In the Kashef et al. v. BNP Paribas litigation, all of the filings have now been submitted to the US Court of Appeals for the Second Circuit. Alongside the amicus brief filed by Civitas Maxima and co-signatories, in which we argued that under the comprehensive corpus of Swiss law, participation, including financing, in international crimes is both unlawful and criminal, the Sudanese plaintiffs were supported by three additional briefs. In the first, two leading Swiss academics, Professors Thomas Probst and Blaise Carron, focused on the debate surrounding the interpretation of Swiss civil law. They argued that the District Court’s approach, as reflected in the jury’s verdict, was accurate and supported by both legislative history and Swiss case law. In the next brief, American scholars, Michael Baylor, William Dodge, and Burt Neuborne, and Roger Alford, a former US government official, addressed whether adjudication of the case infringed upon Swiss sovereignty. They argued that the District Court gave “respectful consideration” to Switzerland’s views in interpreting Swiss law but properly gave more weight to the decisions of the Swiss judiciary than to statements by the executive branch, including the ambassador.
And in the last amicus, the African and Pan-African civil society organizations Centre of Applied Legal Studies, the Institute for Human Rights and Development in Africa, Pan-African Lawyers Union, and the Foundation for Human Rights discussed the contention that the type of liability sought in the case, namely accountability of a financial institution for its role in the commission of international crimes, would be an outlier among all legal systems. They argued that there has been much development, globally but in Africa in particular, in establishing legal frameworks on corporate liability for gross human rights violations which would apply to the conduct in this case. The brief also provided a short primer on the distinction between general and targeted sanctions, clarifying that the two types of regimes are not conflicting; rather, they simply take different approaches.
BNP Paribas’ reply, filed two weeks after the amicus briefs, did not engage directly with any of the analysis in those briefs. Instead, it responded only to the arguments made in the plaintiffs’ own filing, reiterating its previous positions while relying heavily on the amicus briefs submitted in the bank’s favor. BNP Paribas’ core claim – that the liability framework imposed upon it by the District Court for claims arising from its conduct during the 1997-2011 period of gross human rights violations in Sudan would not be supported by laws in any country – is however incorrect and firmly contradicted by the accountability landscape described by the plaintiffs’ amicus briefs. The bank’s claim offends not just the notion of justice but the legal frameworks meticulously constructed in so many different jurisdictions around the world and the principles of accountability that underpin them.
The case now awaits the scheduling of a date for oral argument, after which the Court of Appeals will decide whether to affirm the judgment for the plaintiffs, remand the case to the District Court for a new trial, or reverse and enter a judgment for BNP Paribas.
Photo: Thurgood Marshall United States Courthouse, New York © Kidfly182 / Wikimedia Commons, CC BY 4.0