US CASES RELATED TO ILL-

GOTTEN WEALTH OF THE

MARCOS
Submitted to: Atty. Crisostomo Uribe l by: Empleo, Daniel Jose E.

JANUARY 5, 2017
DE LA SALLE UNIVERTY
College of Law
The REPUBLIC OF the PHILIPPINES, Plaintiff-Appellee, v. Ferdinand E. MARCOS,
Imelda Marcos, Ralph Bernstein, Joseph Bernstein, Gliceria Tantoco, Vilma Bautista,
Antonio Floirendo, Paul A. Crotty, as Commissioner of Finance of the City of New York,
Department of Finance of the City of New York, City Register's Office of the City of New
York, John Kinsella, County Clerk, Suffolk County, New York Land Company, a/k/a
Greatneckers Realty, Inc., Canadian Land Company of America, a/k/a Canadian Land
Company of America, N.V. (formerly Lastura Corporation, N.V.), Lastura Corporation,
N.V., Herald Center, Ltd. (formerly Volby, Ltd.), Volby, Ltd., Glockhurst Corp., N.V.,
Realmad Properties Ltd., Briwater Associates, a partnership, Nyland (CF8) Ltd. (formerly
Ainsville, N.V.), Ainsville, N.V., and Ancor Holdings, N.V., Defendants, New York Land
Company, Joseph Bernstein, Ralph Bernstein, the Canadian Land Company of America,
Herald Center Ltd., and Nyland (CF8) Ltd., and Ancor Holdings, N.V., and Glockhurst
Corp., N.V., Defendants-Appellants.

Overall, the evidence of ownership of the Bernstein properties is strong, if not

overwhelming, no evidence has been offered to refute it, and the Bernstein brief on appeal
fails to challenge the conclusion that the Marcoses are in fact the beneficial owners of the
Manhattan properties.

There is nothing more unmanageable about this case than about any other case involving
theft, misappropriation, corporate veils, and constructive trusts. The United States has
made it clear that it does not fear embarrassment if the courts of this country were to take
jurisdiction of this and other disputes between The Republic and ex-President Marcos.

Appellants simply fail to make the crucial distinction between acts of Marcos as head of
state, which may be protected from judicial scrutiny even if illegal under Philippine law,
and his purely private acts.

[Act of State] Doctrine applies only when an official having sovereign authority acts in an
official capacity; a dictator is not the sovereign and his financial crimes committed in
violation of his position and not in pursuance of it are not acts of a sovereign, but rather
were for his own benefit and "as far from being an act of state as rape"

A constructive trust is the formula through which the conscience of equity finds
expression. When property has been acquired in such circumstances that the holder of the
legal title may not in good conscience retain the beneficial interest, equity converts him
into a trustee

The court " 'reserves freedom to apply this remedy to whatever knavery human ingenuity
can invent.'

[A] constructive trust will be erected wherever necessary to satisfy the demands of justice....
[I]ts application is limited only by the inventiveness of men who find new ways to enrich
themselves unjustly by grasping what should not belong to them.'

The larger interests of public justice will not tolerate, under any circumstances, that a
public official shall retain any profit or advantage which he may realize through the
acquirement of an interest in conflict with his fidelity as an agent

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In re ESTATE OF FERDINAND MARCOS, HUMAN RIGHTS LITIGATION. Maximo
HILAO, et al., Class Plaintiffs; Vicente Clemente, et al., Class Plaintiffs; Jaime Piopongco,
et al., Class Plaintiffs. Plaintiffs-Appellees, v. ESTATE OF Ferdinand MARCOS,
Defendant-Appellant.

Although sometimes criticized as a ruler and at times invested with extraordinary powers,
Ferdinand Marcos does not appear to have had the authority of an absolute autocrat. He
was not the state, but the head of the state, bound by the laws that applied to him.
Marcos' acts of torture, execution, and disappearance were clearly acts outside of his
authority as President.
Osqugama F. SWEZEY, et al., PetitionersRespondents, v. MERRILL LYNCH,
PIERCE, FENNER & SMITH INC., RespondentRespondent, New York City
Department of Finance, Respondent, Philippine National Bank, et al., Intervenors
Appellants. The United States of America, Amicus Curiae
In re ESTATE OF FERDINAND E. MARCOS HUMAN RIGHTS LITIGATION.
Agapita TRAJANO; Archimedes Trajano, Plaintiffs-Appellees, v. Ferdinand E. MARCOS,
Defendant, and Imee Marcos-Manotoc, Defendant-Appellant

She [,Imee Marcos] has admitted acting on her own authority, not on the authority of the
Republic of the Philippines.

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 Republic of the Philippines v. Marcos
806 F.2d 344
26 November 1986

Nature of the Action: This appeal is from a grant of a preliminary injunction in favor of The
Republic of the Philippines by the United States District Court for the Southern District of New
York. The injunction continued an expiring temporary restraining order conditioned on the
posting of a bond of $3 million against the transfer or encumbrance of five pieces of real property,
four of which are located in New York City and one of which is in Long Island, New York.

Ponente: OAKES, Circuit Judge, U.S Court of Appeals Second Circuit

Facts: At the heart of this case is the issue of who owns the five properties, which consist of the
following:

1. 40 Wall Street, a 71-story office building owned by Nyland (CF8) Ltd., a Netherlands
Antilles corporation which in turn is owned by three Panamanian corporations that issued
"bearer" shares to unknown persons.
2. The Crown Building, previously the Genesco Building, at 57th Street and Fifth Avenue,
owned by The Canadian Land Company of America, formerly a Netherlands Antilles
corporation called Lastura Corporation, which in turn is owned by three other Panamanian
corporations that also issued "bearer" shares.
3. Herald Center, previously the Korvette Building, at Sixth Avenue and 34th Street, which
is owned by Herald Center Ltd., formerly Voloby Ltd., a British Virgin Islands corporation.
Herald Center Ltd. is owned by three other Panamanian corporations, again issuers of
"bearer" shares.
4. 200 Madison Avenue, at the southwest corner of 36th Street and Madison Avenue, which
is owned by Glockhurst Corp., N.V., which in turn is owned by the same three Panamanian
corporations that own Herald Center Ltd.
5. Lindenmere, an estate in Suffolk County, Long Island, in the town of Brookhaven, Center
Moriches, Long Island. Lindenmere was originally purchased by Luna 7 Corporation,
which was owned by several Filipinos, and was later conveyed to Ancor Holdings, N.V., a
Netherlands Antilles corporation. Beneficial ownership is claimed by defendant Antonio
Floirendo, a Philippine businessman and close associate of the Marcoses.

Ferdinand E. Marcos and Imelda Marcos, the former President and First Lady of the Philippines
who purportedly are the beneficial owners of the properties

Ferdinand Marcos now resides in Hawaii with his wife, Imelda, after fleeing the Philippines and
surrendering his position on February 25, 1986. The Marcoses allegedly do business in New York
and use agents, representatives, and nominees in New York and elsewhere to assist in the operation
of the properties. Specifically, the complaint charges that there was a conspiracy among Ferdinand
and Imelda Marcos; Ralph and Joseph Bernstein; Gliceria Tantoco, a close friend and business
associate of the Marcoses who until February 1985 dealt with the Bernsteins in New York; Vilma
Bautista, who worked in the Philippine consulate in New York and the Philippine Mission to the
United Nations and acted as personal secretary to Imelda Marcos in New York; Antonio
Floirendo, a Philippine plantation owner and businessman who made a $600,000 payment as a
deposit on Herald Center and claims to be the owner of Ancor Holdings; and numerous other
persons, including Fe Giminez, personal secretary and confidante of Imelda Marcos. By virtue of
the alleged conspiracy, assets and properties acquired by or for the benefit of the Marcoses were
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placed in the names of nominees. In this way the five properties in New York were allegedly
purchased for the benefit of the Marcoses from the proceeds of moneys and assets stolen as stated
above from the Philippine government.

The complaint alleges that there have been clear indications that Marcos or his nominees are
seeking to liquidate or transfer some assets, including the New York properties involved here.
Unless the relief sought is granted, the complaint continues, the properties now held by or for the
benefit of the Marcoses may be further transferred and dissipated, possibly to purchasers in good
faith. Thus, the complaint asks that the court enjoin and restrain the defendants from transferring,
conveying, encumbering, or in any way adversely affecting the rights of the government of the
Philippines in and to the properties pending determination as to the true ownership of and
entitlement to the parcels of land.
The district court granted this relief and issued a preliminary injunction

Overall, the evidence of ownership of the Bernstein properties is strong, if not overwhelming, no
evidence has been offered to refute it, and the Bernstein brief on appeal fails to challenge the
conclusion that the Marcoses are in fact the beneficial owners of the Manhattan properties.

Issue: Whether or not there was lack of standing on the part of The Republic, sovereign immunity,
the act of state doctrine, and forum non conveniens, sovereign immunity.

Held:

A. Federal Jurisdiction
On the face of the complaint, to be sure, the plaintiff brought this case under a theory more nearly
akin to a state cause of action for conversion, requiring the imposition of a constructive trust or
equitable lien upon the "ill-gotten" gains.

Our question then would be whether the federal common law in the area of foreign affairs is so
"powerful," or important, as to displace a purely state cause of action of constructive trust. We
think it probably is: an action brought by a foreign government against its former head of state
arises under federal common law because of the necessary implications of such an action for
United States foreign relations. But even if we were wrong on this point, at the least this case
presents "the presence of a federal issue in a state-created cause of action".

This is true because the action is brought by a foreign government against its former head of state
to regain properly allegedly obtained as the result of acts while he was head of state.

We hold that federal jurisdiction is present in any event because the claim raises, as a necessary
element, the question whether to honor the request of a foreign government that the American
courts enforce the foreign government's directives to freeze property in the United States subject
to future process in the foreign state. The question whether to honor such a request by a foreign
government is itself a federal question to be decided with uniformity as a matter of federal law,
and not separately in each state.
B. Statement of a Claim

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We have already indicated that The Republic has offered sufficient evidence to justify the issuance
of a preliminary injunction, evidence of both the Marcoses' beneficial ownership of the properties
involved and the irreparability of the harm that would result if no injunction freezing the assets
pending final determination of their ownership were issued. Additionally, in seeking to state a claim
for relief under the federal or state common law theory of constructive trust and equitable lien,
The Republic has also presented evidence that the funds used to acquire the properties were
illegally obtained.

Bernstein testified that one night in a New York restaurant Mrs. Marcos started talking "in terms
of what she owned in the world." After mentioning her Swiss bank account she pulled out a
statement indicating that the account was worth in the nature of $120 million. Perhaps the
strongest evidence in the record that the Marcoses' money was obtained illicitly is a memorandum
dated March 25, 1983, for Ferdinand Marcos from the president of the Philippine National Bank
(PNB), the official depository of The Republic of the Philippines. This document requests
approval to charge temporarily against the Office of the President's accounts receivable several
unliquidated advances from the bank's New York branch totaling over $9.8 million. The
memorandum states that "[d]isposition of the receivable will subsequently be made from the
Philippine Intelligence Fund to be provided out of PNB profits when the income or profit position
of PNB can absorb it." Accompanying memoranda indicate the actual items whereby the $9.8
million of expenditures was accumulated, many items representing deposits to the accounts of Fe
Gimenez or Vilma Bautista in the hundreds of thousands of dollars. The memoranda also indicate
a $300,000 payment to Voloby, payments to Mrs. Tantoco, and, separately, a $500,000 check from
PNB to Antonio Floirendo dated July 23, 1982. The supplemental appendix contains an affidavit
by Fernando Flores, Senior Assistant Manager of the Cash Department at the Manila office of
Security Bank & Trust Company. Flores states that starting in 1982 he received instructions from
Rolando Gapud, president of the bank, as to certain trust accounts. Large boxes of cash were
brought to Flores by Gapud to be turned over to the Cash Department for counting and then
deposited into the accounts designated by Gapud. From January 11, 1985, to August 13, 1985,
deposits totaling over $20 million were made to just one of these accounts and in 1984-85
numerous payments were made from another to Vilma Bautista, Rosenman Colin Freund, and
other accounts in New York.

We think The Republic has presented enough evidence of illegality to warrant a preliminary
injunction based on a claim for imposition of a constructive trust or an equitable lien.
"A constructive trust is the formula through which the conscience of equity finds expression.
When property has been acquired in such circumstances that the holder of the legal title may not
in good conscience retain the beneficial interest, equity converts him into a trustee." Beatty v.
Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378, 380 (1919). The court " 'reserves
freedom to apply this remedy to whatever knavery human ingenuity can invent.' " Simonds v.
Simonds, 45 N.Y.2d 233, 241, 380 N.E.2d 189, 194, 408 N.Y.S.2d 359, 363 (1978) (quoting
Bogert, Trusts and Trustees Sec. 471 at 29 (2d ed. rev. 1978)). And, " '[a] constructive trust will be
erected wherever necessary to satisfy the demands of justice.... [I]ts application is limited only by
the inventiveness of men who find new ways to enrich themselves unjustly by grasping what should
not belong to them.'

If the overall claim is one based on state law, it is clearly sufficient under the New York law stated
above. Even if the claim is one under federal common law, it would still be sufficient if state law
is adopted as the federal common law, as is appropriate in cases such as this where adoption of
state law does not conflict with federal policy.

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United States v. Carter, 217 U.S. 286, 306, 30 S. Ct. 515, 520, 54 L. Ed. 769 (1910), demonstrates
that the law of constructive trusts (and equitable liens) finds a basis in federal common law. There
the Court stated, "The larger interests of public justice will not tolerate, under any circumstances,
that a public official shall retain any profit or advantage which he may realize through the
acquirement of an interest in conflict with his fidelity as an agent [of the United States]." Our own
case, United States v. Podell, 572 F.2d 31, 35 (2d Cir.1978), holds likewise, and as a matter of
federal common law imposed a constructive trust on moneys received by a United States
congressman who violated both his fiduciary duty and a conflict of interest statute by appearing
before federal agencies on behalf of a private client.

C. Standing and Justiciability

But we agree with The Republic that there is nothing more unmanageable about this case than
about any other case involving theft, misappropriation, corporate veils, and constructive trusts.
The United States has made it clear that it does not fear embarrassment if the courts of this country
were to take jurisdiction of this and other disputes between The Republic and ex-President Marcos.

D. The Act of State Doctrine

Doctrine applies only when an official having sovereign authority acts in an official capacity; a
dictator is not the sovereign and his financial crimes committed in violation of his position and
not in pursuance of it are not acts of a sovereign, but rather were for his own benefit and "as far
from being an act of state as rape

Appellants simply fail to make the crucial distinction between acts of Marcos as head of state,
which may be protected from judicial scrutiny even if illegal under Philippine law, and his purely
private acts. Although the distinction between public and private acts of a foreign official may be
difficult to determine, our courts have repeatedly done so. appellants must ultimately demonstrate
that the challenged acts of Marcos were in fact public acts

Two other considerations may limit the applicability of the doctrine even to Marcos's public acts.
First, the Marcos government is no longer in power. Thus, the danger of interference with the
Executive's conduct of foreign policy is surely much less than the typical case where the act of
state is that of the current foreign government. Neither of the two cases in our circuit that have
applied the doctrine to the acts of former governments, Banco de Espana, supra, and Bernstein,
supra, discuss the separation of powers issue, and both cases appear more strongly to rely on the
earlier sovereign immunity rationale. In Sabbatino the Court explicitly questioned this aspect of
Bernstein in light of the doctrine's recast separation of powers rationale: "The balance of relevant
considerations may also be shifted if the government which perpetrated the challenged act of state
is no longer in existence, as in the Bernstein case, for the political interest of this country may, as
a result, be measurably altered." 376 U.S. at 428, 84 S.Ct. at 940. Thus, before the doctrine is
applied even to Marcos's public acts, the court must weigh in balance the foreign policy interests
that favor or disfavor application of the act of state doctrine.

Moreover, the act of state doctrine reflects respect for foreign states, so that when a state comes
into our courts and asks that our courts scrutinize its actions, the justification for application of
the doctrine may well be significantly weaker. Restatement (Revised) of Foreign Relations Law
Sec. 469 comment e (Tent. Draft No. 7, 1986). We note, however, that the Restatement refers to
acts of the current government, not the situation here.

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In short, the district court will necessarily scrutinize the acts that The Republic challenges.
Defendants must present evidence that these acts were public (e.g., that Marcos's wealth was
obtained through official expropriation decrees or public monopolies). The court then must decide
whether to examine these public acts in light of the considerations discussed above. If it chooses
not to do so--and the determination whether the Marcoses obtained their wealth illegally, and
hence the determination of ownership of the property at issue in this case, is impossible without
such scrutiny--the court should consider deferring to a Philippine adjudication that comports with
due process. But in any event, at this stage we agree with the position of the United States quoted
above that the defendants have not discharged their burden of proving an act of state. Only after
that burden is met do other relevant factors need to be considered.
E. Sovereign Immunity
We agree that appellants have no standing to assert this claim. But even if appellants had standing,
we are not at all certain that the immunity of a foreign state, though it extends to its head of state,
Restatement (Second) of Foreign Relations Law Secs. 65, 66(b) (1965), goes so far as to render a
former head of state immune as regards his private acts. The rationale underlying sovereign
immunity--avoiding embarrassment to our government and showing respect for a foreign state--
may well be absent when the individual is no longer head of state and the current government is
suing him. In any event, the Foreign Sovereign Immunity Act may not support appellants'
immunity claim in light of its "commercial activity" exception, 28 U.S.C. Sec. 1603(d), (e) (1982),
and as we said above, these appellants lack standing to raise the immunity issue on the Marcoses'
behalf, Restatement (Second) of Foreign Relations Law Sec. 71 (1965).

Judgment affirmed.

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 In Re: Estate of Marcos, Human Rights Litigation v. Hilao
25 F.3d 1467
16 June 1994

Nature of the Action: Defendant Estate of Ferdinand Marcos appeals from the district court's
order preliminarily enjoining the Estate from transferring, secreting or dissipating the Estate's
assets pendente lite.

Ponente: TANG, Senior Circuit Judge - United States Court of Appeals, Ninth Circuit.

Facts: Marcos, his family, Ver and others loyal to Marcos fled to Hawaii in February, 1986. One
month later, a number of lawsuits were filed against Marcos, Ver, and/or Imee Marcos-Manotoc,
claiming that the plaintiffs had been arrested and tortured, or were the families of people arrested,
tortured, and executed between 1971 and 1986.

All actions were dismissed by district courts on the "act of state" defense; The Judicial Panel on
Multi-District Litigation then consolidated all cases in the District of Hawaii. The case was certified
as a class action on April 8, 1991, and a consolidated amended complaint naming the Estate as a
defendant was filed on behalf of the class.

On November 1, 1991, the plaintiffs moved for a preliminary injunction to prevent the Estate
from transferring or secreting any assets in order to preserve the possibility of collecting a
judgment. The Estate had earlier been enjoined from transferring or secreting assets in an action
brought by the Republic of the Philippines against Ferdinand Marcos. That preliminary injunction
had been appealed, and was affirmed.

When the preliminary injunction in that case was dissolved due to a settlement, the plaintiffs in
this action immediately sought the continuation of that injunction. The district court granted the
motion.

On September 24, 1992, the jury rendered a verdict in favor of the class and the individually-named
plaintiffs. The preliminary injunction was modified on November 16, 1993, to set forth the jury
verdict on liability, to compel the legal representatives of the Estate to fully and completely answer
plaintiffs' interrogatories regarding the assets of the estate, to name the Swiss banks at which the
Marcoses had deposited monies as representatives of the Estate, and to permit the plaintiffs to
take discovery regarding these assets.

On February 23, 1994, the jury awarded the plaintiffs $1.2 billion in exemplary damages.

Issue: On this interlocutory appeal, the Estate also challenges the district court's subject matter
jurisdiction under the Foreign Sovereign Immunities Act and Alien Tort Act, claims that the
plaintiffs do not state a cause of action, and contends that any cause of action abated upon Marcos'
death.

Held:

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I. The Foreign Sovereign Immunities Act

Foreign Sovereign Immunities Act ("FSIA"), is the sole basis for obtaining jurisdiction over a
foreign state and its agencies or instrumentalities. Subject matter jurisdiction against a foreign state
depends on the existence of one of the exceptions to immunity set forth in FSIA. The existence
of subject matter jurisdiction under FSIA is a question of law reviewed de novo.

However, we have previously rejected the Estate's argument that FSIA immunizes alleged acts of
torture and execution by a foreign official. On appeal from entry of default judgment against Imee
Marcos-Manotoc, we rejected Marcos-Manotoc's assertion that she was entitled to sovereign
immunity because her challenged actions were premised on her authority as a government agent.
Estate I, 978 F.2d at 497. In Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095 (9th Cir.1990), we
had held that FSIA does not immunize a foreign official engaged in acts beyond the scope of his
authority:

Where the officer's powers are limited by statute, his actions beyond those limitations are
considered individual and not sovereign actions. The officer is not doing the business which the
sovereign has empowered him to do.

We held that upon default, Marcos-Manotoc admitted that she acted on her own authority, not
that of the Republic of the Philippines. Her acts were not taken within any official mandate and
were therefore not the acts of an agency or instrumentality of a foreign state within the meaning
of FSIA.

This [conclusion that Marcos-Manotoc's acts were not taken pursuant to an official mandate] is
consistent with our earlier decision that the same allegations against former President Marcos are
not nonjusticiable "acts of state." In so holding, we implicitly rejected the possibility that the acts
set out in Trajano's complaint were public acts of the sovereign.

Although sometimes criticized as a ruler and at times invested with extraordinary powers,
Ferdinand Marcos does not appear to have had the authority of an absolute autocrat. He was not
the state, but the head of the state, bound by the laws that applied to him. Our courts have had no
difficulty in distinguishing the legal acts of a deposed ruler from his acts for personal profit that
lack a basis in law. As in the case of the deposed Venezuelan ruler, Marcos Perez Jimenez, the
latter acts are as adjudicable and redressable as would be a dictator's act of rape.

This interpretation is consistent with FSIA's codification of the "restrictive" principle of sovereign
immunity in international law, which limits the immunity of a foreign state to its "inherently
governmental or 'public' acts," but does not extend to suits based on its commercial or private
acts. Immunity is extended to an individual only when acting on behalf of the state because actions
against those individuals are "the practical equivalent of a suit against the sovereign directly."
Chuidian, 912 F.2d at 1101. A lawsuit against a foreign official acting outside the scope of his
authority does not implicate any of the foreign diplomatic concerns involved in bringing suit
against another government in United States courts.

"Marcos may be held liable for acts done as President during his incumbency, when such acts, like
torture, inhuman treatment of detainees, etc. are clearly in violation of existing law ... the
government or its officials may not validly claim state immunity for acts committed against a
private party in violation of existing law."

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Marcos' acts of torture, execution, and disappearance were clearly acts outside of his authority as
President.

II. Subject matter jurisdiction under the Alien Tort Act

The district courts shall have original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States.

"suit as an alien for the tort of wrongful death, committed by military intelligence officials through
torture prohibited by the law of nations, is within the jurisdictional grant of Sec. 1350." Estate I,
978 F.2d at 499. In so holding, we rejected all of the Estate's arguments now asserted on appeal.

First, we concluded that even where FSIA was held inapplicable, there was federal subject matter
jurisdiction by virtue of the required analysis of whether immunity would be granted under FSIA.
[T]he prohibition against official torture carries with it the force of a jus cogens norm, which enjoys
the highest status within international law.... We therefore conclude that the district court did not
err in founding jurisdiction on a violation of the jus cogens norm prohibiting official torture.
[C]ompliance with international law does not determine whether the United States may apply the
Act to his conduct. Only two restrictions exist on giving extraterritorial effect to Congress'
directives. We require Congress [to] make clear its intent to give extraterritorial effects to its
statutes. And secondly, as a matter of constitutional law, we require that application of the statute
to the acts in question not violate the due process clause of the fifth amendment.
a penal statute may apply to extraterritorial acts absent a violation of due process. Further, we
concluded that extraterritorial application would not violate international law: "[a]lthough
Congress is not bound by international law in enacting statutes, out of respect for other nations,
courts should not unnecessarily construe a congressional statute in a way that violates international
law." Id. at 1069 (citations omitted). Thus, neither Davis nor Thomas held that international law
is not a part of federal common law if there are no contradictory federal statutes.

a broad conception of "arising under" jurisdiction, according to which Congress may confer on
the federal courts jurisdiction over any case or controversy that might call for the application of
federal law.... [A] suit against a foreign state under [FSIA] necessarily raises questions of substantive
federal law at the very outset, and hence clearly "arises under" federal law, as that term is used in
Art. III.
However, in contrast to section 1331, "which requires that an action 'arise under' the laws of the
United States, section 1350 does not require that the action 'arise under' the law of nations, but
only mandates a 'violation of the law of nations' in order to create a cause of action." It is
unnecessary that international law provide a specific right to sue. International law "does not
require any particular reaction to violations of law.... Whether and how the United States wished
to react to such violations are domestic questions." "[N]othing more than a violation of the law of
nations is required to invoke section 1350."

Actionable violations of international law must be of a norm that is specific, universal, and
obligatory.

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Our reading of the plain text of Sec. 1350 is confirmed by the Torture Victim Protection Act of
1991, Pub.L. 102-256, 106 Stat. 78, codified at this section.

[T]he right to be free from official torture is fundamental and universal, a right deserving of the
highest stature under international law, a norm of jus cogens. The crack of the whip, the clamp of
the thumb screw, the crush of the iron maiden, and, in these more efficient modern times, the
shock of the electric cattle prod are forms of torture that the international order will not tolerate.
To subject a person to such horrors is to commit one of the most egregious violations of the
personal security and dignity of a human being.

We thus join the Second Circuit in concluding that the Alien Tort Act, 28 U.S.C. Sec. 1350, creates
a cause of action for violations of specific, universal and obligatory international human rights
standards which "confer[ ] fundamental rights upon all people vis-a-vis their own governments."
Filartiga, 630 F.2d at 885-87.10 The plaintiffs state a cause of action.
IV. Abatement
Despite the fact that plaintiffs' cause of action arises under the Alien Tort Act, plaintiffs' claims
are most closely analogous to a claim that government officials violated the Eighth Amendment
right of freedom from cruel and unusual punishment, which does not abate upon the death of the
defendant. a cause of action for an Eighth Amendment violation survives the death of a party

In conclusion, the plaintiffs' claims survive the death of Ferdinand Marcos. AFFIRMED.

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 Swezey v Merrill Lynch
June 16, 2011

Nature of the Action: This is a proceeding to execute a judgment against a fund located in New
York. A foreign sovereign, asserting that the fund comprises the proceeds of assets corruptly
acquired and removed from its territory by its former president, claims to be the true owner of the
fund. Because the foreign sovereign declines to waive its immunity from suit, we are required to
dismiss the proceeding based on nonjoinder of an indispensable party.

Ponente: Friedman, J.

Facts: Petitioner is the representative of a class of people who suffered violations of their human
rights in the Philippines under the regime of the late President Ferdinand E. Marcos. In 1995, the
class obtained a money judgment against the Marcos estate in Hawaii federal court. In 2008 and
2009, the class filed judgments in Supreme Court, New York County.

Based on the New York County judgments, petitioner commenced this turnover proceeding
against respondent Merrill Lynch in 2009. Merrill Lynch held approximately $35 million in New
York for the account of Arelma, Inc., a Panamanian entity formerly owned by Marcos. Arelma's
share certificates are now held in escrow by the Philippine National Bank (PNB) in connection
with legal proceedings against the Marcos estate in the Philippines. The instant turnover
proceeding seeks an order (1) declaring the Arelma assets to be property of the Marcos estate and
(2) directing Merrill Lynch to transfer the Arelma assets to the fund for the compensation of class
members administered by the Hawaii federal court.

PNB and Arelma moved to intervene. Intervenors moved to dismiss on the alternative ground
that petitioner does not hold an enforceable judgment, given that the underlying 1995 Hawaii
judgment lapsed under Hawaii law in 2005, before the class filed any New York judgment against
the Marcos estate

For the reasons discussed below, we reverse and dismiss the petition without prejudice on the
ground that the proceeding should not proceed in the absence of the Republic.

The Republic's claim to the Arelma assets is based on its position, taken in proceedings against the
Marcos estate in the Philippines, that the Arelma assets are the proceeds of property Marcos
acquired corruptly in the Philippines through the misuse of his office.

In April 2009, a Philippine anti-corruption court (the Sandiganbayan) ruled that the Arelma assets
constitute the ill-gotten gains of Marcos's corruption and, as such, have always belonged to the
Republic, not to Marcos or his estate.

Issue: Whether the Republic of the Philippines should be joined in the suit as indispensable party.

Held:

At the outset, we reject petitioner's argument that the Republic is merely another creditor of the
Marcos estate and, as such, subject to permissive joinder entirely as a matter of the court's
discretion. The Republic is not a general "claimant" against the Marcos estate that would have no
claim to the Arelma assets if it lost the "race of diligence" among creditors to execute against that
fund. Rather, the Republic is a person that "possesses an actual, current interest in the property in

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question" and, as such, its right to that property cannot be placed in jeopardy by the outcome of
the race among the estate's general creditors.

The fact remains that the Republic claims to be the true owner of the Arelma assets, which have
been found by a Philippine court to constitute the proceeds of wealth stolen from the Philippine
people and spirited out of that country by its faithless former president. Beyond question, the issue
of title to the Arelma assets is within the jurisdiction of the Sandiganbayan, even if the fund itself
- having been secreted abroad by the [*6]wrongdoer - is no longer present in the Philippines

Unless the Sandiganbayan's ruling is overturned on the pending appeal, the Republic will be
entitled - if and when it chooses to seek the aid of our courts in recovering possession of the
Arelma account - to have that ruling enforced or recognized in litigation against general creditors
of the Marcos estate, subject to the principles governing recognition of foreign country judgments.

Needless to say, "a creditor stands in no better position with respect to property of the garnishee
than does his debtor"

Hence, the Republic may, if it chooses, institute a proceeding in New York asserting an in rem
claim to the Arelma account (for example, a replevin action, or an action seeking specific
enforcement of a contractual right to the return of the assets) and rely in that proceeding on the
Sandiganbayan's judgment to establish its ownership of the fund.

The foregoing establishes that the Republic is a "[p]art[y] who should be joined" in this proceeding
under CPLR 1001(a), in that the Republic, given its substantial claim to be the true owner of the
Arelma assets, "might be inequitably affected by a judgment" (id.) disposing of those assets in its
absence

The Republic's asserted interest in the Arelma assets would be irretrievably lost if those assets were
disposed of, and dispersed to the class, pursuant to a judgment rendered in this proceeding. To
require the Republic to participate in this proceeding to avoid such a result would essentially negate
the Republic's sovereign immunity. "Th[e] privilege [of sovereign immunity] is much diminished
if an important and consequential ruling affecting the sovereign's substantial interest is determined,
or at least assumed, by a federal [or state] court in the sovereign's absence and over its objection".
Stated otherwise, "where sovereign immunity is asserted, and the claims of the sovereign are not
frivolous, dismissal of the action must be ordered where there is a potential for injury to the
interests of the absent sovereign", where "the real dispute" concerning the ownership of stock
certificates located in New York was between the plaintiff and an agency of the Canadian
government, which was "entitled to sovereign immunity"

While we sympathize with the class's efforts to vindicate this interest, and notwithstanding the
general principle that dismissal for nonjoinder of a necessary party is a last resort, it remains the
case that a dismissal for nonjoinder that leaves claimants "without a forum for definitive resolution
of their claims" is a "result . . . contemplated under the doctrine of foreign sovereign immunity"

The third and fourth factors of the CPLR 1001(b) analysis - "whether and by whom prejudice
might have been avoided or may in the future be avoided" and "the feasibility of a protective
provision by order of the court or in the judgment". The prejudice in this case is unavoidable
because both the Republic and the class claim the entirety of the Arelma assets. While it is true
that the difficulty would be avoided if the Republic chose to waive its sovereign immunity, as we
have already discussed, to penalize the Republic for declining to do this would eviscerate the
principle of sovereign immunity. As to the fifth factor, in our view "an effective judgment [cannot]

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be rendered in the absence of the person who is not joined" (CPLR 1001[b][5]). As the Supreme
[*12]Court noted in Pimentel, a judgment rendered in the Republic's absence "would not further
the public interest in settling the dispute as a whole because the Republic . . . would not be bound
by the judgment" (553 US at 870-871). Hence, the possibility of future litigation over the same
assets would not be precluded.

"[o]ne relevant change may occur if it appears that the Sandiganbayan cannot or will not issue its
ruling within a reasonable period of time" (553 US at 873). Within a year of the issuance of the
Pimentel decision, however, the Sandiganbayan rendered its judgment in April 2009. According
due deference to the highest court of a foreign sovereign, we are not prepared to join the dissent
in branding as unreasonable the pendency for the last two years of the appeal of the
Sandiganbayan's judgment to the Philippine Supreme Court.

Accordingly, the judgment of the Supreme Court, New York County (Charles E. Ramos, J.),
entered November 16, 2009, which, insofar as appealed from as limited by the briefs, denied
intervenors' motion to dismiss the petition pursuant to CPLR 3211(a)(7) and (10), should be
reversed, on the law and the facts, without costs, the motion granted pursuant to CPLR
3211(a)(10), and the proceeding dismissed without prejudice. All concur except Catterson, J. who
dissents in an Opinion.
CATTERSON, J. (dissenting)

Opinion by Friedman, J. All concur except Catterson, J. who dissents in an opinion.

Andrias, J.P., Friedman, Catterson, McGuire, Romn, JJ. THIS CONSTITUTES THE
DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST
DEPARTMENT.

ENTERED: June 16, 2011

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 Trajano v. Marcos-Manotoc
978 F.2d 493
October 21, 1992

TOPIC: Torts and Crimes

PONENTE: Rymer, Circuit Judge
FACTS: In 1977, Ferdinand Marcos was President of the Philippines, Marcos- Manotoc was the
National Chairman of the Kabataang Baranggay, and Fabian Ver was in charge of military
intelligence. Archimedes Trajano was a student at the Mapua Institute of Technology.
Trajano went to an open forum discussion at which Marcos-Manotoc was speaking. When Trajano
asked a question about her appointment as director of an organization, he was kidnapped,
interrogated, and tortured to death by military intelligence personnel who were acting under Ver's
direction, pursuant to martial law declared by Marcos. Marcos-Manotoc controlled the police and
military intelligence personnel who tortured and murdered Trajano.
Marcos, Marcos-Manotoc, General Ver and others left the Philippines and arrived at Hickam Air
Force Base in Hawaii.
Agapita Trajano filed her complaint in the United States District Court for the District of Hawaii
for damages on behalf of the estate of Archimedes Trajano, for false imprisonment, kidnapping,
wrongful death, and a deprivation of rights, and on behalf of Trajano's mother for emotional
distress.
Default was entered against Marcos- Manotoc. She moved to have this set aside but it was denied.
United States District Court for the District of Hawaii Decision: in favor or Trajano, that Marcos-
Manotoc tortured and caused death of Trajano, and that this violation of fundamental human
rights constitutes a tort in violation of the law of nations under 28 U.S.C. 1350.
Marcos Manotoc appealed and hence is the subject of this case.
Appellants argument as to the 1st issue: that the Philippine Military Intelligence is an
"instrumentality" of a foreign state withinthe FSIA, and that the tortious acts were brought about
by persons acting pursuant to the authority of Marcos, Marcos-Manotoc, and Ver such that the
liability of Marcos Manotoc is expressly premised on her authority as a government agent. She
further contends that, regardless of whether she acted within the scope of her employment, she is
entitled to absolute immunity under 16047 because a foreign state and its agents lose sovereign
immunity only for tortious acts occurring in the United States.
Appellants argument as to the 2nd issue: Federal court had no jurisdiction because he alleged
action occurred outside the United States and against an alien.
ISSUE(S):
1. Whether Marcos-Manotoc is entitled to immunity under the Foreign Sovereign Immunities Act
("FSIA")?
2. Whether subject matter jurisdiction was appropriately exercised under 28 U.S.C. 1350 even
though the actions of Marcos-Manotoc (which caused fellow citizen to be the victim or torture
and murder) occurred outside the United States.

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RATIO:
1. No. Coz of her default, Marcos-Manotochas admitted acting on her own authority, not on the
authority of the Republic of the Philippines. This is thus not under the purview of the FSIA.
The FSIA is the "sole basis for obtaining jurisdiction over a foreign state in our courts.
Congress intended the FSIA to be consistent with international lawand that the prevailing
practice in international law is "that a state loses its sovereign immunity for tortious acts only
where they occur in the territory of the forum state."
A "foreign state" under the Act includes an agency or instrumentality of a foreign state. An
"agency or instrumentality of a foreign state" for purposes of the FSIA includes individuals
acting in their official capacity.
In another case, it was held that FSIA covers a foreign official acting in an official capacity,
but that an official is not entitled to immunity for acts which are not committed in an official
capacity (such as selling personal property), and for acts beyond the scope of her authority (for
example, doing something the sovereign has not empowered the official to do).
Coz of her default, Marcos-Manotochas admitted acting on her own authority, not on the
authority of the Republic of the Philippines. Under these circumstances, her acts cannot have
been taken within any official mandate and therefore cannot have been acts of an agent or
instrumentality of a foreign state within the meaning of the FSIA. She is therefore not entitled
to immunity under the FSIA and is her case is thus not under the FSIA.

2. Yes. Under the Alien Tort Statute, 28 U.S.C. 1350, section 1350 provides: The district courts
shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation
of the law of nations or a treaty of the United States.
Absent jurisdiction under the Foreign Sovereign Immunities Act (FSIA) there is no dispute
that the only possible jurisdictional basis for Trajano's action is the Alien Tort Statute, 28
U.S.C. 1350. Section 1350 provides: The district courts shall have original jurisdiction of any
civil action by an alien for a tort only, committed in violation of the law of nations or a treaty
of the United States.
It requires a claim by an alien, a tort, and a violation of international law. Trajano's complaint
alleges that she and her son were citizens of the Philippines, and that her claims for relief arise
under wrongful death statutes and various international declarations.
What 1350 shows on its face: no limitations as to the citizenship of the defendant, or the
locus of the injury.
There is no doubt, as the district court found, that causing Trajano's death was wrongful, and
is a tort.15 Nor, in view of Marcos-Manotoc's default, is there any dispute that Trajano's death
was caused by torture. And, as we have recently held, "it would be unthinkable to conclude
other than that acts of official torture violate customary international law."

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We believe, therefore, that Trajano's suit as an alien for the tort of wrongful death, committed
by military intelligence officials through torture prohibited by the law of nations, is within the
jurisdictional grant of 1350.
Regardless of the extent to which other principles may appropriately be relied upon, the
prohibition against official torture "carries with it the force of a jus cogens norm," which "
'enjoy[s] the highest status within international law.' "
Indeed, the complaint alleges that Trajano's claims arise under wrongful death statutes, as well
as international law. Since Marcos-Manotoc's appeal is only to the extent the district court
founded Trajano's right to sue on treaties or the law of nations, it lacks merit because the tort
is admitted. That it was committed in violation of international law supplies the jurisdictional
key to federal court under 1350. We cannot say the district court erred.
The district court's approach comports with the view that the First Congress enacted the
predecessor to 1350 to provide a federal forum for transitory torts (a tort action which
follows the tortfeasor wherever he goes).

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