MOTION INFORMATION STATEMENT - Letters Blogatory · PDF fileMOTION INFORMATION STATEMENT Docket Number(s):

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITThurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION INFORMATION STATEMENT

Docket Number(s): Caption [use short title]

Motion for:

Set forth below precise, complete statement of relief sought:

MOVING PARTY: OPPOSING PARTY:

��Plaintiff ��Defendant

��Appellant/Petitioner ��Appellee/Respondent

MOVING ATTORNEY: OPPOSING ATTORNEY:

[name of attorney, with firm, address, phone number and e-mail]

Court-Judge/Agency appealed from:

Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND

INJUNCTIONS PENDING APPEAL:

Has movant notified opposing counsel (required by Local Rule 27.1): Has request for relief been made below? ��Yes ��No

��Yes ��No (explain): Has this relief been previously sought in this Court? ��Yes ��No

Requested return date and explanation of emergency:

Opposing counsel’s position on motion:

��Unopposed � Opposed � Don’t Know

Does opposing counsel intend to file a response:

� Yes � No � Don’t Know

Is oral argument on motion requested? ��Yes ��No (requests for oral argument will not necessarily be granted)

Has argument date of appeal been set? ��Yes ��No If yes, enter date:__________________________________________________________

Signature of Moving Attorney:

___________________________________Date: ___________________ Has service been effected? ��Yes ��No [Attach proof of service]

ORDER

IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, Clerk of Court

Date: _____________________________________________ By: ________________________________________________

Form T-1080

/s/ Christopher M. Curran

CV 10-4519(L); 10-4524(CON)

Leave to file brief as amicus curiae. Courtney Linde, et al. v. Arab Bank, PLC

The Hashemite Kingdom of Jordan

Christopher M. Curran (91-731), Nicole E. Erb (07-188329)

701 Thirteenth Street, N.W., Washington, D.C. 20005+ 1 202 626 [email protected]@whitecase.com

Eastern District of New York - District Court Judge Nina Gershon

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03/28/2011 ✔

Case: 10-4519 Document: 100 Page: 1 03/28/2011 246660 27

10-4519(L)10-4524(CON)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

COURTNEY LINDE, ET AL.,

Plaintiffs-Appellees-Respondents,

v.

ARAB BANK, PLC,

Defendant-Appellant-Petitioner.

APPEAL AND PETITION FOR WRIT OF MANDAMUS FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

CASE NO. 04-CV-2799-NG-VVP AND RELATED CASES

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEFIN SUPPORT OF ARAB BANK, PLC

Christopher M. Curran

Nicole E. Erb

701 Thirteenth Street, N.W. Washington, D.C. 20005 Telephone: + 1 202 626 3600 Facsimile: + 1 202 639 9355 Attorneys for Amicus CuriaeThe Hashemite Kingdom of Jordan


Pursuant to Rule 29 of the Federal Rules of Appellate Procedure and Rule

29.1 of the Second Circuit Local Rules, the Hashemite Kingdom of Jordan hereby

respectfully moves for leave to file the attached amicus curiae brief in support of

Arab Bank, plc’s opening appeal brief filed on March 21, 2011. The attached

amicus curiae brief is the same brief that, on November 5, 2010, the Kingdom

moved for leave to file in support of the Bank’s Petition for Writ of Mandamus.

The Kingdom hereby seeks leave to resubmit its November 5, 2010 brief so

that the Kingdom’s views may be considered by the merits panel that will hear

Arab Bank’s consolidated appeal and petition for a writ of mandamus. The

Kingdom continues to have the grave concerns expressed in its November 5, 2010

brief, and reiterates that the views expressed therein are solely the views of the

Kingdom, and that no party, party’s counsel, or other person has funded the

preparation or submission of its brief.

Arab Bank seeks vacatur of the District Court’s July 12, 2010 Opinion and

Order (the “Order”) sanctioning the Bank for declining to produce certain customer

banking records in pretrial discovery, where production of the records would have

violated the statutory law of the Kingdom and other sovereign nations.

The Kingdom remains extremely concerned about the Order and its potential

impact on the litigation, Arab Bank, and the Kingdom. As the home nation and

primary regulator of Arab Bank, the Kingdom has important sovereign interests in


this litigation: first, the Kingdom has a vital interest in defending its sovereignty

and the integrity of its laws and legal system; second, the Kingdom has a vital

interest in protecting and promoting economic and political stability in Jordan and

the surrounding region — particularly in light of recent world events.

The Order harshly punishes Arab Bank — the Kingdom’s preeminent

financial institution — for its refusal to violate the Kingdom’s mandatory and

penal banking confidentiality laws. This punishment is an affront to the

Kingdom’s sovereignty and is inconsistent with well-established principles of

international law and comity. Furthermore, the severity of the Order infringes on

the Kingdom’s sovereign authority to regulate the provision of banking and

financial services within its territory, and threatens the integrity of the banking

system in an increasingly volatile region of the world.

By precluding Arab Bank from introducing evidence and argument

regarding its knowledge and intent — critical elements of the claims asserted

against Arab Bank — the Order seems destined to lead to a jury verdict that the

Bank knowingly and purposefully supports terrorism. Such a verdict likely would

result in ruinous financial damages and irreparable reputational harm to the Bank.

These concerns are not abated by this Court’s decision in Kiobel v. Royal Dutch

Petroleum, Co., 621 F.3d 11 (2d Cir. 2010), reh’g denied, 2011 WL 338048

(Feb. 4, 2011), as devastating damages and reputational harm still would be the


likely result of an adverse verdict against Arab Bank under the Anti-Terrorism Act

alone. Because of the size and importance of Arab Bank in the Kingdom and

surrounding region, such serious harm to the Bank could be devastating to the

economies and political stability in Jordan and beyond.

The Kingdom’s amicus brief supports Arab Bank’s consolidated appeal and

petition for writ of mandamus and seeks to assist the Court in its analysis by

providing information regarding: (1) the relevant Jordanian banking laws at issue;

(2) the history of the long and friendly diplomatic relations between the Kingdom

and the United States, including on anti-terrorism matters; (3) the seriousness of

the conflict between the Order and the sovereign interests and public laws of the

Kingdom; and (4) the potentially destabilizing consequences faced by the

Kingdom and surrounding region if the Order stands.


Counsel for Petitioner Arab Bank, plc have consented to the filing of the

Kingdom’s amicus brief. Counsel for Plaintiffs have not responded to an inquiry

from counsel for the Kingdom as to whether Plaintiffs consent to the filing of the

Kingdom’s amicus brief.

Dated: March 28, 2011 Respectfully submitted, Washington, D.C.


Christopher M. Curran Nicole E. Erb

701 Thirteenth Street, N.W. Washington, D.C. 20005 Telephone: + 1 202 626 3600 Facsimile: + 1 202 639 9355

Attorneys for Amicus CuriaeThe Hashemite Kingdom of Jordan

SO ORDERED this _______ day of ____________, 2011.

United States Court of Appeals for the Second Circuit


CERTIFICATE OF SERVICE

The undersigned certifies that, on March 28, 2011, the foregoing Motion for

Leave to File Amicus Curiae Brief in Support of Arab Bank, plc and the attached

Amicus Curiae Brief of The Hashemite Kingdom of Jordan were served by

CM/ECF on the following:

Counsel for Arab Bank, plc Stephen M. Shapiro ([email protected]) Jeffrey W. Sarles ([email protected]) MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 Kevin Walsh ([email protected]) Douglas W. Mateyaschuk, II ([email protected]) DEWEY & LEBOEUF LLP 1301 Avenue of the Americas New York, NY 10036 Liaison Counsel for Plaintiffs-Appellees-Respondents Michael Elsner ([email protected]) MOTLEY RICE LLC 28 Bridgeside Boulevard P.O. Box 1792 Mt. Pleasant, SC 29464 Gary M. Osen ([email protected]) Peter Raven-Hansen ([email protected]) OSEN LLC 700 Kinderkamack Road, Suite 200 Oradell, NJ 07649


Mark S. Werbner ([email protected]) Joel L. Israel ([email protected]) SAYLES WERBNER 4400 Renaissance Tower, 1201 Elm Street Dallas, TX 75270 Susan M. Davies ([email protected]) James P. Bonner ([email protected]) SHALOV STONE BONNER & ROCCO LLP 260 Madison Avenue, 17th Floor, New York, New York 10016 Douglas J. Pepe ([email protected]) GREGORY P. JOSEPH LAW OFFICES LLC 485 Lexington Avenue, 30th Floor New York, NY 10017 David S. Stone ([email protected]) STONE & MAGNANINI LLP 150 JFK Parkway, 4th Floor Short Hills, NJ 07078 Counsel for Amici CuriaeScott R. Emery ([email protected]) LYNCH DASKAL EMERY LLP 264 West 40th Street New York, New York 10018 Steven T. Cottreau ([email protected]) CLIFFORD CHANCE US LLP 2001 K Street NW Washington, DC 20006 Dated: March 28, 2011 /s/ Nicole E. Erb Washington, D.C.


10-4519(L)10-4524(CON)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

COURTNEY LINDE, ET AL.,

Plaintiffs-Appellees-Respondents,

v.

ARAB BANK, PLC,

Defendant-Appellant-Petitioner.

APPEAL AND PETITION FOR WRIT OF MANDAMUS FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

CASE NO. 04-CV-2799-NG-VVP AND RELATED CASES

AMICUS CURIAE BRIEF OF THE HASHEMITE KINGDOM OF JORDAN IN SUPPORT OF ARAB BANK, PLC

Christopher M. Curran

Nicole E. Erb

701 Thirteenth Street, N.W. Washington, D.C. 20005 Telephone: + 1 202 626 3600 Facsimile: + 1 202 639 9355 Attorneys for Amicus CuriaeThe Hashemite Kingdom of Jordan


TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTEREST OF AMICUS CURIAE............................................................................1

SUMMARY OF THE KINGDOM’S POSITION.....................................................1

DISCUSSION ............................................................................................................3

I. The Kingdom Enjoys Friendly Relations With The United States .................3

II. Arab Bank Is A Preeminent Financial Institution In The Kingdom And Surrounding Region.................................................................................5

III. The Sanctions Order Infringes On The Kingdom’s Sovereignty....................6

A. Banks Are Highly Regulated In The Kingdom.....................................6

B. Arab Bank Attempted To Comply With Both The Jordanian Banking Law And U.S. Discovery Rules..............................................9

C. Punishing Arab Bank For Complying With Jordanian Law Is An Affront To The Kingdom’s Sovereignty.......................................10

IV. The Sanctions Order Poses Grave Risks To The Region..............................13

CONCLUSION........................................................................................................15


ii

TABLE OF AUTHORITIES

CASES

Société Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 211 (1958)..............................11

Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct., 482 U.S. 522 (1987) ................................................................11

STATUTES AND RULES

15 U.S.C. § 6801(a) ...................................................................................................8

15 U.S.C. § 6802........................................................................................................8

JORDANIAN LAW

Banking Law No. 28 of 2000................................................................................. 7-8

Penal Code No. 16 of 1960 ........................................................................................4

OTHER AUTHORITIES

F.A. Mann, The Doctrine of International Jurisdiction Revisited after Twenty Years, Recueil des Cours, Vol. 186 (1984) ...................11

Oppenheim’s International Law (Sir Robert Jennings & Sir Arthur Watts, eds., 9th ed. 1996)............................11

Restatement (Third) of the Foreign Relations Law of the United States § 441....................................... 10-11

United Nations International Convention for the Suppression of the Financing of Terrorism, G.A. Res. 54/109 1, U.N. Doc. A/RES/54/109 (Dec. 9, 1999) ..........................12

United Nations Security Council Resolution 1373, S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001) ..................................12


INTEREST OF AMICUS CURIAE

The Hashemite Kingdom of Jordan has enjoyed close relations with the

United States for over six decades and has the utmost respect for the United States

Judiciary. The circumstances of the litigation in the United States pending against

Arab Bank, plc have become so serious that the Kingdom feels compelled to

respectfully express its deep concerns to this Court, specifically regarding the

District Court’s July 12, 2010 Opinion and Order (“Sanctions Order”).

The Sanctions Order implicates two paramount sovereign interests of the

Kingdom: first, the Kingdom’s vital interest in protecting its sovereignty and the

integrity of its laws and legal system; and, second, the Kingdom’s vital interest in

protecting and promoting economic and political stability in Jordan, as well as in

the surrounding region, which is one of the world’s most volatile areas. Failure to

vacate the Sanctions Order places both of these vital interests in peril.1

SUMMARY OF THE KINGDOM’S POSITION

The Kingdom understands that the Sanctions Order permits the jury to infer

that the Bank knowingly and purposefully provided financial services to terrorists

and precludes the Bank from “making any argument or offering any evidence

1 Pursuant to Local Rule 29.1(b), the Kingdom discloses that its longtime U.S. litigation counsel, White & Case LLP, authored this amicus curiae brief in full. In addition to its representation of the Hashemite Kingdom of Jordan, White & Case recently has been engaged to represent Arab Bank in connection with these cases. The Kingdom alone (i.e., no party, party’s counsel, or other person) funded the preparation and submission of the brief.


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regarding its state of mind or any other issue that would find proof or refutation in

withheld documents.” Sanctions Order at 32. The Kingdom further understands

that these sanctions were imposed because Arab Bank did not produce, in pre-trial

discovery, certain documents that it is prohibited from disclosing by the mandatory

penal laws of the Kingdom that protect the confidentiality of banking records held

in the Kingdom by banks located and regulated in the Kingdom.

The Kingdom respectfully submits that the District Court’s Sanctions Order

infringes on the Kingdom’s sovereignty and is unduly severe in nature. First, the

sanctions punish Arab Bank for not violating Jordanian law, which would have

subjected the Bank to criminal penalties in its home jurisdiction. As a result, the

sanctions violate well-established international legal principles that one State

should not infringe upon the sovereign rights of another State to regulate matters

taking place within that other State’s sovereign territory.

Second, the sanctions make it virtually inevitable that a jury will conclude

that Arab Bank knowingly and purposefully supports terrorism. Arab Bank is the

leading financial institution in the Kingdom and plays an enormous and uniquely

significant role in the Jordanian and surrounding regional economies, in particular

in the Palestinian Territories. The Kingdom understands that, given the over 6500

Plaintiffs in these cases and the treble damages potentially available to those

claiming under the U.S. Anti-Terrorism Act, such an adverse jury verdict could


3

lead to a massive damages award against the Bank. Beyond the direct financial

liability, such a result would cause severe reputational injury, would be unjustly

ruinous to the Kingdom’s premier financial institution, and could result in political

instability and grave harm to the Jordanian and surrounding regional economies.

Therefore, the Kingdom, after considered evaluation and with the utmost

respect for the United States and its courts, submits this amicus curiae brief in

support of Arab Bank’s Petition for Writ of Mandamus.

DISCUSSION

I. THE KINGDOM ENJOYS FRIENDLY RELATIONS WITH THE UNITED STATES

The Kingdom is a sovereign constitutional monarchy in the Middle East. It

shares borders with Israel and the West Bank, as well as with Saudi Arabia, Iraq,

and Syria. The geographical location of the Kingdom makes it a crucial ally of the

United States. The Kingdom and the United States have signed numerous bilateral

and multilateral accords, and have cooperated in many areas, including civil

aviation, defense, extradition, science, investment, and trade.

The Kingdom has been and remains a steadfast ally of the United States in

combating terrorism and terrorism financing. As His Majesty King Abdullah II

declared on May 16, 2009: “Terrorism is the enemy of all of us and fighting it is a

joint responsibility.” See H.M. King Abdullah II, Interview with Director of

Agence France-Presse, Randa Habib. The Kingdom’s commitment to combating


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terrorism is strengthened even further because the Kingdom and its citizens have

themselves been victims of deadly terrorist attacks. As then-U.S. Secretary of

State Condoleezza Rice stated:

The United States condemns the terrorist bombings in Jordan today. Such wanton acts of murder against innocent people violate every faith and creed. . . . The United States has had no closer ally than Jordan in the war on terror, and Jordan will find no better friend than the United States at this difficult hour.

Secretary Rice, Remarks on the Terrorist Bombings in Jordan (Nov. 9, 2005).

Domestically, the Jordanian Penal Code criminalizes acts of terrorism,

including the financing of such acts and conspiracy to perpetrate them, in

conformity with U.N. Security Council Resolution No. 1373 (Sept. 28, 2001). See

Jordanian Penal Code No. 16 of 1960, as amended by Provisional Act No. 54 of

2001 (Oct. 8, 2001), arts. 147-49. The penalties for violating these provisions

range between five years of hard labor and the death penalty. See id., arts. 148-49.

As part of the Kingdom’s commitment to combating terrorism, the Governor

of the Central Bank issued directives to banks operating within the Kingdom to

adhere to and implement the provisions of the U.N. Security Council anti-terrorism

resolutions, such as: freezing of funds, inspection of customer accounts, and

methods to combat money laundering and other suspicious transactions. See, e.g.,

Letter from the Permanent Representative of Jordan to the United Nations

addressed to the Chairman of the Counter-Terrorism Committee (Mar. 24, 2006).


5

Internationally, the Kingdom has been actively involved with the U.N.

Counter-Terrorism Committee and is party to at least ten international treaties

relevant to combating terrorism and the financing of terrorism, including the U.N.

International Convention for the Suppression of the Financing of Terrorism (1999).

The Kingdom remains committed to continued cooperation among all States in

international efforts to combat terrorism and the financing of terrorism.

In addition, the Kingdom is and has been a key U.S. ally in efforts to

peacefully resolve the Palestinian-Israeli conflict since 1994 when the Kingdom

signed a peace treaty with Israel. Recently in Amman, U.S. Secretary of State

Hillary Rodham Clinton stated:

The United States values our strong, close relationship, our very important partnership with Jordan. It is rooted in respect and common purpose. . . . Jordan is a crucial partner working to end the Israeli-Palestinian conflict and bring a comprehensive peace to the Middle East. We were honored to host King Abdullah II in Washington as these talks got underway, and I want to publicly thank him, as I privately have, for his contributions both to the resumption of direct negotiations and to the constructive beginning that has occurred. Jordan’s steadfast support for this process is essential.

Secretary Clinton, Remarks with Jordanian Foreign Minister Nasser Judeh

(Sept. 16, 2010).

II. ARAB BANK IS A PREEMINENT FINANCIAL INSTITUTION IN THE KINGDOM AND SURROUNDING REGION

Arab Bank is the leading financial institution in the Kingdom and plays an

enormous and uniquely significant role in the Jordanian and surrounding regional


6

economies. In the Kingdom, Arab Bank is comparable in size and stature to

Citibank, JPMorgan, Bank of America, Goldman Sachs and Morgan Stanley,

possibly even combined. Its market capitalization of approximately JD 6.5 billion

(or US$ 9.1 billion) is equivalent to 33% of the total market capitalization, and

58% of the banking sector market capitalization, of the Amman Stock Exchange.

In addition, the Jordanian Social Security Corporation, which is the pension fund

for the majority of the Jordanian labor force, has an ownership stake of

approximately 15% in Arab Bank. In the Palestinian Territories, Arab Bank

maintains branches that provide some of the only safe, sophisticated, and

transparent financial infrastructure — a measure of stability in a turbulent region.

It is against this background of mutual respect and cooperation between the

Kingdom and the United States, and in recognition of the unique importance of

Arab Bank to the Jordanian and surrounding regional economies, that the Kingdom

expresses its serious concerns with respect to the Sanctions Order.

III. THE SANCTIONS ORDER INFRINGES ON THE KINGDOM’S SOVEREIGNTY

A. Banks Are Highly Regulated In The Kingdom

The provision of banking and financial services is highly regulated within

the Kingdom. The principal regulator of banks within the Kingdom is the Central

Bank of Jordan. The Kingdom has established and enforces a robust system of


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laws and regulations relating to banking, securities, debt, foreign currency control,

anti-money laundering and combating the financing of terrorism.

The Kingdom’s primary law regulating the provision of banking and

financial services — the Banking Law, Law No. 28 of the Year 2000 (“Banking

Law”) — imposes mandatory banking confidentiality requirements on banks

operating within the Kingdom:

A bank shall observe full confidentiality regarding all accounts, deposits, trusts, and safe-deposit boxes of its customers. It shall be prohibited from providing directly or indirectly any information thereon except upon a written consent of the owner of such account, deposit, trust or the safe-deposit box, or an heir of his, upon a decision issued by a competent judicial authority in a current litigation, or due to one of the permissible situations pursuant to the provisions of this law.

Banking Law, art. 72. Thus, the Banking Law requires Arab Bank to protect

confidentiality of banking information unless (i) authorized by its customers,

(ii) authorized by a Jordanian court, or (iii) one of the permissible situations

identified in the Banking Law applies. None of these exceptions applies here.

Banks and individuals who violate banking confidentiality “shall be

punished with imprisonment for a period not less than six months, a fine not less

than ten thousand Dinars and not more than fifty thousand Dinars, or with both

penalties.” Id., art. 75. The Governor of the Central Bank may impose additional

penalties including, among other things, fining the bank, instructing the bank to

suspend or dismiss from service any administrator or member of its board of


8

directors, removing the chairman or any member of the board of directors of the

bank, dissolving the bank’s board of directors and placing it under the management

of the Central Bank, and revoking the license of the bank. See id., art. 88.

The Kingdom understands that banks within the United States also are

required to respect the privacy of their customers and to protect the security and

confidentiality of those customers’ banking records. See 15 U.S.C. § 6801(a) (“It

is the policy of the Congress that each financial institution has an affirmative and

continuing obligation to respect the privacy of its customers and to protect the

security and confidentiality of those customers’ nonpublic personal information.”).

The Kingdom further understands that U.S. law — like Jordanian law — provides

for a limited set of exceptions to these requirements, including when the customer

consents to disclosure; to prevent fraud or unauthorized transactions; and to

comply with applicable legal requirements as well as formal orders issued by

competent and appropriate authorities. See 15 U.S.C. § 6802.

In this manner, the laws of both the Kingdom and the United States embody

the principles that the Organization for Economic Cooperation and Development

(“OECD”) has acknowledged: “Bank secrecy is also a fundamental requirement of

any sound banking system. Customers would be unlikely to entrust their money

and financial affairs to banks if the confidentiality of their dealings with banks

could not be ensured. . . . Thus, banks must guarantee a high degree of


9

confidentiality in order to do business.” See OECD, Improving Access to Bank

Information for Tax Purposes 19 (2000). The OECD has also observed:

Bank secrecy is widely recognised as playing a legitimate role in protecting the confidentiality of the financial affairs of individuals and legal entities. It derives from the concept that the relationship between a banker and his customer obliges the bank to treat all the customer’s affairs as confidential. All countries provide, to a greater or lesser extent, the authority and obligation for banks to refuse to disclose customer information to ordinary third parties. Access to such information by ordinary third parties would jeopardise the right to privacy and potentially endanger the commercial and financial well-being of the accountholder.

Id. at 7. The OECD has further recognized that bank confidentiality stimulates the

development of an active financial services industry and promotes confidence in —

and is critical to the stability of — a country’s banking system. Id. at 19.

B. Arab Bank Attempted To Comply With Both The Jordanian Banking Law And U.S. Discovery Rules

The Kingdom understands that, mindful of the mandatory confidentiality

obligations under Jordanian law and the laws of other jurisdictions, Arab Bank

undertook exceptional efforts to produce documents in a manner that complied

with those obligations. See Pet. at 6-7.

In addition, in 2005, Arab Bank requested and obtained permission from a

court in the Kingdom to disclose information related to banking records held

within the Kingdom. The relevant accountholder, however, promptly filed an

appeal. The appellate court ultimately denied Arab Bank permission to disclose


10

the requested information because the requested disclosure concerned a dispute

before a foreign court in which the accountholder was not a party, and observed

that none of the permissible situations identified in the Banking Law.

Finally, in 2007, at Arab Bank’s request, the U.S. Magistrate Judge issued a

Letter of Request from the District Court seeking the assistance of the Jordanian

authorities in ordering disclosure of documents. See Pet. at 8-9. The Minister of

Justice and the Governor of the Central Bank both indicated that they were not

authorized to permit Arab Bank to violate the banking confidentiality provisions of

the Banking Law. The Minister of Justice also advised that “there is no convention

between the Hashemite Kingdom of Jordan and the United States of America,

regarding judicial proxies in civil suits.” A12 at 4. The Governor further stated

that any breach of the banking confidentiality provisions would expose Arab Bank

to penalties, including fines, imprisonment, and legal actions seeking damages. Id.

at 1-2.

C. Punishing Arab Bank For Complying With Jordanian Law Is An Affront To The Kingdom’s Sovereignty

In the Kingdom’s view, the Sanctions Order punishes Arab Bank for not

disclosing confidential customer information in direct violation of Jordanian law

and court order. Such a punishment severely infringes upon Jordanian sovereignty

and violates the established principle of international law, recognized by U.S.

courts, that “a state may not require a person [] to do an act in another state that is


11

prohibited by the law of the state . . . .” Restatement (Third) of the Foreign

Relations Law of the United States § 441.2

Moreover, the Sanctions Order could drive banks to defy the laws of their

primary regulators rather than face unusually harsh sanctions in civil litigation in

the United States. Such coercion would hold grave consequences for a region in

critical need of secure and reliable financial infrastructure, and would run against

the respect sovereigns typically afford each other’s important sovereign interests.

That private civil plaintiffs raise allegations of terrorism financing does not

diminish the Kingdom’s strong sovereign interest in regulating banking

confidentiality within its sovereign territory. The Kingdom should not be forced to

2 See also Société Nationale v. U.S. Dist. Ct., 482 U.S. 522, 546 (1987) (“American courts should therefore take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state.”); Société Internationale v. Rogers, 357 U.S. 197, 211 (1958) (“It is hardly debatable that fear of criminal prosecution constitutes a weighty excuse for nonproduction, and this excuse is not weakened because the laws preventing compliance are those of a foreign sovereign.”); F.A. Mann, The Doctrine of International Jurisdiction Revisited after Twenty Years, Recueil des Cours, Vol. 186 (1984), at 45 (“[A]s a matter of international law derived from the practice of States and general principles of law, no State is in general entitled to require the commission of a criminal offence or an illegality within the territory of another State.”); Oppenheim’s International Law 477 (Sir Robert Jennings & Sir Arthur Watts, eds., 9th ed. 1996) (“Even where a court has undoubted jurisdiction over a foreign defendant, . . . its orders to the defendant to pursue a certain course of conduct in a foreign state or to produce documents held there may be open to challenge if they involve an infringement of the foreign state’s jurisdictional sovereignty, including a breach of its criminal laws relating to conduct on its territory.”).


12

subordinate its sovereign interests in regulating bank confidentiality within its

territory in favor of the interests of private plaintiffs in civil litigation abroad.

The Kingdom, like the United States, is a signatory of the U.N. International

Convention for the Suppression of the Financing of Terrorism, which provides that

signatory nations “shall afford one another the greatest measure of assistance in

connection with criminal investigations or criminal or extradition proceedings in

respect of the [financing or support of terrorist acts], including assistance in

obtaining evidence in their possession necessary for the proceedings.” See U.N.

International Convention for the Suppression of the Financing of Terrorism (1999),

art. 12(1) (emphases added) (incorporated into Jordanian law under Provisional

Law No. 83 of 2003); see also U.N. Security Council Resolution 1373 (2001),

para. 2(f) (deciding States shall “[a]fford one another the greatest measure of

assistance in connection with criminal investigations or criminal proceedings

relating to the financing or support of terrorist acts, including assistance in

obtaining evidence in their possession necessary for the proceedings”) (emphases

added). The Convention also provides that signatory nations “may not refuse a

request for mutual legal assistance on the ground of bank secrecy.” Id., art. 12(2).

Thus, through the Convention, the international community (including the

Kingdom and the United States) recognized a narrow exception to otherwise

applicable domestic bank confidentiality laws in the specific context of official


13

state-to-state requests for inter-state cooperation in pending criminal investigations

or proceedings related to terrorism financing. The Kingdom has cooperated with

several such requests by the United States. The Convention does not establish any

exception to otherwise applicable domestic bank confidentiality laws for requests

made by ordinary, private third parties in foreign civil litigation.

IV. THE SANCTIONS ORDER POSES GRAVE RISKS TO THE REGION

The Kingdom understands that one of the critical elements to prove liability

under the claims asserted against Arab Bank is knowledge and intent. See, e.g.,

Sanctions Order at 4. By allowing the jury to infer that Arab Bank knowingly and

purposefully provided financial services to terrorists and precluding the Bank from

introducing evidence of its state of mind, including evidence beyond the withheld

documents, the Sanctions Order makes it virtually impossible for Arab Bank to

defend itself and likely will lead to an inevitable jury verdict that the Bank

knowingly and purposefully supports terrorism.

The resulting economic harm to the Bank, while impossible to predict, could

be devastating. Besides the damage to the Bank’s ongoing business, nearly five

hundred plaintiffs are seeking treble damages against the Bank under the Anti-

Terrorism Act and over six thousand more seek relief under the Alien Tort Statute.

Thus, an adverse jury verdict could lead to enormous damages.


14

Liability for knowingly and purposefully supporting terrorism also would

cause great reputational harm and would unavoidably stigmatize the Bank in the

international banking community and the global capital markets. Arab Bank’s

correspondent banks and other critical counter-party financial institutions could

cease doing business with it. The damage to Arab Bank’s reputation as a sound

and reliable financial institution also could threaten the Bank’s important customer

relationships, as well as its role as a premier wholesale bank for top global

businesses and an important depository institution for many corporate and

individual clients with ties to the region.

Given Arab Bank’s prominence, severe reputational and economic harm to

Arab Bank also could destabilize the economies of the Kingdom, the Palestinian

Authority and the surrounding region. In addition, serious harm to Arab Bank

could precipitate political instability in the region, which at the very least, could

disrupt the mutual efforts of the Kingdom and the United States to broker peace in

the Middle East and resolve the Palestinian-Israeli conflict.

Such harm also could seriously undermine the international community’s

anti-money laundering and anti-terrorism efforts in the region. Arab Bank is an

industry and regional leader in building and strengthening anti-money laundering

and anti-terrorism compliance. Through these efforts Arab Bank deters criminal

and terrorist activity, and plays a pivotal role in promoting economic development


15

throughout the region, particularly in the Palestinian Territories. If Arab Bank was

to disregard the bank confidentiality laws of the Kingdom and other jurisdictions

due to the Sanctions Order, customers could lose confidence in the Bank and

withdraw from formal banking services in favor of unregulated, informal, and

opaque funds-transfer systems, with potentially calamitous consequences for the

region.

CONCLUSION

Accordingly, with the highest respect for the United States and the U.S.

judicial system, and for the foregoing reasons, the Kingdom urges the Court to

grant Arab Bank’s Petition for Writ of Mandamus and vacate the Sanctions Order.

In filing this brief as amicus curiae, the Kingdom does not waive, and expressly

reserves, any and all available privileges, immunities, rights and defenses that may

be available to it, including but not limited to its sovereign immunity.

Dated: November 5, 2010 Respectfully submitted, Washington, D.C.


Christopher M. Curran Nicole E. Erb


Attorneys for Amicus CuriaeThe Hashemite Kingdom of Jordan


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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 3600 words (as calculated by the automatic

word count function of Microsoft Word), excluding the parts of the brief exempted

by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

in Times New Roman, 14 point font.

I certify that the information on this form is true and correct to the best of

my knowledge and belief formed after a reasonable inquiry.

Dated: November 5, 2010 /s/ Nicole E. Erb Washington, D.C. Nicole E. Erb


Attorney for Amicus CuriaeThe Hashemite Kingdom of Jordan


Documents

MOTION INFORMATION STATEMENT - Letters Blogatory · PDF fileMOTION INFORMATION STATEMENT Docket Number(s):