In association with the International Commission of Jurists

Author: Michael Ramsey

10 Jun

[Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego Law School. Professor Ramsey previously prepared an analysis of this case for the Judicial Education Project supporting the bondholders, for which he was compensated.] In a new claim in the long-running battle between Argentina and holders of its defaulted bonds (see here), the question is whether a U.S. court can order Argentina not to pay some bondholders unless it also pays others.  Again, Argentina says the Foreign Sovereign Immunities Act (FSIA) protects it, and again it tries to make the Act’s text say something it does not. To recap, a decade ago Argentina stopped making payments on some of its bonds, and the private bondholders (including NML Capital) sued Argentina in federal court in New York (as the FSIA and the contracts governing the bonds allowed them to do).  Argentina refused to pay the resulting judgments against it, so the bondholders are seeking enforcement.  One approach is to seek discovery of Argentina’s worldwide assets; whether a U.S. court can make such an order is the subject of the first Republic of Argentina v. NML Capital case, argued to the U.S. Supreme Court in April. The bondholders’ second strategy involves a clause in the bond contracts known as the equal treatment or pari passu clause.  To oversimplify, after Argentina initially failed to make payments on the bonds, it persuaded many of the bondholders to accept new bonds, with substantially reduced payments (but some hope of salvaging part of their investment).  NML Capital (and a few others) refused to take the deal, and sued for full payment of the original bonds instead.  Argentina now wants to pay the new bondholders (that is, those who agreed to the refinancing) while refusing to pay the holders of the old bonds. But that sort of discrimination among bondholders, the U.S. court held, violates the “equal treatment” clause in the original bond contracts: the clause says that the old bonds have to be treated equally to any new bonds, and clearly they aren’t.    Argentina had already said it wouldn’t obey a court order to pay on the old bonds.  So the holders of the old bonds asked the court for an injunction barring payment on the new bonds unless the old bonds receive equal treatment.  The district court granted the order and the Second Circuit affirmed. Now Argentina is bringing this claim to the U.S. Supreme Court on petition for certiorari (scheduled to be considered at the June 12 conference).  As with the case involving the discovery order, its supposed shield is the FSIA.  But again, Argentina is trying to make the FSIA do something it does not.  Argentina concedes that the FSIA allows the bondholders’ suit: Argentina waived its sovereign immunity in the bond contracts, and the FSIA allows suit where immunity is waived (Section 1605(a)(1)).  The FSIA further says (Section 1606) that non-immune sovereigns are (subject to specific exceptions) liable to the same extent as private litigants. The only plausible exception (and the only one Argentina argues)
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24 Apr

[Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego Law School. Professor Ramsey previously prepared an analysis of this case for the Judicial Education Project, for which he was compensated.] The Supreme Court considered on Monday whether a U.S. court can order disclosure of Argentina’s worldwide assets.  Perhaps surprisingly, the answer should...

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14 Mar

[Michael D. Ramsey is Professor of Law at the University of San Diego School of Law] I join the other symposium participants in congratulating Curtis Bradley on a thoughtful, insightful and balanced treatment of an important topic.  This post briefly addresses his discussion of international law and war powers in the U.S. legal system (principally, Chapter 10 of the book) while noting some areas of agreement and disagreement. Bradley’s central message here is that international law plays a role in shaping U.S. war powers, but “[m]uch of the interpretation and enforcement of international law in this area occurs outside the courts, especially within the executive branch.  … [C]ourts do not typically enforce the international laws of war directly against Congress or the president.”  (p. 281).  Nonetheless, “[e]ven when courts are not involved, the U.S. government gives significant attention to the international laws of war, in part because of concerns about reciprocity with respect to the treatment of U.S. military personnel.”  (Id.) As the book discusses, a principal exception is the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President’s Bush’s military commissions for terrorism suspects violated Common Article III of the Geneva Conventions.  (The Court also made some references to international law in deciding the scope of the President’s war powers in its earlier war-on-terror decision Hamdi v. Rumsfeld).  True, Hamdan did not, strictly speaking, apply international law directly, as the Court invoked a statute requiring commissions to comply with the laws of war.  But as Bradley notes (p. 320), the Court surprisingly disagreed with the executive branch’s interpretation of the Conventions, thus imposing an international-law-based judicial check on presidential warmaking.  In general, though, the book finds Hamdan an outlier, instead emphasizing the extent to which, even in the war on terror, the integration of international law into U.S. warmaking policy has been principally a project of the executive and legislative branches. I agree with much of what Bradley says, so I’ll focus on a point where I don’t agree.  In my view the book underplays the constitutional and historical case that the President is bound by customary international law within the U.S. legal system, including in the exercise of war powers.
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11 Oct

In a prior post, I responded to some of Kevin Heller’s criticism of the professors' amicus brief recently filed in the Nestle ATS case.  Specifically, that post addressed issues arising from the Rome Statute of the International Criminal Court.  Here I’ll take up Kevin’s criticism based on rulings of the International Criminal Tribunal for the former Yugoslavia (ICTY). To frame the...

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11 Oct

Thanks to Kevin Heller for his thoughts on the professors’ amicus brief in Doe v. Nestle USA, Inc., and to Opinio Juris for affording me this opportunity to respond.  I should say at the outset that I’m making this response only in my personal capacity, not on behalf of any litigant or amicus.  While I appreciate the passion Kevin brings to...

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25 Jul

On behalf of myself and my co-editors David Sloss and William Dodge, thanks to Opinio Juris for hosting this book discussion.  As readers of this blog know, the twenty-first century’s first decade was an extraordinarily active one for international law in the Supreme Court.  In the debates about leading cases such as Medellin v. Texas and Sosa v. Alvarez-Machain, we...

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28 Mar

In previous posts I’ve argued that the U.S. intervention in Libya requires congressional approval under the Constitution’s original meaning and that there’s no longstanding uncontested precedent that would warrant departure from that meaning.  Here I’ll consider the significance of UN Security Council Resolutions 1970 and 1973, calling for a cease fire by the Libyan government and authorizing nations to use...

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25 Mar

My previous post argued that the original meaning of the declare war clause requires the President to get Congress’ approval before beginning military conflicts (including the current conflict in Libya).   I’ll now turn to two leading counterarguments: first, that Presidents have routinely engaged in low-level conflict without Congress’ approval; and second, that the President’s action to enforce a resolution of...

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23 Mar

I appreciate the opportunity to guest blog on the Constitution and the Libya intervention.  In a post at Slate, Jack Goldsmith says that the Constitution’s original meaning in this area is “indeterminate.”  I respectfully disagree:  I think congressional approval is clearly required.  In this post I’ll set out my basic argument, and in the next one I’ll consider leading counterarguments. Every...

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15 Apr

[Michael D. Ramsey is a Professor of Law at the University of San Diego Law School and author of “The Constitution’s Text in Foreign Affairs” (Harvard Univ. Press, 2007).] Duncan Hollis and Joshua Newcomer have written a fascinating article on an important and underappreciated topic. I agree with their basic propositions, especially that “political commitments” (as they call non-binding personal pledges...

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03 Aug

Professor Flaherty’s recent post is a great one in getting at the essence of my view and our disagreement, and a fitting way to wrap up the discussion. I do believe in a coherent Constitution. Not a perfect Constitution, for the text surely has redundancies, gaps and contradictions on particular matters, as well as substantive flaws. But I think...

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