Private International Law— Chapter 1: Introduction to Private International Law

 Chapter 1: Introduction to Private International Law

1.1 International Law

• International law has been defined as the:

rules and principles of general application 

dealing with the conduct of states 

and of international organizations 

and with their relations  nter se, 

as well as with some of their relations 

with persons, whether natural or juridical.

Hilton v. Guyot, 159 U.S. 113:

• It includes not only questions of right between nations but also questions concerning "the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation."

• The principles of conflict of laws incorporated in municipal laws are based not on the extraterritorial validity of the law of a foreign state but on comity of nations. Comity was defined in this case.

• Facts:

• Defendants, Henry Hilton and William Libbey, residents of New York and trading as co-partners in Paris under the firm name of A.T. Stewart & Co. were sued in France for debts due to a French firm, Charles Fortich & Co. Gustave Guyot, liquidator of the French firm, sued Hilton and Libbey on the French judgment in the U.S. Circuit Court for the Southern District of New York seeking an amount totalling over $195,000. 

• The court held the judgment conclusive and entered a decree in favor of the French firm without examining anew the merits of the case.

• Issue:

• Defendants question this decree on many grounds, foremost of which was that French courts gave no force and effect to the duly rendered judgments of U.S. courts against French citizens.

• Held:

• "No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of. one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call "the comity of nations." Although the phrase has been often criticized, no satisfactory substitute has been suggested. 

• "Comity," in the legal sense, is neither a matter of abso- lute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws... 

• When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens, to recover a sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent , court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs, and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged; and it should be held conclusive upon the merits tried in the foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice, or that, by the principles of international law, and by the comity of our own country, it should not be given full credit and effect .....

• [I]t is unnecessary in this case to determine [ \whether the French judgment may be impeached for fraud] because there is a distinct and independent ground upon which we are satisfied that the comity of our nation does not require us to give conclusive effect to the judgments of the courts of France; and that ground is, the want of reciprocity, on the part of France, as to the effect to be given to the judgments of this and other foreign countries .... 

• The defendants . . . alleged, and at the trial offered to prove, that . . when the judgments of tribunals of foreign countries, against the citizens of France are sued upon in the courts of France, the merits of the controversies upon which those judgments are based are examined anew, unless a treaty to the contrary effect exists between the Republic of France and the country in which such judgment is obtained, (which is not the case between the Republic of France and the United States) and that the tribunals of the Republic of France give no force and effect, within the jurisdiction of that country, to the judgments duly rendered by courts of compe- tent jurisdiction of the United States against citizens of France after proper personal service of the process of those  courts has been made thereon in this country. We are of opinion that this evidence should have been admitted ..... 

• [T]here is hardly a civilized nation on either continent, which, by its general law, allows conclusive effect to an executory foreign judgment for the recovery money, .... In the great majority of the countries on the continent of Europe, ... the judgment rendered in a foreign country is allowed the same effect only as the courts of that country allow to the judgments of the country in which the judgment in question is sought to be executed ..... 

• The reasonable, if not the necessary, conclusion appears to us to be that judgments rendered in France, or in any other foreign country, by the laws of which our own judgments are reviewable upon the merits, are not entitled to full credit and conclusive effect when sued upon in this country, but are prima facie evidence only of the justice of the plaintiffs' claim. 

• In holding such a judgment, for want of reciprocity, not to be conclusive evidence of the merits of the claim, we do not proceed upon any theory of retaliation upon one person by reason of injustice done to another; but upon the broad ground that international law is founded upon mutuality and reciprocity, and that by the principles of international law recognized in most civilized nations, and by the comity of our own country, which it is our judicial duty to know and to declare, the judgment is not entitled to be considered conclusive ..... 

• If the judgment had been rendered in this country, ... the French courts would not have executed or enforced it, except after examining into its merits. The very judgment now sued on would be held inconclusive in almost any other country than France. In England, and in the Colonies subject to the law of England, the fraud alleged in its procurement would be a sufficient ground for disregarding it. In the courts of nearly every other nation, it would be subject to reexamina- tion, either merely because it was a foreign judgment, or because judgments of that nation would be reexaminable in the courts of France.

• For these reasons, ... the judgment is reversed .... 

• CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN, MR. JUSTICE' BREWER, and MR. JUSTICE JACKSON, dissenting . . . . 

• [T]he doctrine of res judicata applicable to domestic judgments should be applied to foreign judgments as well, and rests on the same general ground of public policy that there should be an end of litigation ..... I cannot yield my assent to the proposition that because by legislation and judicial decision in France that effect is not there given to judgments recovered in this country which, according to our jurisprudence, we think should be given· to judgments wherever recovered, (subject, of course to the recognized exceptions) therefore we should pursue the same line of conduct as respects the judgments of French tribunals. The application of the doctrine of res judicata does not rest in discretion; and it is for the government, and not for its courts, : to adopt the principle of retorsion, if deemed under any ; circumstances desirable or necessary ··· 

• Summary:

• Laws have no effect beyond the jurisdiction of the sovereignty from which they originate.

• The application of a nation's laws within another country depends on the principle of "comity of nations," which balances international duty, convenience, and the rights of citizens.

• "Comity" is not an absolute obligation or mere courtesy; it is a mutual recognition of legal acts (legislative, executive, judicial) between nations.

• A foreign court judgment, if rendered fairly and by a competent court, is considered prima facie evidence in another country's courts, unless it is impeached for reasons like fraud, prejudice, or a lack of reciprocity.

• Reciprocity is key: if one country does not give full effect to another country's judgments, its judgments may also not be given full effect.

• The courts of many countries reexamine foreign judgments on the merits, especially if those countries' judgments are similarly reviewable elsewhere.

• In the case discussed, the U.S. court decided not to enforce a French judgment conclusively due to a lack of reciprocity from France regarding U.S. judgments.

• The dissenting opinion argues for the consistent application of the doctrine of res judicata to foreign judgments, similar to domestic ones, and suggests that matters of reciprocity should be handled by governments, not courts.

• International law is therefore that branch of law that deals with the relationship of states as well as the relationship of individuals of different states. 

• It has a public character when international subjects are involved and a private character when individuals, domestic laws, or local events intermingle with each other necessitating a determination of the applicable law. 

• Thus, international law has both a public side as well as a private side to it. 

• Examples:

• Public International Law

• An example of public international law is when two or more countries have territorial disputes that are governed by international treaties or conventions. 

• Private International Law.

• It usually comes into play when the laws of State A are different from the laws of State B, or when there is an invocation of the doctrine of forum non conveniens.  

COQUIA

• Definition and Scope:

1. Private international law, also known as conflict of laws, is the part of municipal (domestic) law that governs legal cases involving a foreign element.

2. It comes into play when a court must consider foreign laws due to the involvement of foreign facts, events, or transactions.

• Classical Definitions:

1. Minor's Definition: Describes private international law as the universal principles of right and justice that govern a state's courts when dealing with cases involving the laws of another state or country.

2. Chesire's Definition: States that private international law applies when a court case involves an issue connected closely with a foreign legal system, necessitating reference to that foreign system.

• Distinction Between Private and Public International Law:

1. Public International Law:

1. Governs relationships between states and internationally recognized organizations.

2. Involves state-to-state or government-to-government matters.

3. Remedies for violations include diplomatic protests, peaceful dispute resolutions (e.g., arbitration, adjudication), and potentially the use of force or war.

2. Private International Law:

1. Governs private transactions between individuals or corporations across different jurisdictions.

2. Remedies are provided by the municipal (domestic) laws of each state, such as court actions or administrative tribunals.

• Municipal Law vs. Conflict of Laws:

1. Municipal Law: 

• Refers to the internal or domestic laws within a country.

2. Conflict of Laws: 

• Involves situations with a foreign element that may require the application of either local or foreign law. 

• It is considered distinct from municipal law, although some writers erroneously classify it as merely a part of it.

• Exceptions to the Rule of Comity:

1. There are instances where, despite the presence of a foreign element, the internal law of a country may still apply, overriding the usual application of foreign law under the principle of comity.

• Purpose of Conflict of Laws:

1. Provides rational and valid rules for deciding cases involving parties, events, or transactions linked to multiple jurisdictions.

2. Addresses the social and economic demands in an international community with increasing cross-border transactions.

• Goals of Conflict of Law Rules:

1. Protect the rational expectations of natural and juridical persons of different nationalities.

2. Promote stability and uniformity in solutions provided by laws and courts across different states.

3. Align with the principles of international law recognized in the Philippine Constitution, which supports peace, equality, justice, freedom, cooperation, and amity among nations.

• Scope of Conflict of Laws:

1. Covers a broad range of legal areas, including:

1. jurisdiction of local court

2. proof of foreign law

3. personal law

4. naturalization

5. domicile

6. family relations

7. contracts

8. torts

9. crimes 

10. corporate law 

11. property law and 

12. international air transportation contracts under the Warsaw Convention.

• Key Issues in Conflict of Laws:

1. Jurisdiction: 

• Determines the circumstances under which a legal system can require its judiciary to decide on multi-state or multinational disputes.

2. Choice-of-Law: 

• Identifies the sources from which the applicable law for a controversy can be derived.

3. Recognition and Enforcement of Foreign Judgments: 

• Examines situations that justify a court recognizing or enforcing a judgment from a foreign court.

• Conflict of Laws in the Philippines:

• Conflict of Laws was not widely recognized in the Philippines until it became a sovereign state.

• The Spanish Civil Code, enforced in the Philippines until 1950, contained principles of conflict of laws adopted from the Code Napoleon, including the nationality law principle (Article 15) and the lex situs rule (Article 16, paragraph 1).

• The principles of universal succession (Article 16, paragraph 2) and lex loci contractus (Article 17, paragraph 1) were also part of the Spanish Civil Code.

• There was minimal jurisprudence on Conflict of Laws during the early years, aside from a few decisions and provisions on wills and succession.

• Conflict of Laws was included in the law curriculum when the University of the Philippines College of Law was established in 1911.

• American law professors initially taught the subject using books and cases from the United States, focusing on conflicts among U.S. states.

• Filipino law books on the subject relied heavily on American and English treatises.

• Conflict of Laws (Private International Law) and Public International Law were originally separate bar exam subjects.

• The Supreme Court later revised the bar subjects, merging Private International Law with Civil Law and including Public International Law in Political Law.

• This change led to the perception that Private International Law is part of Civil Law, which has narrowed the analysis and perspective on conflict problems.

• Increased involvement of Filipino citizens and corporations in foreign transactions has led to more conflicts of laws issues.

• Areas such as business transactions of foreign corporations in the Philippines and international air transportation law (governed by the Warsaw Convention) have seen recent advancements.

• The Philippines is developing its own jurisprudence on foreign tort claims and contract interpretation as more Filipinos work abroad.

• Codes and Statutes

• Origin in Continental Europe:

• Conflict of Laws began in continental Europe, where laws were primarily codified.

• The principles of jus gentium (law of nations) were codified in Roman legal code.

• The Code Napoleon (1804) was a significant source, establishing specific rules on the personal law of individuals.

• Influenced subsequent codes in various countries:

1. Netherlands (1829)

2. Romania (1865)

3. Italy (1865)

4. Portugal (1867)

5. Spain (1888)

• German Civil Code (1896) included several Conflict of Laws provisions.

• Switzerland and Greece also enacted laws with conflict of law rules, influencing other countries' codes.

• South America's Code of Bustamante was patterned after the Code Napoleon.

• Conflict of Laws in the Philippines

• The Spanish Civil Code (1888) was enforced in the Philippines from December 2, 1889, until the Philippine Civil Code took effect on August 30, 1950.

• Key provisions on Conflict of Laws in the Spanish Civil Code were adopted into the Philippine Civil Code.

• The Spanish Code of Commerce (1888) also applied, containing provisions relevant to foreign transactions.

• Philippine Sources of Law:

• 1987 Philippine Constitution:

• Contains principles on nationality and comity, which are essential to Conflict of Laws.

• Special Statutes Governing Cases Involving Foreign Elements:

1. Corporation Code (B.P. Blg. 68) - Enacted in 1980.

2. General Banking Act (Act No. 337) - Effective since 1948.

3. Act Instituting the Foreign Currency System (Rep. Act No. 426) - Effective since 1972.

4. Philippine Foreign Law Guarantee Corporation (Presidential Decree No. 560) - Enacted in 1974.

5. Act Regulating Retail Business (Rep. Act No. 1180) - Enacted in 1964.

6. Anti-Dummy Law (Commonwealth Act No. 108) - Enacted in 1936.

7. Nationalization of the Rice and Corn Industry (Rep. Act No. 3018) - Enacted in 1973.

8. Insurance Code (P.D. No. 1460) - Enacted in 1978.

9. Protection of Intellectual Property (P.D. No. 49) - Enacted in 1972.

10. Patent Law (Rep. Act No. 1659) - Enacted in 1947.

11. Trademark Law (Rep. Act No. 166) - Enacted in 1976.

12. Carriage of Goods by Sea Act (Commonwealth Act No. 65) - Enacted in 1936.

13. Salvage Law (Act No. 2616) - Enacted in 1916.

14. Public Service Act (Commonwealth Act No. 146) - Enacted in 1936.

15. Civil Aeronautics Act (Rep. Act No. 776) - Enacted in 1952.

16. Philippine Overseas Shipping Act (Rep. Act No. 1407) - Enacted in 1955.

17. Investment Incentives Act (Rep. Act No. 5186) - No enactment date provided.

18. Export Incentives Act (Rep. Act No. 6135) - No enactment date provided.

19. Republic Act No. 7722 (1994) Liberalizes the entry of foreign banks in the Philippines.

• Treaties and International Conventions

• Since becoming a Republic, the Philippines has entered into several important treaties and international conventions related to private international law. These agreements help regulate matters involving foreign elements in areas such as civil aviation, maritime law, intellectual property, and human rights. Below are the significant treaties and conventions the Philippines has ratified or entered into:

1. Convention on International Civil Aviation (Chicago Convention)

• Entered into force: 4 April 1947

• Protocol effectivity: 17 November 1952

2. Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Carriage by Air)

• Entered into force: 7 February 1951

3. Convention on Offenses and Certain Other Acts Committed on Board Aircraft 

• Entered into force: 4 December 1969

4. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation

• Entered into force: 26 April 1973

5. United Nations Convention on the Carriage of Goods by Sea (1979)

• Effective date not specified.

6. Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages

• Entered into force: 21 April 1965

7. Convention on Traffic of Persons

• Effective date: 1955

8. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

• Entered into force: 4 September 1981

9. Convention on the Political Rights of Women

• Entered into force: 12 September 1957

10. International Convention for the Suppression of the Traffic in Women and Children

• Entered into force: 30 September 1954

11. Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others

• Entered into force: 19 September 1952

12. Convention Establishing the World Intellectual Property Organization (WIPO)

• Entered into force: 14 July 1980

13. Berne Convention for the Protection of Literary and Artistic Works

• Entered into force: August 1951

14. Paris Convention for the Protection of Industrial Property

• Adopted in Paris on 20 March 1883

• Revised in Brussels (December 1990), Washington (2 June 1934), and Lisbon (31 October 1958)

• Entered into force: 27 September 1965

• Revised in Stockholm on 14 July 1967; entered into force in the Philippines on 16 July 1980 (with some exceptions)

15. Hague Conventions on Private International Law

• Various conventions concluded since 1951 dealing with personal status, patrimonial family status, and issues such as agency and trusts.

• The Philippines is a signatory to the 1971 Convention on the Recognition of Foreign Judgments in Civil and Commercial Matters.

• The Philippines ratified the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.

• Treaties, Commentaries and Studies of Learned Societies

• When interpreting statutes and codes related to conflict of laws, courts often refer to the works of distinguished jurists and studies by learned societies. Notable authors and their influential works from both continental Europe and Anglo-American jurisdictions are frequently cited to provide guidance and authoritative commentary.

• Judicial Decisions

• The most important source of conflict of law rules are decisions of courts. 

• According to Graveson, this branch of law is more completely judge-made than almost any other. In its application, judges have to deal with "All Manner of People" more than any other branch.

• The claim of justice for right as a basis for conflict of laws is supported not only by the terms of the judicial oath but by judicial dicta in judgments.

1.2 Branches of International Law

• International law has two branches: 

1. Public international law 

• governs the relationship of states and international entities. 

2. Private international law

• comprehends laws regulating private interactions across national frontiers.

• It deals with conflict of laws among the laws of two or more states and necessitates a determination of which municipal law applies to a case. 

• The objective is the harmonization of the laws of several states whenever a conflicts of law situation exists.

1.3 Distinctions between Public and Private International Law

• As to source:

• Public international law is based on international conventions, international custom, the general principles of law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists of the various nations.

• They are generally known as traditional sources of international law and are commonly referred to as “hard law” because of their binding nature.

• In recent years, a form of law outside of the traditional sources has become accepted as an additional source of public international law. 

• Often referred to as “soft law,” they are usually normative statements in non-binding political instruments such as declarations, resolutions, and programs of action where compliance is expected with the norms that these texts contain.

• They are political commitments that can lead to law, but they are not law, and thus give rise only to political consequences.

• Hence, they are so-called “soft law” because their binding force is questionable. 

• Soft laws come in the form of:

• normative resolutions of international organizations, 

• concluding texts of summit meetings or international conferences, 

• recommendations of treaty bodies overseeing compliance with treaty obligations, 

• bilateral or multilateral memoranda of understanding, 

• executive political agreements, and 

• guidelines or codes of conduct adopted in a variety of contexts.

• Examples of soft law would be:

• United Nations General Assembly resolutions or declarations and 

• United Nations Commission on Human Rights resolutions.

• Countries may honor or ignore the recommendations of these bodies. 

• Also, decisions of the UN Arbitral Tribunal have been dependent on the willingness of the parties to honor its decision.

• Private international law, on the other hand, is based on domestic and municipal laws, which include the constitution and statutes adopted by individual countries.

 

• Public international law is the same for all states which is not necessarily the case with private international law.

• As to subjects

• Public international law has:

• states  and 

• international organizations   

• Private international law has:

• individuals and 

• corporations 

• However, recent cases and developments in human rights law and environmental law have started considering individuals and corporations as subjects of public international law.

Case: 

Nevsun Resources, Ltd. v. Araya, 2020 SCC 5

• Facts: 

• Three Eritrean workers sued Nevsun Resources before a Canadian court for damages arising from violations of customary international law in the form of forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. 

• They claimed that they were forced to join Eritrea's military service where they experienced violent, cruel, inhuman and degrading treatment arising from a forced labor regime. 

• Nevsun filed a motion to strike the pleadings on the basis of the act of state doctrine that bars domestic courts from reviewing the sovereign acts of a foreign government. 

• Nevsun charged that the claims based on customary international law had no reasonable prospect of success. 

• The lower court judge dismissed the motion, which dismissal was affirmed by the Court of Appeals. 

• Issue:

1. Do the Eritrcan workers have the standing to claim violation of customary international law? YES

• While states were historically the main subjects of international law, it has long since evolved from this state- centric template. 

• The past 70 years have seen a proliferation of human rights law that transformed international law and made the individual an integral part of this legal domain, reflected in the creation of a complex network of conventions and normative instruments intended to protect human rights and ensure compliance with those rights. 

• The rapid emergence of human rights signified a revolutionary shift in international law to a human-centric conception of global order. 

• The result of these developments is that international law now works not only to maintain peace between states, but to protect the lives of individuals, their liberty, their health, and their education. 

• The context in which international human rights norms must be interpreted and applied today is one in which such norms are routinely applied to private actors.

• It is therefore not plain and obvious that corporations today enjoy a blanket exclusion under customary international law from direct liability for violations of obligatory, definable, and universal norms of international law.

2. Are the claims of the Eritrean workers barred by the act of state doctrine? NO 

• The act of state doctrine has played no role in Canadian law and is not part of Canadian common law. 

• Whereas English jurisprudence has reaffirmed and reconstructed the act of state doctrine, Canadian law has developed its own approach to addressing the twin principles underlying the doctrine: conflict of laws and judicial restraint.

• Both principles have developed separately in Canadian jurisprudence rather than as elements of an all-encompassing act of state doctrine. 

• As such, in Canada, the principles underlying the act of state doctrine have been completely subsumed within this jurisprudence. 

• Canadian courts determine questions dealing with the enforcement of foreign laws according to ordinary private international law principles which generally call for deference, but allow for judicial discretion to decline to enforce foreign laws where such laws are contrary to public policy, including respect for public international law.

• Note:

• The act of state doctrine is still a well-respected doctrine in international law. It is a viable defense to a foreign court's attempt to review the acts of a sovereign and independent state on the basis of international comity. 

• The decision of the Supreme Court of Canada on this issue must be taken to be applicable only to Canada, on the ground of public policy and necessity.

1.4  Transformation to Customary International Law 

• International law is neither static nor stillborn. 

• There may be conduct which was formerly not considered as a norm of international law but through practice and acceptance by states, have been transformed into a norm of customary international law. 

• For this transformation to happen, the norm must have become:

1. universal in character,

2. must be of mutual concern to states, and 

3. must be of a specific character that is definite in content.

• If all three elements converge, a norm may be considered to have become customary international law.

Case: 

Abdullahi v. Pfizer, 562 F.3d 163 (2d Cir. 2009)

• Facts: 

• Pfizer had an experimental antibiotic, Trovan, which it administered to young patients in Nigeria without getting the informed consent of the children nor their guardians. 

• Trovan had adverse side effects on the test patients as some died while others became blind, deaf, paralyzed, or brain-damaged. 

• Abdullahi and other plaintiffs sued Pfizer under the Alien Tort Statute (“ATS”) before a United States District Court for the Southern District of New York. 

• They alleged that Pfizer violated international law for non-consensual medical experimentation. Pfizer moved to dismiss for failure to state a claim under the ATS and on the basis of forum non conveniens. 

• The district court granted the motion on the ground that plaintiffs failed to identify a source of international law that “provide[s] a proper predicate for jurisdiction under the ATS.”

• The court justified its decision on the ground that “[a] cause of action for Pfizer's failure to get any consent, informed or otherwise, before performing medical experiments on the subject children would expand customary international law far beyond that contemplated by the ATS.”

• With respect to forum non conveniens, the court held that “plaintiffs had failed to submit specific evidence that the Nigerian judiciary would be biased against its own citizens in an action against Pfizer” and that “Nigeria was an adequate alternate forum.”

• Plaintiffs appealed.

• Issue:

1. Whether Pfizer violated international law on non-consensual medical experimentation. YES

• Yes, Pfizer violated international law on non-consensual medical experimentation.

2. Whether Nigeria offers an adequate forum for the adjudication of plaintiffs' claims. NO

• No, Nigeria has not been shown to be an adequate forum for the adjudication of plaintiffs' claims.

• Turning now to this appeal, and remaining mindful of our obligation to proceed cautiously and self-consciously in this area, we determine whether the norm alleged:

1. is a norm of international character that States universally abide by, or accede to, out of a sense of legal obligation;

2. is defined with a specificity comparable to the 18th-century paradigms discussed in Sosa; and 

3. is of mutual concern to States.

• The Prohibition of Nonconsensual Medical Experimentation on Humans

• Appellants' ATS claims are premised on the existence of a norm of customary international law prohibiting medical experimentation on non-consenting human subjects. 

• To determine whether this prohibition constitutes a universally accepted norm of customary international law, we examine the current state of international law by consulting the sources identified by Article 38 of the Statute of the International Court of Justice (“ICJ Statute”), to which the United States and all members of the United Nations are parties. 

• Article 38 identifies the authorities that provide “competent proof of the content of customary international law.” 

• These sources consist of:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

2. international custom, as evidence of a general practice accepted as law;

3. the general principles of law recognized by civilized nations;

4. judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

• The appellants ground their claims in four sources of international law that categorically forbid medical experimentation on non-consenting human subjects:

1. the Nuremberg Code, which states as its first principle that “[t]he voluntary consent of the human subject is absolutely essential”; 

2. the World Medical Association's Declaration of Helsinki, which sets forth ethical principles to guide physicians world-wide and provides that human subjects should be volunteers and grant their informed consent to participate in research; 

3. the guidelines authored by the Council for International Organizations of Medical Services (“CIOMS”), which require “the voluntary informed consent of [a] prospective subject; and 

4. Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”), which provides that “no one shall be subjected without his free consent to medical or scientific experimentation.”

• In sum, it was inappropriate for the district court to forego a more extensive examination of whether treaties, international agreements, or State practice have ripened the prohibition of nonconsensual medical experimentation on human subjects into a customary international law norm that is sufficiently:

1. universal and obligatory,

2. specific and definable, and 

3. of mutual concern, 

to permit courts to infer a cause of action under the ATS. See Sosa, 542 U.S. at 732-35,124 S.Ct. 2739. 

• We now proceed with such an examination.

• Universality 

• The appellants must allege the violation of a norm of customary international law to which States universally subscribe. The prohibition on non-consensual medical experimentation on human beings meets this standard because, among other reasons, it is specific, focused, and accepted by nations around the world without significant exception.

• The evolution of the prohibition into a norm of customary international law began with the war crimes trials at Nuremberg. 

• The United States, the Soviet Union, the United Kingdom, and France "acting in the interest of all the United Nations," established the International Military Tribunal ("IMT") through entry into the London Agreement of August 8, 1945. 

• According to the Charter, the IMT had the "power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed," among other offenses, war crimes and crimes against humanity.

• The IMT tried 22 "major" Nazi war criminals leaving "lower-level" war criminals, including "[I]eading physicians ... and leading German industrialists," to be tried in subsequent trials by U.S. military tribunals acting "under the aegis of the IMT." 

• The law that authorized the creation of the U.S. military tribunals, Control Council Law No. 10, was enacted in 1945 by the Allied Control Council, an authority through which the London Agreement signatories exerted joint-control over Germany.

• In August 1947, Military Tribunal 1, staffed by American judges and prosecutors and conducted under American procedural rules, promulgated the Nuremberg Code as part of the tribunal's final judgment against 15 doctors who were found guilty of war crimes and crimes against humanity for conducting medical experiments without the subjects' consent. Among the nonconsensual experiments that the tribunal cited as a basis for their convictions were the testing of drugs for immunization against malaria, epidemic jaundice, typhus, smallpox, and cholera. 

• Seven of the convicted doctors were sentenced to death and the remaining eight were sentenced to varying terms of imprisonment.

• The judgment concluded that "[m]anifestly human experiments under such conditions are contrary to the principles of the law of nations as they result from usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience." 

• The Code created as part of the tribunal's judgment, therefore, emphasized as its first principle that "[t]he voluntary consent of the human subject is absolutely essential."

• The American tribunal's conclusion that action that contravened the Code's first principle constituted a crime against humanity is a lucid indication of the international legal significance of the prohibition on non consensual medical experimentation. 

• As Justices of the Supreme Court have recognized, "[t]he medical trials at Nuremberg in 1947 deeply impressed upon the world that experimentation with unknowing human subjects is morally and legally unacceptable." 

• In 1955, the draft International Covenants on Human Rights was revised to add a second sentence to its prohibition of torture and cruel, inhuman, or degrading treatment or punishment. 

• The addition provided that "[i]n particular, no one shall be subjected without his free consent to medical or scientific experimentation involving risk, where such is not required by his state of physical or mental health." 

• The clause was later revised to offer the simpler and sweeping prohibition that "no one shall be subjected without his free consent to medical or scientific experimentation." 

• This prohibition became part of Article 7 of the ICCPR, which entered into force in 1976, and is legally binding on the more than 160 States-Parties that have ratified the convention without reservation to the provision. 

• By its terms this prohibition is not limited to state actors; rather, it guarantees individuals the right to be free from non- consensual medical experimentation by any entity — state actors, private actors, or state and private actors behaving in concert.

• Its status as a norm that states conceive as legally binding — and therefore part of customary international law — is confirmed by Article 2 of the accord, which requires that "[e]ach State Party ... undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant."

• The international community's recognition in the ICCPR of its obligation to protect humans against nonconsensual medical experimentation, regardless of the source of the action, is powerful evidence of the prohibition's place in customary international law.

• In 1964, the World Medical Association adopted the Declaration of Helsinki, which enunciated standards for obtaining informed consent from human subjects.

• It provided that in clinical research combined with professional care, "[i]f at all possible, consistent with patient psychology, the doctor should obtain the patient's freely given consent after the patient has been given a full explanation," and that non-therapeutic clinical research on a person "cannot be undertaken without his free consent, after he has been fully informed." 

• The Declaration has since been amended five times. 

• The informed consent provision now provides that "subjects must be volunteers and informed participants in the research project."

• The Declaration also requires that "[i]n any research on human beings, each potential subject must be adequately informed of the aims, methods, … anticipated benefits and potential risks of the study, and the discomfort it may entail" and that researchers "obtain the subject's freely-given informed consent, preferably in writing."

• Although the Declaration itself is non-binding, since the 1960s, it has spurred States to regulate human experimentation, often by incorporating its informed consent requirement into domestic laws or regulations.

• Currently, the laws and regulations of at least 84 countries, including the United States, require the informed consent of human subjects in medical research. 

• That this conduct has been the subject of domestic legislation is not, of course, in and of itself proof of a norm. 

• However, the incorporation of this norm into the laws of this country and this host of others is a powerful indication of the international acceptance of this norm as a binding legal obligation, where, as here, states have shown that the norm is of mutual concern by including it in a variety of international accords.

• This history illustrates that from its origins with the trial of the Nazi doctors at Nuremberg through its evolution in international conventions, agreements, declarations, and domestic laws and regulations, the norm prohibiting non consensual medical experimentation on human subjects has become firmly embedded and has secured universal acceptance in the community of nations. 

• Unlike our dissenting colleague's customary international law analysis, which essentially rests on the mistaken assumption that ratified international treaties are the only valid sources of customary international law for ATS purposes, see Dissent at 200-02, we reach this conclusion as a result of our review of the multiplicity of sources — including international conventions, whether general or particular, and international custom as identified through international agreements, declarations and a consistent pattern of action by national law-making authorities — that our precedent requires us to examine for the purpose of determining the existence of a norm of customary international law.

• Specificity

• Sosa requires that we recognize causes of action only to enforce those customary international law norms that are no "less definite [in] content ... than the historical paradigms familiar when [the ATS] was enacted." 

• The norm prohibiting non-consensual medical experimentation on human subjects meets this requirement.

• The Nuremberg Code, Article 7 of the ICCPR, the Declaration of Helsinki, the Convention on Human Rights and Biomedicine, the Universal Declaration on Bioethics and Human Rights, the 2001 Clinical Trial Directive, and the domestic laws of at least 84 States all uniformly and unmistakably prohibit medical experiments on human beings without their consent, thereby providing concrete content for the norm.

• Mutual Concern

• As we have seen, States throughout the world have entered into two express and binding international agreements prohibiting non-consensual medical experimentation: 

• the ICCPR and 

• the Convention on Human Rights and Biomedicine. 

• The entry of over 160 States into these agreements and the European Union's passage of the 2001 Clinical Trial Directive demonstrates that States have not only acted independently to outlaw large-scale, non-consensual drug testing on humans, but they have also acted in concert to do so. 

• In other words, acting out of a sense of mutual concern, "the nations [of the world] have made it their business, both through international accords and unilateral action," to demonstrate their intention to eliminate conduct of the type alleged in the complaints.

• For these reasons, we hold that the appellants have pled facts sufficient to state a cause of action under the ATS for a violation of the norm of customary international law prohibiting medical experimentation on human subjects without their consent.

• In such an instance, ATS jurisdiction exists over plaintiffs' claims. 

• The district court determined that the norm existed, but concluded that because no single source recognizing the norm was legally binding on the United States and created a private cause of action, it could not infer such a right under the ATS. 

• Presumably, on this basis, it simultaneously held that there was no subject matter jurisdiction over plaintiffs' claims. 

• Under Sosa, this approach was not correct. 

• Sosa makes clear that the critical inquiry is whether the variety of sources that we are required to consult establishes a customary international law norm that is sufficiently specific, universally accepted, and obligatory for courts to recognize a cause of action to enforce the norm. 

• Nothing in Sosa suggests that this inquiry can be halted if some of the sources of international law giving rise to the norm are found not to be binding or not to explicitly authorize a cause of action.

• Forum Non Conveniens

• As an alternative to dismissal for failure to state a claim under the ATS, the district court dismissed the actions on the ground of forum non conveniens. 

• Appellants raised this issue on appeal. 

• Ordinarily, we review a forum non conveniens dismissal for abuse of discretion.

• Although we are not now called upon definitively to review the district court's application of forum non conveniens, in view of the frequency with which this issue has arisen and remained unsettled in this case, we offer additional guidance to assist the parties and the district court. 

• The three-step analysis set forth in Iragorri v. United Techs. Corp., applies. 

• In this litigation, the second step of the analysis, which requires the district court to consider the adequacy of the alternative forum, is pivotal. 

• Dismissal is not appropriate if an adequate and presently available alternative forum does not exist. 

• ✅ A forum in which defendants are amenable to service of process and which permits litigation of the dispute is generally adequate. 

• ❌ Such a forum may nevertheless be inadequate:

1. if it does not permit the reasonably prompt adjudication of a dispute, 

2. if the forum is not presently available, or 

3. if the forum provides a remedy so unsatisfactory or inadequate that it is tantamount to no remedy at all.

• The defendant bears the burden of establishing that a presently available and adequate alternative forum exists, and that the balance of private and public interest factors tilts heavily in favor of the alternative forum. 

• Absent a showing of inadequacy by a plaintiff, "considerations of comity preclude a court from adversely judging the quality of a foreign justice system." 

• Accordingly, while the plaintiff bears the initial burden of producing evidence of corruption, delay, or lack of due process in the foreign forum, the defendant bears the ultimate burden of persuasion as to the adequacy of the forum.

1.5 Foreign Element 

• The most important component of a conflicts of law problem is the presence of a foreign element. 

• A foreign element is anything which is not domestic and has a foreign component to it. 

• It can be:

• a foreigner,

• a foreign corporation, 

• an incident happening in a foreign country, or 

• a foreign law chosen by the parties. 

• Without a foreign element, the case is only a domestic problem with no conflicts dimension. 

• Saudi Arabian Airlines v. Court of Appeals G.R. No.122191, October 8, 1998:

• It explained the concept of foreign element, thus: 

• A factual situation that cuts across territorial lines and is affected by the diverse laws of two or more states is said to contain a foreign element. 

• The presence of a foreign element is inevitable since social and economic affairs of individuals and associations are rarely confined to the geographic limits of their birth or conception. 

• The forms in which this foreign element may appear are many. 

• The foreign element may simply consist in the fact that one of the parties to a contract is an alien or has a foreign domicile, or that a contract between nationals of one State involves properties situated in another State. 

• In other cases, the foreign element may assume a complex form.

• In a case where two parties enter into a lease contract for a property located locally, it can be said that this can only be a local dispute. However, when two parties enter into a sales agreement as in an online purchase from a merchant located overseas, this can be characterized as involving a foreign element. 

• If a dispute later on arises between the parties, the laws of the state of the merchant, of the buyer, or that stipulated in the sales agreement becomes pertinent and there will be a need to harmonize these laws to determine which one is applicable.

• From this standpoint, the foreign element can be the foreign law chosen by the parties, or it could be that where the merchant operates, or it can also be the law of the nationality, or the law of the place of business, of the merchant. 

• There is now a question as to the applicable law as several foreign laws are implicated.

1.6 Phases in Conflicts Resolution

• There are three phases in the resolution of conflicts of law problem.

• These phases are:

1. jurisdiction, 

• authority of a court of law to take cognizance of a case

2. choice of law, 

• applicable law to the problem

3. recognition and enforcement of judgments

• enforcement of foreign laws and judgments in another jurisdiction

• These phases are important for purposes of determining the applicable theories of law as well as the defenses available thereto.

• These three phases are separate from each other and a defense in one phase is not a defense in other phases.

• Example:

• The doctrines of lex loci celebrationis and lex loci contractus are not grounds to question the jurisdiction of the court. 

• In like manner, the defense of forum non conveniens cannot be used as a defense to choice of law disputes. 

• Thus, it is important to analyze the real issues in a conflicts problem for the purpose of utilizing the appropriate approach to a contractual dispute. 

• Otherwise, the use of certain theories in a conflicts situation may be deemed improper.

Case: 

Hasegawa v. Kitamura, G.R. No. 149177, November 23, 2007

• Facts: 

• Petitioner Nippon Engineering Consultants Co., Ltd. ("Nippon") entered into an Independent Contractor Agreement ("ICA") with respondent Minoru Kitamura, a Japanese national permanently residing in the Philippines.

• The agreement provided that respondent shall extend professional services to Nippon for a year starting on April 1, 1999. Nippon then assigned respondent to work as the project manager in various projects in the Philippines.

• On February 28, 2000, petitioner's general manager, Kazuhiro Hasegawa, informed respondent that the company would no longer be renewing his ICA and that his services would be utilized only until March 31, 2000. 

• Nippon insisted that respondent's contract was for a fixed term that had already expired. 

• Respondent subsequently sued petitioners for specific performance and damages with the Regional Trial Court of Lipa City. 

• Petitioners moved to dismiss the complaint for lack of jurisdiction, asserting that the claim for improper pre-termination of respondent's ICA could only be heard and ventilated in the proper courts of Japan following the principles of lex loci celebrationis and lex contractus. 

• The lower court denied the motion to dismiss, a decision which was affirmed by the Court of Appeals ("CA"). 

• The CA held that the principle of lex loci celebrationis was not applicable to the case, because nowhere in the pleadings was the validity of the written agreement put in issue. 

• The CA upheld the lower court's application of the principle of lex loci solutionis.

• Issue: 

• Whether the subject matter jurisdiction of Philippine courts in civil cases may be assailed on the principles of lex loci celebrationis, lex contractus, the state of the most significant relationship rule, or forum non conveniens. NO

• Held: 

• They are improper grounds for questioning the jurisdiction of Philippine courts.

• To elucidate, in the judicial resolution of conflicts problems, three consecutive phases are involved: jurisdiction, choice of law, and recognition and enforcement of judgments. Corresponding to these phases are the following questions: 

1. Where can or should litigation be initiated?

2. Which law will the court apply? and 

3. Where can the resulting judgment be enforced?

• Analytically, jurisdiction and choice of law are two distinct concepts.

• Jurisdiction considers whether it is fair to cause a defendant to travel to this state; 

• choice of law asks the further question whether the application of a substantive law which will determine the merits of the case is fair to both parties. 

• The power to exercise jurisdiction does not automatically give a state constitutional authority to apply forum law. 

• While jurisdiction and the choice of the lex fori will often coincide, the "minimum contacts" for one do not always provide the necessary "significant contacts" for the other.

• The question of whether the law of a state can be applied to a transaction is different from the question of whether the courts of that state have jurisdiction to enter a judgment.

• In this case, only the first phase is at issue—jurisdiction.

• Jurisdiction, however, has various aspects. 

• For a court to validly exercise its power to adjudicate a controversy, it must have:

• jurisdiction over the plaintiff or the petitioner, 

• jurisdiction over the defendant or the respondent, 

• jurisdiction over the subject matter, 

• Jurisdiction over the issues of the case and, 

• in cases involving property, jurisdiction over the res or the thing which is the subject of the litigation.

• In assailing the trial court's jurisdiction herein, petitioners are actually referring to subject matter jurisdiction.

• Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign authority which establishes and organizes the court. 

• It is given only by law and in the manner prescribed by law.

• It is further determined by the allegations of the complaint irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein.

• To succeed in its motion for the dismissal of an action for lack of jurisdiction over the subject matter of the claim, the movant must show that the court or tribunal cannot act on the matter submitted to it because no law grants it the power to adjudicate the claims.

• In the instant case, petitioners, in their motion to dismiss, do not claim that the trial court is not properly vested by law with jurisdiction to hear the subject controversy for, indeed, Civil Case No. 00-0264 for specific performance and damages is one not capable of pecuniary estimation and is properly cognizable by the RTC of Lipa City.

• What they rather raise as grounds to question subject matter jurisdiction are the principles of lex loci celebrationis and lex contractus, and the "state of the most significant relationship rule."

• 
  

• The Court finds the invocation of these grounds unsound.

• Lex loci celebrationis relates to the "law of the place of the ceremony" or the law of the place where a contract is made.

• The doctrine of lex contractus or lex loci contractus means the "law of the place where a contract is executed or to be performed."

• It controls the nature, construction, and validity of the contract66 and it may pertain to the law voluntarily agreed upon by the parties or the law intended by them either expressly or implicitly.

• Under the "state of the most significant relationship rule," to ascertain what state law to apply to a dispute, the court should determine which state has the most substantial connection to the occurrence and the parties. 

• In a case involving a contract, the court should consider where the contract was made, was negotiated, was to be performed, and the domicile, place of business, or place of incorporation of the parties

• This rule takes into account several contacts and evaluates them according to their relative importance with respect to the particular issue to be resolved.

• Since these three principles in conflict of laws make reference to the law applicable to a dispute, they are rules proper for the second phase, the choice of law.

• They determine which state's law is to be applied in resolving the substantive issues of a conflict problem.

• Necessarily, as the only issue in this case is that of jurisdiction, choice-of-law rules are not only inapplicable but also not yet called for.

• Further, petitioners' premature invocation of choice-of-law rules is exposed by the fact that they have not yet pointed out any conflict between the laws of Japan and ours. 

• Before determining which law should apply, first there should exist a conflict of laws situation requiring the application of the conflict of laws rules.

• Also, when the law of a foreign country is invoked to provide the proper rules for the solution of a case, the existence of such law must be pleaded and proved.

• It should be noted that when a conflicts case, one involving a foreign element, is brought before a court or administrative agency, there are three alternatives open to the latter in disposing of it: 

1. dismiss the case, either because of lack of jurisdiction or refusal to assume jurisdiction over the case; 

2. assume jurisdiction over the case and apply the internal law of the forum; or 

3. assume jurisdiction over the case and take into account or apply the law of some other State or States.

• The court’s power to hear cases and controversies is derived from the Constitution and the laws. 

• While it may choose to recognize laws of foreign nations, the court is not limited by foreign sovereign law short of treaties or other formal agreements, even in matters regarding rights provided by foreign sovereigns.

• Neither can the other ground raised, forum non conveniens, be used to deprive the trial court of its jurisdiction herein. 

1. First, it is not a proper basis for a motion to dismiss because Section 1, Rule 16 of the Rules of Court does not include it as a ground.

2. Second, whether a suit should be entertained or dismissed on the basis of the said doctrine depends largely upon the facts of the particular case and is addressed to the sound discretion of the trial court.

• In this case, the RTC decided to assume jurisdiction. 

3. Third, the propriety of dismissing a case based on this principle requires a factual determination; hence, this conflicts principle is more properly considered a matter of defense.

• Accordingly, since the RTC is vested by law with the power to entertain and hear the civil case filed by respondent and the grounds raised by petitioners to assail that jurisdiction are inappropriate, the trial and appellate courts correctly denied the petitioners’ motion to dismiss.

1.7 Steps in Determining Applicable Law

1. Characterization. 

• This involves identifying the issue in the problem.

• It is a process of spotting the legal issues as presented by the facts of the case. 

• It is comparable to a lawyer studying a case for the first time and trying to develop a theory of the case. 

• An important step in this process is pinpointing the branch of law implicated by the problem: Is it contract, torts, citizenship, succession, etc.? 

• After identifying the branch of law, the next step is determining whether there is a conflict of law by the presence of a foreign element. 

• If one is involved, he then employs applicable conflicts of law doctrines in determining the applicable law. 

• If none, the rule, law, or jurisprudence prevailing in the forum is applied.

2. Connecting factors. 

• Here, an analysis is made with respect to which jurisdiction or fora has the most connection to the case. 

• The nationality of the parties, the location of the act or event, the terms of the agreement or contract, and other matters are looked into to determine what legal system between two or more legal systems is applicable. 

• The preparation of a checklist embodying these factors may be very helpful in identifying the applicable legal system. 

• Once the legal system is identified, the applicable branch of law in that legal system will then be applied in resolving the dispute.

1.8 Choice of Applicable Law

• Parties to a contract are free to stipulate the applicable law that will govern their contractual relations.

•  This proceeds from Article 1306 of the Civil Code which provides that "[t]he contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy."

• Once chosen, the chosen law shall be applied to govern the duties and responsibilities of the parties to each other. 

• It is not necessary that the chosen law be local law, so long as the choice of law does not violate the public policy or the laws of the forum.

1.9 Extraterritoriality

• Laws are generally territorial in application. 

• The reason for this is that the mind of the lawmaker is limited to the territorial boundaries of his country when he enacts laws. 

• It is unnatural that he will draft a law and provide therein that it will apply within the borders of another independent state

• Laws, however, can be extraterritorial when so provided by the legislature.

• The question of whether a law is territorial or extraterritorial depends on legislative intent. 

• It is within the right of the legislature of a country to provide that its laws apply outside the territorial boundaries of the state on matters within the competence of the legislature to legislate upon. 

• This is recognized under international law, except when this intrudes with the territorial integrity and sovereignty of another country.

• The determination of whether a law is extraterritorial involves an examination of the legislative intent. 

• Usually, legislative intent can be determined by looking at the words and phrases used in a statute. 

• More often than not, this expression can be explicit, but it may also be implicit in which case, rules of interpretation can be resorted to. 

• Thus, congressional records and debates may be examined to determine whether a law has territorial application or none.

• The following are examples of laws providing extraterritorial application in an explicit manner:

• Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. 

• Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. 

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

• These two provisions of the Civil Code are explicit in providing for extraterritorial application. 

• This is shown by the use of the phrase “even though living abroad” in Article 15 and “regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.” in Article 16. 

• These two provisions, though with extraterritorial application, were enacted within the competence of the legislature to legislate upon. 

• Surely, Congress has power over its subjects (citizens) to provide for the application of local laws over their person wherever they are. 

• This does not conflict with the territorial integrity or sovereignty of another country. 

• This is also practiced practically by all states.

Case:  

Small v. United States 544 U.S. 385 (2005)

• Facts: 

• Small was convicted in Japan for smuggling and was sentenced by a Japanese court to five years imprisonment. 

• After serving sentence, Small returned to the United States, and purchased a gun from a Pennsylvania gun dealer. 

• He was then charged for "unlawful gun possession" under a statute that provided that it shall be "unlawful for any person ... who has been convicted in any court, of a crime punishable by imprisonment for a term, exceeding one year ... to ... possess ... any firearm,.'' 

• Small pleaded guilty then challenged his conviction on the ground that his earlier conviction in Japan being a foreign conviction, fell outside the scope of the unlawful gun possession statute.

• Issue: 

• Whether the "unlawful gun possession" statute had extraterritorial application such that foreign convictions are covered in its scope. NO

• Held: 

• Only domestic convictions are covered by the statute.

• The question before us is whether the statutory reference "convicted in any court" includes a conviction entered in a foreign court.

• In determining the scope of the statutory phrase, we find help in the "common sense notion that Congress generally legislates with domestic concerns in mind." 

• This notion has led the Court to adopt the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application.

• For one thing, the phrase describes one necessary portion of the "gun possession" activity that is prohibited as a matter of domestic law. 

• For another, considered as a group, foreign convictions differ from domestic convictions in important ways.

• Past foreign convictions for crimes punishable by more than one year's imprisonment may include a conviction for conduct that domestic laws would permit, for example, for engaging in economic conduct that our society might encourage. 

• They would include a conviction from a legal system that is inconsistent with an American understanding of fairness. 

• And they would include a conviction for conduct that domestic law punishes far less severely. 

• Thus, the key statutory phrase "convicted in any court of a crime punishable by imprisonment for a term exceeding one year" somewhat less reliably identifies dangerous individuals for the purposes of U.S. law where foreign convictions, rather than domestic convictions, are at issue.

• We have found no convincing indication to the contrary here. 

• The statute's language does not suggest any intent to reach beyond domestic convictions. 

• Neither does it mention foreign convictions, nor is its subject matter special, say, immigration or terrorism, where one could argue that foreign convictions would seem especially relevant. 

• To the contrary, if read to include foreign convictions, the statute's language creates anomalies.

• For example, the statute creates an exception that allows gun possession despite a prior conviction for an antitrust or business regulatory crime. 

• In doing so, the exception speaks of "Federal or State" antitrust or regulatory offenses. 

• If the phrase "convicted in any court" generally refers only to domestic convictions, this language causes no problem. 

• But if "convicted in any court" includes foreign convictions, the words "Federal or State" prevent the exception from applying where a foreign antitrust or regulatory conviction is at issue.

• In sum, we have no reason to believe that Congress considered the added enforcement advantages flowing from the inclusion of foreign crimes, weighing them against, say, the potential unfairness of preventing those with inapt foreign convictions from possessing guns. 

• The statute itself and its history offer only congressional silence. 

• Given the reasons for disfavoring an inference of extraterritorial coverage from a statute's total silence and our initial assumption against such coverage, we conclude that the phrase "convicted in any court" refers only to domestic courts, not to foreign courts. 

• Congress, of course, remains free to change this conclusion through statutory amendment.

Case:  

Kiobel v. Royal Dutch Petroleum Co. 133 S.Ct. 1659 (2013) 

• Facts: 

• Petitioners Kiobel, et al. were Nigerian nationals who sued Dutch, British, and Nigerian corporations under the Alien Tort Statute ("ATS") in federal court for violation of the law of nations. 

• Petitioners claimed that the respondent corporations committed atrocities in suppressing the demonstrations directed towards the operation of the respondent corporations. 

• They claimed that respondents enlisted, supported, and aided the Nigerian Government in attacking villages and beating, raping, killing, and arresting residents and destroying or looting property. 

• The district court dismissed and allowed some of the claims but when the case went on interlocutory appeal before the Second Circuit, the latter dismissed the entire complaint, on the ground that the law of nations did not recognize corporate liability. 

• Petitioners then went to the Supreme Court on certiorari. 

• Issue: 

• Whether and under what circumstances the ATS allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. NONE

• Held: 

• ATS has no extraterritorial application.

• The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign. 

• Respondents contend that claims under the ATS do not, relying primarily on a canon of statutory interpretation known as the presumption against extraterritorial application. 

• That canon provides that "[w]hen a statute gives no clear indication of an extraterritorial application, it has none," and reflects the "presumption that United States law governs domestically but does not rule the world."

• To begin, nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. 

• The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur either within or outside the United States. 

• Nor does the fact that the text reaches "any civil action" suggest application to torts committed abroad; it is well established that generic terms like "any" or "every" do not rebut the presumption against extraterritoriality.

• Nor does the historical background against which the ATS was enacted overcome the presumption against application to conduct in the territory of another sovereign. 

• We explained in Sosa that when Congress passed the ATS, "three principal offenses against the law of nations" had been identified by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy. 

• The first two offenses have no necessary extraterritorial application. Indeed, Blackstone—in describing them—did so in terms of conduct occurring within the forum nation.

• The third example of a violation of the law of nations familiar to the Congress that enacted the ATS was piracy. 

• Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the United States or any other country. 

• This Court has generally treated the high seas the same as foreign soil for purposes of the presumption against extraterritorial application. 

• Petitioners contend that because Congress surely intended the ATS to provide jurisdiction for actions against pirates, it necessarily anticipated the statute would apply to conduct occurring abroad. 

• Applying U.S. law to pirates, however, does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. 

• Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction. 

• We do not think that the existence of a cause of action against them is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign; pirates may well be a category unto themselves.

• Finally, there is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.

• As Justice Story put it, "No nation has ever yet pretended to be the custos morum of the whole world..." It is implausible to suppose that the First Congress wanted their fledgling Republic—struggling to receive international recognition—to be the first.

• Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.

• We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. 

• "[T]here is no clear indication of extraterritoriality here," and petitioners' case seeking relief for violations of the law of nations occurring outside the United States is barred.

• On these facts, all the relevant conduct took place outside the United States. 

• And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. 

• Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.

• If Congress were to determine otherwise, a statute more specific than the ATS would be required.

1.10 Corporate Liability for Human Rights Violation

• There are two conflicting views with respect to corporate liability for violations of international law in the area of human rights protection. 

1. One view, that espoused by the U.S. Supreme Court, states that:

• Corporations cannot violate international law because there is no historical antecedent for holding so. 

• No case in the past has ever held that a corporation can commit or violate human rights and that only its officers may be held liable for violation.

• Furthermore, international criminal tribunals often have no jurisdiction over corporations.

2. The other view, that held by the Supreme Court of Canada, holds that:

• Corporations can violate international law since recent developments in human rights law have conferred upon them a certain personality or standing in the international community. 

• Private actors are now generally liable for human rights violations and corporations are one of them. 

• In view of the heinous nature of human rights violations, corporations must be held accountable for criminal acts that they commit.

• By imposing this liability, there will be greater respect for human rights in the international sphere.

Case:

Jesner v. Arab Bank 138 S. Ct. 1386 (2018):

• Facts: 

• Around 6,000 foreign nationals filed suit in a United States District Court under the Alien Tort Statute ("ATS") against Arab Bank, PLC. 

• They claimed that Arab Bank officials allowed the transfer of funds to terrorist groups in the Middle East through currency clearances and bank transactions via electronic means in its New York City Offices. 

• These funds were later on used for terrorist activities causing deaths or injuries to the petitioners and their family members for which the Bank should be held liable for damages.

• The District Court dismissed the ATS claims. 

• On appeal, the Court of Appeals affirmed, on the ground that corporations may not be sued under the ATS.

• Issue: 

• Are corporations liable for violation of international laws that protect human rights? NO

• Held: 

• The Court must first ask whether the law of nations imposes liability on corporations for human rights violations committed by its employees. The Court must also ask whether it has authority and discretion in an ATS suit to impose liability on a corporation without a specific direction from Congress to do so.

• In modern times, there is no doubt, of course, that "the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights," leading "the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest." 

• That principle and commitment support the conclusion that human-rights norms must bind the individual men and women responsible for committing humanity's most terrible crimes, not just nation-states in their interactions with one another.  

• It does not follow, however, that current principles of international law extend liability—civil or criminal—for human rights violations to corporations or other artificial entities. 

• This is confirmed by the fact that the charters of respective international criminal tribunals often exclude corporations from their jurisdictional reach.

• The Charter for the Nuremberg Tribunal, created by the Allies after World War II, provided that the Tribunal had jurisdiction over natural persons only.

• The jurisdictional reach of more recent international tribunals also has been limited to "natural persons." The Rome Statute of the International Criminal Court, for example, limits that tribunal's jurisdiction to "natural persons." 

• The drafters of the Rome Statute considered, but rejected, a proposal to give the International Criminal Court jurisdiction over corporations.

• In light of the sources just discussed, the sources petitioners rely on to support their contention that liability for corporations is well established as a matter of international law lend weak support to their position.

• In addition, petitioners and their amici cite a few cases from other nations and the Special Tribunal for Lebanon that, according to petitioners, are examples of corporations being held liable for violations of international law. 

• Yet even assuming that these cases are relevant examples, at most, they demonstrate that corporate liability might be permissible under international law in some circumstances. 

• That falls far short of establishing a specific, universal, and obligatory norm of corporate liability.

• In the American legal system, of course, corporations are often subject to liability for the conduct of their human employees, and so it may seem necessary and natural that corporate entities are liable for violations of international law under the ATS. 

• It is true, furthermore, that the enormity of the offenses that can be committed against persons in violation of international human rights protections can be cited to show that corporations should be subject to liability for the crimes of their human agents.

• But the international community has not yet taken that step, at least in the specific, universal, and obligatory manner required by Sosa. 

• Indeed, there is precedent to the contrary in the statement during the Nuremberg proceedings that "[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."

• It is also true, of course, that natural persons can and do use corporations for sinister purposes, including conduct that violates international law. 

• That the corporate form can be an instrument for inflicting grave harm and suffering poses serious and complex questions both for the international community and for Congress. 

• So there are strong arguments for permitting the victims to seek relief from corporations themselves. 

• Yet the urgency and complexity of this problem make it all the more important that Congress determines whether victims of human rights abuses may sue foreign corporations in federal courts in the United States. 

• Congress, not the Judiciary, is the branch with "the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain."

• These and other considerations that must shape and instruct the formulation of principles of international and domestic law are matters that the political branches are in the better position to define and articulate. 

• For these reasons, judicial deference requires that any imposition of corporate liability on foreign corporations for violations of international law must be determined in the first instance by the political branches of the Government.

Nevsun Resources, Ltd. v. Araya 2020 secs

• Facts: 

• Three Eritrean workers sued Nevsun Resources before a Canadian court for damages arising from violations of customary international law in the form of forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. 

• They claimed that they were forced to join Eritrea's military service where they experienced violent, cruel, inhuman, and degrading treatment arising from a forced labor regime. 

• Nevsun filed a motion to strike the pleadings on the basis of the act of state doctrine that bars domestic courts from reviewing the sovereign acts of a foreign government. 

• Nevsun charged that the claims based on customary international law had no reasonable prospect of success. 

• The lower court judge dismissed the motion, which dismissal was affirmed by the Court of Appeals. 

• Issue: 

• Can corporations be held liable for violations of international human rights law? YES

• Held: 

• The context in which international human rights norms must be interpreted and applied today is one in which such norms are routinely applied to private actors. 

• It is therefore not plain and obvious that corporations today enjoy a blanket exclusion under customary international law from direct liability for violations of obligatory, definable, and universal norms of international law.

1.11 Forum Non Conveniens

• Forum non conveniens simply means that the forum is not convenient. 

• It may be that the chosen forum, or the place where the suit is filed, has no substantial connection to the parties or to the dispute that it becomes very inconvenient to litigate the suit in the chosen venue. 

• It may happen that the parties to the case are not residents of the forum or that the witnesses are located somewhere else in a jurisdiction which offers a more convenient forum to litigate the case. 

• That jurisdiction could also be an adequate forum, where courts of law are operating and may offer the plaintiffs a venue where they could obtain justice.  

• The defense of forum non conveniens is usually interposed by way of a motion to dismiss. 

• Puyat v. Zabarte, 405 Phil. 413 (2001):

• Enumerates the instances where a court may desist from exercising jurisdiction:

1. the belief that the matter can be better tried and decided elsewhere, either because the main aspects of the case transpired in a foreign jurisdiction or the material witnesses have their residence there; 

2. the belief that the non-resident plaintiff sought the forum, a practice known as forum shopping, merely to secure procedural advantages or to convey or harass the defendant; 

3. the unwillingness to extend local judicial facilities to non-residents or aliens when the docket may already be overcrowded; 

4. the inadequacy of the local judicial machinery for effectuating the right sought to be maintained; and 

5. the difficulty of ascertaining foreign law. 

Case:

Saudi Arabian Airlines v. Rebesencio, et al. G.R. No.198587, January 14, 2015 

• Facts: 

• Respondents Ma. Jopette Rebesencio, Montassah Sacar-Adiong, Rouen Ruth Cristobal, and Loraine Schneider Cruz were hired by Saudi Arabian Airlines ("Saudia") and became Permanent Flight Attendants. 

• They entered into Cabin Attendant Contracts with Saudia on May 16, 1990 (Ma. Jopette), May 22, 1993 (Montassah and Rouen Ruth), and August 27, 1995 (Loraine). 

• On various dates in 2006, they were terminated from service on the ground that they became pregnant.

• Saudia justified their termination under their employment contract which provided: 

• (H) Due to the essential nature of the Air Hostess functions to be physically fit on board to provide various services required in normal or emergency cases on both domestic/international flights beside her role in maintaining continuous safety and security of passengers, and since she will not be able to maintain the required medical fitness while at work in case of pregnancy, accordingly, if the Air Hostess becomes pregnant at any time during the term of this contract, this shall render her employment contract as void and she will be terminated due to lack of medical fitness.

• Respondents filed a complaint with the NLRC for illegal dismissal and for underpayment of salary, overtime pay, premium pay for holiday, rest day, premium, service incentive leave pay, 13th-month pay, separation pay, night shift differentials, medical expense reimbursements, retirement benefits, illegal deduction, lay-over expense and allowances, moral and exemplary damages, and attorney's fees. 

• Saudia challenged the jurisdiction of the Labor Arbiter on the ground of forum non conveniens. 

• The Labor Arbiter sustained the challenge and dismissed the complaint. 

• On appeal to the NLRC, the Commission's Sixth Division reversed, holding that there were no special circumstances that warranted its abstention from exercising jurisdiction. 

• Upon appeal, the Court of Appeals merely modified the decision of the NLRC with respect to the award of separation pay and backwages.

• Issue:

• Whether Philippine courts or tribunals offer a convenient and adequate forum for the adjudication of respondents' complaint. YES

• Held:

• Philippine courts or tribunals are an adequate forum for the adjudication of respondents' complaint. 

• When parallel litigation arises strictly within the context of a single jurisdiction, such rules as those on forum shopping, litis pendentia, and res judicata come into operation.

• Thus, in the Philippines, the 1997 Rules on Civil Procedure provide for willful and deliberate forum shopping as a ground not only for summary dismissal with prejudice but also for citing parties and counsels in direct contempt, as well as for the imposition of administrative sanctions.

• Likewise, the same rules expressly provide that a party may seek the dismissal of a Complaint or another pleading asserting a claim on the ground "[that there is another action pending between the same parties for the same cause," i.e., litis pendentia, or "[t]hat the cause of action is barred by a prior judgment," i.e., res judicata.

• Forum non conveniens, like the rules of forum shopping, litis pendentia, and res judicata, is a means of addressing the problem of parallel litigation. 

• While the rules of forum shopping, litis pendentia, and res judicata are designed to address the problem of parallel litigation within a single jurisdiction, forum non conveniens is a means devised to address parallel litigation arising in multiple jurisdictions.

• Forum non conveniens literally translates to “the forum is inconvenient.” 

• It is a concept in private international law and was devised to combat the "less than honorable" reasons and excuses that litigants use to secure procedural advantages, annoy and harass defendants, avoid overcrowded dockets, and select a "friendlier" venue.

• Thus, the doctrine of forum non conveniens addresses the same rationale that the rule against forum shopping does, albeit on a multijurisdictional scale.

• Forum non conveniens, like res judicata, is a concept originating in common law.

• However, unlike the rule on res judicata, as well as those on litis pendentia and forum shopping, forum non conveniens finds no textual anchor, whether in statute or in procedural rules, in our civil law system. 

• Nevertheless, jurisprudence has applied forum non conveniens as basis for a court to decline its exercise of jurisdiction.

• Forum non conveniens is soundly applied not only to address parallel litigation and undermine a litigant's capacity to vex and secure undue advantages by engaging in forum shopping on an international scale. 

• It is also grounded on principles of comity and judicial efficiency.

• Consistent with the principle of comity, a tribunal's desistance in exercising jurisdiction on account of forum non conveniens is a deferential gesture to the tribunals of another sovereign. 

• It is a measure that prevents the former's having to interfere in affairs which are better and more competently addressed by the latter. 

• Further, forum non conveniens entails a recognition not only that tribunals elsewhere are better suited to rule on and resolve a controversy, but also, that these tribunals are better positioned to enforce judgments and, ultimately, to dispense justice. 

• Forum non conveniens prevents the embarrassment of an awkward situation where a tribunal is rendered incompetent in the face of the greater capability — both analytical and practical — of a tribunal in another jurisdiction.

• The wisdom of avoiding conflicting and unenforceable judgments is as much a matter of efficiency and economy as it is a matter of international courtesy. 

• A court would effectively be neutering itself if it insists on adjudicating a controversy when it knows full well that it is in no position to enforce its judgment.

• Doing so is not only an exercise in futility; it is an act of frivolity. 

• It clogs the dockets of a.tribunal and leaves it to waste its efforts on affairs, which, given transnational exigencies, will be reduced to mere academic, if not trivial, exercises.

• Accordingly, under the doctrine of forum non conveniens, "a court, in conflicts of law cases, may refuse impositions on its jurisdiction where it is not the most 'convenient' or available forum and the parties are not precluded from seeking remedies elsewhere."

• The use of the word "may" (i.e., "may refuse impositions on its jurisdiction") in the decisions shows that the matter of jurisdiction rests on the sound discretion of a court. 

• Neither the mere invocation of forum non conveniens nor the averment of foreign elements operates to automatically divest a court of jurisdiction. 

• Rather, a court should renounce jurisdiction only "after 'vital facts are established, to determine whether special circumstances' require the court's desistance."

• As the propriety of applying forum non conveniens is contingent on a factual determination, it is, therefore, a matter of defense.

• The second sentence of Rule 9, Section 1 of the 1997 Rules of Civil Procedure is exclusive in its recital of the grounds for dismissal that are exempt from the omnibus motion rule:

1. lack of jurisdiction over the subject matter; 

2. litis pendentia;

3. res judicata; and

4. prescription. 

• Moreover, dismissal on account of forum non conveniens is a fundamentally discretionary matter. It is, therefore, not a matter for a defendant to foist upon the court at his or her own convenience; rather, it must be pleaded at the earliest possible opportunity.

• On the matter of pleading forum non conveniens, we state the rule, thus: 

• Forum non conveniens must not only be clearly pleaded as a ground for dismissal; it must be pleaded as such at the earliest possible opportunity. 

• Otherwise, it shall be deemed waived.

• Consistent with forum non conveniens as fundamentally a factual matter, it is imperative that it proceed from a factually established basis.

• It would be improper to dismiss an action pursuant to forum non conveniens based merely on a perceived, likely, or hypothetical multiplicity of fora.

• Thus, a defendant must also plead and show that a prior suit has, in fact, been brought in another jurisdiction.

• The existence of a prior suit makes real the vexation engendered by duplicitous litigation, the embarrassment of intruding into the affairs of another sovereign, and the squandering of judicial efforts in resolving a dispute already lodged and better resolved elsewhere.

• We deem it more appropriate and in the greater interest of prudence that a defendant not only allege supposed dangerous tendencies in litigating in this jurisdiction; the defendant must also show that such danger is real and present in that litigation or dispute resolution has commenced in another jurisdiction and that a foreign tribunal has chosen to exercise jurisdiction.

• Forum non conveniens finds no application and does not operate to divest Philippine tribunals of jurisdiction and to require the application of foreign law.

• Saudia invokes forum non conveniens to supposedly effectuate the stipulations of the Cabin Attendant contracts that require the application of the laws of Saudi Arabia.

• Forum non conveniens relates to forum, not to the choice of governing law. 

• That forum non conveniens may ultimately result in the application of foreign law is merely an incident of its application. 

• In this strict sense, forum non conveniens is not applicable. 

• It is not the primarily pivotal consideration in this case.

• In any case, even a further consideration of the applicability of forum non conveniens on the incidental matter of the law governing respondents' relation with Saudia leads to the conclusion that it is improper for Philippine tribunals to divest themselves of jurisdiction.

• Any evaluation of the propriety of contracting parties' choice of a forum and its incidents must grapple with two (2) considerations: 

1. first, the availability and adequacy of recourse to a foreign tribunal; and 

2. second, the question of where, as between the forum court and a foreign court, the balance of interests inhering in a dispute weighs more heavily.

• The first is a pragmatic matter. 

• It relates to the viability of ceding jurisdiction to a foreign tribunal and can be resolved by juxtaposing the competencies and practical circumstances of the tribunals in alternative fora. 

• Exigencies, like the statute of limitations, capacity to enforce orders and judgments, access to records, requirements for the acquisition of jurisdiction, and even questions relating to the integrity of foreign courts, may render undesirable or even totally unfeasible recourse to a foreign court. 

• As mentioned, we consider it in the greater interest of prudence that a defendant show, in pleading forum non conveniens, that litigation has commenced in another jurisdiction and that a foreign tribunal has, in fact, chosen to exercise jurisdiction.

• Two (2) factors weigh into a court's appraisal of the balance of interests inhering in a dispute: 

1. first, the vinculum which the parties and their relation have to a given jurisdiction; and

2. second, the public interest that must animate a tribunal, in its capacity as an agent of the sovereign, in choosing to assume or decline jurisdiction. 

• The first is more concerned with the parties, their personal circumstances, and private interests; the second concerns itself with the state and the greater social order.

• In considering the vinculum, a court must look into the preponderance of linkages which the parties and their transaction may have to either jurisdiction. 

• In this respect, factors, such as the parties' respective nationalities and places of negotiation, execution, performance, engagement or deployment, come into play.

• In considering public interest, a court proceeds with a consciousness that it is an organ of the state. 

• It must, thus, determine if the interests of the sovereign (which acts through it) are outweighed by those of the alternative jurisdiction. In this respect, the court delves into a consideration of public policy. 

• Should it find that public interest weighs more heavily in favor of its assumption of jurisdiction, it should proceed in adjudicating the dispute, any doubt or contrary view arising from the preponderance of linkages notwithstanding.

• In contrast, this court ruled in The Manila Hotel Corp. v. National Labor Relations Commission that the National Labor Relations Commission was a seriously inconvenient forum. 

• In that case, private respondent Marcelo G. Santos was working in the Sultanate of Oman when he received a letter from Palace Hotel recruiting him for employment in Beijing, China. Santos accepted the offer. 

• Subsequently, however, he was released from employment supposedly due to business reverses arising from political upheavals in China (i.e., the Tiananmen Square incidents of 1989). 

• Santos later filed a Complaint for illegal dismissal impleading Palace Hotel's General Manager, Mr. Gerhard Schmidt, the Manila Hotel International Company Ltd. (which was, responsible for training Palace Hotel's personnel and staff), and the Manila Hotel Corporation (which owned 50% of Manila Hotel International Company Ltd.'s capital stock).

• In ruling against the National Labor Relations Commission's exercise of jurisdiction, this court noted that the main aspects of the case transpired in two (2) foreign jurisdictions, Oman and China, and that the case involved purely foreign elements. 

• Specifically, Santos was directly hired by a foreign employer through correspondence sent to Oman. 

• Also, the proper defendants were neither Philippine nationals nor engaged in business in the Philippines, while the main witnesses were not residents of the Philippines. 

• Likewise, this court noted that the National Labor Relations Commission was in no position to conduct the following: 

1. first, determine the law governing the employment contract, as it was entered into in foreign soil;

2. second, determine the facts, as Santos' employment was terminated in Beijing; and 

3. third, enforce its judgment, since Santos' employer, Palace Hotel, was incorporated under the laws of China and was not even served with summons.

• Contrary to Manila Hotel, the case now before us does not entail a preponderance of linkages that favor a foreign jurisdiction.

1. First, there is no basis for concluding that the case can be more conveniently tried elsewhere. 

• As established earlier, Saudia is doing business in the Philippines. 

• For their part, all four (4) respondents are Filipino citizens maintaining residence in the Philippines and, apart from their previous employment with Saudia, have no other connection to the Kingdom of Saudi Arabia. 

• It would even be to respondents' inconvenience if this case were to be tried elsewhere.

2. Second, the records are bereft of any indication that respondents filed their Complaint in an effort to engage in forum shopping or to vex and inconvenience Saudia.

3. Third, there is no indication of "unwillingness to extend local judicial facilities to non-residents or aliens."

• That Saudia has managed to bring the present controversy all the way to this court proves this.

4. Fourth, it cannot be said that the local judicial machinery is inadequate for effectuating the right sought to be maintained. Summons was properly served on Saudia and jurisdiction over its person was validly acquired.

5. Lastly, there is not even room for considering foreign law. Philippine law properly governs the present dispute.

• All told, the considerations for assumption of jurisdiction by Philippine tribunals as outlined in Bank of America, NT&SA have been satisfied. 

1. First, all the parties are based in the Philippines and all the material incidents transpired in this jurisdiction. Thus, the parties may conveniently seek relief from Philippine tribunals. 

2. Second, Philippine tribunals are in a position to make an intelligent decision as to the law and the facts. 

3. Third, Philippine tribunals are in a position to enforce their decisions

• There is no compelling basis for ceding jurisdiction to a foreign tribunal. 

• Quite the contrary, the immense public policy considerations attendant to this case behoove Philippine tribunals to not shy away from their duty to rule on the case.

Case:

Bangladesh Bank v. Rizal Commercial Banking Corporation, et al., F. Supp. 2d (S.O.N.Y. 2020), appeal filed

• Facts: 

• Bangladesh Bank is the central bank of the People's Republic of Bangladesh based in Dhaka, Bangladesh. 

• It maintains a U.S. currency account at the Federal Reserve Bank of New York which it utilizes to conduct international transactions. Plaintiff Bangladesh Bank's computer systems were hacked by North Koreans in 2016. 

• As a result, false fund transfers were issued and approximately $101 million was withdrawn from the Bank's New York Fed Account.

• Plaintiff bank claimed that $81 million was transferred to the Philippines through bank accounts maintained with Rizal Commercial Banking Corporation (RCBC) while some amounts subsequently found their way to casinos operated by Bloomberry Resorts and Hotels, Inc. (d /b / a Solaire Casino) and Eastern Hawaii Leisure Company, Inc. (d/b/a Midas Hotel and Casino). 

• Plaintiff bank sued RCBC, defendant casino operators, and other defendants before the Southern District Court of New York. Defendants RCBC and casino operators filed a motion to dismiss for lack of subject matter jurisdiction, forum non-conveniens, and failure to state a claim under the Racketeer Influenced and Corrupt Organizations (RICO) Act. 

• Issue: 

• Whether New York is an appropriate forum for plaintiff bank's claims. YES 

• Held: 

• Whether dismissal is appropriate is based on a three part test: 

1. the deference to be accorded the plaintiff's choice of forum; 

2. the adequacy of the alternative forum proposed by the defendants; and 

3. the balance between the private and public interests implicated in the choice of forum." 

• Dismissal for forum non conveniens is denied. 

• Plaintiff's choice of forum is accorded deference. 

• While Defendant has identified the Philippines as an adequate alternative forum, the private interest factors are neutral and the public interest factors weigh toward Plaintiff's forum. 

• Given that these three considerations favor Plaintiff on balance, dismissal under the forum non conveniens doctrine is unwarranted.

• Deference to Plaintiff’s Choice of Forum

• Plaintiff's choice to bring this action in the Southern District of New York is accorded deference. 

• The obvious bona fide connection to the Southern District is that the theft took place here. 

• The theft targeted a major U.S. institution located in New York City, the Federal Reserve. 

• Critical evidence of the fraudulent payment orders, the movement of the stolen funds into correspondent accounts and the movement out of those accounts abroad exists in or close to this district. 

• Three of the four correspondent accounts are in New York City and one is located nearby in Philadelphia. Defendant argues that Plaintiff's choice of the Southern District should not be accorded deference because Plaintiff is forum shopping, in order to avail itself of the "possibility of RICO treble damages." 

• Plaintiff responds, however, that it could pursue "treble damages" or similar damages in Philippine courts, even though the filing fee would be extremely large. 

• Defendant's forum shopping argument is rejected. It is based on speculation and insufficient to undermine deference to Plaintiff's forum.

• Adequate Alternative Forum 

• Defendant has carried its burden of establishing that the Philippines is an adequate alternative forum. 

• Defendants argue that they are amenable to service in the Philippines. 

• Almost all Defendants are Philippine residents or corporations, thus facilitating service in the Philippines. 

• Plaintiff argues that Defendants have not established that the Chinese Defendants will accept service of process in the Philippines. 

• But this issue is not unique to the Philippines, as Plaintiff has been unable to serve the Chinese Defendants in this forum as well. 

• The Philippines is also an adequate forum based on the second factor, that the subject matter of the dispute can be litigated in Philippine courts. 

• Former Philippine Solicitor General, Jose Anselmo Imperial Cadiz, states in his declaration that Plaintiff can bring a comparable civil RICO claim in Philippine courts. 

• Plaintiff does not dispute the availability of an analogue claim, but argues only that filing fees are prohibitively high and that litigation and discovery will proceed extremely slowly in the Philippines. 

• These claims, however, do not undermine the fact that the Philippines will "permit litigation of the subject matter of the dispute."

• Public and Private Interest Factors

• The private interest factors include:

1. the relative ease of access to sources of proof;

2. the availability of compulsory process for attendance of unwilling witnesses; 

3. the cost of obtaining attendance of willing witnesses;

4. issues concerning the enforceability of a judgment; and

5. all other practical problems that make trial of a case easy, expeditious, and inexpensive.

• The public interest factors include:

1. the administrative difficulties flowing from court congestion; 

2. the local interest in having controversies decided at home;

3. the interest in having a trial in a forum that is familiar with the law governing the action;

4. the avoidance of unnecessary problems in conflict of laws or in the application of foreign law; and 

5. the unfairness of burdening citizens in an unrelated forum with jury duty.

• In this case, the private interest factors are neutral, but the public interest factors favor Plaintiff.

• With respect to the private interest factors, it is too simplistic to conclude that, since most Defendants are based in the Philippines, evidence is necessarily easier to access there. Much of the relevant evidence is in electronic form accessible from either forum. 

• In addition, authorities in both the Philippines and the United States have investigated some of the events in this action. Their findings are accessible from anywhere on the internet, and in appropriate circumstances, this Court may take judicial notice of them. 

• Defendant argues, to the contrary, that Philippine data security laws will restrict production of electronic evidence, but presumably, these restrictions would tie Defendants' hands in any forum. 

• Defendants argue that a Philippine forum is superior, because a Philippine court can "compel" disclosure of data subject to the privacy laws, while U.S. courts cannot. This court, however, does have compulsory powers over the Defendant entities that are parties to this case.

• With regard to witnesses, the parties may obtain witness testimony through written discovery or conduct depositions remotely by video conference. The parties have suggested at the initial conference that they are working with local counsel or contacts in the Philippines, who may facilitate these interactions. To the extent that third parties are unwilling to comply with discovery requests, both this Court and Philippine courts have mechanisms to enforce discovery.

• The parties' Philippine law experts provide conflicting views on how easily a U.S. judgment may be domesticated in the Philippines. 

• By contrast, Defendants are indisputably subject to this Court's judgment enforcement authority. 

• While it is premature to consider how any U.S. judgment could be enforced, the Complaint alleges that Defendants have U.S. property that, in theory, could be subject to attachment. 

• In light of the foregoing, Defendants have failed to carry their burden of showing that the private interest factors favor the Philippines.

• The public interest factors, however, slightly favor this forum. 

• This action is brought under U.S. federal and state law, and this forum is necessarily superior at adjudicating these claims. 

• Except for Philippine data privacy laws, Defendant has not suggested that any foreign law applies. 

• While Mr. Cadiz states that the Philippine courts are accustomed to complicated cross-border cases like this one, Mr. Nachura attests that it is "not unusual" for such cases to "take 10 to 20 years to reach a conclusion." 

• It would be highly unlikely for adjudication to take anywhere close to this long in this forum. 

• Finally, the local interest factors are neutral. Both New York and the Philippines have an interest in this action because critical events took place in both locations. 

• A New York jury has an interest in adjudicating, and would not be burdened by, a case in which a major federal institution in the district was cyberattacked.

• (Note: While defendants' motion to dismiss based on forum non conveniens was denied, their motion to dismiss based on failure to state a RICO claim was granted, resulting in the outright dismissal of the case. Plaintiff bank has appealed the dismissal to the U.S. Court of Appeals.)