its courtroom by in order to show cause and threaten it with contempt for transferring funds in its custody as asked for holder to the government of the philippines pursuant to a final decision of the philippine supreme court decision holding that the republic is the owner entitle to those funds to the exclusion of the estate of ferdinand marcos and its shares were the judgment debtors in the district court case below be contended in the district court and contends in this court that the district court had no such authority as a matter of law for three independent reasons first the september two thousand and three orders of the district  court which p b s put in jeopardy and in which the u s c is based are void under the act of state doctrine because they are based on the conclusion of the district court that the philippine supreme court decision and related acts of the philippine government leading to the recovery of those assets are in effect invalid and can be disregarded also to find philippine national bank in contempt for violating the permanent injunction which was part of the original judgment in this case would also be prohibited by the act of state doctoring because it would also require the district court to disregard the philippine supreme court decision second as a matter of law philippine national bank which is not a party to the case and is not named in any injunctive order can't be libel as an aider and abettor for violating that permanent injunction which is the only valid injunction order in this case which prohibited the markets the state and its heirs from transferring any of their assets the assets transferred by the bank to the republic early this year were not transferred by to or for the benefit or at the instance of the marcos estate or the only parties in joint moreover they were not assets of the market is the state at all that were around at that time solely by the republic of the philippines as determined by the philippine supreme court in litigation in the philippines in which the legislative branch and the decision of the philippine supreme court is an official act of the philippine government but beyond that even if the race is outside the country i mean the problem is that the act of the court purports to right now that's not exactly correct what happened and i believe this is born out by the record is that there were proceedings in switzerland initiated by the republic pursuant to executive orders that led to freeze orders in switzerland  proceedings which led to a transfer pursuant to the federal supreme court of switzerland that the assets be delivered to p n be as escrow holder pending a final resolution of the philippine forfeiture proceedings which were already ongoing there are references i think that's described in one of the decisions in their record i just i couldn't find the the actual s know that is running somewhat parallel with our petition and there's as part of that excerpt the federal supreme court decision of switzerland getting back to your honor's earlier question regarding the location of the funds i believe it is true that after philippine national bank obtained control of the funds in the philippines it made a decision to deposit some or all of the funds in accounts in its name in singapore however that philippine national bank may have open accounts in its name in other countries i don't think means that the status of the funds was not still based in the philippines and under the control of the philippines and then i think that some of the funds have actually been transferred to the philippines there was a subsequent motion for reconsideration made by the marcos which was sort of directly by the co opting supreme court that court heard the reconsideration petition and decided to deny re which was then served on philippine national bank in the philippines that occurred i think in early january of this year in response to the philippine supreme court decision in the reconsideration decision and the writ of execution  this court in dealing with intangible property like bank deposits has followed a more pragmatic approach rather than trying to determine exactly where an intangible assets may be located in the kokesh i think i'm pronouncing it correctly or says rockwell international case this court said rather than trying to find out where the funds can be determined to be located when we're looking at the act of state doctrine look at the  purposes behind the doctrine and decide whether if we if the district court or whatever court is considering the foreign sovereigns act if it declares that act invalid as that likely to give offense to the sovereign state or cause potential interference with diplomatic efforts by the american executive branch here i think it's pretty clear that the forfeiture of the funds to the government of the philippines has serious political economic and social consequences for the republic these are assets that the executive branch has been attempting to secure for probably fourteen years it began with executive orders by the philippine president aquino after marcus was overthrown that established the p c g g and gave it its mandate to attempt to locate and retrieve both within the philippines and in foreign countries assets stolen by marcos and his family cronies while he was in years also the motion for reconsideration decision of the philippine supreme court which i mentioned which was issued in november of this year specifically addresses the district court's september orders and specifically reject rejects them outrightly saying that these are offensive to our sovereignty that's in violation of international law so there's seems to be no doubt that the active state in the ninety's and resulted in some series of court proceedings that led to merrill lynch filing an interplay her before judge real the same district judge as it's handling him galley forty but that case involves that specific race and virtually identical situation in credit suisse saying plaintiffs in this case in india like already through one of their class representatives had piled on action again before the same district court judge seeking an injunction preventing the swiss banks which then held these thing funds from transferring the funds without coming to the district court and explaining why they should be able to do that that's essentially what this order to show cause  know you have these funds or have these funds you got to come to me before you get permission to transfer them the swiss banks were faced with a complaint as opposed to an order to show cause but essentially the relief was the same they took the position that the swiss three's orders and the decision of the federal supreme court of switzerland affirming those were acts of state which would be held invalid if the claim that the plaintiff in that case were recognized that came up in faced with discovery from the plaintiff seeking information seeking information regarding these assets in what accounts they were held who have them a variety of other details as i understand it and that was the basis for their irreparable damage claim that led to this court granting review and ultimately deciding on the merits that the action would be violet to the doctor and so it's essentially the same procedurally other than that that you know up in the context of a separate lawsuit as opposed to in order to show cause also related to the same type of relief that it has an effect on you're going to gauge i mean i is there is there any involvement laugh at this with governor ok i understand your question now that goes to our third point in which were contending that the mandate of this court and credit suisse vested this court of any authority to do  what it's doing in connection with the pm be ordered to show us and we believe that the mandate and credit suisse would prevent the action that the district court has taken because in that court in that case the court said that the district court should refrain from taking any further action in that case or in any other case involving any or all of the real parties in interest and any assets of the state of ferdinand marcos held or claimed to be held by the swiss banks interpreted to apply after the funds tat left the swiss banks and now are in the hands of philippine national bank and we contend that they should pursue every reasons which we agree one of the most important ones though is that the funds that were transferred by the swiss banks to philippine national bank were as a result of the same official proceedings in switzerland in which the freeze orders were issued and then remained in the possession of p n be subject to disposition by the philippine courts as kind of plated by the swiss orders so it seemed clear at least us that the purpose of the credit suisse mandate was to prevent the district court from taking any further action to restrain the transfer or disposition of lho as assets while they were the subject of legal proceedings between the republican the marcos of the state the swiss proceedings were also legal proceedings between the republican the markets the state then and it up continuing through the three starters and the transfer of the funds in the philippines rights victims people who were tortured summarily executed or disappeared during the marcos regime this case has been alive for eighteen years nine of those years were spent in pursuing the judgment which is some two billion dollars  last nine years have been spent pursuing execution upon a judgment to try to compensate the human rights victims to date nothing has been transmitted to those people for various reasons some of which are reflected in the decisions of this court that our in ability to proceed against certain markets aspects despite our knowledge of where they are and because frankly of the involvement of the philippine government in trying to prevent its people from recovering on the judgment this is a microcosm of some of the disputes that have existed over the last several years just real in in this post judgment time period has been vigilant in trying to enforce the permanent of three which is that ultimately led to an order to show cause but added spaced this is a discovery dispute that is the nature of the matter before this court at this juncture well before we get to the discovery dispute the discovery dispute is based upon action in furtherance of a district court september two thousand and three orders and mr swift could you tell me why based on our prior decision in read it sweeny's and i'm looking at the language at the very end of that opinion beginning at page thirteen forty eight one thirty said third when the district court issued its september two thousand and three order it was not violating the directive that our prior panel gave which says further directing the district court to refrain from taking any further action in the r identifying where the assets were located at the time that our panel issued the opinion as i read that that doesn't restrict the effectiveness of that mandate to the banks it  limits the district court issuing orders regarding that rate which happen to be held by the bank now are you telling me that the judge really just misinterpreted our order is that it will perhaps all of us misinterpreted the order but i did make a motion to clarify that order and the court did clarify and we submitted that and i think that it's very clear that the court was referring simply to the assets that were in the swiss banks at the time that time but the same assets only now they're in singapore instead of switzerland in the principle of course is in singapore but remember that the decision in credit suisse was predicated upon the act the statement from that was that the central focus of transfer of assets doesn't take with the active state of the swiss government the swiss government is not involved in this proceeding but that's not my question i've my question is why why can't i read that language and conclude that judge real should never have issued the orders in september of two thousand and three because understand your answer and obviously if we disagree with your position then i guess we issue a ruling according if you think that the order is of that breaths than perhaps i should retire from pursuing the assets and trying to recover money for these people the i don't believe that this court in credit suisse says its west stopped executing on any money that the philippine government is claiming is forfeiture money that was not the nature of that decision that said we don't want judges real to be treading upon the order of the swiss executive council that order is now defunct at six thing which there is no freeze order with regard to these assets what you have now are in effect two competing judgments one that has recently been issued by the philippine supreme court and an older one the one in the human rights case which we are vigorously trying to execute upon the nature of also the nature september second of two thousand and three it's very different and and at this point it's a discovery dispute where and by the way all those guys reels order refers to the swiss banks in that in that they were never served because i read this court's decision as not allowing that so i never served them with judge reals in order i did however sort of the banks in singapore and philippine national bank with the order because they are the ones that currently have the assets that is of interest to the district court it's our contention that judge real was acting within his authority in issuing those orders and he examined the decision of the philippine supreme court and frankly found it wanting in due process for a number of reasons some of which are articulated in his decision but as counsel in the case i have pursued the order to show cause and simply hailed philippine national bank which is subject to the personal jurisdiction of the district court because of its office in hawaii as well as other places to have them come in and explain the basis as to why they transfer the assets despite the injunction that exists the permanent injunction in march through twenty second oath for hearing there is a list of the assets and where they're located i don't think there's any merit to the argument that all of the assets were in the philippines they never were they never reached there and exhibit ten shows entirely to the contrary it may not be there now i don't know what well that's that's the problem still the national bank refuses to disclose that and they say that to do so would violate the criminal laws of the philippines think there's any merit to if their executive comes into court and testifies as to the location of the assets where they are what's been sent what hasn't if there's likely to be any criminal prosecution there is never been a criminal prosecution under the banking laws in the philippines which makes this makes them classic blocking statutes one of the maybe because you're serving one of the banks in singapore kept the money and started to interfere in singapore and the record in this case does not show that counsel responded to the question and that the writ the writ from the philippine supreme court which was dated january twenty second the writ was served  early january the record does not show that and the record is what we're looking at here and it's very important because the district court's order to show cause was february twenty fifth these dates january twenty second or on any date the writ itself requires the sheriff in the philippines to submit his return to the court that's in the ark to sixty there is no return means and recalling the judge's order to show cause was february twenty second now why is this significant while it shows some very careful our drafting of declarations and exhibits it does not show in any way that the bank was served with the rent or that the banks quote deliver not what is delivered mean could be just the book entry on something we strongly believe are still in the singapore banks and what was that district judge trying to do here he was trying to maintain the status quo he was not want you to keep doing your job under rule twenty three and we want you to keep doing your job in attempting to resolve this controversy so what the judge was doing here was exactly what this court ha participating in it and that was an agreement which with that testimony that was presented to the district court in march of this year which we hadn't had before by the attorney who had the authority from the republican the philippines to make to agreement and settle this controversy the judge was saying and i think the residential hearing with some additional discovery may permit the judge to reinstate that settlement but it was a little premature at this time what said about what this district court has done and i think i would like to make one final point because the only real laying the only real predicate for the argument that there is this terrible dilemma facing the bank all this respond briefly to some of the points that report he's made first of all i think we should make it clear that the judgment in favor of the parties mr smith's clients is not a competing judgment the judgment in the philippines competing in the sense that his clients are claiming that this is one of the massive of the mark of a state in philippine government as they know it along to the philippines so it's pretty important to the state to resign or to the point of to resolve the question of who owns the phone and we say that they were participating in the philippine litigation i soon i did not we submit the question has been decided the question was litigated for many years between the markets the state and the republic of the philippines through the they see are the september two thousand and three orders and the order to show cause which we say are invalid evan issue it doesn't matter to me what he discovered that show it's for that reason that you refused to produce your clarence from the bank well the reason that we are objecting to any further discovery beyond the declaration we provided with the philippine bank secrecy laws first of all we don't think it's necessary to do discovery we don't think it's relevant because these are issues of law  c is based on the allegation of the plaintiff that the times have been transferred to the republic of the philippines the subject worth two thousand and three orders based on the premise that the philippine supreme court decision is unlawful all we're saying is if there is a philippine supreme court decision we transferred the assets pursuant to that decision the question of the timing is irrelevant the question of the location of the assets is irrelevant except possibly they said to the active state doctor in question but we've said the location is in the philippines because of the sights of the parties and the order of the standing by on and because the court doesn't necessarily have to determine a physical situs when applying the docking under the cockroach dr and so discovery as to when the assets were in singapore when they left singapore and so forth really isn't necessary and in our response the brief the point we made about the philippine bank secrecy objection is not that it's not relevant that the merits of it is not relevant to this petition the objection is relevant because it puts our client in the dilemma of being faced with the pop the ability of either having to violate criminal laws on bank secrecy or if they don't violate the  philippine laws excuse me so what's the filipino laws if they don't violate the philippine laws being held in contempt by the district court for refusing to provide the discovery on that ground our point is this court doesn't have to reach the question of whether that objection the clarifying order i don't think it has anything to their position the clarifying order denied a motion to modify the pinion it just said that the district court could engage in settlement activities that use the same qualifying language provided this report does not take any further action in this case or in any other case with respect to those assets and we contend that what this court was referring to were the assets not to the swiss banks as you said at that time they were with the swiss banks they subsequently but as i said that proceeding was initiated by the republic of the philippines and ask for that order pursuant to that order those very same funds were transferred from switzerland to the philippines to the custody of the philippine national bank