Posts Tagged ‘alien tort claims act’

Daniel Wise of the New York Law Journal has an interesting article out today on a recent New York state court decision involving a complex dispute over assets of former Philippines dictator, Ferdinand Marcos, being held by Merrill Lynch in New York.  The court ordered that the funds be paid to satisfy part of a $2 billion judgment awarded to class members in a successful class action filed in federal court in Hawaii under the Alien Tort Claims Act, on behalf of individuals injured by human rights abuses committed by the Marcos regime.  The current government of the Philippines claims entitlement of the funds, claiming that it has a sovereign interest. 

The same funds were the subject of a federal interpleader action filed by the brokerage to resolve issues over various competing claims to the funds.  The United States Supreme Court dismissed that action in 2007 after concluding that the Philippine government and a Philippine commission, who had sovereign immunity from having to participate in the interpleader proceeding, were indispensible parties.  The state court faced a similar issue, but interpreting the state joinder rule, it found that the two entities were necessary, but not indispensible parties, which meant that the case could go forward without them.

The cases reflect an intriguing and complicated interplay between a variety of private and governmental interests.  The individual class members claim entitlement to a personal remedy for injuries caused by human rights violations of the former Philippine government.  The current Philippine government has a sovereign interest in being free from having its rights determined by foreign courts, and it wants to use the assets to fund public programs.  The State of New York has an interest in making decisions about disputed funds held within its borders, but one of its courts disagrees with the analysis of the nation’s highest court about the importance of the sovereign interests of a foreign nation over those same funds.  In the middle of it all is a bank who probably just doesn’t want to get sued again for giving the money to the wrong party.

Something tells me that there will be much more to this story…

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Ahoy, Maties!    In honour of Talk Like a Pirate Day, I’d lyke to present ye with a bit o’ pirate law trivia.  No, I’m not talking about software or media piracy.  I mean authentic buccaneers of the Blackbeard variety, aaaarrrrr.

Did you know that the Alien Tort Claims Act, which has been used successfully over the past few years to obtain remedies in U.S. courts for the victims of alleged human rights violations in other parts of the world, was originally intended to combat piracy?  ATCA is one of the nation’s oldest statutes, enacted in 1789 as part of the Judiciary Act to give the United States courts jurisdiction to provide a remedy for the victims of pillaging by pirates.  The law has since been used in class actions brought in U.S. courts against former foreign government leaders accused of torture, murder, and other human rights violations during their time in power. 

The possible remedies under ATCA do not appear to include requiring defendants to “walk the plank” or be “keelhauled,” but they do include the opportunity to obtain quite a bit of “booty.”  ATCA class actions led to multi-million dollar judgments in U.S. courts against the estate of former President of the Philippines, Ferdinand Marcos, and against former officials of the Bolivian government.  Even more recently, ATCA class actions have been filed against multinational corporations for their alleged complicity in governmental actions or policies that violated human rights.  A case against several U.S. companies for their alleged complicity in the South African government’s apartheid has been allowed to proceed under ATCA after the Second Circuit Court of Appeals ruling could not be reviewed by the Supreme Court, which lacked a quorum because of recusals necessitated by the financial interests of four Justices.

Some think that ATCA should be limited to the acts of piracy that the statute was originally enacted to combat.  This PBS article has an interesting chart showing arguments for and against an expansive interpretation of ATCA to encompass a wide range of alleged human rights violations.  For more on the history of ATCA as a Pirate Law, see this Time Magazine article.

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