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The controversy behind Jesner v. Arab Bank case

Jesner v. Arab Bank is one of the most controversial cases that evoke heated discussions in the international legal environment. This case aimed at resolving the question of whether corporations can be sued under the international law for human rights violation and terrorism. Finally, in a 5-4 vote, the Supreme Court with Justice Anthony Kennedy writing the majority opinion, verified that the U.S. Court of Appeals for the Second Circuit dismissal of that case and held that foreign corporations can not be sued under the Alien Tort Statute (ATS).

A very similar dilemma was intellectualised in Kiobel v. Royal Dutch Petroleum Co. case but the specific answer wasn’t given as the case was solved on the other grounds. Jesner v. Arab Bank case involves a non-U.S. plaintiffs gathering against a non-U.S. defendant (Jordanian Bank) for some substantial injuries suffered during the attack of a non-US terrorist group Hamas, outside the U.S. territory. The Arab Bank is believed to be supporting and providing some financial services to Hamas and its accessories by channelling funds via New York bank’s branch.

Alien Tort Statute (28 U.S.C.§ 1350) was enacted in 1789 and assumes that foreign citizens should be allowed to seek remedies in U.S. courts for human-rights violations for conduct committed outside the legal territory of United States of America. In result, after the attack of Hamas terrorist organisation, petitioners brought five suits under the above mentioned ATS in the Eastern District of New York between 2004 and 2010.

Plaintiffs contended that the attacks were partially funded by the Arab Bank. The defendant is a financial institution established and functioning in Jordan with some international branches, including some in United States in America and one in New York itself. Originally, petitioners brought action against the corporation, including the chairman, the board and some high-rank employees.

The district court has dismissed this case, holding as a matter of statutory interpretation and Second Circuit precedent, that the ATS prohibited corporate liability. In result, the Second Circuitaffirmedthisdecision.

This case is perceived as one of the most controversial cases in recent years. The justices provided a wide gamut of opinions, considering various pros and cons of the case. Supporting the majority, Justice Anthony Kennedy, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and the Chief Justice John Roberts, stood against recognising the corporate liability on the basis of ATS. The decision of the Supreme Court is highly criticised for leaving open the question of whether the ATS allows corporate liability.