Arbitration

• Pages: 75-76

75

international law update Volume 17, October–December 2011

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Virginia, In re Xe Servs. Alien Tort Litig., 665 F.

Supp. 2d 569 (E.D. Va. 2009), that held that war

crimes could give rise to a cause of action under the

ATS.

“Claims for violations of the international

norm proscribing war crimes are cognizable under

the ATS. By ratifying the Geneva Conventions,

Congress has adopted a precise, universally accepted

denition of war crimes. Moreover, through

enactment of a separate federal statute, Congress

has incorporated this precise denition into the

federal criminal law. 18 U.S.C. § 2441. us,

Congress has clearly dened the law of nations to

include a binding prohibition on the commission of

war crimes. Given this, and given Sosa’s teachings,

it follows that an allegation of a war crime states a

cause of action under the ATS.” Id.

International law also recognizes that

corporations could be held liable for war crimes.

“Because parties to a conict not of an international

character by denition must include at least one

non-state actor, entity, or group, Common Article

III cannot reasonably be interpreted to be limited

to states.” [Slip op. 45]

ird, the Court looks to crimes against

humanity and racial discrimination, nding that

these charges do not fall within the jurisdiction

of the ATS. “Since none of the statutes explicitly

include a blockade in their denition of

extermination, Plaintis’ claim for crimes against

humanity can come within the statutes only if the

blockade constitutes other inhumane acts.”

“To meet the Sosa test, however, the blockade

must be a violation of a recognized specic norm.

e statutes do not create such a norm. ere is

no source of recognized international law that yet

identies a food and medical blockade as another

inhumane act or otherwise qualies it as a crime

against humanity. In the absence of any such source,

a food and medical blockade does not violate a

specic internationally recognized norm within

the meaning of Sosa.” [Slip op. 51] erefore, the

Court holds that the crimes against humanity did

not fall under the purview of the ATS.

As for racial discrimination, the Court nds

that the international norm prohibiting systematic

racial discrimination is not suciently specic and

obligatory to give rise to a cause of action under

the ATS. e treaty itself provides a denition of

racial discrimination but does not provide any such

denition of systematic racial discrimination, nor

even include the word “systematic.”

“It is important to recognize that the claim

of racial discrimination as set forth in Count IV

of the complaint is for a violation of the Racial

Discrimination Convention. It is not a claim of

apartheid as dened in the relevant international

statutes. . . . We assume, without deciding, that a

claim akin to apartheid would be cognizable under

the ATS, but the complaint in this case does not

allege such a claim.” [Slip op. 54]

: Sarei v. Rio Tinto PLC, No. 02-56256

(9th Cir. 2011).

ARBITRATION

N C   

 C A, 

    

 

Gary Smallwood, a United States citizen,

moved from San Diego California to Abu Dhabi,

United Arab Emirates (“UAE”) and contracted with

Allied Van Lines, Inc. and SIRVA, Inc. (“AVL”) to

ship some of his belongings to the UAE and put

the remainder in storage. In the contract, there

is an arbitration clause stating that any disputes

arising from the contract would be arbitrated in

accordance with Dubai Chamber of Commerce and

Industry Commercial Conciliation and Arbitration

Regulation.

e belongings that were intended to be

stored in the United States, including his rearms

and ammunition, were mistakenly shipped to the

UAE along with Smallwood’s household items.

Smallwood was then arrested and convicted of gun

smuggling. Smallwood led suit against AVL for the

mistaken shipment in the United States, but AVL

sought to enforce the arbitration clause and moved

to compel arbitration. e district court concluded