate Social Responsibility Initiative at Harvard University’s Kennedy School of Government argued that “mediation has a legitimate and compelling role to play alongside litigation as a means of addressing human rights-related disputes between companies and individuals or communities.” Whether the Ninth Circuit’s attempt to find an alternate resolution to this case will be successful remains to be seen. 

Notably, the Ninth Circuit’s order provoked a vigorous dissent by Judge Kleinfeld, who argued that it was improper for the Court to refer the case to mediation before determining that it had jurisdiction to hear the case. Judge Kleinfeld stated that jurisdiction in the case was doubtful because the case involves foreign policy issues that raise political questions and because “we lack subject matter jurisdiction on account of extraterritoriality.”  He argued “it is risible to think that the first Congress wrote the Alien Tort Statute intending to adjudicate claims of war crimes committed abroad.” 

Judge Kleinfeld’s dissent is at odds with the vast majority of ATS jurisprudence in which courts have found that the ATS provides for jurisdiction over claims stemming from events outside the United States.  His dissent, however, highlights the fact that the Ninth Circuit has not yet ruled definitively on the appropriateness of jurisdiction in this case.  Whether mediation is appropriate is ultimately up to the parties, but the lengthy history of this case reflects the inherent inefficiencies of litigation as a means to resolve complex disputes and to vindicate rights. 

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