CHAPTER | INTRODUCTION TO PRIVATE INTERNATIONAL Law 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 inter se, as well ir relations with persons, whether natural or juridical.” It includes not only questions of right between nations but also questions concerning “the rights of persons within the territory and domini ion of one nation, by reason of acts, private or Public, done within the dominions of another nation,”? rmingle with each other necessitating a ion of the applicable law. Thus, international law has side as well as a private side to it. le of public international law is when two or more itorial disputes that are governed by international mtions. For private international law, it usually n the laws of State A are different with the laws there is an invocation of the doctrine of forum tement (Third) of Foreign Relations Law of the UnitedBranches of International Law International Jaw has two tional law = governs the nat ional entities branches: 1. Public interna states and inte! 2, Private international law ~ comprehends laws re private interactions across national frontiers. | aanontlict of laws among the laws of two or 3 Te deal will necessitates a determination of which municipal applies to a case The objective is the harmoniz pi the laws of seve! situation exists. relationship o¢ Bulatin allay ral states whenever a conflicte Be of ct Of lay Distinctions between Public and Private International Law ‘As to source, public international law is based on internati ‘conventions, international custom, the general principles of law ized by civilized nations, and judicial decisions and oH of the most highly qualified publicists of the var a Private international law, on the other hand, is nae municipal laws, which includes the constitution a by individual countries. Public international gi states which is not necessarily the case with ree public international law has states and ns as subjects. On the other hand, private viduals and corporations as subjects thereof. jullahi v. Pfizer 163 (2d Cir. 2009) an experimental antibiotic, ed to young patients in Nigeria d consent of the children nor adverse side effects on the ternational fined,” in Benchbook on Int fpenchoold available at www.asil.org/ JUSTICE: TIONAL COURT OFSATE INTERNATIONAL LAW children would ex; ‘pand custo: i i beyond that. contemplates ey international law far 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. Issues: 1. Whether Pfizer violated international law on non-consensual medical experimentation? 2. Whether Nigeria offers an adequate forum for the ition of plaintiffs’ claims? ld; 1. Yes, Pfizer violated international law on sual medical experimentation. Nigeria has not been shown to be an adequate adjudication of plaintiffs’ claims. ee OF to this appeal, and remaining mindful proceed cautiously and self-consciously ine whether the norm alleged: (1) is al character that States universally , out of a sense of legal obligation; cificity comparable to the 18th- ssed in Sosa; and (3) is of mutualSAINELICT OF LAWS: A. The Prohibiti . rohibition of Nonconsensual Meg Experimentation on Humans aaa Appellants’ ATS claims are premised on the existence of a norm of customary internatioy prohibiting medical experimentation on non consentin, human subjects, To determine whether this Prohibition constitutes a universally accepted norm of customar, international law, we examine the current state ¢ 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: nal law (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general ice accepted as law; the general principles of law recognized by nations; ...judicial decisions and the teachings of the hly qualified publicists of the various nations, as for the determination of rules of law. its ground their claims in four sources law that categorically forbid medical on non-consenting human subjects: (1) , which states as its first principle consent of the human subject is I”; (2) the World Medical Association's i, which sets forth ethical principles ‘Id-wide and provides that human teers and grant their informed research; (3) the guidelines International Organizations JMS"), which require “the of [a] prospective subject. tional Covenant on Civ fore inte the on | nor; Gi) per wit}u INTRODUCTION To PRIVATE INTERNATIONAL Law and Political Rights (« ghts (“ICCPR” one shall be subjected without or scientific experimentation > ), which. 4 Provides that “n his free i consent to medical X x x . E ; " oe aoa it ten anaPpropriate for the district court to f 2 extensive examination i international agreements, a or State practice have ri es ipened the prohibition ofnonconsensual medical experimentation i. Universality The appellants must allege the violation of a norm of customary international law to which States universally ibscribe. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739; zm Assn for Victims of Agent Orange, 517 F.3d 17. The prohibition on nonconsensual medical entation on human beings meets this standard among other reasons, it is specific, focused and d by nations around the world without significant $ evolution of the prohibition into a norm of international law began with the war crimes emberg. The United States, the Soviet Union, Singdom, and France “acting in the interest d Nations,” established the International nal (“IMT”) through entry into the London gust 8, 1945. According to the Charter, ipower to try and punish persons who, s of the European Axis countries, s or as members of organizations, offenses, war crimes and crimes 3 7 ee “major” Nazi war criminal criminals, including Meading 1g German industrialists,” to be 22a fed in subse acting “under authorized the Control Council Allied Control London Agree Germany, duent trials by U.S. military tribunals the aegis of the IMT.” The law that creation of the U.S. military tribunals, Law No. 10, was enacted in 1945, by the Council, an authority through which the ment signatories exerted joint-contro] over In August 1947, Military Tribunal 1, staffed by American judges and prosecutors and conducted under American procedural rules, promulgated the Nurem Code as part of the tribunal’s final judgment against fifteen 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 “[mlanifestly human experiments under such conditions are contrary to the inciples of the law of nations as they result from usages ablished among civilized peoples, from the laws of manity, and from the dictates of public conscience.” The lode created as part of the tribunal's judgment therefore sized as its first principle that “[t]he voluntary nt of the human subject is absolutely essential.” he American tribunal’s conclusion that action wened the Code’s first. principle constituted wainst humanity is a lucid indication of the mal legal significance of the prohibition on medical experimentation. As Justices of Court have recognized, “[t]he medical trials in 1947 deeply impressed upon the world tation with unknowing Se eae unacceptable.” United Sta . 669, 687, 107 S.Ct. 3054, 97 L.Ed.2d on aft International Covenants 4 sed to add a second senteneI NTRODUCTION TO PRIVATE INTERNATIONAL LAW ia prohibition of torture and cruel, inhuman or degrading or punishment. The additi “ti n particular, no one shall bi a ; e subjected without his fre consent to medical or scientific experimentation involving risk, w : ‘ ‘ or mental health” The sige ys tate of psi pabewialbnal was later revised to offer : i Sweeping prohibition that “no one shall e subjected without his free consent to medical or scientific experimentation.” ICCPR, supra, at art. 7 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 nonconsensual 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 Jaw—is confirmed by Article 2 of the accord, which requires that “{eJach State Party...undertakel] to respect d to ensure to all individuals within its territory and to its jurisdiction the rights recognized in the wenant.” ICCPR art. 2(1). The international ity’s recognition in the ICCPR of its obligation ct humans against nonconsensual medical sntation, regardless of the source of the action, is evidence of the prohibition’s place in customary the World Medical Association adopted * of Helsinki, which enunciated standards fnformed consent from human subjects. at in clinical research combined with “fijf at all possible, consistent with the doctor should obtain the patient's agent after the patient has been given ® and that non-therapeutic clinical teannot be undertaken without his » has been fully informed.” World Pe iton of Helsinki: Code of Ethics of foal Association, art. I11(3a), G.A. Res.CONFLICT OF LAWS (1964), http:/www.pubmedeentral.nih.gov/picrender fexiartid=1816102 blob-type=pdl. The Declaration hay Since been amended five times. The informed consent Provision now provides that “subjects must be volunteers And informed participants in the research project,” Declaration of Holainki, supra, at art, 20, The Declaration also requires that “[iJn 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.” Td, at art, 22, 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 eighty-four 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 ‘m. However, the incorporation of this norm into the of this country and this host of others is a powerful ication of the international acceptance of this norm binding legal obligation, where, as here, states have that the norm is of mutual concern by including it iety of international accords. history illustrates that from its origins with of the Nazi doctors at Nuremburg through its in international conventions, agreements, , and domestic laws and regulations, the iting nonconsensual medical experimentation ibjects has become firmly embedded and iversal acceptance in the community of our dissenting colleague's customary alysis, which essentially rests on the m that ratified international treaties es of customary international law Dissent at 200-02, we reach this y of i f the multiplicity our review o! jons,,-whetDer0 NTRODUCTION To PRIVATE INTERNATIONAL LAW general or gener. Particular, and identified through intern; and a consistent Pattern authorities—that our pi for the purpose of deter customary international international custom as ‘ational agreements, declarations of action by national law-making recedent requires us to examine ‘mining the existence of a norm of law. ii. Specificity Sosa requires that we r only to enforce those custo: that are no “less definite fi paradigms familiar when ‘ecognize causes of action mary international law norms in] content...than the historical [the ATS] was enacted.” Sosa, 542 US. at 732, 124 S.Ct. 2739. The norm prohibiting Bepeonsensual medical experimentation on human subjects meets this requirement. The Nuremberg Code, Article 7 of the ICCPR, the tion of Helsinki, the Convention on Human and Biomedicine, the Universal Declaration on ics and Human Rights, the 2001 Clinical Trial and the domestic laws of at least eighty-four uniformly and unmistakably prohibit medical on human beings without their consent, Widing concrete content for the norm. oncern seen, States throughout the world two express and binding international hibiting nonconsensual _ medical ICCPR and the Convention on Biomedicine. The entry of over 160 reements and the European Union's nical Trial Directive demonstrates ly acted independently to outlaw drug testing on humans, n concert to do so. In other of mutual concern, “the ade it their business, both and unilateral action,” to eliminate conduct of theyu T OF LAWS For these pled facts ATS for law subje Juri "a80ns, we hold that the appellants have Sufficient to state a cause of action under the 8 violation of the norm of customary international Prohibiting medical experimentation on human ‘8 without their consent. In such an instance, ATg liction 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 plaintiff, claims. Under Sosa, this approach was not correct. Sosa kes 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. IL. Forum Non Conveniens As an alternative to dismissal for failure to state im under the ATS, the district court dismissed the is on the ground of forum non conveniens. Appellants this issue on appeal. Ordinarily, we review a forum mveniens dismissal for abuse of discretion. ugh we are not now called upon definitively the district court’s Beet ot forum ann in view of the frequency with which this isen and remained unsettled in this case, ional guidance to assist the parties and . The three-step analysis set forth ted Techs. Corp., 274 F.3d 65, 71-75 anc), applies. In this litigation, the alysis, which requires the district lequacy of the alternative a not appropriate if an adequat alternative forum does not ex's4 forum in whic on ‘The deendaat ber presently Hs heavily infer showing of inadequns If comity preclude court from adversely wen te iyo foreign justice tem” Acoraghs ae te ears the intial burden of profucng eidenes tion, delay or lack of duc prices inte neon Bhe defendant boars the ultimate andes ot sto the adequacy ofthe frum the alternative forum, Abst by a paint. “roniceratns nt component of x eos of Tew problem forsig element. A forcignsloment anything fad has s foreign component oi, Ica be ration an incident happening in a erien chosen by the parties. Without a foreign 4 donmectic problom with no cfs 1 Court of Appeals explained the as of two or more lates Hlemet. The pecenoe of = ince socal and economic ith on conceptionQ INTRODUCTION 79 PRIVATE INTERNATIONAL Law Hasegawa vy, Kitamura GR. No. 1491 77, November 23, 2007 Facts: Co., Ltd. Contractor itamura, Petitioner Nippon En; CNippon”) entered Agreement TCA” a Japanese nation: ines. The agreeme: gineering Consultants into an Independent ) with respondent Minoru ‘al permanently residing in nt provided that respondent rvices to Nippon for a year 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 specific performance and damages with Regional Trial Court of Lipa City. Petitioners to dismiss the complaint for lack of jurisdiction, g that the claim for improper pre-termination dent’s ICA could only be heard and ventilated courts of Japan following the principles i celebrationis and lex contractus. The lower he motion to dismiss, a decision which was Court of Appeals (“CA”). The CA held that f lex loci celebrationis was not applicable ause nowhere in the pleadings was the itten agreement put in issue. The CA "3 application of the principle of lex subject matter jurisdiction of cases may be assailed on the tionis, lex contractus, the state ationship rule, or forum non he improper grounds for questioning 134 CONFLICT OF LAWS in the judicial resolution of three Ranaecntiva phases are om ice of law, and recognition an, involved: jurisdiction, iaamenrendinstotheserhanc: enforcement of ju emuestiOns: (@) Where can or should are the flea a .d? (2) Which law will the court apply? eo apts n the resulting judgment be enforced? an e] De ieliediction and /choice of law are 2. ee Jurisdiction considers whether it; two distinct con®? ndant to travel to this state; choice of fair to cause * sther question whether the application of q law asks the jw which will determine the merits of the case eae arties. The power to exercise jurisdiction ne ve ee ceally givea state constitutional authority toes y 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 ofa state can be applied to a transaction is different from e question of whether the courts of that state have isdiction to enter a judgment. 1. To elucidate, conflicts problems, 3. In this case, only the first phase is at issue: ction. Jurisdiction, however, has various aspects. urt to validly exercise its power to adjudicate a y, it must have jurisdiction over the plaintiff itioner, over the defendant or the respondent, ject matter, over the issues of the case and, in ing property, over the res or the thing which ‘of the litigation. In assailing the trial court's in, petitioners are actually referring to isdiction. Mm over the subject matter in a judicial id by the sovereign authority which izes the court. To succeed in its of an action for lack of jurisdiction of the claim, the movant must fibunal cannot act on the matter law grants it the power ”0 ¢ INTRODUCTION To PRIVATE INTERNATIONAL Law = k x aint Ei the instant case, Petitioners, in their motion to ies ie ae hon that the trial court 18 not properly aw with jurisdiction to hear th i 1 subject controversy for, indeed, Civil Case No. 00-0264 for eeeiad 's 18 one not capable of pecuniary 6. The Court finds the invo. ation of th ae cation of these grounds 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 Yoci contractus means the law of the place where a contract is executed or to be performed. It controls the ure, construction, and validity of the contract and it ertain to the law voluntarily agreed upon by the or the law intended by them either expressly citly. Under the state of the most significant ship rule, to ascertain what state law to apply e, the court should determine which state has stantial connection to the occurrence and the la case involving a contract, the court should ere the contract was made, was negotiated, med, and the domicile, place of business, ation of the parties. This rule takes into ontacts and evaluates them according to ortance with respect to the particular ee principles in conflict of laws w applicable to a dispute, they are ond phase, the choice of law. They law is to be applied in resolving sf a conflicts problem. Necessarily, is that of jurisdiction, choice- applicable but also not yet called 15CONFLICT OF Laws 8. Further, titi ’ premature invocation choice. Petitioners’ pre: of Ha oflaw rules is exposed by the fact that they have yet pointed out any conflict between the laws of Japan and ours, Before determining which law shoulq 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. 9. 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 courts 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 igreements, even in matters regarding rights provided by ign sovereigns. 10. Neither can the other ground raised, forum onveniens, be used to deprive the trial court of its tion herein. First, it is not a proper basis for a o dismiss because Section 1, Rule 16 of the Rules does not include it as a ground. Second, whether id be entertained or dismissed on the basis of ine depends largely upon the facts of the e and is addressed to the sound discretion . In this case, the RTC decided to assume hird, the propriety of dismissing a case iple requires a factual determination; principle is more properly considered e the RTC is vested by as and hear the civil case a inds raised by petitioners Steps ( the pr by thi case { case. of lay succe; will b the pr applic law. I in the / whick natior of the deter: applic may | Once in tha Choic F will g 1306 o may e they n morals chosen of the | be loca policyINT) 7 NTRODUCTION To. PRIVATE INTERNATIONAL LAW assail that jurisdicti appellate eg eretletion are inappropriate, the trial and ® courts correctly denied the peti a ectly denied the Petitioners motion Steps in Determining Applicable Law . Characterization, This involves identification of the the problem. It is a Process of spotting the le; by the facts of the case. It is comparable case for the first time and who is trying to case. An important step in this proce, of law implicated by the succession, ete. After id issue in gal issues as presented to a lawyer studying a develop a theory of the ss is pinpointing the branch problem. Is it contract, torts, citizenship, 2 nf d lentifying the branch of law, the next step will be determining whether there is a conflicts of Law problem by the Presence ofa foreign element. If one is involved, he then employs applicable conflicts of law doctrines in determining the applicable law. Ifnone, he just applies the rule, law, or jurisprudence prevailing in the forum. Connecting factors. Here, an analysis is made with respect to h jurisdiction or fora has the most connection to the case. The ity of the parties, the location of the act or event, the terms eement or contract, and other matters are looked into to e what legal system between two or more legal systems is . The preparation of a checklist embodying these factors ery helpful in identifying the applicable legal system. system is identified, the applicable branch of law system will then be applied in resolving the dispute. cable Law tract are free to stipulate the applicable law that sontractual relations. This proceeds from Article e which provides that “[t]he contracting parties ipulations, clauses, terms and conditions as mt, provided they are not contrary to law, blic order, or public policy.” Once chos the d to govern the duties and responsil er. It is not necessary that the chosen law ‘ice of law does not violate the publicCONFLICT OF LAWS. Extraterritoriality Laws are Bi this is that the boundaries of hij he will draft a 1g borders ‘enerally territorial in application. The Teason ¢, OD fop itor, mind of the lawmaker is limited to the ter country when he enacts laws. It is unnaturay yi Aw and provide therein that it will apply with of another independent state. e Laws, however, can be extraterritorial when 80 Provide by the legislature, The question of whether a law 18 territoria) - extraterritorial depends on legislative intent. It is within the righ; the legislature of a country to provide that its, laws apply outside fe territorial boundaries of the state on matters within the competen of the legislature to legislate upon. This is recognized Under international law, except when this intrudes with the territori) integrity and sovereignty of another country. The determination of whether a law is extraterritorial involves n examination of the legislative intent. Usually, legislative inte n be determined by looking at the words and phrases used in statute. More often than not, this expression can be explicit, but i © be implicit in which case, rules of interpretation can i Thus, congressional records and debates may be examinei whether a law has territorial application or none. nple of a law providing extraterritorial application in nner are the following: (5. Laws relating to family rights and duties, tatus, condition and legal capacity of persons pon citizens of the Philippines, even though property as well as personal property w of the country where it is stipulated. ite and testamentary successions, he order of succession and to the ts and to the intrinsic validity of be regulated by the national ssion is under consideration, of the property and regardless operty may be found. Th for extre “eventh national whateve country two pre enacted Surely, the app This do another refe enter 'NTRODUCTION TO PRIVATE INTERNATIONAL LAW 19 These two provisi for extraterritorial application, This is ‘eventhough living abroad” national law of the person w! ions of the Civil Code are explicit in Providing shown by the use of th yh in Article 15 and “ levis two provisions, though enacted within the compet Surely, Congress has pows application, were tence of the legislature to legislate upon er over its subjects (citizens) to provide for Small v. United States 544 U.S. 385 (2005) Facts: Small was convicted in Japan for smuggling d was sentenced by a Japanese court to five years’ isonment. After serving sentence, Small returned } United States, and purchased a gun from a lvania gun dealer. He was then charged for gun possession” under a statute that provided be “unlawful for any person...who has ed in any court, of a crime punishable by ent for a term exceeding one year...to... firearm.” Small pleaded guilty then conviction on the ground that his earlier fapan, being a foreign conviction, fell e of the unlawful gun possession statute. ther the “unlawful gun possession” itorial application such that foreign in its scope? estic convictions are covered by e us is whether the statutory yy court” includes a conviction2. In determining the scope of the statutory Phrage we find help in the “commonsense 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. 3. For one thing, the phrase describes one necesga, portion of the “gun possession” activity that is prohibiteq as a matter of domestic law. For another, considered ag 4 group, foreign convictions differ from domestic conviction, 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 p es of U.S. law where foreign convictions, rather domestic convictions, are at issue. 4. We have found no convincing indication to the rary here. The statute's language does not suggest ntent to reach beyond domestic convictions. Neither ntion foreign convictions nor is its subject al, say, immigration or terrorism, where one that foreign convictions would seem especially the contrary, if read to include foreign statute's language creates anomalies. imple, the statute creates an exception Possession despite a prior conviction or business regulatory crime. In doing speaks of “Federal or State” antitrust Tf the phrase “convicted in any s only to domestic convictions, this oblem. But if “convicted in any convictions, the words “Federal eption from applying wher’ tory conviction is at issue. Cong flowi again with ‘The silen of ex and cone only of co stati nati corp clair atro tows aide and and disn case Cire grou liabi certi the viole terri appl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 imed that the respondent corporations committed ities in suppressing the demonstrations directed is the operation of the respondent corporations. claimed that respondents enlisted, supported, and the Nigerian Government in attacking villages ting, raping, killing, and arresting residents froying or looting property. The district court and allowed some of the claims but when the E on interlocutory appeal before the Second Jatter dismissed the entire complaint, on the e law of nations did not recognize corporate ers then went to the Supreme Court on er and under what circumstances to recognize a cause of action for of nations occurring within the ‘other than the United States? suse the ATS has no extraterritorialF s not wheth i 1. The question here is not chee 01 have stated a proper claim under the ATS, but whetne® a claim may reach conduct occurring in the terrigg,t@ a foreign sovereign. Respondents contend that ae of under the ATS do not, relying primarily on a cang,™® statutory interpretation known on the presumpti against extraterritorial application. ‘hat canon Provign that “[w]hen a statute gives no clear indication ont heres an extraterritorial fects thn 1 application, it has none,” and re “presumption that United States law governs domestica” ly put does not rule the world.” 2. Tobegin, nothing inthe text: of the statute Suggest, that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers action, by aliens for violations of the law of nations, but that dca not imply extraterritorial reach—such violations affectin, jiiens can occur either within or outside the United States. Nor does the fact that the text reaches “any ciyi) action” suggest application to torts committed abroad; it ig well established that generic terms like “any” or “every” do not rebut the presumption against extraterritoriality, 3. 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 ibing them—did so in terms of conduct occurring ‘of a violation of the law of that enacted the ATS was igh seas, beyond the tes or any other the high seas the sumption against tend that because ide jurisdiction was pas hospital norms. Pretend It is in wanted interna parties presur again and ¢ “th here, of th is ba plac clai Sta the Co wo su stiINTRODUCTION TO PRIVATE INTERNATIONAL LAW 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. 4, 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. 5. 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. 6. On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern ‘itory of the Unitedn Conveniens . one ply means that the forum is not im) ee forum, or the place where the m non convenie! La the chosen ‘i hat Z F aed Saas 4 pe einctantall connection to the parties or to the suit is filed, ‘ enient to litigate the suit in th; disputanay pe? the parties to the case are a chosen venue. It me or that the witnesses are located somewhere Se ee eae raion which offers a more convenient forum to else es ete aciadicann cond alsojbe-aniadequalte fora ees ate : of law are operating and may offer the plaintiffs g 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® 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 judici inery for i . judicial machinery effectuating the right sought to be maintained; and the difficulty of ascertaining foreign law. é t d | Arabian Airlines v. Rebesencio et al. : No. 198587, January 14, 2015 S 7 m th ac resEES ERNATIONAL LAW Flight Attendants. The Contracts with Saudia on May 16, May 22, 1993 (Montassah and Row, 95. (Loraine). On vario i $ i 8 us dates in 2006, terminated from service on the ground that thereon? pregnant. Saudia Justified thei arte r termination unde: employment contract which providen aor Y entered into Cabin Attendant 1990 (Ma. Jopette), n Ruth), and August, (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. (Emphasis supplied) Respondents filed a complaint with the NLRC for illegal fieeisce and for underpayment ofsalary, iat pay, premium pay for holiday, rest day, premium, ea incentive leave pay, 13th month pay, goparstion pares ah shift differentials, medical expense rembur: anne, retirement benefits, illegal deduction, pay oer en nse and allowances, moral and exemplary i poe re a attorney's fees. Saudia goalenees ie ae aes een Bae challenge and dismissed abd pate the Commission’s 2626 ————E—EEE ilippi ts or tribunals . Yes, Philippine cour el d Sepia Fhithe adjudication of respondenty: adeq' complaint litigation arises strictl; i Be or Pe Ediction, such Tulsa as tiga 's pendentia, and res judicata e wet shopping | ie re Philippines, the 1997 Rules og to operat provide for willful and deliberate forum Givil Proved’ round not only for summary dismissal with shopping a6 Eso for citing pasties and counsels in direct prejudice Pate as for the imposition of administrative contemP® ‘Likewise, the same rules expressly provide sanctions ay may seek the dismissal of a Complaint or another pleading asserting a claim on the ground “[t}hat there is another action pending between the come parties for the same cause,” ie., litis pendentia, or “[t}hat the cause of action is barred by a prior judgment,” i.e., res Sudicata, Forum non conveniens, like the rules of jitim shopping, litis pendentia, and res judicata, is a oans 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 ven 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 in honorable” reasons and excuses that litigants use procedural advantages, annoy and harass is, avoid overcrowded dockets, and select a >. Thus, the doctrine of forum non e e rationale that the rule siton amultijurisdictional ds no textual al rules, 1" dence has Der applied decline it Por, to addres capac in forum rounder Ba tribunal o& forun tribunal imINTRODUCTION TO PRIVATE INTERNATIONAL LAW 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. 2. 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 t 5H sringnciees will be reduced to mere academic, \ yee yeither the mere invocation i ion of a court. N ae apes henavexmentvot foreign gi iM iens nor tl eum ee aa automatically eee eae jurie ict Rather, a court should yaa 8 ens ict sy only “ah ‘vital facts are established, to dete i e whether Special qiainetances' require the court's desistance” a, jl propriety of applying forum non prencnaitee 1S contingent Proprfactual determination, it is, therefore, a matter o¢ defense. 3, 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 oranibue motion rule: (1) lack of jurisdiction over the Subject matter; (2) litis pendentia; (3) res judicata; ang (4) prescription. Moreover, dismissal ‘on account of forum non conveniens is @ 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. 4. Consistent with forum non conveniens as fundamentally a factual matter, it is imperative that it proceed from & 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. rior suit makes real the vexation s litigation, the embarrassment : x sovereign, an ing a dispute the greater only allege ing in this INI jurisdic danger resoluti that a 5. and ai jurisdINTRODUCTION TO PRIVATE INTERNATIONAL LAW 29 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. 5. 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: first, the availability and adequacy of recourse to a foreign tribunal; and 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 circumst of the tribunal encies, li80 CONFLICT OF LAWS in pleading forum non conveniens, that litigation has commenced in another jurisdiction and that a foreign tribunal has, in fact, chosen to exercise jurisdiction, 6. Two (2) factors weigh into a court’s appraisal of the balance of interests inhering in a dispute: first, the vinculum which the parties and their relation have to given jurisdiction; and 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 nt forum. In that case, private respondent was working in the Sultanate of Oman etter from Palace Hotel recruiting China. Santos accept was released from s reverses arising , the ‘TiananmeD filed a Complain!INTRODUCTION TO PRIVATE RNATIONAL LAW Manager, Mr. Gerhard Schmidt, International Company Ltd. eee mee 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: first, determine the Jaw governing the employment contract, as it was entered into in foreign soil; second, determine the facts, as Santos’ employment was terminated in Beijing; and 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. 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 Kingdom f Saudi Arabia. It would even ts? inco ,ience if this case were to be 3132 CONFLICT OF LAWS aliens.” That Saudia has managed to bring the present controversy all the way to this court proves this. 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. Lastly, there is not even room for considering foreign law. Philippine law properly governs the present dispute. 7. All told, the considerations for assumption of jurisdiction by Philippine tribunals as outlined in Bank of America, NT&S have been satisfied. 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. Second,