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Intl. Finance Corp. lawsuit (re financing of coal-fired plant in India)

Tata power. Credit: Earth Rights InternationalPour la version française de ce profil, cliquez ici.

Para la versión en español de este perfil haga clic acá.

In November 2015, Indian fishermen and farmers filed a lawsuit against the International Finance Corporation (IFC) in US federal court over environmental damage from the Tata Mundra plant in Gujarat, India, a power plant that the IFC financed.  In March 2016, a judge ruled that the IFC could not be sued in this case. 

In August 2016, affected communities and farmers filed an appeal arguing that, under recent US Supreme Court decisions, the IFC is not entitled to absolute immunity and should be subject to suit for damage caused by the power plant. On 23 June 2017, a US court of appeals ruled that the IFC is entitled to “absolute immunity” and cannot be sued by the communities harmed by IFC projects.  In July 2017, the affected communities asked a court to review the "absolute immunity" doctrine. On 26 September 2017, a US Court of Appeals ruled that it would not reconsider the immunity rule. On 22 January 2018, the plaintiffs appealed to the US Supreme Court that agreed to hear the case, thereby accepting to consider the question of whether or not international organizations such as the World Bank are immune from being sued. On 31 July 2018, the US Government, as well as nine NGOs and experts, filed amicus briefs to the Supreme Court in support of the plaintiffs, arguing that international organizations like the World Bank Group should be subject to lawsuits for damages arising out of their commercial activities.

On 31 October 2018, the US Supreme Court heard Indian villagers' appeal challenging the immunity of the IFC under US law. On 27 February 2019, the US Supreme Court ruled that the IFC is not immune from proceedings in US courts and can in fact be sued when it is acting as a private player in the market. The case will return to the lower courts.

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Article
28 September 2018

Commentary: Denying absolute immunity from lawsuits to Intl. Finance Corp. could help impoverished communities affected by its financial decisions seek justice

Author: Barry Yeoman, Nation (USA)

"Is the World Bank Group Above the Law?", 22 Sep 2018

...[O]n October 31, Chief Justice John Roberts will announce Jam’s name as the lead plaintiff in a lawsuit that could determine whether organizations like the World Bank Group’s International Finance Corporation (IFC) can be held responsible for harming the very people they’re supposed to be lifting from poverty...In 2015, Jam and MASS became plaintiffs—along with two other fishworkers...and a farmer who says his crops have been harmed—in a lawsuit against the IFC...The IFC...didn’t dispute the facts; it simply asked the court to throw out the case, saying it enjoyed “absolute immunity” from lawsuits...That’s the question before the Supreme Court in October: whether an ambiguous World War II–era statute really intended to give organizations like the IFC and the World Bank a blanket protection from lawsuits...[T]here’s another set of plaintiffs—Honduran farmers...awaiting the Supreme Court’s decision in Jam v. IFC...Even if they prevail at the Supreme Court, however, that decision will only address their right to sue.  The lawsuit will then have to be litigated on its merits.  But a favorable ruling for Jam on the immunity question could make the IFC more vigilant about protecting impoverished communities affected by its financial decisions.  And it could give those communities another recourse...

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Article
16 August 2018

NGOs and experts file brief opposing immunity of international organisations in case over damage from plant financed by Intl. Finance Corp. in India

Author: CIEL

"Experts Call on Supreme Court to Reverse Decision Protecting IFC's Absolute Immunity", 2 August 2018

On Tuesday, nine NGOs and experts filed an amicus brief before the US Supreme Court in support of the Indian fishing communities and farmers who are challenging the International Finance Corporation (IFC)'s claim to absolute immunity in Jam v. IFC. The amici call for the Supreme Court to reverse the lower court's decision, arguing that the decision to uphold the IFC's immunity undermines its mission and its accountability system...In support of the communities, NGOs and experts stress that absolute immunity not only infringes on the right to remedy, it also undermines the IFC's ability to carry out its own objectives. Providing redress to communities harmed by IFC projects is critical to the mission of the IFC to reduce poverty and support development that does not harm the people or environment. The IFC claims losing immunity will hurt its business; however, the amici argue that limiting immunity will actually help...The US Government, a group of bipartisan members of Congress, and international law professors have also filed amicus briefs supporting the reversal of the lower court's decision.

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Article
8 August 2018

US Govt. opposes immunity of intl. orgs. from lawsuits in support of case over damage from power plant financed by Intl. Finance Corp. in India

Author: EarthRights Intl.

"U.S. Government Opposes “Absolute” Immunity for World Bank Group in Brief to SCOTUS", 1 Aug 2018

...[T]he U.S. Government urged the U.S. Supreme Court to reverse a lower court decision holding that international organizations like the World Bank Group are entitled to “absolute immunity” from lawsuits in U.S. Courts...[T]he Government’s brief argues...that such organizations...should be subject to suit for injuries arising out of their commercial activities.  The brief supports the Plaintiffs in Jam v. International Finance Corporation (IFC), who with EarthRights International (ERI) filed suit against the IFC...for its role in funding a destructive power plant project in Gujarat, India that has devastated their community and the local environment.  The IFC has not denied that the harms have occurred, instead it has simply argued that it is immune and cannot be held liable...

The Plaintiffs, filed their opening brief last week explaining why the D.C. Circuit’s holding is wrong and the IFC is not immune from suits for commercial activity.  The US Government’s...adds substantial weight to that argument...A number of other amicus curiae...briefs were also filed this week, including briefs by a bipartisan group of a Members of Congress, International Law Scholars, and environmental, human rights, and development-focused advocacy organizations that have experience working with the IFC, all arguing that the D.C. Circuit’s absolute immunity holding is wrong and should be reversed...

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Article
8 August 2018

US Govt.'s full amicus curiae brief

Author: US Department of Justice

The IOIA provides that international organizations “enjoy the same immunity from suit...as is enjoyed by foreign governments.” 22 U.S.C. 288a(b). The text, structure, and history of the Act, as well as Executive Branch practice and related congressional enactments, all confirm that the jurisdictional immunity afforded by the Act is the jurisdictional immunity currently enjoyed by foreign states and as it might be modified over time, not as it existed when the Act was enacted in 1945. The court of appeals’ contrary determination is incorrect, would present practical difficulties for federal courts, and is not justified by the policy concerns that respondents invoke.

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Article
7 August 2018

Amicus briefs by Members of Congress & NGOs

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Article
7 August 2018

Petitioners' brief

Author: EarthRights Intl., Stanford Law School Supreme Court Litigation Clinic

The D.C. Circuit is incorrect that the [International Organizations Immunities Act] IOIA gives international organizations absolute immunity from suit. Rather, by its plain terms, the IOIA tracks the rules established in the FSIA...The IOIA’s “same immunity” provision does not place international organizations uniquely beyond the reach of the law. Instead, it incorporates the current law of foreign sovereign immunity, which is governed by the FSIA...

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Article
21 May 2018

Seeking Justice: US Supreme Court Will Hear Case on World Bank Group’s “Absolute Immunity”

Author: Carly Dooley, Marie Mekosh, Center for International Environmental Law

When a project funded by the World Bank and other development banks harms local communities, where can they turn to?...[I]n the US, these organizations have absolute legal immunity, meaning that they can’t be sued even in cases of explicitly illegal behavior...[F]or the first time, the US Supreme Court will address international organizations’ immunity from harmful or illegal conduct.  This case could pave the way for communities around the world to finally achieve meaningful relief from the damage international institutions leave behind...Indian fishing communities and farmers are challenging the IFC, a branch of the World Bank, for its role in the controversial Tata Mundra coal-fired power plant...In 2008, the IFC provided India with $450 million in loans to construct the Tata Mundra Power Plant...When the IFC’s own independent accountability mechanism (the CAO) investigated the project, it...denounced the bank’s failure to ensure that the project wouldn’t harm those it was ultimately meant to help...[T]he IFC largely rejected the CAO’s findings and failed to implement any plans that would remedy the harms to the communities...Continuing to grant “absolute immunity” disregards the effects of World Bank Group projects and actions on local communities, the very people projects are supposed to benefit...The IFC’s rigid adherence to this immunity only raises questions about whether they are truly evaluating projects in line with their stated goal of “helping to reduce poverty and improve people’s lives.”  We hope that the Supreme Court’s decision to hear the case points not only to a recognition of the communities devastated by one power plant in India, but to all the communities impacted by development projects around the world...

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Article
21 May 2018

U.S. Supreme Court Will Hear Landmark Case Challenging World Bank Group Immunity

Author: EarthRights International

...[T]he U.S. Supreme Court announced it will hear a landmark lawsuit challenging the immunity of powerful institutions like the International Finance Corporation (IFC), the private lending arm of the World Bank Group...International organizations like the IFC have long claimed they are entitled to “absolute” immunity from suit...The case brought by Indian fishing communities and farmers represented by EarthRights International (ERI) and the Stanford Law School Supreme Court Litigation Clinic, Jam v. IFC, challenges that claim.  The Supreme Court’s decision to hear their case means it will consider international organization immunity for the first time, and decide whether international organizations can be held accountable for their harmful conduct...Last year, the U.S. Court of Appeals for the D.C. Circuit ruled that IFC had “absolute immunity” and could not be sued for its role in the controversial Tata Mundra coal-fired power plant that has devastated communities in Gujarat, India...The Plaintiffs are pleased the Supreme Court will hear their case and optimistic that it will fix this erroneous decision...From the start, the IFC recognized that the Tata Mundra plant was a high-risk project that could have “significant” and “irreversible” adverse impacts on local communities and their environment.  Despite knowing the risks, the IFC provided a critical $450 million loan, enabling the project’s construction and giving the IFC immense influence over project design and operation...

 

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Article
8 May 2018

US Supreme Court to decide whether International Finance Corporation is above the law

Author: Michelle Harrison and Kirk Herbertson, EarthRights International

Later this month, the U.S. Supreme Court will decide whether to hear a case challenging the International Finance Corporation’s (IFC’s) claim to immunity from being sued. If the Court decides not to hear the case—thereby granting the IFC “absolute immunity” from lawsuits in the United States—it will place international organisations like IFC above the law, creating a new rule of immunity far greater than that of any other entity, government, or person, at the expense of the right to remedy. A decision to hear the case, however, presents a critical opportunity to rectify an accountability gap.

In 2015, EarthRights International filed a lawsuit in a U.S. federal court on behalf of fishing and farming communities in Gujarat, India. The lawsuit asked for compensation from the IFC for its role in financing the destructive Tata Mundra coal-fired power plant project, despite knowing that the project carried grave risks. As the IFC predicted, the project has led to extensive harm – precisely those harms it warned could result if appropriate steps were not taken. Many local communities have lost their access to clean drinking water. Fish catch they depend on for their livelihoods has been severely reduced as a result of the thermal pollution from the plant. Coal ash, coal dust, and other pollutants have contaminated the land and air pollutants are present at levels that are dangerous to people’s health...

The IFC does not deny that these harms occurred, and instead argues that it is immune from being sued in U.S. courts, no matter how much harm it causes. But international organisations do not have absolute immunity...

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Article
22 January 2018

Indian Fishing Community Asks U.S. Supreme Court to Hear Case Challenging World Bank Group Immunity

Author: EarthRights International

Indian fishing communities and farmers represented by EarthRights International (ERI) and the Stanford Law School Supreme Court Litigation Clinic petitioned the U.S. Supreme Court this week to hear their case. Last year, the U.S. Court of Appeals for the District of Columbia Circuit ruled in their case that the International Finance Corporation (IFC), the private lending arm of the World Bank Group, had “absolute immunity” and could not be sued for its role in the controversial Tata Mundra coal-fired power plant that has devastated communities in Gujarat, India. Now, the Plaintiffs are asking the Supreme Court to rectify this erroneous decision.

 

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