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50 Ateneo L.J. 1 (2005-2006)

handle is hein.journals/ateno50 and id is 1 raw text is: In re Philippine National Bank: Transcending Traditional Act of State Doctrine Limitations Pedro Roman M. Ariston* I. INTRODUCTION ........................................ I II. UNDERGIRDING CHAIN OF EVENTS ........................ 2 A. Swiss Mutual Assistance and Philippine Forfeiture Proceedings B. In re Estate of Ferdinand Marcos Human Rights Litigation C. Threat of Contempt Proceedings Cast III. ARGUING THE ACT OF STATE DOCTRINE. . .................... 13 A. Asserting the Act of State Doctrine Argument B. Assailing the Act of State Doctrine Argument C. Amplifying the Act of State Doctrine Argument IV. AFFIRMING THE ACT OF STATE DOCTRINE ARGUMENT ............. 21 A. Mandamus Factors Availing B. The Forfeiture Decision is an Act of State C. Doctrine's Underlying Considerations Outweigh Singapore Situs V. CONCLUSION. ........................................ 25 I. INTRODUCTION The Philippine Supreme Court's decision to forfeit the Marcos Swiss assets in favor of the Republic of the Philippines (ROP) unwittingly embroiled the Philippine National Bank (PNB) in threatened contempt proceedings before the United States District Court for the District of Hawaii (Hawaii District Court). In a recent opinion granting PNB's mandamus relief, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) acknowledged that the case raises new and important problems on the act of state doctrine. The controversy, as the Ninth Circuit puts it, was one more chapter in a long-running dispute over the rightful ownership of the Marcos Swiss assets. This battle began nearly two decades ago and, on previous occasions, had been brought before the Ninth Circuit in order to resolve the legal skirmishes between the protagonists. The opinion's concise recital of the underlying facts thus comes as no surprise. Yet, the Ninth Circuit's teaching * '90 A.B. Philosophy; '02 J.D., Ateneo de Manila University School of Law; Senior Associate, Zambrano & Gruba Law Offices. He was a member of the legal team that assisted PNB's U.S. counsel in developing the act of state doctrine defense before the Ninth Circuit. The team included Joaquin G. Bernas, S.J., Lily K. Gruba, Jose A. Bernas and Angelo Patrick F. Advincula. Cite as 50 ATENEO L.J. i (2005). Digitized from Best Copy Available