Will US Supreme Court ruling on Arab Bank open floodgates of litigation?

Why did the media on multiple continents jump on what seems to have been just a procedural decision made on Monday by the US Supreme Court to hear the Alien Tort Statute case against the Arab Bank?

One word encapsulates the decision’s significance: floodgates.

A landmark anti-terrorism financing case which was presumed dead has now been surprisingly resuscitated by the US Supreme Court and could lead to a flood of new anti-terrorism financing lawsuits by foreigners (including Israelis) against foreign financial entities (including those banking for Palestinian terrorist groups) that do business in the US.

This could change the face of international banking and impact the realm of US diplomacy in a variety of unpredictable ways.

Israel’s High Court of Justice hears petitions regarding just about any constitutional case that knocks on its door, but the US Supreme Court rejects almost every case offered to it and was not expected to agree to take this one.

This case would give 6,000 Israeli victims of Palestinian terrorism from 1995 to 2005 a chance to sue Jordan’s largest bank – one of the world’s largest banks – for allegedly allowing terrorists to launder their finances for attacks through it.

For decades, there were attempts to bring civil wrongful-death claims against foreign countries or financial institutions that were directly or indirectly tied to terrorism or the financing of terrorism. They were almost all unsuccessful and none of them led to public trials.

That all changed in September 2014, when a group of US citizens sued the Arab Bank in the first public trial of a major bank on charges relating to terrorist attacks in Israel during the second intifada, and won.

In August 2015, the Arab Bank signed a reportedly $1 billion confidential settlement in that case.

Next, a group of US citizens won a judgment of hundreds of millions of dollars against the Palestinian Authority in a US court. However, that decision was dismissed by an appeals court and the plaintiffs are now appealing to the US Supreme Court.

More importantly, while the September 2014 judgment applied only to US citizens suing foreign entities for facilitating financing for terrorism, the current case includes all foreigners harmed by terrorism. They must demonstrate that the foreign entity they are suing has a large enough US footprint and had a sufficient role, even if passive, in facilitating terrorism.

This would mean that any Israeli or anyone else harmed by terrorism could potentially go after large financial institutions in the Middle East or elsewhere in the world, that look the other way when their clients are funding terrorism.

In 2013, the US Supreme Court rejected the Kiobel case, in which foreigners were suing a foreign defendant for acts committed on foreign soil. The Arab Bank’s statement attacking the foreigners’ case against it on Monday cited the Kiobel case as a bar which has stopped, and will stop, any cases of this kind from going anywhere.

But the justices in the Kiobel case left the door open to future cases where the financial entity is on US soil and the case represents a US national interest – say, eliminating financial havens for terrorist financing.

The Israeli citizens vs Arab Bank case will decide whether the floodgates of litigation against terrorist financing in the US truly burst open, or whether the US citizens vs Arab Bank case was just a flash in the pan.