A rare mandamus action triggered a discussion of the reach of the Act of State doctrine enuanciated in Underhill v. Hernandez, 168 US 250, 252 (1897), In re: Philippine National Bank, docket Number 04-71843, decided February 4, 2005 by the United States Court of Appeals for the Ninth Circuit.

In American litigation over Marcos assets, the lower court wanted to hold the bank in contempt in a proceeding to which the bank was not a party, and to depose its officers. The bank applied for the writ of mandamus.

The appellate court found that a ruling on the assets by the Philippine Supreme Court which the lower court effectively overruled enjoys the protection of the Act of State doctrine. Classically, the Act of State doctrine is directed at the executive and legislative branches. The Court held, however, that there is no inflexible rule preventing a judgment sought by a foreign government from qualifying as an act of state, referring to Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989) and the Restatement (Second) of Foreign Relations of the United State §41 cmt. d (1965).

As a result, the Court held that the district court's error qualifies for correction by a writ of mandamus, supra at 1573.  -   by Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP in Washington.