Business Law 13th Edition by Frank Cross, Kenneth Clarkson, Roger LeRoy Miller

تمرين 10

Linde v. Arab Bank, PLC a
United States Court of Appeals, Second Circuit, 706 F.3d 92 (2013).
IN THE LAN GUA GE OF THE COURT
Susan L. carney , Circuit Judge:
This case concerns claims brought by victims and families of victims of terrorist attacks committed in Israel between 1995 and 2004 [during a period commonly referred to as the Second Intifada]. Proceeding under the Anti-Terrorism Act [ATA] and the Alien Tort Claims Act, plaintiffs [filed a suit in a federal district court to] seek monetary damages from Arab Bank, PLC ("Arab Bank" or the "Bank"), a large bank headquartered in Jordan, with branches in New York, throughout the Middle East, and around the world. According to plaintiffs, Arab Bank provided financial services and support to terrorists during this period, facilitating the attacks that caused them grave harm.
* * * * This appeal is brought by defendant Arab Bank from the District Court's orders imposing sanctions. That order was entered following the Bank's repeated failures, over several years and despite multiple discovery orders, to produce certain documents relevant to plaintiffs' case. The Bank argues that the documents are covered by foreign bank secrecy laws such that their disclosure would subject the Bank to criminal prosecution and other penalties in several foreign jurisdictions. The sanctions order takes the form of a jury instruction that would permit-but not require- the jury to infer from the Bank's failure to produce these documents that the Bank provided financial services to designated foreign terrorist organizations, and did so knowingly. * * * * The District Court carefully explained its decision to impose this sanction. It noted that many of the documents that plaintiffs had already obtained tended to support the inference that Arab Bank knew that its services benefited terrorists. According to the District Court, these documents included * * * documents from Arab Bank's Lebanon branch that suggested
* * * Arab Bank officials approved the transfer of funds into an account at that branch despite the fact that the transfers listed known terrorists as beneficiaries. As a consequence of the evidentiary gap created by Arab Bank's non-disclosure, the court reasoned, plaintiffs would be "hard-pressed to show that * * * these transfers were not approved by mistake, but instead are representative of numerous other transfers to terrorists." The permissive inference instruction will, according to the District Court, help to rectify this evidentiary imbalance.
* * * * * * * Arab Bank * * * filed [a] petition for mandamus [an order from a federal appellate court to a district court correcting an erroneous order under circumstances amounting to a clear abuse of discretion by the district court]. * * * * Arab Bank argues that the District Court's decisions ordering production and imposing sanctions should be vacated because they offend international comity. This argument derives from the notion that the sanctions force foreign authorities either to waive enforcement of their bank secrecy laws or to enforce those laws, and in so doing create an allegedly devastating financial liability for the leading financial institution in their region. The Bank asserts, further, that international comity principles merit special weight here because the District Court's decisions affect the United States' interests in combating terrorism and pertain to a region of the world pivotal to United States foreign policy.
* * * The [District] Court expressly noted that it had "considered the interests of the United States and the foreign jurisdictions whose foreign bank secrecy laws are at issue."
Additionally, international comity calls for more than an examination of only some of the interests of some foreign states. Rather, the concept of international comity requires a particularized analysis of the respective interests of the foreign nation and the requesting nation. In other words, the analysis invites a weighing of all of the relevant interests of all of the nations affected by the court's decision. * * * The District Court recognized the legal conflict faced by Arab Bank and the comity interests implicated by the bank secrecy laws. But [the Court] also observed-and properly so-that Jordan and Lebanon have expressed a strong interest in deterring the financial support of terrorism, and that these interests have often outweighed the enforcement of bank secrecy laws, even in the view of the foreign states. Moreover, * * * the District Court took into account the United States' interests in the effective prosecution of civil claims under the ATA [Anti- Terrorism Act]. This type of holistic, multi-factored analysis does not so obviously offend international comity so as to support issuance of a writ of mandamus. [Emphasis added.]
* * * * * * * We find no clear abuse of discretion in the District Court's conclusion that the interests of other sovereigns in enforcing bank secrecy laws are outweighed by the need to impede terrorism financing as embodied in the tort remedies provided by U.S. civil law and the stated commitments of the foreign nations.
* * * * * * * The Bank's petition for a writ of mandamus is DENIED.
Legal Reasoning Questions
1. How is the principle of comity applied?
2. What considerations can take precedence over comity?
3. What interests were at stake in the dispute at the heart of this case?
4. Did this court apply the principle of comity? Why or why not?