Arab Bank lawsuit (re terrorist attacks in Israel)

Arab Bank HQ Credit_jean pierre x_wikicommons

Between 2004 and 2010, families of the victims and survivors of the terrorist attacks in Israel, the West Bank and the Gaza Strip that occurred between 1995 and 2005 filed several lawsuits under the Alien Tort Statute and the Anti-Terrorist Act in a US federal district court against the Jordanian-based Arab Bank.  The plaintiffs are US and foreign nationals.  The lawsuits allege the Bank provided financial services that allowed several Palestinian militant organizations to engage in terrorist activities, claiming the Bank knew or should have known its accounts were being used to pay the families of suicide bombers.  Arab Bank denied the claims.

Between 2007 and 2010, the court dismissed all claims of foreign plaintiffs under the Anti-Terrorist Act.  In 2013, a US judge also dismissed the claims of foreign plaintiffs under the Alien Tort Statute with reference to the Kiobel v. Royal Dutch Petroleum case, ruling that the plaintiffs cannot bring lawsuits against companies under this law.  In 2016, the court of appeal affirmed the lower court's judgement and denied a rehearing of the case.  On 3 April 2017, the Supreme Court accepted the plaintiffs’ request to decide on whether the Alien Tort Statute applies to companies and will hear the case on 11 october 2017.

In 2014, the claims of US plaintiffs against Arab Bank went on trial.  The jury found the bank liable under the US Anti-Terrorist Act for knowingly providing assistance to Palestinian militant group Hamas and consequently being complicit in terrorist attacks that took place between 2001 and 2004.  Damages were to be assessed in a separate trial.  However, Arab Bank reached a confidential settlement with the US claimants ahead of the trial.

 All documents available here.

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11 October 2017

Jesner v. Arab Bank, PLC. - Argument Transcripts

Author: US Supreme Court

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11 October 2017

Supreme Court Must Recognize that with Power, Comes Responsibility

Author: Amol Mehra, International Corporate Accountability Roundtable (ICAR)

Today, the Supreme Court of the United States (SCOTUS) will have to decide whether corporations, which have a number of rights, also have responsibilities. On October 11, 2017, SCOTUS will hear oral arguments in Jesner v. Arab Bank, PLC. The case raises the question of whether corporations can be held liable under the Alien Tort Statute (ATS), which permits non-Americans to sue for violations of international law…

… Corporations influence all aspects of society and are increasingly granted extensive rights that enable them to effectively operate as citizens…

The underlying principles of corporate law, as well as preventing a double standard and the public interest, likewise require that corporations be held liable for their abuses…

With rights come responsibilities. SCOTUS, through its own decisions, has grown both the role and power of corporations in modern society. At the very least, it must now enforce the clear, established rules for their behavior. Fairness and justice require that SCOTUS uphold the laws that permit the public to hold corporations accountable. It must not foreclose corporate liability under the ATS.

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10 October 2017

Jesner v. Arab Bank: The Supreme Court Should Not Miss the Opportunity to Clarify the “Touch and Concern” Test

Author: John Bellinger & Andy Wang, Arnold & Porter Kaye Scholer LLP, on Lawfare Blog (USA)

In Kiobel v. Royal Dutch Petroleum, the Supreme Court held that the Alien Tort Statute (ATS) is presumed not to apply to conduct on the territory of another country unless the plaintiff’s claims “touch and concern” the United States with sufficient force to overcome that presumption…Although Jesner primarily raises the issue of corporate liability under the ATS (left unresolved in Kiobel), it gives the court an opportunity to clarify the touch and concern standard. In this post, we review the pending ATS cases, the arguments advanced by the plaintiffs and defendants over “touch and concern” in the lower courts, and how they may arise in Jesner…

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5 October 2017

[Podcast] SCOTUS Déjà vu: Holding Corporations Liable for Human Rights Violations

Author: Kimberly Robinson, Bloomberg Bureau of National Affairs

The U.S. Supreme Court agreed in 2011 to decide if corporations can be liable for supporting human rights violations under the Alien Tort Statute in Kiobel v. Royal Dutch Petroleum. But a high court change of heart left that issue unresolved.

The question of corporate liability is back before the justices and will be argued October 11 in Jesner v. Arab Bank.

Bloomberg BNA’s Kimberly Robinson and Patrick Gregory discuss what’s at issue, the statutory revolution behind the lawsuit, and where the Supreme Court is likely to land in this podcast.

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2 October 2017

International Legal Personality of Corporations: How Investment Law Answers the Supreme Court Question in Jesner

Author: Tara Van Ho, Aarhus University’s Department of Law, on Just Security

In Jesner v. Arab Bank, the US Supreme Court must decide a single question: can corporations violate international law? Answering this question first requires identifying the extent to which corporations are international actors with a distinct legal personality. In the discussions surrounding Jesner, there has been little analysis of the approach towards corporate personality in international investment law (IIL)...IIL delineates international rights and responsibilities for corporations, which, as a matter of public international law, are distinct from their shareholders. IIL also grants corporations independence from their home and host states, and allows corporations to enforce their rights through international tribunals. As such, corporations meet the elements of international legal personality in IIL. This suggests that the appropriate question is not whether corporations can violate international law, but only which obligations they have...

I first establish that IIL recognizes a clear international legal personality for corporations. I then consider the implications of this personality, concluding that corporations can have both explicit and implicit rights and obligations under international law...

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2 October 2017

Supreme Court Should Reject Corporate Impunity for Financing Terrorism

Author: John M. Eubanks, Motley Rice LLC (Petitioners’ Counsel in Jesner v. Arab Bank)

Imagine a situation where an international bank with a presence in Manhattan holds accounts for known terrorists and serves as the end-payor to beneficiaries of a fund created for the explicit purpose of supporting an armed uprising typified by suicide bombings and indiscriminate killing of civilians carried out by known terrorist organizations with whom the bank’s accountholders are directly affiliated. Then, picture this international bank being immune from lawsuits filed by the victims of these suicide bombings and indiscriminate killings solely on the basis of its corporate form. This is precisely the issue with which the Supreme Court will grapple in Jesner v. Arab Bank, to be argued before the Court on October 11, 2017. 

Jesner addresses the same question that was raised in Kiobel v. Royal Dutch Petroleum Co. during the October Term 2011. That question is whether the Alien Tort Statute (ATS), creates a categorical bar to corporate liability for violations of the law of nations, or customary international law…

…The language of the ATS does not explicitly exempt corporations. In fact, the text of the statute…specifically lays out who can sue (“an alien”), but it provides no limitation for who can be sued.

…[W]here a corporation engages in conduct that it knows will facilitate violations of the law of nations such as terrorism, crimes against humanity, or even genocide, can that corporation be held liable under the ATS to the victims of those violations? The answer is a simple “yes” based on the statutory text and common law’s interpretation of tort liability, and it is up to the Supreme Court to make this determination.

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2 October 2017

Supreme Court to Decide Whether Corporations Immune to Human Rights Suits

Author: EarthRights International & International Corporate Accountability Roundtable (ICAR)

Today, the Supreme Court of the United States (SCOTUS) begins its fall session. On the docket is Jesner v. Arab Bank, PLC, which is scheduled to be heard on October 11. The case will determine whether the Alien Tort Statute (ATS) can provide an avenue to deliver justice to victims of corporate harms. The ATS permits non-Americans to sue for international human rights abuses and is key to holding corporations accountable...

We cannot stand by as the Court, following in the footsteps of Citizens United, recognizes more and more corporate rights, without likewise acknowledging corporate responsibilities and choosing #PeopleOverProfits...

“Where corporations are involved in human rights abuses, they must be held accountable. To deny victims access to justice is unfair and results in corporate impunity,” said Amol Mehra, Executive Director of ICAR...

Katie Redford, ERI’s Co-Founder and Director, highlighted the case’s importance for the environment. “If corporations cannot be sued when they create widespread environmental damage, then it will be left to governments to finance the clean-up. It raises the question of what kind of society we want. Do we want to live in a world where corporations can get away with murder and destruction, while it is left to ordinary citizens to pick up the pieces?”

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1 October 2017

Jesner v. Arab Bank and the UN Guiding Principles on Business and Human Rights

Author: John F. Sherman III, Shift, on Clarion

[Article starts p. 12]

…[I]n Jesner, the petitioners, who are victims of terrorist bombings and attacks, are suing the respondent Arab Bank, a multinational corporation based in Jordan, under the ATS. A jury found that the bank had knowingly used its New York branch as a clearinghouse to facilitate the financing of such actions…

The District Court ultimately overturned the verdict and dismissed the claim on the ground that corporations are not subject to suit under the ATS. The Second Circuit affirmed…

…[T]he Guiding Principles remain highly relevant in Jesner. First, their background and content show that international law does not preclude corporate responsibility for violations of human rights. Second, their widespread uptake helps to show that the existence of potential ATS liability benefits businesses abroad much more than it burdens them…


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29 September 2017

Corporate Liability for Human Rights Violations: A Preview of Jesner v. Arab Bank, PLC

Author: William Dodge, University of California, on Just Security

On October 11, the U.S. Supreme Court will hear oral argument in Jesner v. Arab Bank, PLC on the question whether corporations can be sued for human rights violations under the Alien Tort Statute (ATS). This will be the second time the question of corporate liability has come before the Court. In 2011, the Supreme Court granted cert to consider the same question in Kiobel v. Royal Dutch Petroleum Co., but after oral argument the Court asked for additional briefing on the geographic scope of the ATS cause of action. Ultimately, the Supreme Court affirmed dismissal of the claims in Kiobel on the ground that they did not “touch and concern” the United States with sufficient force to displace the presumption against extraterritoriality. The Court did not reach the question of corporate liability under the ATS, leaving the Second Circuit’s categorical rule against such liability intact...

The arguments in Jesner fall into three groups:

1) whether customary international law permits corporate liability;

2) whether, as a matter of U.S. domestic law, the ATS cause of action should be interpreted to permit corporate liability;

3) whether the case against Arab Bank should be dismissed on some other ground...

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4 August 2017

Commentary: US Alien Tort Statute & corporate liability in Arab Bank lawsuit over alleged complicity in financing terrorism

Author: Amy Howe, SCOTUS Blog (USA)

“An introduction to the Alien Tort Statute and corporate liability: In Plain English”, 24 Jul 2017

…[O]n October 11, the Supreme Court will hear oral argument in a case brought by victims of terrorist attacks…under the Alien Tort Statute [ATS], a federal law that gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”.

…[P]laintiffs [have] increasingly relied on the ATS as the basis for lawsuits filed in U.S. courts…against multinational corporations for their role in “aiding and abetting” human-rights violations…[I]n Jesner v. Arab Bank[,] the plaintiffs…contend that Arab Bank “violated the law of nations insofar as it financed terrorism…”. In their view…the history and purpose of the ATS…reinforce that the ATS applies equally to corporations…[S]enators emphasize that the ATS is the only avenue for civil lawsuits “against financial entities that use U.S. operations to aid terrorist attacks on foreign nationals overseas.”

…Arab Bank counters that …U.S. law does not allow corporations to be held liable in similar areas of the law…The U.S. Chamber of Commerce and other business groups echo…the bank’s arguments against corporate liability…

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