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February 18, 2022

King & Spalding Pro Bono Lawyers File Amicus Brief in U.S. Supreme Court

On behalf of former U.S. diplomats and international development practitioners, a King & Spalding pro bono team has filed an amicus brief in the U.S. Supreme Court in support of a petition for certiorari in Jam v. International Finance Corporation (IFC).  The suit alleges that the livelihoods of Mr. Jam and other poor fishers and farmers in Gujarat, India were “devastated” by the environmental impacts of a coal-fired power plant funded by a loan from the IFC. Without the IFC loan, they allege, the plant would not have been built. 

The King & Spalding amici curiae clients include Joseph Stiglitz, Nobel Prize-winning economist and former Senior Vice President and Chief Economist of the World Bank; Brian Atwood, former head of the U.S. Agency for International Development; Paige Alexander, Chief Executive Officer of The Carter Center and former USAID official; four former U.S. Ambassadors; three current or former leaders of nonprofit international development agencies; and experts in development economics and microfinance.

Finding that the “gravamen” of the case is in India, the D.C. Circuit ruled that U.S. courts have no jurisdiction.  The King & Spalding amicus brief argues that the crux of the suit is instead in Washington, D.C., where the IFC is headquartered, and where the IFC carries out elaborate procedures to require, monitor, supervise and enforce social and environmental conditions on its loans for private sector projects abroad.

The suit alleges that the IFC negligently failed to follow its own due diligence procedures.  The amicus brief takes no position on the alleged facts.  It argues that Supreme Court review is warranted because the case is important to globally accepted goals of social and environmental sustainability, and to the accountability of international institutions.  Judicial review is needed because IFC internal accountability mechanisms are ineffective in practice.  U.S. jurisdiction is proper because the suit is based on alleged IFC negligence, and is brought only against the IFC in Washington, not the private loan recipient in India, where the IFC cannot be sued. 

The suit relies on an exception to the Foreign Sovereign Immunities Act which denies immunity to public entities engaged in “commercial activities,” such as making loans to private borrowers.

The amicus brief was filed by a King & Spalding team comprising Doug Cassel, Viren Mascarenhas, and Viva Dadwal, with research assistance from Diana Reisman.  A Supreme Court decision on whether to accept the case for review is not expected until the spring.