Brief of Comparative Constitutional Law Professors as Amici Curiae in Support of Plaintiffs-Counter-Defendants-Appellants in Petroleos de Venezuela et al. v. MUFG Union Bank, N.A

This amicus brief of Comparative Constitutional Law Scholars was filed with the Second Circuit in Petroleos de Venezuela et al. v. MUFG Union Bank, N.A. The Venezuelan Constitution contains two provisions, Articles 150 and 187(9), that constitute an important legislative check on the abuse of executive power. These provisions require Venezuelan executive branch organs and entities 􏰁to ob􏰁tain prior approval􏰅 from the National Assembly before entering into national public interest contracts with foreign companies. Provisions like this are common in developing countries that have attempted to confront and reign in a history of hyper-presidentialism. They are designed to prevent dictators from squandering valuable national assets, by requiring any significant financial encumbrances to first receive the affirmative consent of a democratically elected body. In the case of Venezuela􏰇--where the National Assembly is the only democratic body recognized by the United States--􏰇these provisions create a critical limitation on the executive branch'􏰃s ability􏰁􏰆 􏰁to dissipate 􏰁the country's most􏰁 important asset, petroleum. The district court's analysis failed t􏰁o appreciate􏰁 the historical and regional context of Articles 150 and 187(9). Instead of giving effect to these vital constitutional provisions, the district court relied on New York contract law and an incorrect application of the act of state doctrine. Amici submit that this approach was seriously flawed and that, if adopted by other courts, it could create a damaging loophole to anti-authoritarian constitutional provisions around the world.