Abdullahi v Pfizer

Docket Nos. 05-4863-cv(L), 05-6768-cv(CON).

Decided: January 30, 2009
Before:  POOLER, B.D. PARKER, and WESLEY, Circuit Judges.Peter Safirstein (Elaine S. Kusel, Ann M. Lipton, Andrew Wilmar,
and Tatiana Rodriguez, on the brief), Milberg Weiss Bershad & Schulman LLP, New York, NY, for Plaintiffs-Appellants Rabi
Abdullahi, et al. Richard Altschuler (Ali Ahmad, Cheverly, MD, on the brief), Altschuler & Altschuler, West Haven, CT, for
Plaintiffs-Appellants Ajudu Ismaila Adamu, et al. Steven Glickstein (David Klingsberg, Maris Veidemanis, James D. Herschlein,
and Julie B. du Pont, on the brief), Kaye Scholer LLP, New York, NY, for Defendant-Appellee Pfizer, Inc.
This consolidated appeal is from the judgments of the United States District Court for the Southern District of New York (Pauley,
J.) dismissing two complaints for lack of subject matter jurisdiction under the Alien Tort Statute, 28 U.S.C. §  1350 (“ATS”), and in
the alternative, on the ground of forum non conveniens.   Plaintiffs-Appellants Rabi Abdullahi and other Nigerian children and
their guardians sued Defendant-Appellee Pfizer, Inc. under the ATS (“the Abdullahi action”).   They alleged that Pfizer violated a
customary international law norm prohibiting involuntary medical experimentation on humans when it tested an experimental
antibiotic on children in Nigeria, including themselves, without their consent or knowledge.   Plaintiffs-Appellants Ajudu Ismaila
Adamu and others, also children and their guardians who were part of Pfizer's Nigerian drug experiment, brought a similar action
against Pfizer, alleging violations of the ATS, the Connecticut Unfair Trade Practices Act (“CUTPA”), and the Connecticut Products
Liability Act (“CPLA”) (“the Adamu action”).   Pfizer moved to dismiss both actions for lack of subject matter jurisdiction and on
the basis of forum non coveniens.   The district court granted the motions and both sets of plaintiffs have appealed.

As explained below, we conclude:  (1) that the district court incorrectly determined that the prohibition in customary international
law against nonconsensual human medical experimentation cannot be enforced through the ATS;  (2) that changed circumstances
in Nigeria since the filing of this appeal require re-examination of the appropriate forum, albeit on the basis of a legal analysis
different from that employed by the district court;  and (3) that the district court incorrectly applied Connecticut's choice of law
rules in the Adamu action.   Consequently, we reverse and remand the cases to the district court for further proceedings.

BACKGROUND

A. Pfizer's Trovan Test in Nigeria

On review of a district court's grant of a motion to dismiss, we assume as true the facts alleged in the complaints, construing them
in the light most favorable to the appellants.   See Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115
(2d Cir.2008).   The central events at issue in these cases took place in 1996, during an epidemic of bacterial meningitis in northern
Nigeria.1  The appellants allege that at that time, Pfizer, the world's largest pharmaceutical corporation, sought to gain the approval
of the U.S. Food and Drug Administration (“FDA”) for the use on children of its new antibiotic, Trovafloxacin Mesylate, marketed
as “Trovan.”   They contend that in April 1996, Pfizer, dispatched three of its American physicians to work with four Nigerian
doctors to experiment with Trovan on children who were patients in Nigeria's Infectious Disease Hospital (“IDH”) in Kano, Nigeria.
  Working in concert with Nigerian government officials, the team allegedly recruited two hundred sick children who sought
treatment at the IDH and gave half of the children Trovan and the other half Ceftriaxone, an FDA-approved antibiotic the safety
and efficacy of which was well-established.   Appellants contend that Pfizer knew that Trovan had never previously been tested on
children in the form being used and that animal tests showed that Trovan had life-threatening side effects, including joint disease,
abnormal cartilage growth, liver damage, and a degenerative bone condition.   Pfizer purportedly gave the children who were in the
Ceftriaxone control group a deliberately low dose in order to misrepresent the effectiveness of Trovan in relation to Ceftriaxone.  
After approximately two weeks, Pfizer allegedly concluded the experiment and left without administering follow-up care.  
According to the appellants, the tests caused the deaths of eleven children, five of whom had taken Trovan and six of whom had
taken the lowered dose of Ceftriaxone, and left many others blind, deaf, paralyzed, or brain-damaged.

Appellants claim that Pfizer, working in partnership with the Nigerian government, failed to secure the informed consent of either
the children or their guardians and specifically failed to disclose or explain the experimental nature of the study or the serious risks
involved.   Although the treatment protocol required the researchers to offer or read the subjects documents requesting and
facilitating their informed consent, this was allegedly not done in either English or the subjects' native language of Hausa.   The
appellants also contend that Pfizer deviated from its treatment protocol by not alerting the children or their guardians to the side
effects of Trovan or other risks of the experiment, not providing them with the option of choosing alternative treatment, and not
informing them that the non-governmental organization Médecins Sans Frontières (Doctors Without Borders) was providing a
conventional and effective treatment for bacterial meningitis, free of charge, at the same site. 2

The appellants allege that, in an effort to rapidly secure FDA approval, Pfizer hastily assembled its test protocol at its research
headquarters in Groton, Connecticut, and requested and received permission to proceed from the Nigerian government in March
1996.   At the time, Pfizer also claimed to have secured approval from an IDH ethics committee.   Appellants allege, however, that
the March 1996 approval letter was backdated by Nigerian officials working at the government hospital well after the experiments
had taken place and that at the time the letter was purportedly written, the IDH had no ethics committee. 3  Appellants also contend
that the experiments were condemned by doctors, including one on Pfizer's staff at the time of the Kano trial.

In 1998, the FDA approved Trovan for use on adult patients only. After reports of liver failure in patients who took Trovan, its use
in America was eventually restricted to adult emergency care. In 1999, the European Union banned its use.

B. The Proceedings Below

In August 2001, the Abdullahi plaintiffs sued Pfizer under the ATS, alleging that the experiments violated international law.   In
September 2002, the district court granted Pfizer's motion to dismiss the Abdullahi claims on the ground of forum non conveniens,
conditioned on Pfizer's consent to litigation in Nigeria.  Abdullahi v. Pfizer, Inc., No. 01 Civ. 8118(WHP), 2002 WL 31082956, at
*12 (S.D.N.Y. Sept. 17, 2002) (“Abdullahi I ”). It found that Nigeria was an adequate alternative forum despite plaintiffs'
contentions about corruption in the Nigerian court system.  Id. at *8-10.   The district court denied Pfizer's motion to dismiss
under Rule 12(b)(6), Fed.R.Civ.P., concluding that the plaintiffs adequately alleged that Pfizer's collusion with the Nigerian
government made it a state actor.  Id. at *5-6.

Meanwhile, another group of children and guardians involved in the Trovan experiment sued in the Federal High Court in Kano,
alleging claims under Nigerian law.   That case, Zango v. Pfizer International, Inc., [2001] Suit No. FHC/K/CS/204/2001 (Nigeria),
was dismissed in 2003 after plaintiffs voluntarily discontinued the suit following the removal from the bench of the first judge
assigned to the action and the second judge's decision to decline jurisdiction for personal reasons.  Abdullahi v. Pfizer, Inc., No. 01
Civ. 8118(WHP), 2005 WL 1870811, at *5 (S.D.N.Y. Aug. 9, 2005) (“Abdullahi III ”).   On appeal to this Court from the district
court's dismissal in Abdullahi I, the Abdullahi appellants argued that the dismissal of the Zango litigation was a result of rampant
corruption, which indicated that the Nigerian judicial system could not provide an adequate alternative forum for their action.  
Given an inconclusive record regarding the events leading to the dismissal of the Zango lawsuit, we vacated the judgment and
remanded for further fact-finding on forum non conveniens. See Abdullahi v. Pfizer, Inc., 77 Fed.Appx. 48, 53 (2d Cir.2003)
(summary order) (“Abdullahi II ”).

In November 2002, following the dismissal of the Zango lawsuit, a number of the Zango plaintiffs filed the Adamu action.   They
alleged that in planning the Trovan experiment in Connecticut and in conducting the tests in Nigeria without informed consent,
Pfizer violated the CUTPA, the CPLA, and the ATS. Eventually, the Adamu action was transferred to the Southern District of New
York and consolidated with the Abdullahi action. Pfizer then moved to dismiss both cases for failure to state a claim under the ATS
and on the basis of forum non conveniens. It also moved to dismiss in Adamu on the ground that Connecticut choice of law
principles require the application of Nigerian law, which bars suit under CUTPA and the CPLA.

The district court granted the motions. See Abdullahi III, 2005 WL 1870811;  Adamu v. Pfizer, Inc., 399 F.Supp.2d 495
(S.D.N.Y.2005).   In Abdullahi III, Judge Pauley held that while “[p]laintiffs correctly state that non-consensual medical
experimentation violates the law of nations and, therefore, the laws of the United States,” they failed to identify a source of
international law that “provide[s] a proper predicate for jurisdiction under the ATS.” 2005 WL 1870811, at *9, 14. Noting that “a
decision to create a private right of action is one better left to legislative judgment in the great majority of cases,” he concluded 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.” Id. at *13-14 (internal
quotation marks omitted).

With regard to the forum non conveniens analysis, the district court declined to accept plaintiffs' submissions concerning Pfizer's
alleged bribery of Nigerian officials on the ground that they were not based on personal knowledge. Id. at *16-17. Finding that the
plaintiffs had failed to submit specific evidence that the Nigerian judiciary would be biased against its own citizens in an action
against Pfizer, the district court alternatively held that Nigeria was an adequate alternate forum.  Id. at *16, 18.

Several months later, the district court also granted Pfizer's motion to dismiss the Adamu case.  Adamu, 399 F.Supp.2d 495.   It
relied on its Abdullahi III decision to hold that the plaintiffs could not establish jurisdiction under the ATS. Id. at 501.   The district
court also incorporated the forum non conveniens analysis from Abdullahi III to find that Nigeria is an adequate forum.  Id. at 504.
  Applying the public and private interest factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed.
1055 (1947), superseded by statute on other grounds as recognized in Cowan v. Ford Motor Co., 713 F.2d 100, 103 (5th Cir.1983),
the court found that while public interest factors did not support either forum, private interest factors weighed in favor of dismissal.
  Adamu, 399 F.Supp.2d. at 505-06.   The district court also dismissed the Adamu plaintiffs' Connecticut law claims, concluding
that, under Connecticut choice of law principles, the action was governed and barred by Nigerian law.   Id. at 503.

The Abdullahi and Adamu plaintiffs appealed.   Since then, a tectonic change has altered the relevant political landscape.   In May
2007, the state of Kano brought criminal charges and civil claims against Pfizer, seeking over $2 billion in damages and
restitution.4  Around the same time, the federal government of Nigeria sued Pfizer and several of its employees, seeking $7 billion
in damages.5  None of these cases seek compensation for the subjects of the tests, who are the appellants before this Court.   Pfizer
then notified this Court that in light of these recent developments, which it believed required further consideration by the district
court, it would not seek affirmance on the basis of forum non conveniens.

DISCUSSION

The district court dismissed both actions based on its determination that it lacked subject matter jurisdiction because plaintiffs
failed to state claims under the ATS. We review dismissal on this ground de novo.  Rweyemamu v. Cote, 520 F.3d 198, 201 (2d
Cir.2008).  “To survive dismissal, the plaintiff[s] must provide the grounds upon which [their] claim rests through factual
allegations sufficient ‘to raise a right to relief above the speculative level.’ ”  ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87,
98 (2d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)). 6

I. The Alien Tort Statute

The Alien Tort Statute, 28 U.S.C. § 1350, provides that “[t]he district courts shall have original jurisdiction of any
civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United
States.”   Included in the Judiciary Act of 1789, the statute provided jurisdiction in just two cases during the first 191 years after its
enactment.   See Taveras v. Taveraz, 477 F.3d 767, 771 (6th Cir.2007).   In the last thirty years, however, the ATS has functioned
slightly more robustly, conferring jurisdiction over a limited category of claims.

We first extensively examined the ATS in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), where we held that conduct violating
the law of nations is actionable under the ATS “only where the nations of the world have demonstrated that the wrong is of mutual,
and not merely several, concern, by means of express international accords.”  Id. at 888.   Following Filartiga, we concluded that
ATS claims may sometimes be brought against private actors, and not only state officials, see Kadic v. Karadzic, 70 F.3d 232, 239
(2d Cir.1995), when the tortious activities violate norms of “universal concern” that are recognized to extend to the conduct of
private parties-for example, slavery, genocide, and war crimes, id. at 240.   This case involves allegations of both state and
individual action.   In Flores v. Southern Peru Copper Corp., 414 F.3d 233 (2d Cir.2003), we clarified that “the law of nations” in
the ATS context “refers to the body of law known as customary international law,” which “is discerned from myriad decisions made
in numerous and varied international and domestic arenas” and “does not stem from any single, definitive, readily-identifiable
source.”  Id. at 247-48.   These principles are rejected in their entirety by our dissenting colleague. In Flores, we concluded that
ATS jurisdiction is limited to alleged violations of “those clear and unambiguous rules by which States universally abide, or to which
they accede, out of a sense of legal obligation and mutual concern.” Id. at 252.   Applying this standard, we held that the appellants'
claim that pollution from mining operations caused lung disease failed to state a violation of customary international law. We
reasoned that the “right to life” and the “right to health” were insufficiently definite to constitute binding customary legal norms
and that there was insufficient evidence to establish the existence of a narrower norm prohibiting intranational pollution.  Id. at
254-55.

In 2004, the Supreme Court comprehensively addressed the ATS for the first time in Sosa v. Alvarez-Machain, 542 U.S. 692, 124
S.Ct. 2739, 159 L.Ed.2d 718 (2004). Justice Souter, writing for the majority, clarified that the ATS was enacted to create jurisdiction
over “a relatively modest set of actions alleging violations of the law of nations” and with “the understanding that the common law
would provide a cause of action.” Id. at 720, 723.   The Supreme Court confirmed that federal courts retain a limited power to
“adapt [ ] the law of nations to private rights” by recognizing “a narrow class of international norms” to be judicially enforceable
through our residual common law discretion to create causes of action.  Id. at 728-29.   It cautioned, however, that courts must
exercise this power with restraint and “the understanding that the door [to actionable violations] is still ajar subject to vigilant
doorkeeping,” permitting only those claims that “rest on a norm of international character accepted by the civilized world and
defined with a specificity comparable to the features of the 18th-century paradigms [the Supreme Court has] recognized.”  Id. at
725, 729.  These 18th-century paradigms consist of offenses against ambassadors, violations of the right to safe passage, and
individual actions arising out of piracy. Id. at 724. The common theme among these offenses is that they contravened the law of
nations, admitted of a judicial remedy, and simultaneously threatened serious consequences in international affairs.  Id. at 715.  
Lower courts are required to gauge claims brought under the ATS against the current state of international law, but are permitted
to recognize under federal common law only those private claims for violations of customary international law norms that reflect
the same degree of “definite content and acceptance among civilized nations” as those reflected in the 18th-century paradigms.  Id.
at 732-33. The Supreme Court in Sosa also counseled that “the determination whether a norm is sufficiently definite to support a
cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making
that cause available to litigants” in federal courts.  Id.

 In this way Sosa set a “high bar to new private causes of action” alleging violations of customary international law.  Id. at 727.   A
federal court can recognize one only if a plaintiff identifies the violation of a norm of customary international law that, as defined by
the sources of such law that United States courts “have long, albeit cautiously, recognized,” id. at 733-34 (referencing The Paquete
Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320 (1900)), is sufficiently specific, universal, and obligatory to meet the
standards established by Sosa. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (citing with approval Tel-Oren v. Libyan Arab Republic,
726 F.2d 774, 781 (D.C.Cir.1984) (Edwards, J., concurring), and In re Estate of Marcos, Human Rights Litig., 25 F.3d 1467, 1475
(9th Cir.1994)). Applying these principles, the Supreme Court held that the plaintiff, a Mexican national who sued a fellow Mexican
national under the ATS for allegedly aiding in his illegal abduction by agents of the U.S. Drug Enforcement Agency, had failed to
allege the violation of a customary international law norm with the required precision. Sosa, 542 U.S. at 738, 124 S.Ct. 2739.   The
Supreme Court found that the practical consequences of recognizing a general and broad customary international law prohibition
of arbitrary detention in a case involving “a single illegal detention of less than a day, followed by the transfer of custody to lawful
authorities and a prompt arraignment” would be “breathtaking” and inappropriate.  Id. at 736, 738, 124 S.Ct. 2739.

Since Sosa, this Court has reviewed three judgments dismissing claims under the ATS. In Khulumani v. Barclay National Bank,
Ltd., 504 F.3d 254 (2d Cir.2007) (per curiam), we held that the ATS conferred jurisdiction over multinational corporations that
purportedly collaborated with the government of South Africa in maintaining apartheid because they aided and abetted violations
of customary international law.  Id. at 260.   In Vietnam Ass'n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104 (2d
Cir.2008), we concluded that the ATS did not support a claim that the defendants violated international law by manufacturing and
supplying Agent Orange and other herbicides used by the United States military during the Vietnam War. Id. at 123.   We reasoned
that the sources of law on which the appellants relied did not define a norm prohibiting the wartime use of Agent Orange that was
both universal and sufficiently specific to satisfy the requirements of Sosa. Id. at 119-23.   Similarly, in Mora v. People of the State
of New York, 524 F.3d 183 (2d Cir.2008), we held that the norm at issue-one that prohibits the detention of a foreign national
without informing him of the requirement of consular notification and access under Article 36(1)(b)(3) of the Vienna Convention
on Consular Relations-was insufficiently universal to support a claim under the ATS. Id. at 208-09.

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.

A. 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. Flores, 414 F.3d at 250;  see, e.g., United States v. Yousef, 327 F.3d 56, 100-01 (2d Cir.2003). Article 38
identifies the authorities that provide “competent proof of the content of customary international law.” Flores, 414 F.3d at 251.  
These sources consist of:

(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

(b) international custom, as evidence of a general practice accepted as law;

(c) the general principles of law recognized by civilized nations;

(d) ․ 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.

Statute of the International Court of Justice, art. 38(1), June 26, 1945, 59 Stat. 1055, 1060, T.S. No. 993 [hereinafter ICJ Statute].

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.” 7

The district court found that “non-consensual medical experimentation violates the law of nations and, therefore, the laws of the
United States” and cited the Nuremberg Code for support.  Abdullahi III, 2005 WL 1870811, at *9. It then noted that “[w]hile
federal courts have the authority to imply the existence of a private right of action for violations of jus cogens norms of international
law, federal courts must consider whether there exist special factors counseling hesitation in the absence of affirmative action by
Congress.”   Id. (internal citations and quotation marks omitted).   The district court then separately analyzed the four sources of
international law that prohibit nonconsensual medical experimentation on humans and the Universal Declaration of Human
Rights.  Id. at *11-13.   It found that with the exception of the Nuremberg Code, these sources contain only aspirational or vague
language lacking the specificity required for jurisdiction.  Id. at *12-13. It also determined that because the United States did not
ratify or adopt any of these authorities except the ICCPR, and because even the ICCPR is not self-executing, none of them create
binding international legal obligations that are enforceable in federal court.  Id. at *11-13.   Finally, the district court concluded
that the plaintiffs failed to provide a proper predicate for ATS jurisdiction because none of the sources independently authorizes a
private cause of action and the inference of such a cause of action is a matter best left to Congress.  Id. at *13-14. 8

The district court's approach misconstrued both the nature of customary international law and the scope of the inquiry required by
Sosa. It mistakenly assumed that the question of whether a particular customary international law norm is sufficiently specific,
universal, and obligatory to permit the recognition of a cause of action under the ATS is resolved essentially by looking at two
things:  whether each source of law referencing the norm is binding and whether each source expressly authorizes a cause of action
to enforce the norm.   But Sosa, as we have seen, requires a more fulsome and nuanced inquiry.   Courts are obligated to examine
how the specificity of the norm compares with 18th-century paradigms, whether the norm is accepted in the world community, and
whether States universally abide by the norm out of a sense of mutual concern.   By eschewing this inquiry, the district court did
not engage the fact that norms of customary international law are “discerned from myriad decisions made in numerous and varied
international and domestic arenas” and “[do] not stem from any single, definitive, readily-identifiable source.”  Flores, 414 F.3d at
247-48.

 The district court also inappropriately narrowed its inquiry in two respects.   First, it focused its consideration on whether the
norm identified by the plaintiffs is set forth in conventions to which the United States is a party, and if so, whether these treaties are
self-executing or executed by federal legislation.   While adoption of a self-executing treaty or the execution of a treaty that is not
self-executing may provide the best evidence of a particular country's custom or practice of recognizing a norm, see Flores, 414 F.3d
at 257, the existence of a norm of customary international law is one determined, in part, by reference to the custom or practices of
many States, and the broad acceptance of that norm by the international community.   Agreements that are not self-executing or
that have not been executed by federal legislation, including the ICCPR, are appropriately considered evidence of the current state
of customary international law.   See Khulumani, 504 F.3d at 284 (Katzmann, J., concurring) (noting that “[w]hether a treaty that
embodies [a norm of customary international law] is self-executing is relevant to, but is not determinative of, [the] question” of
whether the norm permits ATS jurisdiction). A formal treaty, moreover, is not the lone primary source of customary international
law. The ICJ Statute permits, and Sosa encourages, among other things, that courts consider “international custom, as evidence of a
general practice accepted as law.”   ICJ Statute, supra, at art. 38(1);  Sosa, 542 U.S. at 734, 124 S.Ct. 2739 (“[W]here there is no
treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized
nations.”) (quoting The Paquete Habana, 175 U.S. at 700, 20 S.Ct. 290).

Second, the district court's consideration of whether each source of law creates binding legal norms failed to credit the fact that
even declarations of international norms that are not in and of themselves binding may, with time and in conjunction with state
practice, provide evidence that a norm has developed the specificity, universality, and obligatory nature required for ATS
jurisdiction. See Filartiga, 630 F.2d at 883 (“[A non-binding] Declaration creates an expectation of adherence, and insofar as the
expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding
upon the States.”) (internal quotation marks omitted). The district court should have considered a greater range of evidence and
weighed differently the probative value of the sources on which the appellants relied.

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 (i) universal and obligatory, (ii) specific and definable, and (iii) 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.

i. Universality

The appellants must allege the violation of a norm of customary international law to which States universally subscribe.   See Sosa,
542 U.S. at 732, 124 S.Ct. 2739;  Vietnam Ass'n for Victims of Agent Orange, 517 F.3d at 117.   The prohibition on nonconsensual
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.   M. Cheriff Bassiouni et al.,
An Appraisal of Human Experimentation in International Law and Practice:  The Need for International Regulation of Human
Experimentation, 72 J.Crim. L. & Criminology 1597, 1640 & n. 220 (1981) (internal quotation marks omitted).   Annexed to the
London Agreement was the London Charter, which served as the IMT's Constitution.   See Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis Powers, with annexed Charter of the International Military Tribunal
art. 2, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.   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.  Id. at art. 6.

The IMT tried 22 “major” Nazi war criminals leaving “lower-level” war criminals, including “[l]eading physicians ․ and leading
German industrialists,” to be tried in subsequent trials by U.S. military tribunals acting “under the aegis of the IMT.” United States
Holocaust Memorial Museum, War Crimes Trials, Holocaust Encylopedia (2008), http://www.ushmm. org/wlc/article.php?lang=
en&ModuleId=10005140.   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, see id., an authority through which the London Agreement signatories exerted joint-
control over Germany, see Encyclopedia Britannica, Germany, Encyclopedia Britannica Online (2009), http://search.eb.com/eb/
article-58214. Control Council Law No. 10 stated that its purpose was to “give effect to the terms of ․ the London Agreement ․ and
the [London] Charter,” and “to establish a uniform legal basis in Germany for the prosecution of war criminals.”   Allied Control
Council No. 10, preamble, (Dec. 20, 1945), http://avalon.law.yale.edu/imt/imt10.asp. Law No. 10 expressly incorporated the
London Agreement, identifying it as an “integral part[ ] of this Law.” Id. at art.   I. Law No. 10 also authorized military tribunals of
the occupying powers to prosecute individuals for the same crimes over which the IMT had jurisdiction, including war crimes and
crimes against humanity, see id. at arts. II-III, and made military tribunal prosecutions subject to the IMT's right of first refusal, see
id. at art. III. Consequently, the U.S. military tribunals effectively operated as extensions of the IMT, see Telford Taylor, Final
Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 107, 107 (1949)
[hereinafter Report on Nuernberg War Crimes Trials], available at http://www. loc.gov/rr/frd/Military_Law/pdf/NT_final-report.
pdf (explaining that “the trials under Law No. 10 were to be a means of carrying out such ‘declarations of criminality’ ․ as the
International Military Tribunal might make” and that “[t]he first [IMT] trial and the 12 following [military tribunal] trials ․ form a
single sequence based on common principles”), and Control Council Law No. 10 served to implement the commitments undertaken
in the London Agreement, see id. at 7 (noting that “the two documents supplemented each other” and “[m]ajor criminals not tried
under the one could be tried under the other”).

In August 1947, Military Tribunal 1, staffed by American judges and prosecutors and conducted under American procedural rules,
see George J. Annas, The Nuremberg Code in U.S. Courts:  Ethics versus Expediency, in The Nazi Doctors and the Nuremberg Code
201, 201 (George J. Annas & Michael A. Grodin eds., 1992), promulgated the Nuremberg 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, Brandt, 2 Nuremberg Trials, at 181-82.   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.  Id. at 175-178.   Seven of the convicted doctors were sentenced to death and the remaining eight
were sentenced to varying terms of imprisonment.  Id. at 298-300.   The tribunal emphasized that [i]n every single instance
appearing in the record, subjects were used who did not consent to the experiments;  indeed, as to some of the experiments, it is not
even contended by the defendants that the subjects occupied the status of volunteers.

Id. at 183.   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.”  Id. (emphasis added and internal quotation marks omitted).   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.”   Id.
at 181.

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 nonconsensual 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.”  United States v. Stanley, 483 U.S. 669,
687, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (Brennan, J., concurring in part and dissenting in part) (emphasis added);  see also id.
at 709-10, 107 S.Ct. 3054 (O'Connor, J., concurring in part and dissenting in part).

Moreover, both the legal principles articulated in the trials' authorizing documents and their application in judgments at
Nuremberg occupy a position of special importance in the development of bedrock norms of international law.   United States
courts examining the Nuremberg judgments have recognized that “[t]he universal and fundamental rights of human beings
identified by Nuremberg-rights against genocide, enslavement, and other inhumane acts ․-are the direct ancestors of the universal
and fundamental norms recognized as jus cogens,” from which no derogation is permitted, irrespective of the consent or practice of
a given State.  Siderman de Blake v. Republic of Arg., 965 F.2d 699, 715 (9th Cir.1992) (cited in Sampson v. F.R.G., 250 F.3d 1145,
1150 (7th Cir.2001)).   As Telford Taylor, who first served as an assistant to Justice Robert Jackson during his time as Chief
Prosecutor for the IMT and then became Chief of Counsel for War Crimes on the Nuremberg trials held under the authority of
Control Council Law No. 10, explained, “Nuernberg was based on enduring [legal] principles and not on temporary political
expedients, and this fundamental point is apparent from the reaffirmation of the Nuernberg principles in Control Council Law No.
10, and their application and refinement in the 12 judgments rendered under that law during the 3-year period, 1947 to 1949.”  
Taylor, Report on Nuernberg War Crimes Trials, at 107 (emphasis added).

Consistent with this view, the Code's first principle has endured:  “[S]ignificant world opinion has not come to the defense of the
nature or manner in which the experiments were conducted in the Nazi concentration camps.”   Bassiouni et al., supra, at 1641.  
Rather, since Nuremberg, states throughout the world have shown through international accords and domestic law-making that
they consider the prohibition on nonconsensual medical experimentation identified at Nuremberg as a norm of customary
international law.9

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.”   Annotations on the text of the draft International Covenants on Human Rights, at 31, U.N. GAOR, 10th Sess.,
Annexes, agenda item 28(II), U.N. Doc. A/2929 (July 1, 1955).   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.”   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. 10  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 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.”   ICCPR art. 2(1).   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.

It is clear that, as the court mentioned in Sosa, the Universal Declaration of Human Rights and the ICCPR themselves could not
establish the relevant, applicable rule of international law in that case.  Sosa, 542 U.S. at 754, 124 S.Ct. 2739.   Nonetheless, the
ICCPR, when viewed as a reaffirmation of the norm as articulated in the Nuremberg Code, is potent authority for the universal
acceptance of the prohibition on nonconsensual medical experimentation.   As we discuss below, see infra pp. 181-83, the fact that
the prohibition on medical experimentation on humans without consent has been consciously embedded by Congress in our law
and reaffirmed on numerous occasions by the FDA demonstrates that the United States government views the norm as the source
of a binding legal obligation even though the United States has not ratified the ICCPR in full. 11

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.”   World Med. Ass'n, Declaration of Helsinki:  Code of Ethics of the World Medical Association, art. III(3a),
G.A. Res. (1964), http://www. pubmedcentral.nih.gov/picrender.fcgi?artid= 1816102 & blobtype=pdf.   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.” Declaration of Helsinki, supra, at art. 20.   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.”  Id. 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.   See Delon Human & Sev S. Fluss, The World
Medical Association's Declaration of Helsinki:  Historical and Contemporary Perspectives, 8-11 (July 24, 2001) (fifth draft), http://
www.wma.net/e/ethicsunit/pdf/draft_historical_ contemporary_ perspectives.pdf (describing legal and regulatory developments
in Australia, Belgium, Brazil, China, Israel, Japan, New Zealand, Norway, Switzerland, and the United States following the
Declaration of Helsinki).   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.12  That this conduct has been the subject of domestic legislation is
not, of course, in and of itself proof of a norm.   See Flores, 414 F.3d at 249.   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.

The history of the norm in United States law demonstrates that it has been firmly embedded for more than 45 years and-except for
our dissenting colleague-its validity has never been seriously questioned by any court.   Congress mandated patient-subject consent
in drug research in 1962.   Bassiouni et al., supra, at 1624 (citing 21 U.S.C. §  355(i) (1976)).   In response, the FDA promulgated its
first regulations requiring the informed consent of human subjects.   Tellingly, the sources on which our government relied in
outlawing non-consensual human medical experimentation were the Nuremberg Code and the Declaration of Helsinki, which
suggests the government conceived of these sources' articulation of the norm as a binding legal obligation.   Bassiouni et al., supra,
at 1625-26 (citing 21 C.F.R. § 310.102(h) (1980)).13  Today, FDA regulations require informed consent to U.S. investigators'
research, whether conducted domestically or in a foreign country, used to support applications for the approval of new drugs.   See
21 C.F.R. §§ 50.20, 50.23-.25, 50.27, 312.20, 312.120 (2008);  45 C.F.R. §§ 46.111, 46.116-.117 (2008).

The importance that the United States government attributes to this norm is demonstrated by its willingness to use domestic law to
coerce compliance with the norm throughout the world.   United States law requires that, as a predicate to FDA approval of any
new drug, both American and foreign sponsors of drug research involving clinical trials, whether conducted here or abroad, procure
informed consent from human subjects.  21 C.F.R. §§ 312.20, 312.120 (2008);  see also Dep't of Health & Human Servs., Office of
Inspector Gen., The Globalization of Clinical Trials 5 (2001), http://www.oig. hhs.gov/oei/reports/oei-01-00-00190.pdf. Sponsors
conducting research under an Investigational New Drug Application (“IND”) are obligated to adhere to FDA regulations, which
require informed consent.  21 C.F.R. § 312.20 (2008);  The Globalization of Clinical Trials, supra, at 5. Prior to April 2008,
sponsors conducting research under non-IND guidelines were obligated to adhere to the ethical principles of the 1989 version of
the Declaration of Helsinki or the host country's regulations, whichever offered greater protection to the human subject.  21 C.F.R.
§ 312.120 (2007);  The Globalization of Clinical Trials, supra, at 5. The April 2008 revisions to the non-IND guidelines reaffirmed
the informed consent requirement.   Human Subject Protection:  Foreign Clinical Studies Not Conducted Under an Investigational
New Drug Application, 73 Fed.Reg. 22,800, 22,801, 22,803, 22,804, 22,816 (Apr. 28, 2008) (codified at 21 C.F.R. pt. 312).  
Foreign clinical studies not conducted under an IND must now comply with the Good Clinical Practice guidelines (“GCP”)
promulgated by the International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for
Human Use, 62 Fed.Reg. 25,692 (May 9, 1997), which require informed consent to medical experimentation.  21 C.F.R. §  312.120
(2008).

Additional international law sources support the norm's status as customary international law.   The European Union embraced
the norm prohibiting nonconsensual medical experimentation through a 2001 Directive passed by the European Parliament and
the Council of the European Union.   The Directive accepted the informed consent principles of the 1996 version of the Declaration
of Helsinki.   Council Directive 2001/20/EC, preamble (2), 2001 O.J. (L 121) 37(EC) [hereinafter 2001 Clinical Trial Directive].   It
also required member States to adopt rules protecting individuals incapable of giving informed consent and permitting clinical
trials only where “the trial subject or, when the person is not able to give informed consent, his legal representative has given his
written consent after being informed of the nature, significance, implications and risks of the clinical trial.”  Id. at art. (1), (2)(d).  
The Directive further required all member States to implement by 2004 domestic laws, regulations, and administrative provisions
to comply with its informed consent requirements.  Id. at art. 22(1).

Since 1997, thirty-four member States of the Council of Europe have also signed the Convention on Human Rights and
Biomedicine, a binding convention and a source of customary international law.   Convention for the Protection of Human Rights
and Dignity of the Human Being with regard to the Application of Biology and Medicine:  Convention on Human Rights and
Biomedicine, art. 5, 15-16, opened for signature Apr. 4, 1997, E.T.S. No. 164, http://conventions.coe.int/Treaty/en/Treaties/html/
164.htm [hereinafter Convention on Human Rights and Biomedicine];  Convention on Human Rights and Biomedicine, Chart of
Signatures and Ratifications as of Aug. 8, 2008, http:// conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=164 & CM =8 &
DF=8/8/2008 & CL=ENG.   It provides that an “intervention in the health field may only be carried out after the person concerned
has given free and informed consent to it” and that the informed consent of human subjects is required for their involvement in
medical research.   Convention on Human Rights and Biomedicine, supra, at art. 5.14 In 2005, the General Conference of the
United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the Universal Declaration on Bioethics and
Human Rights, which requires “the prior, free, express and informed consent of the person concerned” for research-oriented
treatments.   Universal Declaration on Bioethics and Human Rights, UNESCO Gen. Conf. Res., at art. 6, 33rd Sess., 33
C/Resolution 36, (Oct. 19, 2005).

This history illustrates that from its origins with the trial of the Nazi doctors at Nuremburg through its evolution in international
conventions, agreements, declarations, and domestic laws and regulations, the norm prohibiting nonconsensual 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. Our dissenting colleague's reasoning fails to engage the
incompatibility of nonconsensual human testing with key sources of customary international law identified in Article 38 of the ICJ's
statute, most importantly international custom, as evidence of a general practice accepted as law, as well as the general principles of
law recognized by civilized nations.   See supra pp. 174-75.

ii. 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.”  Sosa, 542 U.S. at 732, 124 S.Ct. 2739.   The norm
prohibiting nonconsensual medical experimentation on human subjects meets this requirement.   In United States v. Smith, 18
U.S. (5 Wheat) 153, 159-61, 5 L.Ed. 57 (1820), Justice Story found that “whatever may be the diversity of definitions, all writers
concur, in holding, that robbery or forcible depredations upon the sea is piracy.”  Id. at 161. We have little trouble concluding that a
norm forbidding nonconsensual human medical experimentation is every bit as concrete-indeed even more so-than the norm
prohibiting piracy that Story describes, or interference with the right of safe conducts and the rights of ambassadors, which
together are the paradigmatic norms identified in Sosa. Id. at 724, 124 S.Ct. 2739.   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 eighty-four States all uniformly and unmistakably
prohibit medical experiments on human beings without their consent, thereby providing concrete content for the norm. 15  The
appellants allege that Pfizer knowingly and purposefully conducted such experiments on a large scale. Whatever uncertainty may
exist at the margin is irrelevant here because appellants allege a complete failure on the part of Pfizer and the Nigerian government
to inform appellants of the existence of the Trovan experiments. These allegations, if true, implicate Pfizer and the Nigerian
government in conduct that is at the core of any reasonable iteration of the prohibition against involuntary medical
experimentation.   While the prohibition in question applies to the testing of drugs without the consent of human subjects on the
scale Pfizer allegedly conducted, we do not suggest that it would extend to instances of routine or isolated failures by medical
professionals to obtain informed consent, such as those arising from simple negligence. The allegations in the complaints involve
anything but a doctor's routine or erroneous failure to obtain such consent from his patient.

iii. Mutual Concern

 Customary international law proscribes only transgressions that are of “mutual” concern to States-“those involving States' actions
performed ․ towards or with regard to the other.”  Flores, 414 F.3d at 249 (differentiating matters of “mutual” concern from those
of “several” concern, in which “States are separately and independently interested”).   Conduct that States have prohibited through
domestic legislation is also actionable under the ATS as a violation of customary international law when nations of the world have
demonstrated “by means of express international accords” that the wrong is of mutual concern.  Filartiga, 630 F.2d at 888.   An
important, but not exclusive, component of this test is a showing that the conduct in question is “capable of impairing international
peace and security.”  Flores, 414 F.3d at 249.   Appellants have made both of these showings.

As we have seen, States throughout the world have entered into two express and binding international agreements prohibiting
nonconsensual 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, nonconsensual 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. Filartiga, 630 F.2d at 889.

The administration of drug trials without informed consent on the scale alleged in the complaints poses a real threat to
international peace and security.   Over the last two decades, pharmaceutical companies in industrialized countries have looked to
poorer, developing countries as sites for the medical research essential to the development of new drugs.   See James V. Lavery,
Putting International Research Ethics Guidelines to Work for the Benefit of Developing Countries, 4 Yale J. Health Pol'y L. & Ethics
319, 320-21 (2004);  The Globalization of Clinical Trials, supra, at 8.16 Pharmaceutical companies recognize the potential benefits of
drug trials to poor nations and have sought to promote access to medicines and health care in underserved populations through
philanthropy and partnership with governments and NGOs. See, e.g., PhRMA, Press Releases:  Worldwide Pharmaceutical Industry
Launches Global Health Progress Initiative to Expand Efforts to Improve Health in Developing Countries (April 16, 2008), http://
www.phrma.org/news_room/press_ releases/global_health_progress_initiative_launched_to_improve_health_in_deve loping_
countries/ (describing initiative by worldwide pharmaceutical industry to “further access to medicines;  build capacity of health
workers in developing nations;  advocate for global action to address health challenges;  and continue R & D to develop new tools to
fight diseases that plague the developing world”);  PhRMA, Profile2008:  Pharmaceutical Industry 42 (2008), http://www.phrma.
org/files/2008% 20Profile.pdf (describing contributions by American pharmaceutical companies to the promotion of global access
to medicines and health care).   This trend offers the possibility of enormous health benefits for the world community.   Life-saving
drugs can potentially be developed more quickly and cheaply, and developing countries may be given access to cutting edge
medicines and treatments to assist underresourced and understaffed public health systems, which grapple with life-threatening
diseases afflicting their populations.17

The success of these efforts promises to play a major role in reducing the cross-border spread of contagious diseases, which is a
significant threat to international peace and stability.   The administration of drug trials without informed consent on the scale
alleged in the complaints directly threatens these efforts because such conduct fosters distrust and resistance to international drug
trials, cutting edge medical innovation, and critical international public health initiatives in which pharmaceutical companies play a
key role.   This case itself supplies an exceptionally good illustration of why this is so.   The Associated Press reported that the
Trovan trials in Kano apparently engendered such distrust in the local population that it was a factor contributing to an eleven
month-long, local boycott of a polio vaccination campaign in 2004, which impeded international and national efforts to vaccinate
the population against a polio outbreak with catastrophic results. 18  According to the World Health Organization, polio originating
in Nigeria triggered a major international outbreak of the disease between 2003 and 2006, causing it to spread across west, central,
and the Horn of Africa and the Middle East, and to re-infect twenty previously polio-free countries. 19
The administration of drug trials without informed consent also poses threats to national security by impairing our relations with
other countries.   Seven of the world's twelve largest pharmaceutical manufacturers-a group that includes Pfizer-are American
companies.   Global 500, Fortune, July 21, 2008, http://money.cnn.com/magazines/fortune/global500/2008/industries/21/
index.html. Consequently, American companies are likely to be sponsors of medical experiments on human subjects abroad. 20  As
this case illustrates, the failure to secure consent for human experimentation has the potential to generate substantial anti-
American animus and hostility.   Unsurprisingly, as noted above, see supra pp. 201-02, our government actively attempts to
prevent this practice in foreign countries.   For example, federal law requires that data generated from testing on human subjects
abroad that is used to seek regulatory approval for a given drug must, at minimum, be the result of testing conducted consistent
with the requirements of informed consent.   Consequently, the U.S. government denies access to the U.S. market for any new drug
unless the drug's research data is generated in a manner consistent with the customary international law norm prohibiting drug
trials on human subjects without informed consent.

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.

We believe that the issues raised by this appeal regarding customary international law are framed by our analysis and by that of our
dissenting colleague.   He contends that our analysis is created from “whole cloth.”   Dissent at 191.   We believe that his approach
to customary international law is unselfconsciously reactionary and static.   The approach does not accommodate itself to the
normative world that, by their commitments and conduct over the past fifty years, states-including our own-have shown they
believe to exist.

B. State Action

 A private individual will be held liable under the ATS if he “acted in concert with” the state, i.e., “under color of law.”  Kadic, 70
F.3d at 245.   In making this determination, courts look to the standards developed for finding state action in claims brought under
42 U.S.C. § 1983.  Id. Under § 1983, state action may be found when “there is such a ‘close nexus between the State and the
challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’ ”   Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (quoting Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)).   That nexus may exist “where a private actor has operated as a willful
participant in joint activity with the State or its agents,” Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d
545, 551-52 (2d Cir.2001) (quoting Loce v. Time Warner Entertainment Advance/Newhouse Partnership, 191 F.3d 256, 266 (2d
Cir.1999)), or “acts together with state officials or with significant state aid,” Kadic, 70 F.3d at 245.   Pfizer meets this test.

 The Appellants have alleged that the Nigerian government was involved in all stages of the Kano test and participated in the
conduct that violated international law.   They allege that the Nigerian government provided a letter of request to the FDA to
authorize the export of Trovan, arranged for Pfizer's accommodations in Kano, and facilitated the nonconsensual testing in
Nigeria's IDH in Kano. Despite overcrowding due to concurrent epidemics, the Nigerian government extended the exclusive use of
two hospital wards to Pfizer, providing Pfizer with control over scarce public resources and the use of the hospital's staff and
facilities to conduct the Kano test, to the exclusion of MSF.

The unlawful conduct is alleged to have occurred in a Nigerian facility with the assistance of the Nigerian government and
government officials and/or employees from the IDH and Aminu Kano Teaching Hospital.   Pfizer's research team in Kano was
comprised of three American physicians, Dr. Abdulhamid Isa Dutse (a physician in the Aminu Kano Teaching Hospital), and three
other Nigerian doctors.   The American and Nigerian members of Pfizer's team allegedly jointly administered the Kano test.  
Finally, in addition to assisting with the Kano test, Nigerian officials are alleged to have conspired to cover up the violations by
silencing Nigerian physicians critical of the test and by back-dating an “approval letter” that the FDA and international protocol
required to be provided prior to conducting the medical experiment.   In addition to these allegations, the Adamu plaintiffs
explicitly allege that the Nigerian government “was intimately involved and contributed, aided, assisted and facilitated Pfizer's
efforts to conduct the Trovan test,” “acted in concert with Pfizer,” and, according to a Nigerian physician involved in the Trovan
experimentation, appeared to “back[ ]” the testing.   At the pleading stage, these contentions meet the state action test because they
adequately allege that the violations occurred as the result of concerted action between Pfizer and the Nigerian government.

II. 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.  Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir.2005).   Since filing this appeal, however,
Pfizer has notified the Court that in light of recent developments, in particular the initiation of proceedings by the federal
government of Nigeria and the state of Kano against Pfizer and certain of its employees, it would not seek affirmance of the
judgment on the basis of forum non conveniens.   The appellants agreed and also requested that the issue be remanded.   We
accede to this request.

 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., 274 F.3d 65, 71-75 (2d Cir.2001) (en
banc), 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.  
Norex, 416 F.3d at 159.   A forum in which defendants are amenable to service of process and which permits litigation of the
dispute is generally adequate.  Id. at 157.   Such a forum may nevertheless be inadequate if it does not permit the reasonably
prompt adjudication of a dispute, if the forum is not presently available, or if the forum provides a remedy so clearly unsatisfactory
or inadequate that it is tantamount to no remedy at all.  Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254-55 & n. 22, 102 S.Ct. 252, 70
L.Ed.2d 419 (1981);  USHA (India), Ltd. v. Honeywell Int'l, Inc., 421 F.3d 129, 136 (2d Cir.2005);  Norex, 416 F.3d at 160.
 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.  USHA (India), Ltd., 421 F.3d at 135;  PT
United Can Co. v. Crown Cork & Seal Co., Inc., 138 F.3d 65, 74 (2d Cir.1998).   Absent a showing of inadequacy by a plaintiff,
“considerations of comity preclude a court from adversely judging the quality of a foreign justice system.”  PT United Can Co., 138
F.3d at 73.   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.   See, e.g.,
Norex, 416 F.3d at 159-160.

When the district court granted Pfizer's motion, it identified the pivotal issue as whether the plaintiffs produced sufficient evidence
to show that Nigeria is an inadequate alternative forum.  Abdullahi III, 2005 WL 1870811, at *15.   Having found that they had not,
it concluded that Nigeria was an adequate forum.  Id. at *16-18.   In so doing, the district court omitted an analysis of whether
Pfizer discharged its burden of persuading the court as to the adequacy and present availability of the Nigerian forum and
improperly placed on plaintiffs the burden of proving that the alternative forum is inadequate.   Cf. DiRienzo v. Philip Servs. Corp.,
294 F.3d 21, 30 (2d Cir.2002) (holding that it is error not “to hold defendants to their burden of proof” of the Gilbert factors).   On
remand, the district court will have an opportunity to reassess this issue, as well as the relationship between Fed.R.Civ.P. 44.1 and
the Federal Rules of Evidence.

III. Choice of Law

 The district court dismissed the Adamu plaintiffs' claims under the Connecticut Unfair Trade Practices Act and the Connecticut
Products Liability Act on the ground that Connecticut choice of law principles applied and called for the application of Nigerian law.
 Adamu, 399 F.Supp.2d at 501-03.  “We review the district court's choice of law de novo.”  Fin. One Pub. Co. Ltd. v. Lehman Bros.
Special Fin., Inc., 414 F.3d 325, 331 (2d Cir.2005).

 The district court correctly determined that Connecticut choice-of-law rules applied because it was obligated to apply the state
law that would have been applicable if the case had not been transferred from Connecticut to New York. See Van Dusen v. Barrack,
376 U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).   Under Connecticut law, lex loci delicti, “the doctrine that the substantive
rights and obligations arising out of a tort controversy are determined by the law of the place of injury,” typically applies.  
O'Connor v. O'Connor, 201 Conn. 632, 637, 519 A.2d 13 (1986).   Lex loci delicti would require the application of Nigerian law
because the Adamu plaintiffs' injuries are alleged to have occurred there.   Connecticut, however, has conspicuously retreated from
a rigid application of the doctrine.   The Connecticut Supreme Court held that lex loci delicti does not apply to a tort claim when
doing so would undermine expectations of the parties or an important state policy, produce an arbitrary and irrational result, or
where “reason and justice” counsel for the application of a different principle.  Id. at 637, 648, 650, 519 A.2d 13.   In such cases,
Connecticut courts are required to apply the “most significant relationship” analysis set forth in the Restatement (Second) of
Conflict of Laws §§ 6 & 145 (1971) [hereinafter Restatement (Second)]. O'Connor, 201 Conn. at 649-50, 519 A.2d 13.

Section 145(1) of the Restatement provides that “[t]he rights and liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and
the parties under the principles stated in § 6.” Restatement (Second) § 145(1).  Section 6(2), in turn, provides that where a state is
not guided by a statutory directive on choice of law,

the factors relevant to the choice of the applicable rule of law include

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular
issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Restatement (Second) § 6(2).   The Connecticut Supreme Court has determined that Section 145(2) provides courts with guidance
regarding the evaluation of the policy choices set out in Sections 145(1) and 6(2).  O'Connor, 201 Conn. at 652, 519 A.2d 13.  
Section 145(2) assists with the application of the principles of Section 6 to tort cases by calling for consideration of:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

Restatement (Second) § 145(2).   These factors are “to be evaluated according to their relative importance with respect to the
particular issue.”   Id.

The district court correctly decided to apply Sections 6 and 145 of the Restatement rather than lex loci delicti.   It applied the
factors in Section 145(2) to determine whether Connecticut or Nigeria has the most significant relationship to the conduct at issue,
which it identified as “Pfizer's failure to inform the children or their parents about the potential problems with Trovan, and the
administration of Trovan and low dosage of Ceftriaxone.”  Adamu, 399 F.Supp.2d at 503 (citations omitted).   It reasoned that “the
Nigerian contacts to this litigation are stronger than Connecticut's” and noted in particular that both the plaintiffs' injuries and
Pfizer's alleged conduct occurred in Nigeria, that the plaintiffs were Nigerian residents, and that “the parties' relationship is
centered” in Nigeria.  Id. It determined that most of the factors of Section 145(2) point toward applying Nigerian law and that the
“sole basis” for the applicability of Connecticut law was that “Pfizer performed research and development with respect to Trovan
and planned the experiment in Connecticut.”  Id. For these reasons, it concluded that Nigeria's interests were superior and that its
law should apply.  Id.

Although the district court correctly identified some of the pertinent factors, it ultimately erred in its application of the “most
significant relationship” test because it did not factor into its Section 145(2) analysis the integral factors set out in Section 6(2).   It
did not, for example, discuss “the relevant policies of the forum” or “the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue.”   Restatement (Second) §  6(2)(b)-(c).  Nor did it analyze
what “justified expectations” existed that could have prompted Pfizer reasonably to believe that its conduct in Connecticut would
not expose it to Connecticut law, or how Pfizer would have been disadvantaged by litigating these claims in Connecticut.   Id. §  
6(2)(d).  Finally, the district court did not evaluate its own ability to determine and apply Connecticut, as opposed to Nigerian, law.
  Id. § 6(2)(g).  For these reasons, we vacate the dismissal of the state law claims and remand to the district court for further
consideration.

CONCLUSION

For the foregoing reasons, we REVERSE the judgments of the district court and REMAND for further proceedings.

The majority has undertaken to define a “firmly established” norm of international law, heretofore unrecognized by any American
court or treaty obligation, on the basis of materials inadequate for the task.   In deviating from our settled case law, the majority
identifies no norm of customary international law, it creates a new norm out of whole cloth.   Because the majority's analysis
misconstrues-rather than vindicates-customary international law, I respectfully dissent.

Proceeding with “extraordinary care and restraint,” Flores v. S. Peru Copper Corp., 414 F.3d 233, 248 (2d Cir.2003), this Court has
upheld jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), in only a handful of cases alleging violations of the most
firmly established international law norms, see Kadic v. Karadzic, 70 F.3d 232, 241-43 (2d Cir.1995) (genocide and war crimes);  
Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 426 (2d Cir.1987), rev'd on other grounds, 488 U.S. 428, 109
S.Ct. 683, 102 L.Ed.2d 818 (1989) (free passage of neutral ship in international waters);  Filartiga v. Pena-Irala, 630 F.2d 876, 878
(2d Cir.1980) (state-administered torture).   In Sosa v. Alvarez-Machain, the Supreme Court identified three such “paradigmatic”
norms, namely “violation of safe conducts, infringement of the rights of ambassadors, and piracy.”  542 U.S. 692, 724, 124 S.Ct.
2739, 159 L.Ed.2d 718 (2004).   Rather than declare that list exhaustive for purposes of the ATS, the Court held that “any claim
based on the present-day law of nations [must] rest on a norm of international character accepted by the civilized world and
defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.”   Id. at 725, 124 S.Ct.
2739.   Accordingly, we are charged with “vigilant doorkeeping” when reviewing ATS claims to ensure that they rest on “a narrow
class of international norms” comparable to the paradigms identified by the Supreme Court.  Id. at 729, 124 S.Ct. 2739.

The majority identifies three criteria that must be satisfied before a violation of international law can be actionable under the ATS:  
that the norm is (1) specific and definable, (2) universally adhered to out of a sense of legal obligation, and (3) a matter of mutual
concern, namely a matter “involving States' actions performed towards or with regard to the other.”   Flores, 414 F.3d at 249
(internal quotation and alterations omitted).   I agree with the methodology used by the majority to determine whether a norm falls
within the jurisdictional grant of the ATS, but I do not agree with their conclusion that a norm against non-consensual medical
experimentation on humans by private actors is (1) universal and obligatory or (2) a matter of mutual concern.

The majority relies on eight sources of customary international law to support its determination that a norm against non-
consensual medical experimentation on humans by private actors is universal and obligatory.   However, this evidence falls far
short of the quantum necessary to establish the existence of such a norm:  (1) the International Covenant on Civil and Political
Rights has been described by the Supreme Court as a “well-known international agreement[ ] that despite [its] moral authority,
ha[s] little utility,” in defining international obligations, Sosa, 542 U.S. at 734, 124 S.Ct. 2739, and moreover, it does not apply to
private actors, such as the Defendant in this action;  (2) the Council of Europe's Convention on Human Rights and Biomedicine-a
regional convention-was not ratified by the most influential nations in the region, such as France, Germany, Italy, the Netherlands,
Russia and the United Kingdom, and it was promulgated on April 4, 1997, one year after the conduct at issue in this litigation;  (3)
the UNESCO Universal Declaration of Bioethics and Human Rights of 2005 and (4) the European Parliament Clinical Trial
Directive of 2001 both also post-date the relevant time period by several years;  (5) the Declaration of Helsinki issued by the World
Medical Association, a private entity, and (6) the International Ethical Guidelines for Research Involving Human Subjects
promulgated by the Council for International Organizations for Medical Sciences, another private entity, “express[ ] the sensibilities
and the asserted aspirations and demands of some countries or organizations” but are not “statements of universally-recognized
legal obligations,” Flores, 414 F.3d at 262;  (7) states' domestic laws, which, unsupported by express international accords, are not
“significant or relevant for purposes of customary international law,” id. at 249;  and (8) the so-called Nuremberg Code, a statement
of principles that accompanied a criminal verdict, possesses at best “subsidiary” value as a judicial decision, Statute of the
International Court of Justice art. 38, June 26, 1945, 59 Stat. 1031, 33 U.N.T.S. 993 (“ICJ Statute”).   Taken together, this evidence
falls short of charting the existence of a universal and obligatory international norm actionable against non-government actors
under the ATS.1

In support of its determination that non-consensual medical experimentation by private actors is a matter of mutual concern, the
majority reasons that non-consensual medical experiments breed distrust of medical interventions and thereby accelerate the
spread of infectious diseases across international borders.   It is not enough, however, that tortious conduct could create some sort
of international consequence.   In order for conduct to be a matter of mutual concern, it must “threaten[  ] serious consequences in
international affairs.”  Sosa, 542 U.S. at 715, 124 S.Ct. 2739.   Such is the case when an ambassador is assaulted, for example,
because the assault “impinge [s] upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of
war.”  Id. Non-consensual medical experimentation by private actors simply does not present the same grave risk of serious
consequences in international affairs and is therefore not a matter of mutual concern.

For these reasons, I conclude that non-consensual medical experimentation by private actors, though deplorable, is not actionable
under international law and would therefore affirm the district court's dismissal of Plaintiffs' complaints.

DISCUSSION

I. Universal and Legally Obligatory Adherence

In order for a principle to become a norm of customary international law, states must universally abide by it out of a sense of legal
obligation, and not merely aspiration.   See Flores, 414 F.3d at 248.   It might seem obvious, but before one can determine whether
a principle is universally followed, one must define the principle in question.   Like domestic law, international law is not a
monolith-a unitary set of rules applying indiscriminately to all actors that come within its reach.   To the contrary, international
law consists of rules that govern only states, rules that apply to private parties-individuals and corporations-and other rules that
regulate both evenhandedly.   See, e.g., Restatement (Third) of Foreign Relations of the United States §  101 (1987) ( “Restatement
(Third)”).   As a result, the Supreme Court has required courts deciding whether a principle is a customary international law norm
to consider “whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if
the defendant is a private actor such as a corporation or individual.”  Sosa, 542 U.S. at 732 n. 20, 124 S.Ct. 2739;  see also id. at 760,
124 S.Ct. 2739 (Breyer, J., concurring) (“The norm must extend liability to the type of perpetrator (e.g., a private actor) the plaintiff
seeks to sue.”).

The majority lists the norm at issue here as the prohibition of “medical experimentation on non-consenting human subjects,” Maj.
Op. at 174-75, and proceeds to analyze that norm without regard to the alleged violator, see id. at 174-88.   Put another way, the
majority's analysis would be no different if Plaintiffs had sued the Nigerian government, instead of, or in addition to, Pfizer.   Such
a broad, simplified definition ignores the clear admonitions of the Supreme Court-and conflicts with prior decisions of this Court-
that a customary international law norm cannot be divorced from the identity of its violator.   The majority's analysis omits this
critical consideration.   As a result, the majority opinion presents only half of the equation.   To my mind, the majority should have
asked whether customary international law prohibits private actors from medical experimentation on non-consenting human
subjects.   That question must be answered in the negative.

A. The Majority's Sources of Customary International Law

In Flores, we explained some of the difficulties inherent in determining what offenses violate customary international law:

Customary international law is discerned from myriad decisions made in numerous and varied international and domestic arenas.  
Furthermore, the relevant evidence of customary international law is widely dispersed and generally unfamiliar to lawyers and
judges.   These difficulties are compounded by the fact that customary international law ․ does not stem from any single, definitive,
readily-identifiable source.

414 F.3d at 247-48.   We have consistently looked to the ICJ Statute as the starting point for determining the proper sources of
international law.   See, e.g., id. at 250-51;  United States v. Yousef, 327 F.3d 56, 100-03 (2d Cir.2003).   That statute lists:  (1)
“international conventions, whether general or particular, establishing rules expressly recognized by the contesting states”;  (2)
“international custom, as evidence of general practice accepted as law”;  (3) “the general principles of law recognized by civilized
nations”;  and, in certain circumstances (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.”   ICJ Statute art. 38.

The ability to pick and choose from this seemingly limitless menu of sources presents a real threat of “creative interpretation.”  
Flores, 414 F.3d at 248;  see also Amerada Hess, 830 F.2d at 429 (Kearse, J., dissenting).   To mitigate this risk, and to prevent
courts from becoming “roving commission [s],” Flores, 414 F.3d at 262, we have, in our cases, methodically assessed the weight and
relative influence of not only each class of sources listed in the ICJ Statute, but many individual sources within each class.   The
near-infinite list of international law sources makes adherence to this precedent of paramount importance, for our analysis
demonstrates that not every source of international law carries equal weight.

Instead of following and applying our framework, the majority substitutes in its place a compelling narrative.   Over the course of
only a few pages, the majority employs several sources that it believes demonstrate a customary norm against medical
experimentation by non-state entities and weaves them together to reach its conclusion.   See Maj. Op. at 175-85.   Nowhere does
the majority examine these sources in the context required by Sosa. The majority does not discuss the weight of these sources, how
they collectively demonstrate a customary norm, or how evidence supporting that norm compares with our ATS precedent.   Had
they done so, I am hopeful that my colleagues would reach the same conclusion that I do-that medical experimentation by private
actors, while reprehensible, is not actionable under international law.

1. Treaties & Conventions

In Flores, we noted that treaties are the strongest evidence of customary international law because they “create legal obligations
akin to contractual obligations on the States parties to them.”  414 F.3d at 256.  “[W]e look primarily to the formal lawmaking and
official actions of States ․ as evidence of the established practices of States.”  Yousef, 327 F.3d at 103.   But not all treaties are
equal.   Although “[a]ll treaties that have been ratified by at least two States provide some evidence of the custom and practice of
nations ․ a treaty will only constitute sufficient proof of a norm of customary international law if an overwhelming majority of
States have ratified the treaty.”  Flores, 414 F.3d at 256.   Moreover, the “evidentiary weight to be afforded to a given treaty varies
greatly depending on (i) how many, and which, States have ratified the treaty, and (ii) the degree to which those States actually
implement and abide by the principles set forth in the treaty.”  Id. at 256-57.   For instance, treaties ratified by the United States
are of greater evidentiary value if they are either self-executing or executed through acts of Congress.   See, e.g., id. at 257;  
Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 284 (2d Cir.2007) (Katzmann, J., concurring).

The majority relies primarily on two treaties.

a. International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights, Dec. 9, 1966, S. Exec. Doc. E, 95-2, 999 U.N.T.S. 171, 6 I.L.M. 368 (ratified
by the United States June 8, 1992) (“ICCPR”) “guarantees a broad spectrum of civil and political rights to individuals within
signatory nations.”  United States v. Duarte-Acero, 296 F.3d 1277, 1282 (11th Cir.2002).   One of those rights-to be free of non-
consensual medical or scientific experimentation-is stated in Article 7.

The ICCPR is not appropriate evidence of customary international law for at least two reasons.   First, the Supreme Court in Sosa
explicitly described the ICCPR as a “well-known international agreement[ ] that, despite [its] moral authority, ha[s] little utility
under the standard set out in this opinion,” because the “United States ratified [it] on the express understanding that it was not
self-executing and so did not itself create obligations enforceable in the federal courts.”  542 U.S. at 734-35, 124 S.Ct. 2739
(emphasis added).
Second, whatever limited weight the ICCPR has with regard to state action, it does nothing to show that a norm prohibiting
involuntary medical experimentation applies to non-state entities.   In citing its seemingly universal language, the majority
overlooks the ICCPR's operative section, 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.”   ICCPR art. 2(1).  
Thus, despite its broad text, the ICCPR by its own terms, only governs “the relationship between a State and the individuals within
the State's territory.”  Duarte-Acero, 296 F.3d at 1283.   Because the ICCPR only creates obligations flowing from a state to persons
within its territory, a non-state actor cannot be said to have violated it.   Thus, the ICCPR was relevant in Filartiga (decided before
the Supreme Court limited its utility), in the context of state-administered torture of one of its citizens in contravention of one of
the rights guaranteed by states in the ICCPR. See 630 F.2d at 884.   But whatever its evidentiary value had Plaintiffs sued the
Nigerian government, the ICCPR clearly has none where the question is whether international law includes a norm actionable
against a private corporation.

b. Convention on Human Rights and Biomedicine

The second treaty cited by the majority is the Convention on Human Rights and Biomedicine, Apr. 4, 1997, E.T.S. No. 164 (the
“Convention”), promulgated by the Council of Europe.   See Maj. Op. at 183.   Articles 5  2and 16 3 of the Convention require that the
subject of scientific research give his or her informed consent, which may be withdrawn at any time.

The first problem with the majority's reliance on the Convention is that it is a regional agreement not signed by the most influential
states in the region.   Membership in the Council of Europe is limited to European states.   See Statute of the Council of Europe,
art. 4, May 5, 1949, E.T.S. No. 1.   It is difficult to see how the Convention demonstrates the universality of the medical
experimentation principle when its signatories are limited to one continent.   The majority also notes that the Convention has been
signed by thirty-four states, see Maj. Op. at 183, but overlooks that it has only been ratified by twenty-two, and a treaty only
evidences the customs and practices of states that have ratified it.  Flores, 414 F.3d at 256.   Lastly, and perhaps more importantly,
the Convention is lacking even as evidence of a European norm, since it has not been ratified by the more influential European
states, including France, Germany, Italy, the Netherlands, Russia and the United Kingdom, and a treaty's evidentiary value
increases along with the influence in international affairs of the states that have ratified it.   See id. at 257;  Convention on Human
Rights and Biomedicine, Chart of Signatures and Ratifications as of December 23, 2008, http://conventions.coe. int/Treaty/
Commun/ChercheSig.asp?NT =164 & CM=8 & DF= 12/23/2008 & CL=ENG (“Convention Ratifications Chart”).

A second, more fundamental problem with the majority's reliance on the Convention is that it was promulgated after the conduct at
issue here.   I know of no authority for an international ex post facto definition of the law of nations by later signed treaties.   Cf.
Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 118 (2d Cir.2008) (“The United States did not ratify the
1925 Geneva Protocol until 1975.   Accordingly, the Protocol cannot be said to have constituted ‘a treaty of the United States,’ 28
U.S.C. § 1350, during the period relevant to this appeal.”).   Plaintiffs allege that the Trovan testing occurred in March and April of
1996, but the Convention was not opened for signature until April 4, 1997, and did not bind any state until Slovakia's ratification on
January 15, 1998.   See Flores, 414 F.3d at 256(“A State only becomes bound by-that is, becomes a party to-a treaty when it ratifies
the treaty.”);   Convention Ratifications Chart.   The Convention is without import to this inquiry.   Two other post-1996 sources
cited by the majority, the 2005 UNESCO Universal Declaration on Bioethics and Human Rights and the 2001 European Parliament
Clinical Trial Directive share equal evidentiary irrelevance for the same reason.

2. Multinational Declarations of Principle

Plaintiffs and the majority cite several multinational declarations, including the World Medical Association's Declaration of
Helsinki and the International Ethical Guidelines for Research Involving Human Subjects promulgated by the Council for
International Organizations of Medical Sciences (“CIOMS Guidelines”), as additional evidence that the prohibition against non-
consensual medical experimentation applies to non-state actors.   In doing so, the majority somehow overlooks our decisions in
Flores and Yousef.

In Flores, plaintiffs sought to demonstrate customary international law by reference to multinational declarations.   In response,
we noted that a declaration, “which may be made by a multinational body, or by one or more States, customarily is a ‘mere general
statement of policy [that] is unlikely to give rise to ․ obligation[s] in any strict sense.’ ”  414 F.3d at 262 (quoting 1 Oppenheim's
International Law 1189 (Sir Robert Jennings & Sir Arthur Watts, eds., 9th ed.1996)) (alterations in original).  “Such declarations
are almost invariably political statements-expressing the sensibilities and the asserted aspirations and demands of some countries
or organizations-rather than statements of universally-recognized legal obligations.”  Id. As a result, we concluded that “such
declarations are not proper evidence of customary international law.”  Id. (emphasis added).

In Flores, the declarations we rejected were put forth by international governmental bodies, the Organization of American States
and the United Nations Conference on Environment and Development.  Id. at 263.   Here, the two declarations embraced by the
majority were put forward by entirely private organizations-hardly evidence of the state of international law.   The Declaration of
Helsinki was adopted by the World Medical Association, a group comprised not of member states, but of physicians and private
national medical associations.  “The World Medical Association (WMA) is an international organization representing physicians ․
[and] has always been an independent confederation of free professional associations.”   See The World Medical Association,
“About the WMA,” http://www.wma.net/e/about/index.htm. The express terms of the Declaration of Helsinki make it abundantly
clear that it is hortatory, and not obligatory:  “The World Medical Association (WMA) has developed the Declaration of Helsinki as
a statement of ethical principles․” See World Med. Ass'n, Declaration of Helsinki:  Ethical Principles for Medical Research Involving
Human Subjects art.   A(1), June 1964.   Similarly, CIOMS is “an international non-governmental, non-profit organization.”  
CIOMS, “What is CIOMS?”, http://www.cioms.ch/jan2008_what_is_ cioms.pdf.

Treating these well-meaning, aspirational, but private, declarations as sources of international law runs counter to our observation
in Yousef that “no private person-or group of men and women such as comprise the body of international law scholars-creates the
law.”  327 F.3d at 102.   This is so for good reason.   As we have seen in our ATS jurisprudence, international custom gives rise to
legally enforceable obligations.   To include the political statements of private organizations in the select and conscribed group of
sources capable of creating international law would enfranchise non-democratic, unaccountable entities with governmental
authority.   As a result, these declarations are “not proper evidence of customary international law.”   Flores, 414 F.3d at 262.

The majority focuses its lens on one line in Filartiga for the proposition that a “declaration may by custom become recognized as
laying down rules binding upon the States.”   Maj. Op. at 177 (quoting Filartiga, 630 F.2d at 883).   In Filartiga, we were discussing
a United Nations declaration, which though not binding, “creates an expectation of adherence” because it “specif [ies] with great
precision the obligations of member nations.” 630 F.2d at 883.   The declarations relied on by the majority were not put forth by a
governmental body such as the United Nations but by wholly private organizations, incapable of creating legally binding
obligations.

3. State Practice

The majority also points to the great number of states that, in their respective domestic laws, require informed consent in medical
research.   That many countries have prohibited private actors from conducting medical experiments or treatments without
informed consent is certainly commendable and worthy of praise, but not “significant or relevant for purposes of customary
international law.” 4  See Flores, 414 F.3d at 249.   For it is only when states prohibit domestic action as a result of “express
international accords” that a wrong becomes a violation of customary international law.   See Filartiga, 630 F.2d at 888 (quoting
IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir.1975) (Friendly, J.)).   No such international accord exists here.

Moreover, “substantive uniformity” among states' domestic laws is only a starting point for demonstrating international custom
through individual state practice, which should also reflect a “procedural” consensus among states on how that behavior should be
prosecuted-criminally and civilly.   See Sosa, 542 U.S. at 761-62, 124 S.Ct. 2739 (Breyer, J, concurring).   As Justice Breyer noted in
his Sosa concurrence, the states of the world have reached both substantive and procedural agreement with respect to only a
handful of certain international law norms made actionable against non-state entities.   See id.;   Part I(B) infra.   Non-consensual
medical testing is not among them.

4. The Nuremberg Code

The majority centers its analysis around the Nuremberg Code, but, in the process, critically misstates its genesis and status in
international law.   See Maj. Op. at 177-79.   Because the Code is a sui generis source of international law, its context is vital to
understanding what it is-and what it is not.

The Nuremberg trials are unquestionably one of this country's greatest and most enduring contributions to the field of international
law.   As early as 1943, the Allied powers contemplated bringing Nazi war criminals to justice after the conclusion of the Second
World War. At the October 1943 Moscow Conference, the United States, United Kingdom and Soviet Union issued a joint
“Statement on Atrocities,” warning that:

At the time of granting of any armistice to any government which may be set up in Germany, those German officers and men and
members of the Nazi party who have been responsible for or have taken a consenting part in the above atrocities, massacres and
executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and
punished according to the laws of these liberated countries and of free governments which will be erected therein.

Moscow Declaration Statement of Atrocities, Oct. 30, 1943, 9 U.S. Dept of State Bull. 310 (signed by President Roosevelt, Prime
Minister Churchill and Premier Stalin).   The statement added that German criminals “whose offenses have no particular
geographical localization ․ will be punished by joint decision of the government of the Allies.”  Id.

Following victory in Europe and the surrender of Germany, the Allies executed the London Charter on August 8, 1945, establishing
an International Military Tribunal to try the “major war criminals,” London Charter, Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis, art. 3, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T. S. 279, and leaving the
door open for other war criminals to be tried in any other “national or occupation court” that might be established, id. art. 6.
Alongside the London Charter, the Allies promulgated the Charter of the International Military Tribunal and formed a four-
member tribunal with one member appointed by each of the Allies, with jurisdiction over “the major war criminals” accused of
committing three crimes:  crimes against peace,5 war crimes,6 and crimes against humanity.7  Charter of the International Military
Tribunal, arts. 2, 6, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.   It was the International Military Tribunal that conducted the
celebrated trial that resulted in the convictions of 19 of 22 defendants, including high-ranking Nazi officials Hermann Goering,
Rudolf Hess, and Karl Doenitz.   See generally Robert H. Jackson, Final Report to the President on the Nuremberg Trials (Oct. 7,
1946). But the Nuremberg Code was adopted by a different tribunal in a different trial.

Four months after the London Charter established the International Military Tribunal, the Allied Control Council, the joint allied
entity that governed post-war Germany, enacted Control Council Law No. 10, which authorized each of the occupying Allies, within
its own “Zone of Occupation,” to arrest and prosecute “persons within such Zone suspected of having committed a crime,” 8 subject
to a right of first refusal by the International Military Tribunal.   Allied Control Council Law No. 10 art. III, §§  1, 3 (Dec. 20, 1945),
in 1 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, XVIII (William S. Hein &
Co., Inc. 1997) (1949), available at http://www.loc.gov/rr/frd/Military_law/pdf/NT_war-criminals_Vol-I. pdf (“1 Trials of War
Criminals ”).

The first of the American trials arising under Control Council Law No. 10 was the “Medical Case” against German doctors.   On
October 25, 1946, the American Office of Military Government for Germany enacted General Order 68, constituting Military
Tribunal 1, comprised of three American military judges and one alternate judge.  Id. at 5. That same day, Brigadier General
Telford Taylor, Chief of Counsel for War Crimes, signed an indictment in United States v. Karl Brandt, et al. charging 23 defendants
with war crimes, crimes against humanity, and conspiracy, and charging 10 of the defendants with membership in the “SS,” an
organization declared criminal by the International Military Tribunal.  Id. at 8-18.   These charges were premised, primarily, on
the defendants' forced medical experiments, which constituted war crimes when performed on prisoners of war, and crimes against
humanity when conducted on Nazi concentration camp prisoners.

At the conclusion of the Medical Case, 16 of the 23 defendants were convicted of one or more of the charges, and seven were
ultimately sentenced to death.   Along with their verdict, the military judges enumerated ten principles that came to be known as
the Nuremberg Code, the first of which states that in medical experiments, the “voluntary consent of the human subject is
absolutely essential.”   2 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, 181
(William S. Hein & Co., Inc.1997) (1949), available at 7 http://www.loc.gov/rr/frd/Military_law/pdf/NT_war-criminals_Vol-II.pdf
(“2 Trials of War Criminals ”).

My colleagues contend that the Code flowed naturally from the principles of law espoused in the London Charter.   They are quite
right, of course, that Control Council Law No. 10 was modeled after the London Charter and the American and International
military tribunals shared largely the same general international law and procedural frameworks.   The London Charter identified
and defined certain international law offenses-Crimes Against Humanity, Crimes Against Peace, and War Crimes-while each of the
twelve trials before the American military tribunal concerned a unique and horrific context for the commission of those crimes,
ranging from medical experimentation on prisoners to the use of slave labor.   For example, the definitions of Crimes Against
Humanity and War Crimes under which the Nazi doctors were tried in the Medical Case were virtually identical to those of the
London Charter.   However, the majority overlooks the fact that the Nuremberg Code dealt not with these general principles of law,
but instead with the very specific issue of permissible medical experimentation.   The ethical principles espoused in the Code had
no forebears in either the London Charter or the judgment of the International Military Tribunal.   They were developed exclusively
in the Medical Case.

I recite this history not to suggest that the Nuremberg Code is not an extraordinary or groundbreaking document, but rather to
demonstrate the difficulty inherent in measuring its evidentiary weight, as it does not fit neatly into any of the categories this Court
has identified for sources of international law.   For one thing, the Code was developed by the United States military and
announced by an American military court.   See United States v. Stanley, 483 U.S. 669, 687, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987)
(Brennan, J., dissenting).   Certainly, the Code is not a treaty and did not immediately bind any state.   Under the framework of the
ICJ Statute-and, accordingly, this Court-because it was part of a criminal verdict, its closest analogue is a judicial decision, but
judicial decisions are only “subsidiary,” rather than primary, sources of customary international law.   See ICJ Statute art. 38;  Maj.
Op. at 173-74.   I agree with my colleagues that the Code has had significant import-influence that continues to this day.   The Code
surely has evidentiary value in our inquiry, but there is nothing to indicate that the Code establishes a norm of international law
prohibiting non-consensual medical experimentation or treatment by private actors, or compensates for the virtually non-existent
evidentiary value of the other sources cited by the majority.

Conscious of our obligation to measure the weight of the sources of international law in the aggregate, what is the sum of the
sources that serve as the cornerstone of the majority's conclusion?   The ICCPR, characterized by the Supreme Court as being of
“little utility,” Sosa, 542 U.S. at 734, 124 S.Ct. 2739, which, in any event, does not apply to private actors;  a pair of private
organizations' declarations that our Circuit precedent tells us “are not proper evidence of customary international law,” Flores, 414
F.3d at 262;  one regional convention and two multi-national declarations that post-date the critical time period and are thus
completely irrelevant;  states' domestic laws untethered to any international agreement that we are told is not “significant or
relevant for purposes of customary international law,” id. at 249, 414 F.3d 233;  and the Nuremberg Code, a document whose
evidentiary value is unclear.

Simply put, the evidence here does not compare with the sources put forward in the few cases where we have held a principle to be
a norm of customary international law.   Exercising “extraordinary care and restraint,” see id. at 248, we have only upheld ATS
jurisdiction in cases where the evidence of customary international law was entirely overwhelming. 9  In Filartiga, we were
persuaded by the fact that the “international consensus surrounding torture has found expression in numerous international
treaties and accords.”  630 F.2d at 883 (emphasis added).   There, the State Department-“the political branch with principal
responsibility for conducting the international relations of the United States,” Flores, 414 F.3d at 262-had expressly announced that
the prohibition against torture had ripened into a norm of customary international law. 10  Filartiga, 630 F.2d at 884.   In Kadic, we
observed that genocide was included in section 404 of the Restatement and that the Convention on the Prevention and Punishment
of the Crime of Genocide had been ratified by more than 120 nations, including the United States, 70 F.3d at 240-42, while
international criminalization of war crimes was established by four Geneva Conventions, ratified by more than 180 nations,
including the United States, id. at 242-43.   In Amerada Hess, it was similarly obvious that Argentina's Falkland War attack on an
American ship violated one of the oldest customary international law norms.  830 F.2d at 423-24.   We cited a variety of
international accords establishing the right of a neutral ship to free passage.  Id. at 424.   After tracing the norm to Blackstone, we
concluded that it was “beyond controversy that attacking a neutral ship in international waters ․ violates international law.”  Id.

In those cases, the evidence of international acceptance of each norm with respect to each defendant was “clear and unambiguous.”
 Flores, 414 F.3d at 252.   In each case, the nations of the world gathered to ratify in universal numbers treaties that specifically
prohibited genocide, war crimes, torture, and attacks on neutral ships-not in generalized human rights agreements but in accords
with those discrete norms as their exclusive subjects.

My colleagues contend that I look only to the presence (or, in this case, the absence) of a globally ratified treaty as the exclusive
source of an international law norm.   Far from it-we have held that customary international law “does not stem from any single,
definitive, readily-identifiable source.”   Id. at 248.   However, the great weight of ATS jurisdiction must rest upon a foundation
sturdy enough to support it.   Just as it would be error to stubbornly require one source of sufficient strength to bear that burden
on its own, the majority is equally mistaken in its attempt to employ a series of extraordinarily weak sources to secure a purported
norm of customary international law.   Our case law makes clear that even when viewed collectively, these sources are incapable of
carrying the weight placed upon them by my colleagues.

B. Restatement § 404

Nor does Plaintiffs' purported norm resemble the select few norms for which international law extends liability to private actors.  
Although the law of nations in general does not “confine[ ] its reach to state action,” see Kadic, 70 F.3d at 239, courts must still
consider whether the specific norm at issue does.   In Kadic, we noted that the Restatement (Third) of Foreign Relations Law of the
United States differentiates between “those violations that are actionable when committed by a state 11 and a more limited category
of violations” that apply with equal force to private actors.  Id. at 240 (citing Restatement (Third) §§  404, 702).   Section 404 of
the Restatement authorizes universal criminal jurisdiction over non-state entities “for certain offenses recognized by the
community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes,
and perhaps certain acts of terrorism, even where [no other basis of jurisdiction] is present.” 12  Universal jurisdiction, not to be
confused with universal acceptance of a norm for ATS purposes, “permits a State to prosecute an offender of any nationality for an
offense committed outside of that State and without contacts to that State.”   Yousef, 327 F.3d at 103.

The plaintiffs in Kadic alleged that Radovan Karadzic, the “president” of the self-proclaimed republic of Srpska violated several
international law norms, notably bans on genocide, war crimes and torture.  70 F.3d at 236-37.   Treating Karadzic as a non-state
actor, we reviewed not only the Restatement, but a host of relevant international accords, leading us to conclude that by their own
terms, the norms prohibiting genocide and war crimes applied to private individuals, while torture and summary execution “are
proscribed by international law only when committed by state officials or under color of law.”  Id. at 241-43.   We added that the
“ ‘color of law’ jurisprudence of 42 U.S.C. § 1983 is a relevant guide to whether a defendant has engaged in official action for
purposes of jurisdiction under the [ATS].” Id. at 245.

Five years later, we again determined whether an international law norm applied only to state actors.   See Bigio v. Coca-Cola Co.,
239 F.3d 440 (2d Cir.2000).   Building on Kadic, we held that ATS jurisdiction over a non-governmental entity requires the
violation of a norm “listed as an ‘act of universal concern’ in § 404 or ․ sufficiently similar to [those] acts for us to treat them as
though they were incorporated into § 404 by analogy,” or conduct committed under color of law.  Id. at 448.   In affirming the
district court's dismissal, we determined that the act at issue-discriminatory expropriation of property-is much more like the acts
listed in section 702 than those in section 404, and that the complaint did not allege that Coca-Cola acted in concert with Egyptian
state officials.  Id. at 447-49.   However, unlike in Kadic, we saw no need to look beyond the Restatement to any sources of
international law in order to conclude that the norm did not apply to non-state entities.   Compare id. at 448, with Kadic, 70 F.3d at
241-43.   It is equally clear that section 404 of the Restatement does not reveal a norm of customary international law prohibiting
non-consensual medical experimentation by private actors.

To reiterate, section 404 lists only five specific acts for which universal criminal jurisdiction over private actors exists:  piracy,
genocide, slave trade, war crimes, and attacks on aircrafts.   See also Vietnam Ass'n for Victims of Agent Orange, 517 F.3d at 116
(describing these five as comprising “the list of principles that may be said to have ripened into universally accepted norms of
international law” (internal quotation marks omitted)).   If anything, this Court has been even more stringent, holding that in spite
of the Restatement, federal courts could not try an alleged airline bomber under customary international law principles of universal
jurisdiction.13  See Yousef, 327 F.3d at 103-08.   Regardless, there is no dispute that none of the five acts in section 404
encompasses non-consensual medical experimentation.   Instead, Plaintiffs argue that it is “sufficiently similar” to those acts to
support its application to a private corporation. 14  See Bigio, 239 F.3d at 448.   This Court has never had occasion to consider what
types of acts are “sufficiently similar” to the section 404 acts except to conclude in Bigio that discriminatory expropriation was not
among them.   Id. For similar reasons, neither is non-consensual medical experimentation.

Universal jurisdiction originated with prosecutions of piracy more than 500 years ago.   See Yousef, 327 F.3d at 104;  United States
v. Lei Shi, 525 F.3d 709, 723 (9th Cir.2008).   As we explained in Yousef, piracy is universally punishable not because it is uniquely
heinous but “because of the threat that piracy poses to orderly transport and commerce between nations and because the crime
occurs statelessly on the high seas.”  327 F.3d at 104.   By 1822, it was beyond “doubt ․ that vessels and property in the possession
of pirates may be lawfully seized on the high seas by [any] person, and brought in for adjudication.”  United States v. the La Jeune
Eugenie, 26 F. Cas. 832, 843 (C.C.D.Mass.1822) (No. 15,551);  see also United States v. Smith, 18 U.S. 153, 5 Wheat. 153, 163, 5
L.Ed. 57 (1820) (Story, J.) (discussing the bases for universal jurisdiction over piracy).

Private actors trading slaves (as opposed to those engaging in slavery in general) are subject to universal criminal jurisdiction
because the early treaties that formed the basis for customary international law considered the slave trade akin to piracy.   For
example, the 1841 Treaty of London provided that:

Their Majesties the Emperor of Austria, the King of Hungary and Bohemia, the King of Prussia, and the Emperor of all the
Russians, engage to prohibit all trade in slaves, either by their respective subjects, or under their respective flags, or by means of
capital belonging to their respective subjects;  and to declare such traffic piracy.   Their Majesties further declare that any vessel
which may attempt to carry on the Slave Trade, shall, by that fact alone, lose all right to the protection of their flag.

Treaty for the Suppression of the African Slave Trade art. I, Dec. 20, 1841, 92 Consol. T.S. 437 (emphasis added), reprinted in M.
Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare:  The Duty to Extradite or Prosecute in International Law 132-33
(1995);  see also Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 Tex. L.Rev. 785, 798 (1988) ( “Currently,
states can recognize universal jurisdiction over slave trading by ․ customary law.”).   Although we declined to hold in Yousef that
the principle had ripened into a customary norm, attacks on airliners logically fit into this class because, like the high seas, airspace
is stateless and extraterritorial.

After World War II, universal criminal jurisdiction was extended to private actors-including many of the Nazi defendants
prosecuted under Control Council Law No. 10-accused of crimes against humanity such as war crimes and genocide because, like
piracy, “ ‘there is ․ a lack of any adequate judicial system operating on the spot where the crime takes place-in the case of piracy it is
because the acts are on the high seas and in the case of war crimes because of a chaotic condition or irresponsible leadership in time
of war.’ ”  Yousef, 327 F.3d at 105 (quoting Willard B. Cowles, Universality of Jurisdiction Over War Crimes, 33 Cal. L.Rev. 177, 194
(1945));  see also Flores, 414 F.3d at 244 n. 18 (“Customary international law rules proscribing crimes against humanity, including
genocide, and war crimes, have been enforceable against individuals since World War II.”).

In Yousef, we concluded that these acts share two common traits:  they “(1) are universally condemned by the community of
nations, and (2) by their nature occur either outside of a State or where there is no State capable of punishing, or competent to
punish, the crime.”  327 F.3d at 105.

Non-consensual medical experimentation is not “sufficiently similar” to these crimes to warrant its incorporation into section 404
by analogy.   Plaintiffs acknowledge that the acts listed in section 404 share “a particular quality of crossing international
boundaries,” a quality that they argue that medical experimentation shares “because of the universal uses of medical research and
the common practice of physicians to travel to crisis areas to deliver humanitarian aid.”   But the mere crossing of an international
border does not give rise to universal jurisdiction over non-state actors.   We made this clear in Yousef, where we rejected universal
jurisdiction over an individual accused of bombing of an aircraft leaving the Philippines for Japan.  327 F.3d at 98, 103.   As we
held, universal criminal jurisdiction over private actors is only appropriate for acts which, “by their nature,” are beyond state
sovereignty.  Id. at 105.   Here, Pfizer's alleged actions occurred exclusively within Nigeria, and medical experimentation is not a
crime which, by its nature, is incapable of state punishment.   Plaintiffs' argument to the contrary is belied by the state and federal
civil and criminal actions pending against Pfizer in Nigeria. See Maj. Op. at 171-72.

As in Bigio, medical experimentation more closely resembles the acts for which only state actors may be held responsible.  
Plaintiffs compare medical experimentation with slavery.   Yet, under the Restatement, while anyone may be prosecuted for
engaging in the slave trade, slavery itself is only actionable against state actors.   See Restatement (Third) §  702(b) (“A state
violates international law if, as a matter of state policy, it practices, encourages, or condones ․ slavery ․”).  Medical experimentation
resembles slavery in its grievous exploitation of unconsenting and unwilling subjects;  it also resembles torture in its infliction of
horrific physical and emotional pain.   However, both the Restatement and this Court have recognized that the norm against
torture reaches only state actors.   See Kadic, 70 F.3d at 243-44;  Restatement (Third) § 702(d);  see also Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art 1, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465
U.N.T.S. 85 (“CAT”) (defining torture as being “inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.”).15

One of the fundamental attributes of sovereignty is a state's authority to exercise criminal jurisdiction over persons accused of
committing crimes within its territory.   The crimes listed in section 404 are not the extraordinary exceptions because they are
singularly reprehensible or deserving of condemnation.   Few would argue that piracy, for which private actors may be prosecuted
universally but which requires neither an act of violence nor the infliction of physical injury, 16 is more heinous than torture or
slavery, practices made actionable only against state entities.   Rather, by definition, these crimes occur in locations where, or
during times when, sovereignty, and a fortiori criminal jurisdiction, are incapable of being exercised.   Because medical
experimentation is entirely intra national and fully subject to domestic criminal jurisdiction, it is not “sufficiently similar” to those
acts listed in section 404, and cannot be incorporated by analogy as to reach private, non-state actors.

The defendants in the Medical Case were not charged with conducting non-consensual medical tests per se.   Rather, those tests,
when conducted on prisoners of war and members of a discrete civilian population imprisoned in concentration camps, constituted
“war crimes” and “crimes against humanity,” offenses for which customary international law has imposed individual responsibility.
  See Flores, 414 F.3d at 244 n. 18.   Unlike the Defendant in this action, the Nazi doctors convicted by the American military
tribunal were not private actors.   Each convicted defendant held a position of authority in either the medical services or the
military of the Third Reich. 17  See 1 Trials of War Criminals 29.   Moreover, the atrocities for which they were convicted victimized
state prisoners in state-administered concentration camps, according to the Indictment, “for the benefit of the German Armed
Forces.”  Id. at 11-14.   It is difficult to imagine a more egregious example of the violation of a customary international law norm or
a more appropriate case for ATS jurisdiction.

The majority today authorizes the exercise of ATS jurisdiction over an entirely private corporation for violating a previously
unrecognized norm of international law.   In doing so, my colleagues accept proof far weaker than in any other case where this
Court has identified a norm of customary international law, and, apparently, overlook the fact that this purported norm in no way
resembles those few norms enforceable against private entities.   When tasked by the Supreme Court with “vigilant doorkeeping” to
ensure that the list of actionable international norms remains “narrow,” Sosa, 542 U.S. at 729, 124 S.Ct. 2739, we must be no less
demanding than we have been in the past.   Under that standard, the evidence put forward by Plaintiffs does not establish a norm
of customary international law actionable against private actors.   I believe that the majority's decision departs from our settled
case law and lowers considerably our previously high bar for ATS jurisdiction.

II. Mutuality

There are many principles on which most states of the world community agree.   Most find support and enforcement in the richly
diverse legal systems in place around the globe.   But universal acceptance as a normative principle is not enough to gain entrance
into the “law of nations.”   The norm must not only be universal, it must touch on matters that are “of mutual, and not merely
several, concern.”  Filartiga, 630 F.2d at 888.   Matters are of mutual concern when they “affect[  ] the relationship between states
or between an individual and a foreign state, and [are] used by those states for their common good and/or dealings inter se.”  IIT,
519 F.2d at 1015.   On the other hand, matters of several concern are those “in which States are separately and independently
interested.”  Flores, 414 F.3d at 249.   For example, as we noted in Flores, “murder of one private party by another, universally
proscribed by the domestic law of all countries ․ is not actionable under the [ATS] as a violation of customary international law
because ‘the nations of the world’ have not demonstrated that this wrong is of mutual, and not merely several, concern.”  Id.
(quotation marks omitted).   The majority concludes that non-consensual medical experimentation by one private party on another
is a matter of mutual concern.   I disagree.

We have consistently held that the best evidence that states consider a matter to be of mutual concern is the fact that they have
agreed to be bound “by means of express international accords.”  Filartiga, 630 F.2d at 888;  see Flores, 414 F.3d at 249;  
Khulumani, 504 F.3d at 274 n. 7 (Katzmann, J., concurring).   The majority points to the ICCPR, the Convention on Human Rights
and Biomedicine, and the 2001 Clinical Trial Directive as evidence that “States throughout the world have entered into ․ express
and binding international agreements prohibiting nonconsensual medical experimentation.”   See Maj. Op. at 185.   But those
agreements fail to demonstrate mutuality for the same reason they fail to demonstrate universality-the ICCPR does not address acts
by non-state actors and the other two were not in force at the time of the alleged misconduct.   Whatever international consensus
has been reached as to non-consensual medical experimentation by private actors has not yet “found expression in numerous
treaties and accords,” cf. Filartiga, 630 F.2d at 883.   The majority cites no worldwide, multi-continental, universally applicable
“Convention Against Medical Experimentation,” because, at the moment, none exists.   That fact alone distinguishes this case from
Filartiga, Amerada Hess, and Kadic.

In the absence of a binding global treaty, the majority seeks to demonstrate mutuality of concern by describing the downstream
effects of non-consensual medical experimentation.   In essence, the majority contends that non-consensual medical experiments
feed distrust among their victims, which, in turn, engenders a general reluctance to seek future medical attention or vaccination,
which, in turn, helps accelerate the spread of infectious diseases across international borders.   See Maj. Op. at 186-87.   Indeed, I
would concede that the majority may be quite right.   But a smaller, more interdependent world community has not been employed
by the Supreme Court (or any other court to my knowledge) to convert claims such as those presented here into violations of the
law of nations.   In fact, the majority's theory would be no different when evaluating the medical malpractice of Pfizer's research
physicians or the strict products liability for its allegedly defective drug, but malpractice and products liability are among the
quintessential subjects of domestic law.

It is not enough that a wrong could create international ramifications;  in order for it to be a matter of mutual concern, it must
“threaten[ ] serious consequences in international affairs.”  Sosa, 542 U.S. at 715, 124 S.Ct. 2739.   The Supreme Court listed three
historical mutual wrongs as guideposts to frame this inquiry:  infringement of the rights of ambassadors, the violation of safe
conducts and piracy.  Id. at 715, 720, 124 S.Ct. 2739.   An assault against an ambassador “impinged upon the sovereignty of the
foreign nation and if not adequately redressed could rise to an issue of war.”  Id. at 715, 124 S.Ct. 2739.   The 18th century safe-
conduct document was the historical equivalent of the modern passport, “which entitles a bearer with a valid visa to safe passage to,
within, and out of a foreign land pursuant to a treaty or an agreement negotiated by his or her sovereign and the host sovereign.”  
Taveras v. Taveraz, 477 F.3d 767, 773 (6th Cir.2007) (quoting Thomas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute,
106 Colum. L.Rev. 830, 874 (2006)).   Thus, “the purpose of the doctrine of safe conducts under the law of nations is to protect the
safety and security of the person and property of the journeying alien bearing the safe conduct privilege (and consequently to
preserve commercial and diplomatic relationships between the alien's host and home countries).”  Id. at 773-74.   This is still true
today-a passport issued by the United States contains an official request from the Secretary of State to an authority of another
sovereign state:  “The Secretary of State of the United States of America hereby requests all whom it may concern to permit the
citizen/national of the United States named herein to pass without delay or hindrance and in case of need to give all lawful aid and
protection.”   Breaches of customary international law impair the normal expectations that nations have in dealing with other
nations.   They must threaten serious consequences in international affairs because the norms were, and still are, the foundation
for states' formal relationships with one another.
Piracy does not fit squarely with the other two Sosa historical paradigms, but the threat to international affairs posed by piracy
needs no detailed exegesis.   Suffice it to say that one of the young Republic's first military tests was its campaign against the
Barbary Pirates, see, e.g., Act For the Protection of the Commerce and Seamen of the United States Against the Tripolitan Cruisers,
ch. IV, § 2, 2 Stat. 129, 130 (1802) (authorizing President Jefferson to instruct the armed forces to “seize and make prize of all
vessels, goods and effects, belonging to the Bey of Tripoli ․ and also to cause to be done all such other acts of precaution or hostility
as the state of war will justify, and may, in his opinion, require.”), and piracy continues to threaten serious consequences in
international affairs today, see S.C. Res. 1851, ¶ 2, U.N. Doc. S/RES/1851 (Dec. 16, 2008) (calling upon states “to take part actively
in the fight against piracy and armed robbery at sea off the coast of Somalia”).

We have accepted no lesser showing in our case law.   The threat posed by genocide is so great that states are empowered to request
“the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider
appropriate for the prevention and suppression of acts of genocide.”   Convention on the Prevention and Punishment of the Crime
of Genocide art. 8, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277.   The Geneva Conventions collectively establish, and obligate
contracting parties to follow, the laws of war-almost by definition a matter of international affairs.   See Kadic, 70 F.3d at 242-43.  
On the other hand, because international law does not define torture to include acts by private entities, torturous conduct by non-
state actors-while criminalized domestically-is not a matter of mutual concern.  Id. at 243-44.

Demonstrating that a wrong is a matter of mutual concern must necessarily be difficult.   The Supreme Court has only opened the
door for ATS jurisdiction over a “narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time
threatening serious consequences in international affairs.”  Sosa, 542 U.S. at 715, 124 S.Ct. 2739.   The nations of the world have
not yet demonstrated that non-consensual medical experimentation by non-state actors “is of mutual, and not merely several,
concern, by means of express international accords.”  Filartiga, 630 F.2d at 888.   Nor does it threaten serious consequences in
international affairs in the same manner or to the same extent as the historical paradigms listed by the Supreme Court or their
modern counterparts identified by this Court.   Without either showing, I cannot agree with the majority that non-consensual
medical experimentation by private actors is a matter of mutual concern.

III. State Action

The fact that medical experimentation by private actors is not a subject of customary international law does not end the inquiry.   If
international law supports state liability but not private liability, a private actor may still be liable if he or she “acted under color of
law.”   In that regard, we are told to employ our 42 U.S.C. § 1983 jurisprudence in the inquiry.   See Bigio, 239 F.3d at 448;  Kadic,
70 F.3d at 245.   As an initial matter, this requires that the law of nations includes a norm actionable against states, which, in the
instant case, is far from certain.   But even assuming, for argument's sake, that international law prohibits states from conducting
non-consensual medical tests, Plaintiffs have not demonstrated that Pfizer acted under the color of law.

This issue requires a bit of procedural context.   In 2002, Pfizer moved to dismiss Plaintiffs' complaint in Abdullahi on the grounds
that (1) Plaintiffs had not alleged that Pfizer was a state actor, and (2) the alternate ground of forum non conveniens.   See
Abdullahi v. Pfizer, Inc., No. 01 Civ. 8118, 2002 WL 31082956, at *12 (S.D.N.Y. Sept. 17, 2002).   Judge Pauley granted the forum
non conveniens motion, but denied the state action motion, concluding that Plaintiffs “sufficiently allege[d] that the former
Nigerian government and Pfizer were joint participants in the Trovan treatment.”  Id. at *6. Plaintiffs appealed the district court's
dismissal, and Pfizer cross-appealed from the court's denial of its motion to dismiss on state action.   See Abdullahi v. Pfizer, Inc.,
77 Fed.Appx. 48 (2d Cir.2003).   On appeal, we vacated the district court's judgment of dismissal, and did not reach Pfizer's cross-
appeal, noting that our intervening decision in Flores might have some application on remand.  Id. at 53.   Back before Judge
Pauley, Pfizer filed a new motion to dismiss, arguing that Plaintiffs failed to state a claim under the substantially different ATS
landscape which now included the Supreme Court's decision in Sosa and our decision in Flores.   See Abdullahi v. Pfizer, Inc., No.
01 Civ. 8118, 2005 WL 1870811, at *3 (S.D.N.Y. Aug. 9, 2005).   Both of these decisions made clear that the identity of the
defendant is a critical component of whether a principle is a norm of customary international law.   Without addressing or
affirming its previous conclusion finding sufficient allegations of state action, the district court granted Pfizer's motion to dismiss,
holding that medical experimentation was not actionable under the law of nations.  Id. at *18.   On appeal to this Court, both
parties addressed the issue of state action in their briefs.   The majority concludes that Plaintiffs' allegations of state action were
sufficient to defeat a motion to dismiss.   See Maj. Op. at 187-88.   I cannot agree.

In their twin complaints, which total 628 paragraphs, Plaintiffs make only four allegations concerning the role of the Nigerian
government in the Trovan experiments:  (1) in order for the FDA to authorize the export of Trovan, “Pfizer obtained the required
letter of request from the Nigerian government”;  (2) the government “arrang[ed] for Pfizer's accommodation in Kano”;  (3) the
government acted “to silence Nigerian physicians critical of [Pfizer's] test”;  and (4) the government “assign[ed] Nigerian physicians
to assist in the project.” 18  Elsewhere in their complaints, Plaintiffs note in conclusory fashion that a Nigerian doctor did not
publicly object to the Trovan study because it “seemed to have the backing of the Nigerian government.”

In their brief to this Court, Plaintiffs seek to bolster their complaints by describing the role of “Nigerian government doctors” at the
allegedly government-owned hospital that hosted the study.   However, the portions of the complaints that they cite do not support
their contentions.   Nowhere in their complaints did Plaintiffs allege that the hospital was, in fact, government owned or
administered, nor did they allege that the four Nigerian doctors working with Pfizer were employed by the government, and our
review of a decision to grant a motion to dismiss “is limited to the facts as asserted within the four corners of the complaint” and
any attached documents.   McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007).

These bare allegations are plainly insufficient to survive a motion to dismiss for lack of state action.   The Supreme Court's case law
on state action is hardly a model of clarity, but certain principles are well-settled.   As a threshold matter, the conduct alleged
attributable to the state must be defined with the requisite specificity.  “When analyzing allegations of state action, we begin ‘by
identifying the specific conduct of which the plaintiff complains,’ ” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.2003)
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)), and in most cases, a finding of
state action “must be premised upon the fact that the State is responsible ” for that specific conduct, Horvath v. Westport Library
Ass'n, 362 F.3d 147, 154 (2d Cir.2004) (internal quotation omitted).   Determining state action in these cases “requires tracing the
activity to its source to see if that source fairly can be said to be the state.”  Leshko v. Servis, 423 F.3d 337, 340 (3d Cir.2005);  see
also Hadges v. Yonkers Racing Corp., 918 F.2d 1079, 1082-83 (2d Cir.1990).   As we recently stated, when confronted with a
motion to dismiss, it “is not enough ․ for a plaintiff to plead state involvement in some activity of the institution alleged to have
inflicted injury upon a plaintiff;  rather, the plaintiff must allege that the state was involved with the activity that caused the injury
giving rise to the action.”  Sybalski v. Indep. Group Home Living Program, Inc., 546 F.3d 255, 257-58 (2d Cir.2008) (internal
quotations omitted).
Here, that activity was not, as the majority apparently concludes, conducting the Trovan trials in general, but rather administering
the drug without informed consent.   Although Plaintiffs allege that the Nigerian government requested the import of Trovan and
arranged for Pfizer's accommodations and some medical staff in Kano, they do not allege that the government or any government
employee played any role in either administering Trovan without consent or deciding to do so in the first instance.   The Supreme
Court has described “the typical case raising a state-action issue” as one in which “a private party has taken the decisive step that
caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as
state action.”  NCAA v. Tarkanian, 488 U.S. 179, 192, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988).   Plaintiffs have not alleged any facts
that would indicate that the answer here is “yes.”

Plaintiffs' complaints are more noteworthy for what they do not allege than what they do.   They have not suggested that Pfizer was
exercising any delegated state authority, cf.  West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), or that the
Nigerian government “knowingly accept[ed] the benefits derived from [the unlawful] behavior,” Tarkanian, 488 U.S. at 192, 109
S.Ct. 454.   Plaintiffs have not alleged that Pfizer conspired with government officials to deprive the subjects of their rights, cf.  
Fries v. Barnes, 618 F.2d 988, 991 (2d Cir.1980), nor have they alleged that the Nigerian government exercised any coercive power
over Pfizer, cf. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001).  
In fact, Plaintiffs did not allege that any Nigerian government officials even knew about the non-consensual tests, because if
Nigerian government doctors were somehow involved in the study, Plaintiffs did not specify what role, if any, they played.

The case of Beanal v. Freeport-McMoRan, Inc., 969 F.Supp. 362 (E.D.La.1997), aff'd 197 F.3d 161 (5th Cir.1999), is instructive.   In
Beanal, plaintiffs seeking to recover under the ATS sought to establish state action on the basis of the Indonesian military's
involvement in allegedly actionable conduct.   The court rejected that argument, holding that plaintiffs had not “alleged whether
the military personnel helped enforce Freeport's policies or merely observed ․ the violative conduct.”  Id. at 378.   Broad
conclusory statements of state involvement are not sufficient to establish state action;  “there must be some allegation indicating
that the troops jointly cooperated in the conduct, jointly participated in the conduct, influenced the conduct or played an integral
part in the deprivation of human rights.”  Id. at 379.   The same is true here. 19  Plaintiffs' allegations are inadequate.

Even without alleging that the State “coerced or even encouraged” the act complained of, Plaintiffs can still survive a motion to
dismiss if “the relevant facts show pervasive entwinement to the point of largely overlapping identity between the State and the
entity that the plaintiff contends is a state actor.”  Horvath, 362 F.3d at 154 (quotation omitted).   This line of cases revolves
around the relationship between the state and the actor, as opposed to the specific act.   Showing “overlapping identity” is highly
uncommon, and most often arises where a private actor is performing one of the few functions traditionally and exclusively
reserved to the state or is controlled by a state entity. State assistance by itself is insufficient-the relevant question is whether the
decisionmakers were ostensibly state actors.   We answered that question in the affirmative in Horvath, where half of the putatively
private defendant's trustees were state appointees. Id. at 153.   But the assistance alleged by Plaintiffs-helping to procure a ward in
a hospital and arranging for the assistance of a handful of doctors-is not enough to clear this hurdle.   Using government property,
government staff, and even government funds does not make a private entity a state actor when its decisions are made
independently of the state.   See Yeo v. Town of Lexington, 131 F.3d 241, 254 (1st Cir.1997) (en banc).

Plaintiffs' generalized allegations (unsupported by factual allegations) that the government acted to silence critics of the test are no
more helpful.   They do not allege who these government officials were, how they acted to silence critics, or when in the sequence of
events this conduct occurred.   Such a “merely conclusory allegation that a private entity acted in concert with a state actor does not
suffice to state a § 1983 claim against the private entity.”  Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir.2002).

At most, Plaintiffs' complaints alleged that the Nigerian government acquiesced to or approved the Trovan program in general
without knowing its disturbing details.   That it approved the program is hardly surprising-in the midst of a widespread epidemic,
the Nigerian government likely welcomed help from every entity offering it, but “[m]ere approval of or acquiescence in the
initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives.”  Blum v. Yaretsky, 457
U.S. 991, 1004-05, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982).   Plaintiffs have not demonstrated that Pfizer acted “under the color of
law” such that it can be held liable for the Nigerian government's alleged violation of the “law of nations.”

* * * * * * * * * * * * *

Plaintiffs' allegations paint a vivid picture of the unspeakable pain and suffering of dozens of innocent children.   The issue on this
appeal, however, is not whether Pfizer's alleged conduct was “wrong,” or even whether it is legally actionable, but whether it falls
within both the “narrow class” of international norms for which ATS jurisdiction exists, and the even smaller subset of those norms
actionable against non-state actors.   Our Court and the Supreme Court have made it pellucidly clear that ATS jurisdiction must be
reserved only for acts that the nations of the world collectively determine interfere with their formal relations with one another-
including those rare acts by private individuals that are so serious as to threaten the very fabric of peaceful international affairs.   I
cannot agree with my colleagues that Pfizer's alleged conduct poses the same threat or is so universally and internationally
proscribed as to fit within that narrow class.

I respectfully dissent.

FOOTNOTES

1.  Bacterial meningitis is a serious and sometimes fatal infection of the fluids surrounding the spinal cord and the brain.  
Centers for Disease Control and Prevention, Meningococcal Disease:  Frequently Asked Questions (May 28, 2008), http://www.
cdc.gov/meningitis/bacterial/faqs.htm.

2.  The appellants further allege that Pfizer failed to follow its protocol in ways that might have mitigated the harm suffered by
the children.   They contend that Pfizer violated the protocol by administering Trovan orally even though oral absorption is difficult
for sick children;  conducting no testing prior to administering the drug to determine whether Nigeria's strain of meningitis might
be responsive to Trovan;  failing to determine that the children in the test had meningitis;  and failing to either exclude from the
experiment children with liver or joint problems or to test for such problems, even though Trovan was known to exacerbate them.  
Although Pfizer's protocol called for children receiving Trovan to be switched to Ceftriaxone if they did not respond well to Trovan,
Pfizer allegedly did not conduct regular blood tests of the children or switch those who suffered from Trovan-related side effects to
Ceftriaxone.

3.  A Nigerian physician who was the principal investigator for the test allegedly admitted that his office created the backdated
approval letter when the FDA conducted an audit of the experiment in 1997.
4.  Tina Akannam, Nigeria:  Pfizer-Case Adjourned Till May 27, Vanguard, April 30, 2008, http://allafrica.com/stories/2008
04300470.html;  Joe Stephens, Pfizer Faces Criminal Charges in Nigeria, The Washington Post, May 30, 2007, at A10, available at
http://www.washingtonpost.com/wp-dyn/content/article/2007/05/29/AR2007052902107.html.

5.  Jonathan Clayton, Pfizer Under Fire After Drug Trial, TimesOnline, June 27, 2007, http:// business.timesonline.co. uk/tol/
business/industry_sectors/health/article 1990908.ece;  Nigeria Sues Drugs Giant Pfizer, BBC News, June 5, 2007, http://news.
bbc.co. uk/2/hi/africa/6719141.stm.

6.  Twombly instituted a flexible “plausibility standard,” not limited to antitrust cases, which requires the amplification of facts in
certain contexts.  Iqbal v. Hasty, 490 F.3d 143, 155-58 (2d Cir.2007).

7.  These sources are located respectively at (1) United States v. Brandt, 2 Trials of War Criminals Before the Nuremberg Military
Tribunals Under Control Council Law No. 10, 181 (1949) [hereinafter Nuremberg Trials];  (2) World Med. Ass'n, Declaration of
Helsinki:  Ethical Principles for Medical Research Involving Human Subjects, art. 20, 22, G.A. Res. (adopted 1964, amended 1975,
1983, 1989, 1996, and 2000), http://www. wma.net/e/policy/pdf/17c.pdf [hereinafter Declaration of Helsinki];  (3) Council for
International Organizations of Medical Services [CIOMS], International Ethical Guidelines for Biomedical Research Involving
Human Subjects, guideline 4 (3rd ed.2002), superseding id. at guideline 1 (2nd ed.1993);  (4) International Covenant on Civil and
Political Rights, art. 7, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

8.  The district court interchangeably refers to the “lack of jurisdiction” or “lack of subject matter jurisdiction” over plaintiffs'
claims, the plaintiffs' failure to state an ATS claim, and their failure to identify a norm that permits the inference of a cause of
action.

9.  The Fourth Geneva Convention, which entered into force in 1950 and provides protection to civilians in the time of war,
elaborates on the application of the norm during armed conflict.   Article 32 of the convention prohibits civilian or military agents
of the state parties from conducting “medical or scientific experiments not necessitated by the medical treatment of the protected
person.”   Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 32, Aug. 12, 1949, 6 U.S.T. 3516, 75
U.N.T.S. 287.   According to the commentary, “[p]rotected persons must not in any circumstances be used as ‘guinea pigs' for
medical experiments.”   Commentary on the Geneva Conventions of 12 August 1949:  IV Geneva Convention Relative to the
Protection of Civilian Persons in Time of War 224 (Oscar Uhler & Henri Coursier eds., 1958).   This commentary explains that the
prohibition is directly related to the first principle of the Nuremberg Code since “[i]n prohibiting medical experiments on protected
persons, the Diplomatic Conference wished to abolish for ever the criminal practices from which thousands of persons suffered in
the death camps of the [second] world war.”   The practices involved human medical experiments that were objectionable because
they were nonconsensual.   See Brandt, 2 Nuremberg Trials, at 183.   The convention is legally-binding on 194 states that have
ratified it without reservation to Article 32.   See International Committee of the Red Cross, Geneva Conventions of 12 August 1949
State Parties, Signatories, Reservations and Declarations, http://www.icrc.org/ihl.nsf/WebSign?ReadForm & id=375 & ps=P.

10.  Although certain States-Parties to the ICCPR have made reservations or declarations with respect to Article 7's prohibition of
torture and cruel, inhuman or degrading treatment or punishment, we are not aware of any similar qualification by a State-Party to
the prohibition of medical or scientific experimentation without the free consent of human subjects.   See Office of the United
Nations High Commissioner for Human Rights, International Covenant on Civil and Political Rights, Declarations and
Reservations, http://www2.ohchr. org/english/bodies/ratification/docs/Declarations ReservationsICCPR.pdf.

11.  Khulumani makes clear that treaties that the United States has neither signed nor ratified-let alone treaties like the ICCPR
that the United States has signed but not ratified-may evidence a customary international law norm for ATS purposes where the
treaty has been ratified widely and it is clear that the reason for the United States's failure to subscribe to the treaty was unrelated
to the particular norm in question.   See Khulumani, 504 F.3d at 276, 276 n. 9 (Katzmann, J., concurring).

12.  The Department of Health and Human Services has compiled the laws, regulations, and guidelines governing human subjects
research in eighty-four countries.   See Office of Human Research Prot., Dep't of Health & Human Servs., International
Compilation of Human Subject Research Protections (2008), http://www.hhs.gov/ohrp/international/HSPCompilation. pdf. It is
uncontested that all of the countries identified in this compilation require informed consent to medical experimentation.

13.  The importance of informed consent to medical experimentation was reinforced with the passage of the National Research
Act in 1974, which established the National Commission for the Protection of Human Subjects of Biomedical and Behavioral
Research.   See National Research Act, Pub.L. 93-348, 88 Stat. 342 (codified as amended in scattered sections of 42 U.S.C.).   This
body issued the Belmont Report:  Ethical Principles and Guidelines for the Protection of Human Subjects of Research in 1979,
which identifies basic ethical principles governing biomedical and behavioral research on human subjects and requires informed
consent.   Nat'l Comm'n for the Prot. of Human Subjects of Biomedical & Behavioral Research, The Belmont Report:  Ethical
Principles and Guidelines for the Protection of Human Subjects of Research, part C(1) (1979), available at http://ohsr.od. nih.gov/
guidelines/belmont.html# goc. Soon afterwards, the Department of Health, Education and Welfare (later renamed the Department
of Health and Human Services) promulgated stricter regulations for ensuring informed consent in research conducted or supported
by federal departments or agencies.   See U.S. Dep't of Health & Human Servs., Guidelines for the Conduct of Research Involving
Human Subjects at the National Institutes of Health, 17-18 (5th ed.2004), http://ohsr.od.nih.gov/guidelines/GrayBooklet
82404.pdf (referencing 45 C.F.R. pt. 46, subpt. A (1981)).

14.  States-Parties to the Convention on Human Rights and Biomedicine are also required to afford “appropriate judicial
protection” to prevent or end infringements of the rights protected by the Convention, including the right to informed consent to
medical experimentation.   Convention on Human Rights and Biomedicine, supra, at art. 23.

15.  At the fringe, disagreement exists over certain aspects of informed consent including, for example, the way to best secure
consent from illiterate or otherwise vulnerable populations, see, e.g., Daniel W. Fitzgerald et al., Comprehension During Informed
Consent in a Less-Developed Country, 360 The Lancet 1301, 1301-02 (2002), and whether informed consent is possible in double-
blind experiments in which some subjects are given placebos, see, e.g., Timothy S. Jost, The Globalization of Health Law:  The Case
of Permissibility of Placebo-Based Research, 26 Am. J.L. & Med. 175, 183-86 (2000).   These debates do not disturb the specificity
of the basic norm at issue or the unanimity of world opinion against medical experimentation on human subjects without their
consent.

16.  In the United States, for example, the number of foreign clinical investigators conducting drug research under an IND
increased sixteen-fold in the 1990s.   Globalization of Clinical Trials, supra, at 6.
17.  These benefits are well acknowledged.   See, e.g., Remigius N. Nwabueze, Ethical Review of Research Involving Human
Subjects in Nigeria:  Legal and Policy Issues, 14 Ind. Int'l & Comp. L.Rev. 87, 102 (2003) (recognizing that clinical trials at times
provide the only access to innovative and effective health care in developing countries);  David Wendler, et al., The Standard of Care
Debate:  Can Research in Developing Countries Be Both Ethical and Responsive to those Countries' Health Needs?, 94 Am. J. Pub.
Health 923, 923 (2004) (noting dramatic inequalities in health care world-wide and the potential of drug research to better care for
the world's poor).Doctors Without Borders, the WHO, and other international health organizations, for example, have called for
increased corporate research interest in developing countries.   Sonia Shah, Globalizing Clinical Research, The Nation, June 13,
2002, at 3, http://www.thenation. com/doc/20020701/shah.   Ruth Faden, a bioethicist at Johns Hopkins, stated, “What we need,
if anything, is more health research in the developing world, not less.”  Id. An HIV researcher observed that even when companies
test drugs geared for patients in the developed world through trials in developing countries, the testing “brings benefits to the
patients.   They get special attention and potential therapy.”  Id.

18.  Salisu Rabiu, Pfizer Asks Nigeria Court to Dismiss Case, The Associated Press, July 4, 2007, http:// origin.foxnews.com/
printer_friendly_ wires/2007Jul04/0,4675,NigeriaPfizer,00.html (reporting that the boycott of the Kano polio vaccination
program is believed to have “set back global eradication” of polio and to have “caus[ed] an outbreak that spread the disease across
Africa and into the Middle East”).   The boycott also impaired the efforts of American pharmaceutical companies to contribute to
polio eradication by donating over 130 million doses of polio vaccine to sixteen African countries since 1997.   PhRMA, Global
Partnerships:  Humanitarian Programs of the Pharmaceutical Industry in Developing Nations 4 (2004), http://www.phrma.org/
files/Global_Partnerships_2004.pdf.

19.  World Health Organization, Poliomyelitis in Nigeria and West/Central Africa, June 18, 2008, http:// www.who.int/csr/don/
2008_06_ 18/en/.Other examples of the link between the cross-border spread of contagious disease and international peace and
stability come to mind, such as the outbreak of anti-U.S. riots in South Korea as a result of fear that imported American beef will
spread mad cow disease to that country.   See Choe Sang-Hun, South Korea Lifts Ban on U.S. Beef, New York Times, June 26,
2008, http://www.nytimes.com/2008/06/26/world/asia/26korea.html.

20.  FDA data suggests the industry trend is to use foreign research to support applications for new drug approvals in the United
States.   Since 1990 there has been an explosion in the number of foreign clinical investigators conducting drug research that
sponsors use for this purpose.   In 1990, there were 271 foreign investigators conducting research in 28 countries in the FDA
database.   By 1999, the number had grown to 4,458 investigators working in 79 countries.   Globalization of Clinical Trials, supra,
at i.

1.  Even if we were to conclude that such a norm applied to state actors and that private entities could be held liable if they act
under color of law, Plaintiffs have not pleaded sufficient state involvement to impose liability on Pfizer under that theory.   See Part
III infra.

2.  Article 5-General ruleAn intervention in the health field may only be carried out after the person concerned has given free and
informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the
intervention as well as on its consequences and risks.   The person concerned may freely withdraw consent at any time.

3.  Article 16-Protection of persons undergoing researchResearch on a person may only be undertaken if all the following
conditions are met:i. there is no alternative of comparable effectiveness to research on humans;ii.  the risks which may be
incurred by that person are not disproportionate to the potential benefits of the research;iii.  the research project has been
approved by the competent body after independent examination of its scientific merit, including assessment of the importance of
the aim of the research, and multidisciplinary review of its ethical acceptability;iv. the persons undergoing research have been
informed of their rights and the safeguards prescribed by law for their protection;v.  the necessary consent as provided for under
Article 5 has been given expressly, specifically and is documented.   Such consent may be freely withdrawn at any time.

4.  Reliance on states' domestic laws also raises questions of mutuality, discussed infra at Part II.

5.  “Crimes Against Peace” were defined as “planning, preparation, initiation or waging of a war of aggression, or a war in
violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing.”   Charter of the International Military Tribunal art. 6(a).

6.  “War Crimes” were defined as “violations of the laws or customs of war.   Such violations shall include, but not be limited to,
murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory,
murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton
destruction of cities, towns or villages, or devastation not justified by military necessity.”   Charter of the International Military
Tribunal art. 6(b).

7.  “Crimes Against Humanity” were defined as “murder, extermination, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during the war;  or persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law
of the country where perpetrated.”   Charter of the International Military Tribunal art. 6(c).

8.  In addition to the three crimes listed in the Charter of the International War Tribunal, Control Council Law No. 10 added a
fourth-“Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.”  
Control Council Law No. 10 art. II, § (d).

9.  The majority purports to include our recent decision in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir.2007)
(per curiam) in this select group, stating that it “held that the ATS conferred jurisdiction over multinational corporations that
purportedly collaborated with the government of South Africa in maintaining apartheid because they aided and abetted violations
of customary international law.”   Maj. Op. at 174.   To the contrary, Khulumani did not confer jurisdiction and did not make any
determination on whether plaintiffs had stated a violation of international law.   It merely held that the district court erred in
concluding that the ATS did not convey jurisdiction for “aiding and abetting violations of customary international law,” and
remanded for consideration of whether plaintiffs had alleged such a violation that the defendants could have been liable for aiding
and abetting.   See Khulumani, 504 F.3d at 260.

10.  Indeed, the Supreme Court later declared that in ATS actions, “federal courts should give serious weight to the Executive
Branch's view of the case's impact on foreign policy.”  Sosa, 542 U.S. at 733 n. 21, 124 S.Ct. 2739.
11.  Section 702 provides:A state violates international law if, as a matter of state policy, it practices, encourages, or condones(a)  
genocide,(b) slavery or slave trade,(c) the murder or causing the disappearance of individuals,(d)  torture or other cruel, inhuman,
or degrading treatment or punishment,(e) prolonged arbitrary detention,(f)  systematic racial discrimination, or(g)  a consistent
pattern of gross violations of internationally recognized human rights.

12.  The Court explained its application of a criminal law provision to a civil statute by noting that a comment to section 404
“permits states to establish appropriate civil remedies such as the tort actions authorized by the [ATS].” Kadic, 70 F.3d at 240
(citation omitted).   More specifically, “jurisdiction on the basis of universal interests has been exercised in the form of criminal
law, but international law does not preclude the application of non-criminal law on this basis, for example, by providing a remedy
in tort or restitution for victims of piracy.”   Restatement (Third) § 404 cmt. b.

13.  Yousef was charged with placing a bomb aboard a Philippine Airlines jet flying from the Philippines to Japan.  327 F.3d at
81, 88.   After holding that customary international law could not support universal jurisdiction, we observed that “treaties may
diverge broadly from customary international law,” id. at 108, and upheld jurisdiction under 18 U.S.C. §  32, the statute
implementing the “extradite or prosecute” provision of the Montreal Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation (Sabotage) art. 7, Sept. 23, 1971, 24 U.S.T. 565, 974 U.N.T.S. 177 (“The Contracting State in the territory of
which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not
the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution.”), id. at
108-10.

14.  I note the tension between our holding in Bigio that acts can, at least in theory, be incorporated into §  404 by analogy for
ATS purposes, see 239 F.3d at 448, and our statement in Yousef that the “strictly limited set of crimes subject to universal
jurisdiction cannot be expanded by drawing an analogy between some new crime ․ and universal jurisdiction's traditional subjects”
for purposes of exercising criminal jurisdiction, see 327 F.3d at 103-04.

15.  It should be noted that while universal criminal jurisdiction under the CAT does exist for torturers, those torturers must, by
definition, be state actors.   See CAT arts. 4, 7, 8.

16.  See, e.g., United Nations Convention on the Law of the Sea part VII, art. 101, Dec. 10, 1982, S. Treaty Doc. No. 103-39, 1833
U.N.T.S. 3 (stating that piracy may consist of “any illegal acts of violence or detention, or any act of depredation․”)

17.  All but three of the 23 defendants were doctors.   1 Trials of War Criminals 29.   The three that were not were colonels or
senior colonels in the Nazi SS. 1 Trials of War Criminals 8, 29.   Of the 20 doctors, all but one “held positions in the medical
services of the Third Reich.”   1 Trials of War Criminals 29.   The lone exception, Adolf Pokorny, a specialist in skin and venereal
diseases, was acquitted of all charges.   1 Trials of War Criminals 10;  2 Trials of War Criminals 292-94.

18.  Plaintiffs also initially allege that the government backdated a letter of approval for the test, but then allege that the letter was
in fact created by a “Nigerian physician whom Pfizer says was its principal investigator.”

19.  The case relied upon by the district court is entirely distinguishable.   See Nat'l Coal. Gov't of the Union of Burma v. Unocal,
Inc., 176 F.R.D. 329 (C.D.Cal.1997).   There, plaintiffs survived a motion to dismiss by alleging that Unocal and the Burmese
government were joint venturers and partners in a pipeline, with the Burmese government retaliating against protesters with
military action and forced labor imposed by the Burmese military with Unocal's knowledge.  Id. at 348.   There, as opposed to
here, the state committed the unlawful acts.

BARRINGTON D. PARKER, Circuit Judge:

Judge WESLEY dissents in a separate opinion.

Case Digest
Title:
Rabi Abdullahi v Pfizer, Inc.
Court:
United States Court of Appeals for the Second Circuit
Citation:
Docket Nos: 05-4863-cv (L), 05-6768-cv (CON)
Date:
30 January 2009
Instrument(s) Cited:
Alien Tort Statute, 28 U.S.C. § 1350
Connecticut Unfair Trade Practices Act
Connecticut Products Liability Act
International Court of Justice Statute, article 38
Nuremberg Code, First Principle
World Medical Association's Declaration of Helsinki
Council for International Organisations of Medical Services
International Covenant on Civil and Political Rights, article 7
Case Summary:
Background:
A group of Nigerian children and their guardians alleged that Pfizer experimented on 200 children suffering from meningitis
without their consent or knowledge. At the time of the 1996 meningitis epidemic in northern Nigeria, Pfizer was attempting to
obtain Food and Drug Administration (FDA) approval for a new antibiotic Trovafloxacin Mesylate (Trovan). The
complainants further alleged that Pfizer purposefully under-dosed the children treated with the well-established and FDA-
approved drug Ceftriaxone in order to skew the trial results in favour of Trovan. 11 children died as a result of the trial and
many others were left blind, paralysed or brain-damaged.
The complainants filed a claim under the Alien Tort Statute (ATS) grounded in the prohibitions of the Nuremberg Code, the
World Medical Association's Declaration of Helsinki, the guidelines of the Council for International Organisations of Medical
Services and the International Covenant on Civil and Political Rights which categorically forbid medical experimentation
without consent.
Issue and resolution:
Prohibition on medical experimentation on non-consenting human subjects. Although the US has not ratified or adopted the
above international instruments, the ATS provides that District Courts have jurisdiction in civil actions committed in
contravention of the law of nations, or customary international law. The Second Circuit Court of Appeal held that the
restriction on medical experimentation without consent is a norm of international law and is capable of being enforced under
the ATS. The case was subsequently referred back to the District Court for further proceedings.
Court reasoning:
The Court held that the three-part test to determine whether the restriction was an obligation under customary
international law was satisfied. The test required the restriction to be (1) universal in nature; (2) specific and
definable; and (3) of mutual concern. The Court gave the following reason for each strand of the test:
(1) The legal principles of the Nuremberg Code and the ICCPR are examples of the normality and universality of this
restriction;
(2) The allegations stated that Pfizer carried out these experiments knowingly and purposefully which went beyond a
simple isolated case of failing to obtain consent, and would therefore be clearly covered by the restriction on
experimentation on non-consenting human beings; and
(3) The case was of mutual concern to both the US and Nigeria as such conduct could foster distrust, reduce co-
operation between nations and generate substantial anti-American feeling in the region.
Dissenting Opinion:
Circuit Judge Wesley dissented for the following reasons: (1) customary international law only applies to state actors and not
to private actors such as Pfizer; (2) the restriction should not be regarded as a customary norm simply because other States
have prohibited this behaviour; (3) the international instruments listed above were put forward by private organisations who
were not in a position to create laws; and (4) some of the instruments came into effect after the incident happened without
reference to any retrospective effect.
Impact:
In July 2009, Pfizer petitioned the US Supreme Court to appeal this ruling. In November, the Supreme Court asked the US
Solicitor General to file a brief, which he did in May 2010, denying Pfizer's petition. On 23 February 2011, the parties
announced that they had reached a confidential settlement in the lawsuit.
Following various proceedings in Nigeria, Pfizer and the Kano state government came to an out-of-court settlement worth
$75 million in August 2009. A new lawsuit was filed by the victims in November 2013 in the Federal High Court in Kano
who complained that, by restricting the criteria for compensation, Pfizer had breached the terms of the 2009 agreement. In
November 2014, Pfizer paid out full and final compensation to the 14 victims who passed the DNA tests in accordance with
the terms of the 2009 settlement.

Hasegawa v Kitamura

THIRD DIVISION

KAZUHIRO HASEGAWA and NIPPON G.R. No. 149177

ENGINEERING CONSULTANTS CO.,
LTD., Present:
Petitioners,
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
- versus - CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
 Promulgated:
MINORU KITAMURA,
Respondent. November 23, 2007

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the
April 18, 2001 Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No. 60827, and the July 25,
2001 Resolution[2] denying the motion for reconsideration thereof.

On March 30, 1999, petitioner Nippon Engineering Consultants Co., Ltd. (Nippon), a Japanese
consultancy firm providing technical and management support in the infrastructure projects of foreign
governments,[3] entered into an Independent Contractor Agreement (ICA) with respondent Minoru
Kitamura, a Japanese national permanently residing in the Philippines. [4] The agreement provides that
respondent was to extend professional services to Nippon for a year starting on April 1, 1999.
[5]
Nippon then assigned respondent to work as the project manager of the Southern Tagalog Access
Road (STAR) Project in the Philippines, following the company's consultancy contract with the
Philippine Government.[6]

When the STAR Project was near completion, the Department of Public Works and Highways (DPWH)
engaged the consultancy services of Nippon, on January 28, 2000, this time for the detailed
engineering and construction supervision of the Bongabon-Baler Road Improvement (BBRI) Project.
[7]
Respondent was named as the project manager in the contract's Appendix 3.1.[8]

On February 28, 2000, petitioner Kazuhiro Hasegawa, Nippon's general manager for its International
Division, informed respondent that the company had no more intention of automatically renewing
his ICA. His services would be engaged by the company only up to the substantial completion of the
STAR Project on March 31, 2000, just in time for the ICA's expiry.[9]

Threatened with impending unemployment, respondent, through his lawyer, requested a negotiation
conference and demanded that he be assigned to the BBRI project. Nippon insisted that respondents
contract was for a fixed term that had already expired, and refused to negotiate for the renewal of
the ICA.[10]

As he was not able to generate a positive response from the petitioners, respondent consequently
initiated on June 1, 2000 Civil Case No. 00-0264 for specific performance and damages with
the Regional Trial Court of Lipa City.[11]

For their part, petitioners, contending that the ICA had been perfected in Japan and executed by and
between Japanese nationals, moved to dismiss the complaint for lack of jurisdiction. They asserted 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.[12]

In the meantime, on June 20, 2000, the DPWH approved Nippon's request for the replacement of
Kitamura by a certain Y. Kotake as project manager of the BBRI Project.[13]
On June 29, 2000, the RTC, invoking our ruling in Insular Government v. Frank[14] that matters
connected with the performance of contracts are regulated by the law prevailing at the place of
performance,[15] denied the motion to dismiss. [16] The trial court subsequently denied petitioners' motion
for reconsideration,[17] prompting them to file with the appellate court, on August 14, 2000,
their first Petition for Certiorari under Rule 65 [docketed as CA-G.R. SP No. 60205].[18] On August
23, 2000, the CA resolved to dismiss the petition on procedural grounds for lack of statement of
material dates and for insufficient verification and certification against forum shopping. [19] An Entry of
Judgment was later issued by the appellate court on September 20, 2000.[20]

Aggrieved by this development, petitioners filed with the CA, on September 19, 2000, still within the
reglementary period, a second Petition for Certiorari under Rule 65 already stating therein the material
dates and attaching thereto the proper verification and certification. This second petition, which
substantially raised the same issues as those in the first, was docketed as CA-G.R. SP No. 60827.[21]

Ruling on the merits of the second petition, the appellate court rendered the assailed April 18,
2001 Decision[22] finding no grave abuse of discretion in the trial court's denial of the motion to
dismiss. The CA ruled, among others, 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 thus declared that the trial court was correct in applying instead the principle of lex loci solutionis.
[23]

Petitioners' motion for reconsideration was subsequently denied by the CA in the assailed July 25,
2001 Resolution.[24]

Remaining steadfast in their stance despite the series of denials, petitioners instituted the instant
Petition for Review on Certiorari[25] imputing the following errors to the appellate court:

A. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT

THE TRIAL COURT VALIDLY EXERCISED JURISDICTION OVER THE INSTANT
CONTROVERSY, DESPITE THE FACT THAT THE CONTRACT SUBJECT MATTER OF
THE PROCEEDINGS A QUO WAS ENTERED INTO BY AND BETWEEN TWO
JAPANESE NATIONALS, WRITTEN WHOLLY IN THE JAPANESE LANGUAGE AND
EXECUTED IN TOKYO, JAPAN.

B. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN OVERLOOKING

THE NEED TO REVIEW OUR ADHERENCE TO THE PRINCIPLE OF LEX LOCI
SOLUTIONIS IN THE LIGHT OF RECENT DEVELOPMENT[S] IN PRIVATE
INTERNATIONAL LAWS.[26]

The pivotal question that this Court is called upon to resolve is whether the subject matter jurisdiction
of Philippine courts in civil cases for specific performance and damages involving contracts executed
outside the country by foreign nationals may be assailed on the principles of lex loci celebrationis, lex
contractus, the state of the most significant relationship rule, or forum non conveniens.

However, before ruling on this issue, we must first dispose of the procedural matters raised by the
respondent.

Kitamura contends that the finality of the appellate court's decision in CA-G.R. SP No. 60205 has
already barred the filing of the second petition docketed as CA-G.R. SP No. 60827 (fundamentally
raising the same issues as those in the first one) and the instant petition for review thereof.
We do not agree. When the CA dismissed CA-G.R. SP No. 60205 on account of the petition's defective
certification of non-forum shopping, it was a dismissal without prejudice. [27] The same holds true in the
CA's dismissal of the said case due to defects in the formal requirement of verification [28] and in the
other requirement in Rule 46 of the Rules of Court on the statement of the material dates. [29] The
dismissal being without prejudice, petitioners can re-file the petition, or file a second petition attaching
thereto the appropriate verification and certification as they, in fact did and stating therein the material
dates, within the prescribed period[30] in Section 4, Rule 65 of the said Rules.[31]

The dismissal of a case without prejudice signifies the absence of a decision on the merits and leaves
the parties free to litigate the matter in a subsequent action as though the dismissed action had not been
commenced. In other words, the termination of a case not on the merits does not bar another action
involving the same parties, on the same subject matter and theory.[32]

Necessarily, because the said dismissal is without prejudice and has no res judicata effect, and even if
petitioners still indicated in the verification and certification of the second certiorari petition that the
first had already been dismissed on procedural grounds,[33] petitioners are no longer required by the
Rules to indicate in their certification of non-forum shopping in the instant petition for review of the
second certiorari petition, the status of the aforesaid first petition before the CA. In any case, an
omission in the certificate of non-forum shopping about any event that will not
constitute res judicata and litis pendentia, as in the present case, is not a fatal defect. It will not warrant
the dismissal and nullification of the entire proceedings, considering that the evils sought to be
prevented by the said certificate are no longer present.[34]

The Court also finds no merit in respondent's contention that petitioner Hasegawa is only authorized to
verify and certify, on behalf of Nippon, the certiorari petition filed with the CA and not the instant
petition. True, the Authorization[35] dated September 4, 2000, which is attached to the
second certiorari petition and which is also attached to the instant petition for review, is limited in
scope its wordings indicate that Hasegawa is given the authority to sign for and act on behalf of the
company only in the petition filed with the appellate court, and that authority cannot extend to the
instant petition for review.[36] In a plethora of cases, however, this Court has liberally applied the Rules
or even suspended its application whenever a satisfactory explanation and a subsequent fulfillment of
the requirements have been made.[37] Given that petitioners herein sufficiently explained their
misgivings on this point and appended to their Reply[38] an updated Authorization[39] for Hasegawa to
act on behalf of the company in the instant petition, the Court finds the same as sufficient compliance
with the Rules.

However, the Court cannot extend the same liberal treatment to the defect in the verification and
certification. As respondent pointed out, and to which we agree, Hasegawa is truly not authorized to act
on behalf of Nippon in this case. The aforesaid September 4, 2000 Authorization and even the
subsequent August 17, 2001 Authorization were issued only by Nippon's president and chief executive
officer, not by the company's board of directors. In not a few cases, we have ruled that corporate
powers are exercised by the board of directors; thus, no person, not even its officers, can bind
the corporation, in the absence of authority from the board. [40] Considering that Hasegawa verified and
certified the petition only on his behalf and not on behalf of the other petitioner, the petition has to be
denied pursuant to Loquias v. Office of the Ombudsman.[41]Substantial compliance will not suffice in a
matter that demands strict observance of the Rules.[42] While technical rules of procedure are designed
not to frustrate the ends of justice, nonetheless, they are intended to effect the proper and orderly
disposition of cases and effectively prevent the clogging of court dockets.[43]

Further, the Court has observed that petitioners incorrectly filed a Rule 65 petition to question the trial
court's denial of their motion to dismiss. It is a well-established rule that an order denying a motion to
dismiss is interlocutory, and cannot be the subject
of the extraordinary petition for certiorari or mandamus. The appropriate recourse is to file an answer
and to interpose as defenses the objections raised in the motion, to proceed to trial, and, in case of an
adverse decision, to elevate the entire case by appeal in due course. [44] While there are recognized
exceptions to this rule,[45] petitioners' case does not fall among them.

This brings us to the discussion of the substantive issue of the case.

Asserting that the RTC of Lipa City is an inconvenient forum, petitioners question its jurisdiction to
hear and resolve the civil case for specific performance and damages filed by the respondent.
The ICA subject of the litigation was entered into and perfected in Tokyo, Japan, by Japanese
nationals, and written wholly in the Japanese language. Thus, petitioners posit that local courts have no
substantial relationship to the parties[46] following the [state of the] most significant relationship rule in
Private International Law.[47]

The Court notes that petitioners adopted an additional but different theory when they elevated the case
to the appellate court. In the Motion to Dismiss[48] filed with the trial court, petitioners never contended
that the RTC is an inconvenient forum. They merely argued that the applicable law which will
determine the validity or invalidity of respondent's claim is that of Japan, following the principles
of lex loci celebrationis and lex contractus.[49] While not abandoning this stance in their petition before
the appellate court, petitioners on certiorari significantly invoked the defense of forum non conveniens.
[50]
On petition for review before this Court, petitioners dropped their other arguments, maintained
the forum non conveniens defense, and introduced their new argument that the applicable principle is
the [state of the] most significant relationship rule.[51]

Be that as it may, this Court is not inclined to deny this petition merely on the basis of the change in
theory, as explained in Philippine Ports Authority v. City of Iloilo.[52]We only pointed out petitioners'
inconstancy in their arguments to emphasize their incorrect assertion of conflict of laws principles.

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?[53]

Analytically, jurisdiction and choice of law are two distinct concepts. [54] 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. [55] 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.[56]

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, over the defendant or the respondent, over the subject matter, over the issues
of the case and, in cases involving property, over the res or the thing which is the subject of the
litigation.[57] 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.
[58]
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. [59] To succeed in its motion for the dismissal of an
action for lack of jurisdiction over the subject matter of the claim, [60] 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.[61]

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. [62]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 [63] or the law of the place where a
contract is made.[64] The doctrine of lex contractus or lex loci contractus means the law of the place
where a contract is executed or to be performed.[65] It controls the nature, construction, and validity of
the contract[66] and it may pertain to the law voluntarily agreed upon by the parties or the law intended
by them either expressly or implicitly.[67] 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. [68] This rule takes into account several contacts and
evaluates them according to their relative importance with respect to the particular issue to be resolved.
[69]
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. [70] They determine which state's law is to be
applied in resolving the substantive issues of a conflicts problem. [71] 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.[72] 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.[73]

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. [74] 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 agreements, even in matters regarding rights provided by foreign sovereigns.[75]

Neither can the other ground raised, forum non conveniens,[76] be used to deprive the trial court
of its jurisdiction herein. 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. [77] 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.[78] In this case, the RTC decided to assume
jurisdiction. 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.[79]

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.
WHEREFORE, premises considered, the petition for review on certiorari is DENIED.

SO ORDERED.

Small v United States
No. 03-750
In the Supreme Court of the United States

GARY SHERWOOD SMALL, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

PAUL D. CLEMENT
Acting Solicitor General
Counsel of Record
CHRISTOPHER A. WRAY
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
JOHN A. DRENNAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Section 922(g)(1) of Title 18, United States Code, renders it "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 a firearm. The question presented is:

Whether the statutory reference to convictions entered in "any court" includes convictions entered by the courts of foreign
countries.

In the Supreme Court of the United States

No. 03-750

GARY SHERWOOD SMALL, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-7a) is reported at 333 F.3d 425. The district court's opinion (Pet. App. 8a-40a) is
reported at 183 F. Supp. 2d 755.

JURISDICTION

The court of appeals entered its judgment on June 23, 2003. A petition for rehearing was denied on July 23, 2003 (Pet. App. 41a-
42a). On October 15, 2003, Justice Souter extended the time within which to file a petition for a writ of certiorari to and including
November 20, 2003, and the petition was filed on November 17, 2003. The petition for a writ of certiorari was granted on March
29, 2004. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The relevant statutory and regulatory provisions are reproduced in an appendix to this brief.

STATEMENT

A federal grand jury returned a four-count indictment against petitioner that charged him with making a false statement intended
or likely to deceive a licensed firearms dealer with respect to the sale of a firearm, in violation of 18 U.S.C. 922(a)(6), and with
possessing an SWD Cobray pistol, a Browning .380 caliber pistol, and firearm ammunition, in or affecting interstate commerce,
while having been previously convicted of an offense punishable by imprisonment for a term exceeding one year, each in violation
of 18 U.S.C. 922(g)(1). Following a conditional plea of guilty, petitioner was convicted in the United States District Court for the
Western District of Pennsylvania on one count of possessing an SWD Cobray pistol, in violation of 18 U.S.C. 922(g)(1). The district
court sentenced petitioner to eight months of imprisonment, to be followed by three years of supervised release. The court of
appeals affirmed.

1. In December 1992, petitioner shipped from the United States to Osaka, Japan, via cargo airplane, a 19-gallon electric water
heater, ostensibly as a present for "his Papa-san in Okinawa." 3 Pet. C.A. App. 507-510, 521-525, 598. Small had sent two other
water heaters to Japan earlier that year. Id. at 525-527. Considering it unusual for an individual to "go out of his way to bring a
water tank from the U.S. as a present," id. at 598-599, Japanese Customs officials X-rayed the water heater upon its arrival and
discovered firearms packaged inside. When petitioner appeared at the airport to accept delivery, he confirmed that the water heater
was his, whereupon Customs officials served him with a search warrant. Upon opening the water heater, Customs officials
discovered two rifles wrapped in black tape, eight pistols, and 410 ammunition shells. Id. at 603-604.

The Japanese government indicted petitioner on multiple counts of violating Japan's Guns and Knives Control Law, the Explosives
Control Law, and the Customs Law. 2 Pet. C.A. App. 261a-262a. His criminal trial before the Naha District Court in Japan was
public and was conducted before three impartial judges. Petitioner was present, the proceedings were translated, and he was
afforded the assistance of counsel, who cross-examined witnesses and made a closing argument.1 The judges also actively
questioned the prosecution's witnesses. See, e.g., 3 Pet. C.A. App. 610-611, 685-688. Following trial, petitioner was convicted on all
counts. Pet. App. 2a. Each offense was punishable by imprisonment for a term exceeding one year. Ibid. Petitioner received a
sentence of five years of imprisonment, to be followed by eighteen months of parole. Id. at 10a n.3. 2

2. Within a week of completing parole for his Japanese convictions, petitioner purchased an SWD Cobray nine-millimeter handgun
from a firearms dealer in Pennsylvania. Pet. App. 2a n.1; 1 Pet. C.A. App. 47a-51a; Govt. C.A. Br. 6. Federal law required petitioner
to provide truthful background information on a federal form before making that purchase. 18 U.S.C. 922(s)(1)(A)(i)(I) and (3)(B).
In completing the form, petitioner answered "no" to the question "[h]ave you been convicted in any court of a crime for which the
judge could have imprisoned you for more than one year, even if the judge actually gave you a shorter sentence?" Gov't C.A. Br. 6. A
subsequent search, pursuant to warrant, of petitioner's apartment uncovered a Browning .380 caliber pistol and more than 300
rounds of ammunition. 1 Pet. C.A. App. 50a-51a.

3. On August 30, 2000, a federal grand jury in the Western District of Pennsylvania returned a four-count indictment against
petitioner, charging him with one count of making a false statement intended or likely to deceive a licensed firearms dealer, in
violation of 18 U.S.C. 922(a)(6), and with three counts of possessing firearms or ammunition in or affecting interstate commerce
while having been previously convicted in Japan of an offense punishable by imprisonment for a term exceeding one year, in
violation of 18 U.S.C. 922(g)(1). See Pet. App. 8a-9a; Pet. C.A. App. 47a-51a.

Petitioner moved to dismiss the indictment on the ground that Section 922(g)(1)'s ban on the possession of firearms by persons
convicted "in any court," as well as Section 922(s)(3)(B)'s background question about prior convictions "in any court," refer to
domestic convictions only. Pet. App. 10a. Petitioner also argued that his Japanese convictions had been obtained through
fundamentally unfair procedures. Ibid.

The district court denied the motion. Pet. App. 8a-40a. The district court first ruled that the phrase "any court" in Section 922(g)(1)
embraced all courts, domestic and foreign. Id. at 11a-16a. The court reasoned that "'[a]ny' court means any court and
there is nothing in the plain and unambiguous language of Section 922 indicating that Congress intended to
exclude foreign convictions from such a broad term." Id. at 16a.

The district court also rejected petitioner's claim that his convictions were the product of fundamentally unfair proceedings in
Japan. Pet. App. 29a-39a. The court first noted that the Japanese Constitution grants criminal defendants many of the same rights
and protections they enjoy in this country. Id. at 30a-32a. The court then rejected petitioner's objections to the trial proceedings,
noting both that petitioner failed to identify any actual prejudice arising from the alleged errors and that there was "overwhelming
evidence" against him. Id. at 39a; see id. at 33a-38a. The court concluded that petitioner's convictions were "sufficiently consistent
with our concepts of fundamental fairness * * * that we may have confidence in the reliability of the fact-finding process." Id. at 39a.

4. The court of appeals affirmed. Pet. App. 1a-7a. Agreeing with decisions of the Fourth and Sixth Circuits, the court concluded that
"foreign convictions, generally, can count as predicate offenses for the purposes of § 922." Id. at 3a n.2 (citing United States v.
Atkins 872 F.2d 94 (4th Cir.), cert. denied, 493 U.S. 836 (1989), and United States v. Winson, 793 F.2d 754 (6th Cir. 1986)).

The court of appeals also rejected petitioner's claim that the Japanese proceedings were fundamentally unfair. Pet. App. 4a-6a. The
court first held that, before recognizing a foreign conviction as a predicate offense under Section 922(g), the court "must satisfy
itself that the foreign conviction comports with our notions of fundamental fairness as required by the Due Process Clause." Id. at
4a. To that end, the court of appeals applied the factors for recognition of foreign judgments identified by the Restatement (Third)
of Foreign Relations Law of the United States (1987) (Restatement):

(1) A court in the United States may not recognize a judgment of the court of a foreign state if:

(a) the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures
compatible with due process of law; or

(b) the court that rendered the judgment did not have jurisdiction over the defendant in accordance with the law
of the rendering state and with the rules set forth in § 421.

(2) A court in the United States need not recognize a judgment of the court of a foreign state if:

(a) the court that rendered the judgment did not have jurisdiction of the subject matter of the action;

(b) the defendant did not receive notice of the proceedings in sufficient time to enable him to defend;

(c) the judgment was obtained by fraud;

(d) the cause of action on which the judgment was based, or the judgment itself, is repugnant to the public policy
of the United States or of the State where recognition is sought;
(e) the judgment conflicts with another final judgment that is entitled to recognition; or

(f) the proceeding in the foreign court was contrary to an agreement between the parties to submit the
controversy on which the judgment is based to another forum.

1 Restatement § 482, at 604. Applying that framework, the court of appeals concluded that "there were no grounds for non-
recognition of the Japanese conviction as the predicate offense to [petitioner's] § 922(g)(1) conviction." Pet. App. 6a.3

SUMMARY OF ARGUMENT

The plain text of Section 922(g)(1) makes convictions entered in foreign courts proper predicates for the federal bar on firearms
possession. Congress directed that any person who has been convicted in "any court" of a crime punishable by more than one year
in prison may not possess firearms, and the ordinary understanding of "any court" includes foreign courts. The natural meaning of
the modifier "any" denotes the comprehensive inclusion of all courts capable of imposing the requisite convictions. In addition, as
this Court has repeatedly recognized, Congress chose the language of Section 922(g)(1) with care and intended it to mean exactly
what it says. Congress's choice of the unqualified "any court" language in Section 922(g)(1) stands in sharp contrast to references
elsewhere in the gun control law that are expressly limited to "United States" and "State" courts. Furthermore, Congress has twice
amended the gun control law to delete language limiting disqualifying convictions to those entered by courts of the United States or
the States.

The structure of the gun control law and the specialized pattern of legislative usage of the phrase "conviction in any court"
underscore that Congress meant "any" to encompass all convictions for qualifying offenses, whether foreign or domestic. Other
provisions of the gun control law evidence that Congress was specifically concerned with the international and cross-border
trafficking of firearms, as well as with keeping guns out of the hands of persons if the domestic or foreign consequences of their
conduct renders their possession of firearms an unacceptable risk to the American public. Moreover, a review of federal law reveals
that Congress uses the phrase "conviction in any court" sparingly, reserving it for contexts, such as the possession of biological
weapons or explosive materials, where recognizing convictions entered by foreign courts makes sense and where ignoring those
convictions could have dire consequences.

In addition, excluding foreign convictions would frustrate the central purpose of Section 922(g)(1)'s prohibition on the possession
of firearms. Congress enacted that prohibition to keep firearms out of the hands of potentially dangerous persons-those whose past
conduct evidenced that their possession of firearms could pose a risk to public safety. That threat does not dissipate when those
individuals cross the border. A foreign murderer is just as dangerous as a domestic one.

At bottom, petitioner's argument is that "any" should not mean "any" because that reading might produce occasional anomalies in
practice and because some foreign court systems employ criminal procedures less protective of defendant's rights than the United
States does. But, while giving "any court" its natural reading as including foreign courts could result in the disparate coverage of
those convicted of certain business crimes depending on the locus of their misconduct, worse anomalies arise under petitioner's
reading of the statute. Petitioner would allow foreign murderers, rapists, and armed robbers to purchase and possess as many
firearms as they want, while those convicted domestically of mailing a lottery ticket, 18 U.S.C. 1302, could not. Petitioner's position
also would require the Court to conclude that, while Congress sought to curb importers', manufacturers', and dealers' trafficking of
firearms to terrorists, Congress meant to impose no bar on the domestic acquisition and possession of firearms by convicted
terrorists themselves. In any event, legislating necessarily entails line-drawing. A criminal defendant's ability to hypothesize
unusual applications of the law-applications that are not remotely implicated in his case-provides no sound basis for ignoring
explicit statutory text.

Second, attaching domestic consequences to the fact of a foreign conviction is not unusual and it does not require that the foreign
penal system mirror the constitutional processes afforded criminal defendants in the United States. As the Court has recognized,
Section 922(g)(1) is, in essence, a civil firearms disability that is enforced through the criminal system. The fact of a conviction is
enough to trigger that disability, regardless of whether the processes used to obtain the conviction comport with constitutional
dictates, because the fact of conviction alone is a reasonable proxy for a heightened risk arising from the possession of firearms. The
Court held as much in Lewis v. United States, 445 U.S. 55 (1980), when it ruled that state convictions may support a Section 922(g)
(1) prosecution regardless of whether they are susceptible to collateral attack as unconstitutional. If fundamentally unfair and
unconstitutional state court convictions can provide a predicate for Section 922(g)(1)'s firearms bar, nothing in law or logic
supports ignoring petitioner's fundamentally fair conviction in Japan.

ARGUMENT

THE FEDERAL PROHIBITION ON THE POSSESSION OF FIREARMS BY PERSONS CONVICTED IN "ANY COURT" APPLIES
TO PERSONS CONVICTED OF CRIMES IN FOREIGN COURTS

A. The Natural Meaning Of "Any Court" Includes Foreign Courts

Determining whether Section 922(g)(1)'s prohibition on the possession of firearms by persons convicted in "any court" reaches
convictions in foreign courts "begins where all such inquiries must begin: with the language of the statute itself." United States v.
Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989); see also Lewis v. United States, 445 U.S. 55, 60 (1980) ("[I]n any case concerning
the interpretation of a statute the 'starting point' must be the language of the statute itself.") (citations omitted).

1. The natural meaning of "any court" includes foreign courts because "any" is an all-encompassing and deliberately inclusive word
that reaches all members of a class. In construing a parallel provision of the same gun control statute at issue here, the Omnibus
Crime Control and Safe Streets Act of 1968 (1968 Omnibus Act), Pub. L. No. 90-351, 82 Stat. 226, this Court held that, "[r]ead
naturally, the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind.'" United States v.
Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster's Third New Int'l Dictionary 97 (1976)) (construing 18 U.S.C. 924(c)(1)).4

Section 922(g)(1) thus "could not be more plain," Lewis, 445 U.S. at 65, in its intent to cover convicted felons broadly without
geographic limitation. In Lewis, in construing a parallel prohibition in Title VII of the 1968 Omnibus Act on the possession of
firearms by "any person * * * who has been convicted" of a felony, 18 U.S.C. App. 1202(a)(1) (1976), the Court stressed that the
prohibition "is directed unambiguously at any person who 'has been convicted,'" regardless of whether their convictions were
subject to collateral attack. 445 U.S. at 60. Here, as in Lewis, "[n]o modifier is present, and nothing suggests any restriction on the
scope of" the phrase "any court" that would limit its reference to domestic courts. Ibid. Likewise, in Barrett v. United States, 423
U.S. 212 (1976), the Court concluded that the same provision at issue here-then codified as 18 U.S.C. 922(h) (1970)-was "directed
unrestrictedly at the felon's receipt of any firearm that 'has been' shipped." 423 U.S. at 216. That unqualified statutory language, the
Court held, "is without ambiguity." Ibid.; see also Gonzales, 520 U.S. at 5; Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111
(1983).5

2. Congress's use of the expansive phrase "any court" in Section 922(g)(1) contrasts with other parts of the same law that are limited
to convictions, prosecutions, or prohibitions under state or federal law. See, e.g., 18 U.S.C. App. 1202(a)(1) (1970) (banning
possession, receipt, or transport of a firearm by any person who "has been convicted by a court of the United States or of a State or
any political subdivision thereof of a felony") (repealed by the 1986 Firearms Owners' Protection Act, Pub. L. No. 99-308, § 104(b),
100 Stat. 459).6 That legislative pattern demonstrates that, when Congress wishes to restrict the gun control law's operation to
state and federal crimes, it says so explicitly.

The absence of similar narrowing language in Section 922(g)(1) underscores Congress's intent to reach all convictions, whether
foreign or domestic. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello
v. United States, 464 U.S. 16, 23 (1983). The Court has repeatedly invoked that principle of statutory construction to interpret
parallel provisions of the gun control law. See Gonzales, 520 U.S. at 5; Custis v. United States, 511 U.S. 485, 492 (1994)
(interpreting 18 U.S.C. 924(e)); Barrett, 423 U.S. at 217.

3. This Court has long recognized that Congress, in Section 922(g), "was reaching far and was doing so intentionally." Dickerson,
460 U.S. at 116. In Barrett, supra, the Court noted the detailed precision with which Congress crafted the provision containing the
forerunner to Section 922(g). See 423 U.S. at 216-217. "Congress knew the significance and meaning of the language it employed" in
Section 922(g) in particular. Id. at 217. In fact, "[i]t is obvious" that the language employed "throughout * * * [was] chosen with
care," and that the provisions represented "a carefully constructed package of gun control legislation." Scarborough v. United
States, 431 U.S. 563, 570 (1977); see also Dickerson, 460 U.S. at 116. Thus, by all indications, Congress's unqualified prohibition on
the possession of firearms by persons who have been convicted "in any court" "means exactly what it says." Barrett, 423 U.S. at 216
(finding coverage of intrastate acquisitions of firearms previously transported in interstate commerce). "There is no indication in
either the committee reports or in the congressional debates that the scope of the statute was to be in any way restricted."
Huddleston v. United States, 415 U.S. 814, 825 (1974).

4. Finally, the natural understanding of "any court" is reflected in how the law has been interpreted and administered by those
charged with its day-to-day enforcement. Congress charged the Secretary of the Treasury (now, the Attorney General) with issuing
"such rules and regulations as are necessary to carry out the provisions of" Section 922 and the companion sections of the gun
control law. 18 U.S.C. 926(a). That authority was delegated to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). See
37 Fed. Reg. 11,696 (1972); 28 C.F.R. 0.133.7 In 1987, ATF promulgated a regulation that interpreted the phrase "crime punishable
by imprisonment for a term exceeding 1 year" to include "[a]ny Federal, State or foreign offense for which the maximum penalty,
whether or not imposed, is capital punishment or imprisonment in excess of 1 year." 27 C.F.R. 478.11; see 52 Fed. Reg. 2048
(1987).8

More recently, the National Instant Criminal Background Check System, a computerized system designed to search criminal record
systems and identify individuals who are disqualified from receiving or possessing firearms, has begun to implement that
interpretation on a practical level. The system includes the records of the National Crime Information Center and the Interstate
Identification Index. FBI, Dep't of Justice, National Instant Criminal Background Check System (Jan. 2004). While the coverage is
far from comprehensive, those systems include some Canadian, British, German, and Italian criminal history records. And as
computerization expands worldwide, the number of foreign conviction records included in the system will expand. Furthermore,
whenever a background check is run on an alien, the system automatically initiates a search of the records of the Department of
Homeland Security's Immigration and Customs Enforcement, which may include information about foreign criminal convictions,
see 8 U.S.C. 1101(a)(43), 1158(b)(2)(A)(iii), 1182(a)(2)(A)(i) (II), 1231(b)(3)(B)(iii).

B. Section 922(g)(1)'s Purpose Of Keeping Firearms Out Of The Hands Of Potentially Dangerous Persons Requires The Recognition
Of Foreign Convictions

The "obvious breadth of the language" employed by Congress comports with Congress's "expansive legislative approach" to the
"problem of firearm abuse by felons." Lewis, 445 U.S. at 61. Congress intended "to impose a firearms disability on any felon based
on the fact of conviction." Id. at 62 (emphasis added); see id. at 64. Accordingly, in enacting Section 922(g)(1) and its counterpart
provisions of the gun control law, "Congress sought to rule broadly--to keep guns out of the hands of those who have demonstrated
that they may not be trusted to possess a firearm without becoming a threat to society." Dickerson, 460 U.S. at 112 (internal
quotation marks and citation omitted). Indeed, "[t]he principal purpose of the federal gun control legislation * * * was to curb crime
by keeping 'firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or
incompetency.'" Huddleston, 415 U.S. at 824.9

The prohibition of firearms possession by persons who have been convicted of serious crimes abroad directly advances Congress's
legislative effort to stem the "general availability [of firearms] to those whose possession thereof was contrary to the public
interest," Huddleston, 415 U.S. at 824, and to keep "these lethal weapons out of the hands of criminals * * * and other persons
whose possession of them is too high a price in danger to us all to allow," id. at 825 (quoting 114 Cong. Rec. 13,219 (1968) (Sen.
Tydings)). Whether entered abroad or domestically, a criminal conviction for a felony serves as a reasonable indication that the
person is "too much of a risk to be allowed firearms privileges." Dickerson, 460 U.S. at 116; see id. at 120 ("[S]uch convictions
provide a convenient, although somewhat inexact, way of identifying 'especially risky people.'") (quoting United States v. Bass, 404
U.S. 336, 345 (1971)). "Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient
basis on which to prohibit the possession of a firearm." Lewis, 445 U.S. at 66. The same is true of a criminal conviction entered by a
foreign government.

In light of Congress's broad public-safety purpose, this Court has construed parallel provisions of the gun control law expansively to
reach (i) "all types of sales or dispositions," Huddleston, 415 U.S. at 825 (emphasis added); (ii) all convictions, regardless of
whether they are subject to collateral attack or expungement, Lewis, 445 U.S. at 60-61; Dickerson, 460 U.S. at 119-120; (iii) all
possible manifestations of "convicted" status, including guilty pleas, Dickerson, 460 U.S. at 114; (iv) all terms of imprisonment,
whether state or federal, Gonzales, 520 U.S. at 5-8; (v) all purchases of firearms, even if not directly in interstate commerce,
Barrett, 423 U.S. at 216-217; (vi) all acts of possession of firearms, even if not directly in interstate commerce, Scarborough, 431
U.S. at 571; and (vii) all convictions, even if the defendant had his civil rights restored under the law of another jurisdiction,
Beecham v. United States, 511 U.S. 368, 372-373 (1994); see also Caron v. United States, 524 U.S. 308, 314-316 (1998) (state law
authorization to possess rifles or shotguns insufficient). Congress's deliberate choice of the phrase "any court" should be afforded a
similarly comprehensive scope, in accord with Congress's unqualified purpose of "deny[ing] every assassin, murderer, thief and
burglar of the right to possess a firearm in the future." Lewis, 445 U.S. at 63 (quoting 114 Cong. Rec. at 14,773 (Sen. Long))
(emphasis added).

C. The Structure And Context Of The Gun Control Law Confirm That "Any Court" Includes Foreign Courts

1. The overall statutory context and structure confirm that Congress's effort to restrict access to firearms by potentially dangerous
persons was intended to take into account the risk evidenced by individuals' conduct abroad. In addition to prohibiting the
possession and receipt of firearms by felons, Section 922(g) bars aliens who are "illegally or unlawfully in the United States" or here
on a non-immigrant visa, and individuals who have renounced their United States citizenship from possessing, receiving, or
transporting firearms. 18 U.S.C. 922(g)(5) and (7). Those categories demonstrate Congress's awareness of the risks posed by the
international fluidity of gun purchases and transfers and the dangers posed by individuals coming into the United States from
abroad and purchasing firearms.10

In addition, in defining the importers, manufacturers, and dealers whose activities are covered by the Act and who are subject to its
criminal prohibitions, Congress made it easier to establish coverage for "a person who engages in the regular and repetitive
purchase and disposition of firearms for criminal purposes or terrorism." 18 U.S.C. 921(a)(22); see also 18 U.S.C. 921(a)(21).
Congress then defined "terrorism" as:

activity, directed against United States persons, which-

(A) is committed by an individual who is not a national or permanent resident alien of the United States;

(B) involves violent acts or acts dangerous to human life which would be a criminal violation if committed within the jurisdiction of
the United States; and

(C) is intended-

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by assassination or kidnapping.

18 U.S.C. 921(a)(22).11 This provision makes explicit Congress's intent to regulate and proscribe the firearms activities of persons
within the United States based on their criminal conduct and the consequences of their conduct outside the United States. In light
of Congress's manifest concern with the transnational threat of gun trafficking, Section 922(g)(1)'s reference to convictions "in any
court" should be given the full scope denoted by its text.

2. Congress, as a matter of legislative practice, has limited use of the unqualified phrase "convicted in any court" to contexts where
its natural meaning- embracing convictions in both domestic and foreign courts-comports with the congressional design. For
example, Section 817 of the USA PATRIOT ACT, Pub. L. No. 107-56, Title VIII, 115 Stat. 386, which was enacted in the wake of the
September 11, 2001, terrorist attacks on the United States, precludes persons who have been "convicted in any court" of a crime
punishable by imprisonment for more than one year from possessing biological weapons. § 817(2), 115 Stat. 386, as amended by the
Public Health Security and Bioterrorism Preparedness Response Act of 2002, Pub. L. No. 107-188, § 231(a)(4), 116 Stat. 660 (to be
codified at 18 U.S.C. 175b(d)(2)(B)). Likewise, 18 U.S.C. 842(d)(2) and 842(i)(1) prohibit persons who have been "convicted in any
court" of a crime punishable by imprisonment for more than one year from possessing, shipping, transporting, or receiving
explosive materials. Given the potentially devastating consequences of putting biological weapons or explosive materials in the
hands of the wrong person, Congress's choice of statutory language that covers both foreign and domestic convictions makes
sense.12 And where the operation of a criminal statute is "not logically dependent on the[] locality" of the triggering conduct,
neither Congress nor this Court has "thought it necessary to make specific provision in the law that the locus shall include the high
seas and foreign countries, but allows it to be inferred from the nature of the offense." United States v. Bowman, 260 U.S. 94, 98
(1922).13

D. The Exclusion Of Certain Federal And State Business Crimes From The Ban On Gun Possession By Criminals Supports The
Coverage Of Foreign Convictions

Petitioner places great weight (Br. 17-19) on a definitional provision, which provides that the phrase "crime punishable by
imprisonment for a term exceeding one year" does not include

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar
offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or
less.

18 U.S.C. 921(a)(20).14 That reliance is misplaced, for at least three reasons.

First, if "any court" referred exclusively to federal and State courts, then there would have been no reason for Congress to include
"Federal or State" as modifiers to identify which business crimes were excluded in Section 921(a)(20)(A). Likewise, there would
have been no need to include the modifier "State" for the misdemeanor offenses excluded in Section 921(a)(20)(B).15 This Court
has refused time and again to treat statutory text "essentially as surplusage-as words of no consequence." Ratzlaf v. United States,
510 U.S. 135, 140 (1994). That rule applies with particular force to the construction of criminal laws. Id. at 140-141 ("Judges should
hesitate so to treat statutory terms in any setting, and resistance should be heightened when the words describe an element of a
criminal offense."). That Congress considered it necessary to restrict the exceptions to "Federal" and "State" offenses therefore
confirms rather than undermines the conclusion that Section 922(g)(1) starts with an even larger universe of convictions. See
Gonzales, 520 U.S. at 5 ("Given that Congress expressly limited the phrase 'any crime' to only federal crimes, we find it significant
that no similar restriction modifies the phrase 'any other term of imprisonment.'") (construing 18 U.S.C. 924(c)(1)).

Second, and in any event, in light of the gun control law's broadly protective purpose, Congress could reasonably choose to proceed
circumspectly in the creation of exceptions. By excluding only state and federal crimes, Congress carved out from Section 922(g)'s
prohibition only business crimes involving forms of regulation with which Congress was quite familiar. Due to the variety and
disparity in how other nations define, label, and classify their penal provisions, however, Congress could be less confident that
analogous conduct in foreign jurisdictions would lead to felony convictions in the first place, or that granting the exclusion would
exempt only relatively non-dangerous individuals.16

Third, the crux of petitioner's argument is not that the text of Section 922(g)(1) excludes foreign convictions-its plain meaning
encompasses them-but that it would be "peculiar" if "[a]n individual convicted of an offense in Canada classified as a misdemeanor
which carries a maximum sentence of two years imprisonment could not possess a firearm, but an individual convicted of an
offense in a State court * * * which carries a maximum sentence of two years imprisonment could possess a firearm." Pet. Br. 17.
Perhaps that would be an unusual outcome. But subjective assessments of whether particular applications of a law are "peculiar"
provide no basis for courts to disregard duly enacted statutory text. The Constitution leaves such value judgments to the political
branches.

Beyond that, to the extent that petitioner can espy in the statutory text the potential for an occasional anomaly, Congress evidently
was untroubled by that prospect in framing the firearm prohibitions. To illustrate, under Section 921(a)(20)(B), federal convictions
for offenses punishable by up to two years in prison serve as disabling predicates, while their state-law counterparts do not-if they
are classified under state law as "misdemeanors." See, e.g., 21 U.S.C. 841(b)(3) (drug possession); 21 U.S.C. 844(a) (same); 18
U.S.C. 3146(b)(A)(iii) (failure to appear); 18 U.S.C. 228 (failure to pay child support); 15 U.S.C. 645 (theft or embezzlement of
certain funds); 26 U.S.C. 5691(a) (non-payment of tax).17 More generally, differences in state laws mean that conduct that would
give rise to the firearms disability if committed in one State (because that State treats the conduct as a felony) would not lead to a
disability if committed in a State that denominates the equivalent crime a misdemeanor. Petitioner presumably would not argue
that courts must rewrite the statute to prevent those disparate results from arising. But, if courts lack the authority to emend
statutory language to eliminate such anomalies under domestic law, courts have no greater license to read "any" to mean something
less than "any" just to avoid the differential treatment of domestic and foreign convictions that petitioner hypothesizes. Cf. Caron,
524 U.S. at 314-316 (construing the gun control law's exception for persons whose state-law right to possess firearms has been
restored, 18 U.S.C. 921(a)(20), to permit a Section 922(g)(1) prosecution for the possession of firearms that state law expressly
permits the defendant to possess, despite the potential for "incongruities").

More importantly, petitioner's proposed reading of "any court" as excluding foreign courts would create a greater and more
dangerous interpretive anomaly. If foreign convictions are entirely excluded, then those convicted of murder, rape, armed robbery,
and terrorism overseas could freely possess, receive, ship, and transport firearms within the United States, while a person convicted
domestically of tampering with a vehicle identification number, 18 U.S.C. 511(a), or possessing a "three-neck round-bottom flask,"
21 U.S.C. 843(a)(6), could be barred for life from possessing firearms. It is hard to see the sense in that. Furthermore, petitioner's
cramped reading of statutory text presupposes that, while Congress wanted to prevent importers, dealers, and manufacturers from
trafficking firearms to terrorists, 18 U.S.C. 921(a)(22), Congress cared not at all whether those persons actually convicted of
assassination, kidnapping, or other "violent acts or acts dangerous to human life" abroad, 18 U.S.C. 921(a)(22) (B) and (C)(iii), are
able to ship, transport, receive, and possess firearms in the United States. There is "no reason why the commission of serious
crimes elsewhere in the world is likely to make the person so convicted less dangerous than he whose crimes were committed
within the United States." United States v. Winson, 793 F.2d 754, 758 (6th Cir. 1986) (citations omitted).18 Thus, if statutory
construction is to be driven by the desire to avoid "peculiar" results, that mode of analysis dictates that Section 922(g)(1)'s reference
to convictions in "any court" be read to include foreign courts.

For many of those same reasons, petitioner's reliance (Br. 24-25) on the express reference in 18 U.S.C. 921(a)(33)(A)(i) to domestic
violence misdemeanors under "Federal or State law" is misplaced. Petitioner's reading of the statute would leave the phrase
"Federal or State law" no work to do. See TRW Inc. v. Andrews, 534 U.S. 19, 29 (2001). And petitioner's reading creates worse
anomalies in coverage than those he hypothesizes (Br. 24-25). Under his approach, a person convicted of violating a restraining
order by telephoning his estranged wife is barred for life from possessing firearms, but if that same person shoots and kills his
estranged wife during a Canadian vacation, he can buy as many guns as he wants. See Caron, 524 U.S. at 316 (rejecting reading of
gun control law that "would undermine [Congress's] protective purpose").19

In short, legislation requires linedrawing, and the gun control law is no exception. Petitioner no doubt would prefer that those lines
had fallen elsewhere. But the "fact [that] the line might have been drawn differently at some points is a matter for legislative, rather
than judicial, consideration." FCC v. Beach Communications, Inc., 508 U.S. 307, 316 (1993) (quoting United States R.R. Retirement
Bd. v. Fritz, 449 U.S. 166, 179 (1980)). The Court's task is to "interpret, rather than author," federal laws. United States v. Oakland
Cannabis Buyers' Coop., 532 U.S. 483, 494 n.7 (2001). Here, Congress chose comprehensive language to serve a broad and
comprehensively protective purpose. The Court is "not at liberty to rewrite" that language, id. at 495 n.7, or to afford it anything
other than its full and natural meaning.

E. The Legislative History Of Section 922(g)(1) Supports Its Straightforward Application To Convictions In Foreign Courts

1. Because the natural meaning of Section 922(g)(1)'s language "any court" includes foreign courts and because that understanding
is confirmed by the statute's structure, purpose, the administering agency's reasonable interpretation of the statutory language, and
Congress's specialized usage of the phrase "convicted in any court," there is no need to resort to legislative history. Ratzlaf, 510 U.S.
at 147-148 ("[W]e do not resort to legislative history to cloud a statutory text that is clear."). In any event, there is no legislative
history that specifically discusses whether "any court" includes or excludes foreign courts.20

To the extent that the legislative history is relevant, the evolution of Section 922(g)(1) supports the conclusion that "any court"
includes foreign courts. On two occasions before the present version of Section 922(g)(1) was enacted, Congress passed laws
disqualifying felons from possessing or trafficking in firearms based only on convictions from state and federal courts. See Federal
Firearms Act, ch. 850, § 2, 52 Stat. 1250 (codified at 15 U.S.C. 902(d) (1940), and 15 U.S.C. 902(d) (1964)); 18 U.S.C. App. 1202(a)
(1) (1970). Congress specifically deleted those limitations through later amendments, as part of a concerted legislative effort to
"enlarge[] the group of people coming within the Act's substantive prohibitions," Bass, 404 U.S. at 343 n.10. See 1968 Omnibus Act,
Pub. L. No. 90-351, § 922(e), 82 Stat. 230-231 (1968); 1986 Firearms Owners' Protection Act, Pub. L. No. 99-308, § 102(6)(D), 100
Stat. 452. "When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect." Intel
Corp. v. Advanced Micro Devices, Inc., 124 S. Ct. 2466, 2479 (2004) (quoting Stone v. INS, 514 U.S. 386, 397 (1995)). There thus is
no basis for construing the present version of Section 922(g) to incorporate a limitation that Congress twice deleted from the law.
See Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (it is the Court's "duty to refrain from reading a phrase into the statute
when Congress has left it out").

Nor can it fairly be argued that Congress dispensed with the qualifying "State or Federal" court language on the ground that such
terms of limitation were unnecessary because "any court" would naturally be understood to refer only to domestic courts. If that
were the case, there was no reason for Congress to enact, in conjunction with its 1968 and 1986 adoption of the "any court"
phraseology, the "State and Federal" law limitations on the statutes' coverage of business, misdemeanor, and domestic violence
crimes, 18 U.S.C. 921(a)(20), 922(g)(9).

In short, petitioner's reading of the legislative history would require the Court to hold that the 1968 and 1986 amendments deleting
"State" and "Federal" were meaningless and that the qualifying "State" and "Federal" language simultaneously included elsewhere
was surplusage. By contrast, affording "any court" its natural compass, as including foreign courts, would give practical effect to the
1968 and 1986 amendments, would be consistent with Congress's legislative purpose, and would give meaning to all of the words
Congress enacted.

2. Petitioner (Br. 31-37), like the Second Circuit in United States v. Gayle, 342 F.3d 89, 94-95 (2003), as amended on rehearing (2d
Cir. 2004), cert. denied, No. 03-10327, 124 S. Ct. 2888 (2004), and petition for cert. pending, No. 03-1510 (filed May 6, 2004),
places great weight on the Senate Judiciary Committee's Report on the Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1220.
See S. Rep. No. 1501, 90th Cong., 2d Sess. (1968). That Report accompanied a bill that defined the "felony" convictions that would
debar an individual from possessing firearms as, "in the case of a Federal law, an offense punishable by imprisonment for a term
exceeding one year, and in the case of a State law, an offense determined by the laws of the State to be a felony." S. 3633, 90th
Cong., 2d Sess. 11 (1968); see also S. Rep. No. 1501, supra, at 31. As the Second Circuit (Gayle, 342 F.3d at 95-96) and petitioner (Br.
33-35) further note, the House bill referred broadly to "any court." See H.R. 17735, 90th Cong., 2d Sess. 17-18 (1968). The two
competing bills went to a Conference Committee, where the language of the Senate bill was rejected in favor of the broader "any
court" language of the House bill. See H.R. Conf. Rep. No. 1956, 90th Cong., 2d Sess. 28-29 (1968). The Second Circuit reasoned
(342 F.3d at 95), in an argument that petitioner echoes (Br. 35), that the Conference Report's failure to voice express disagreement
with the Senate Report's definition of "felony" compels the conclusion that "any court" refers only to domestic courts.

In so holding, the Second Circuit noted that those "illuminating reports * * * have never been cited in a judicial opinion on the
question and were not cited in the briefs furnished to us." Gayle, 342 F.3d at 95 n.6. There is a good reason for that. Those reports
postdate by three and four months respectively Congress's enactment of the "any court" language in Section 922(e) of the 1968
Omnibus Act. All that the 1968 Gun Control Act did with respect to that Section was move it to its current location at 18 U.S.C.
922(g)(1), and add unrelated additions to the list of prohibited persons. Pub. L. No. 90-618, § 922(g), 82 Stat. 1220.

Petitioner's argument suffers from a second critical flaw. The Senate bill and the qualifying language to which the Report refers
were not enacted. Instead, the Conference Report expressly rejected the Senate's language and adopted the House bill's definition
of "felony," which lacked language limiting the qualifying felonies to those entered by state or federal courts. H.R. Conf. Rep. No.
1956, supra, at 28-29. Far from being "illuminating" (342 F.3d at 95 n.6), such "failed legislative proposals," and a fortiori the
Committee Reports elaborating on those failed proposals, "are 'a particularly dangerous ground on which to rest an interpretation
of a prior statute.'" United States v. Craft, 535 U.S. 274, 287 (2002) (citation omitted).21 Contrary to petitioner's argument (Br. 34),
that rejection was one of substance not "terminology." The Senate version of the law that went to the Conference Committee had
not only restricted the courts that could enter triggering felonies, but also had limited the bar to "crime[s] of violence." H.R. Conf.
Rep. No. 1956, supra, at 28-29. The law as enacted thus rejected the Senate's proposed restrictions on qualifying convictions and,
for the third time, specifically omitted language that would have limited qualifying convictions to domestic courts.

3. Petitioner's reliance (Br. 37-41) on the legislative history of the 1986 Firearms Owners' Protection Act fares no better. Petitioner
relies on the fact that Congress consolidated two largely overlapping prohibitions that had previously been enacted in Titles IV and
VII of the 1968 Omnibus Act. See Barrett, 423 U.S. at 220; see generally Bass, 404 U.S. at 342-343 & nn.9-10 (describing
legislation). Petitioner insists (Br. 37) that Congress intended only to "merge[]" Title VII's provisions into Title IV, and contends
that Congress's deletion of the limiting phrase court of the "United States or of a State or any political subdivision thereof" in the
Title VII provision, 18 U.S.C. App. 1202(a) (1970), was of no consequence because "[n]o one suggested that any inconsistencies
existed" (Br. 39). But on the face of the laws, textual inconsistencies did exist between Title IV's unqualified reference to "any court"
and Title VII's more limited reference. The absence of legislative history discussing the difference is beside the point.22

Petitioner further emphasizes (Br. 38-39) that, in discussing the choice-of-law provision (now codified at 18 U.S.C. 921(a)(20)),
Congress discussed developments in state law. See S. Rep. No. 583, 98th Cong., 2d Sess. 7 (1984). That is true. It is also beside the
point. The Report nowhere says or suggests that foreign convictions are excluded or that "any" means something less than "any."
Perhaps some Members of Congress "had in mind" (Pet. Br. 39) federal and state law crimes. But Congress often legislates in
broader terms than the precise problem that motivated some of the legislators, and the limited concerns of some legislators cannot
justify disregarding duly enacted statutory text. The more reliable indicator of congressional intent is what Congress said-"any
court"-and what Congress did-delete language that would have limited Section 922(g)(1)'s bar to convictions entered by courts of
"the United States or of a State."23

Petitioner's invocation (Br. 41-42) of the Brady Handgun Violence Prevention Act of 1993 (Brady Act), Pub. L. No. 103-159, Title I,
107 Stat. 1536, is equally unhelpful. The Brady Act postdates by a quarter century Congress's enactment of the "any court" language
in Section 922(g)(1). See Almendarez-Torres v. United States, 523 U.S. 224, 237 (1998) ("[L]ater enacted laws * * * do not declare
the meaning of earlier law."). In any event, Congress's directive that the Attorney General establish on an expeditious basis a
computerized National Instant Criminal Background Check System (NICS) incorporating state criminal conviction records does not
mean that foreign convictions are excluded. It just means that Congress set priorities, in light of limited resources and the state of
computer technology worldwide in the early 1990s. Moreover, as discussed at page 15, supra, NICS does include some foreign
convictions and cross-references the records of Immigration and Customs Enforcement.24

F. Concerns About Possible Unfairness In The Criminal Procedures Of Foreign Courts Do Not Mandate The Wholesale Exclusion Of
Foreign Convictions From Section 922(g)(1)

Petitioner's objection to the inclusion of foreign convictions rests heavily on the potential for unfairness he perceives in foreign
criminal proceedings. Pet. Br. 10-11, 16. But, despite his complaints (Br. 10-11), petitioner does not claim that there was any
fundamental unfairness in the proceedings by which he was convicted in Japan. Pet. i, 3 n.1; Pet. Br. 4 n.3. Nor has any such
unfairness been identified in the foreign convictions in any of the prosecutions that have been brought under Section 922(g)(1). See
Atkins, 872 F.2d at 95 n.1; Winson, 793 F.2d at 757; see also Gayle, 342 F.3d at 91-96 (no suggestion of impropriety for Canadian
conviction); United States v. Concha, 233 F.3d 1249, 1253-1257 (10th Cir. 2000) (no suggestion of impropriety for British
conviction). The "mere possibility of making th[e] argument" that a particular application of a law could be unfair did not lead this
Court to deny the phrase "convicted in any court" its full and natural meaning in Lewis, 445 U.S. at 61 n.5, and it should not do so
here. There is no basis for broadly foreclosing the use of any foreign conviction under Section 922(g)(1), no matter how serious the
crime and no matter how fairly obtained, just to dispel the possibility that someone else's foreign conviction might be entered
unfairly.

1. Section 922(g)(1) focuses on the fact of conviction

In Lewis, this Court rejected the argument that potentially unconstitutional state court convictions should not trigger a firearms
disability under the former 18 U.S.C. App. 1202(a)(1) (1976) or Section 922(g)(1). See 445 U.S. at 60-67; id. at 58 n.4 (noting that
the "identical issue" arises under Section 922(g)(1)). The Court first held that the plain language of Section 1202(a)(1) (like Section
922(g)(1)) contains no textual basis for restricting its coverage to lawful convictions or those immune from collateral attack. Id. at
60. The Court then held that it is "the fact of a felony conviction" alone that triggers the firearm disability. Ibid. The fact of a
conviction is sufficient, without more, to implicate Congress's concern that firearms be kept away from "potentially irresponsible
and dangerous" persons. Id. at 65 (quoting Barrett, 423 U.S. at 218); see also Custis, 511 U.S. at 490-491 ("The statute focuses on
the fact of the conviction and nothing suggests that the prior final conviction may be subject to collateral attack for potential
constitutional errors before it may be counted.").

That same rationale applies to foreign convictions. Indeed, if an actually unconstitutional and fundamentally unfair state conviction
still validly disqualifies an individual from possessing firearms under Section 922(g)(1), then there is no sound reason why
petitioner's fundamentally fair conviction from a foreign jurisdiction should automatically be excluded. The law's "focus [is] not on
reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous
persons." Lewis, 445 U.S. at 67.

Furthermore, the prohibition on possessing firearms is an "essentially civil disability." Lewis, 445 U.S. at 67. "The statute focuses on
the fact of the conviction and nothing suggests that the prior final conviction may be subject to collateral attack for potential
constitutional errors before it may be counted." Custis, 511 U.S. at 490-491. Thus, even if the Constitution requires some review of
the fairness by which a foreign conviction is obtained when it is used to "support guilt or enhance punishment," Lewis, 445 U.S. at
67 (citation omitted), Lewis makes clear that there is no such prerequisite to the enforcement of an essentially civil disability
through a criminal sanction, ibid.

The fact that indictment alone is sufficient to trigger what is in effect a statutory prohibition on purchasing or receiving firearms
(see 18 U.S.C. 922(d)(1), 922(n)) underscores the essentially civil character of the disability imposed, as does Section 922's bar on
possession by persons dishonorably discharged by the military, 18 U.S.C. 922(g)(6); see 32 C.F.R. Pt. 70 (discharge procedures).
Those provisions confirm that Congress did not intend compliance with the full panoply of criminal defendant's rights under the
federal Constitution to be a prerequisite for Section 922's proscriptions to attach. Rather, Congress was looking for a "convenient,"
albeit "somewhat inexact, way of identifying 'especially risky people,'" Dickerson, 460 U.S. at 120. Thus, a foreign conviction is used
in Section 922(g)(1), not as an authoritative adjudication of criminal liability for purposes of imposing criminal sanctions for the
foreign offense of conviction, but rather as a roughly reliable indicator of the individual's status as a potentially dangerous person.
Cf. Hilton v. Guyot, 159 U.S. 113, 145 (1895) ("A judgment affecting the status of persons * * * is recognized as valid in every
country, unless contrary to the policy of its own law."). Congress's judgment that the fact of a conviction-whether federal, state, or
foreign-adequately serves that purpose is rational and should be respected, especially "when one considers Congress' broad
purpose." Lewis, 445 U.S. at 67.

2. Congress was aware that foreign convictions often have domestic consequences

Petitioner expresses concern (Br. 4-8 & n.3, 16) that recognizing foreign convictions as qualifying felonies for Section 922(g)(1)
would result in the consideration of convictions obtained without the protections afforded criminal defendants in American courts
(Pet. Br. 30-31), and he thus concludes that Congress would not have intended their inclusion. But attaching essentially civil
consequences to the fact of a foreign conviction is not as uncommon as petitioner supposes. In fact, it occurs in a variety of areas,
and Congress must be presumed to have enacted Section 922(g)(1)'s "any court" language with those background practices in mind.

a. A prime example is extradition proceedings. Extradition is a quasi-civil process by which fugitive individuals, including American
citizens, are removed to foreign countries to face criminal charges or to serve a sentence following a conviction there. See 18 U.S.C.
3184, 3196; United States v. Fernandez-Morris, 99 F. Supp. 2d 1358 (S.D. Fla. 1999). Upon application by the federal government,
the district court issues an arrest warrant and certifies extraditability upon finding only that (1) the crime is extraditable (i.e., it is
covered by the terms of an existing extradition treaty and is a crime in both countries), and (2) there is probable cause to believe the
fugitive committed the charged crime. See generally Fernandez v. Phillips, 268 U.S. 311, 312-314 (1925); Ornelas v. Ruiz, 161 U.S.
502, 512 (1896). Direct appeal of the certification is not available, but the person can obtain collateral review through habeas
corpus. See Kastnerova v. United States, 365 F.3d 980, 984 & n.4 (11th Cir.), cert. denied, 124 S. Ct. 2826 (2004). Habeas corpus
review is narrow and limited to whether the extraditing court had jurisdiction, whether there was jurisdiction over the fugitive
individual, whether the extradition treaty was in force and covered the crime at issue, and whether any evidence supports the
extraditing court's finding of probable cause. Id. at 984. Once those basic findings are made, the decision whether to extradite the
person is committed to the discretion of the Secretary of State. See 18 U.S.C. 3186.

It is the fact of a foreign conviction or charge covered by an extradition treaty, combined with probable cause, that empowers the
United States government to seize a person (including a citizen) and hand the individual over to another country's criminal justice
system. The judiciary undertakes no inquiry into the perceived fairness or reliability of the foreign courts' proceedings. The foreign
court is not required to conduct its criminal trials according to the requirements of the United States Constitution. "[T]hose
provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country."
Neely v. Henkel, 180 U.S. 109, 122 (1901). Furthermore, whatever his complaints about the Japanese criminal justice system (Pet.
Br. 4-8), petitioner's

citizenship does not give him an immunity to commit crime in other countries, nor entitle him to demand, of right, a trial in any
other mode than that allowed to its own people by the country whose laws he has violated.
Neely, 180 U.S. at 123. Petitioner thus "cannot complain" that he was "required to submit to such modes of trial and to such
punishment as the laws of [Japan] may prescribe for its own people." Ibid.; see also Wilson v. Girard, 354 U.S. 524 (1957)
(upholding extradition of American citizen to Japan). For extradition, it is enough that the Legislative and Executive Branches
together, as manifested in the particular treaty or convention, have jointly determined that the foreign country's procedures are
"adequate to the ends of justice." Neely, 180 U.S. at 123. Beyond that, "[i]t is not the business of our courts to assume the
responsibility for supervising the integrity of the judicial system of another sovereign nation." Ahmad v. Wigen, 910 F.2d 1063,
1066 (2d Cir. 1990) (quoting Jhirad v. Ferrandina, 536 F.2d 478, 484-485 (2d Cir.), cert. denied, 429 U.S. 833 (1976)).25

The United States has extradition treaties with Japan and more than 100 other foreign governments permitting the extradition of
United States citizens to stand trial or serve sentences in those countries. See Treaty on Extradition Between the United States of
America and Japan, 31 U.S.T. 892 (Mar. 3, 1978); 18 U.S.C. 3181 (Historical and Statutory Notes) (listing 119 extradition treaties).
That documents the joint conclusion of Congress and the Executive Branch that the criminal justice systems of many nations
sufficiently comport with the rudiments of fair process as to warrant seizing American citizens and handing them over for trial and
punishment in those countries. And, since Congress concluded that those countries' judicial systems warranted respect in an
extradition treaty, there is no reason why Congress would have hesitated to make convictions entered in those same systems the
basis for a domestic firearms disability.26

b. Foreign criminal convictions and criminal activities are also accorded recognition in federal immigration law. 8 U.S.C. 1101(a)
(43) (defining an aggravated felony, which disqualifies aliens from a variety of forms of immigration relief and benefits, to include
"an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15
years"); 8 U.S.C. 1182(a)(2)(A)(i) (convictions of controlled substance offense or crimes of moral turpitude in foreign country
render alien admissible).27

In addition, the Antiterrorism Act of 1990 provides that a foreign criminal conviction generally will "estop the defendant from
denyng the essential allegations of the criminal offense in any subsequent civil proceeding" for damages arising from a terrorist act.
18 U.S.C. 2223(c).

c. Foreign convictions for sexual offenses are also taken into account in administering some sex offender registries and notification
systems. For example, if the federal Bureau of Prisons receives, under the International Treaty Transfer Program, 18 U.S.C. 4100,
4102, a United States citizen who was convicted of a sexual crime in a foreign country, that foreign conviction subjects him to the
rules requiring community notification, including sex-offender registration, before release. See 28 C.F.R. 571.72; Bureau of Prisons,
Dep't of Justice, Program Statement No. 5141.02 (Dec. 14, 1998). At least two States also include convictions for foreign sex offenses
in their sex offender registration programs. See Kan. Stat. Ann. § 21-4704(j) (Supp. 2002), as amended by 2004 Kan. Sess. Laws
175 (May 20, 2004); Ohio Rev. Code Ann. §§ 2950.01(D)(1)(f), 2950.09(A) (Anderson 2003). 28

d. The federal Sentencing Guidelines also permit consideration of foreign convictions. While sentences resulting from foreign
convictions are not counted in determining a defendant's criminal history category, they may be considered by the court in
assessing the adequacy of the criminal history category to determine whether an upward departure is warranted. See Sentencing
Guidelines §§ 4A1.2(h), 4A1.3(a); see also United States v. Simmons, 343 F.3d 72, 78-79 (2d Cir. 2003) (upward departure based on
Canadian convictions); United States v. Fordham, 187 F.3d 344, 347-348 (3d Cir. 1999), cert. denied, 528 U.S. 1175 (2000).29

In short, including convictions entered by foreign courts in Section 922(g)(1), would not be the anomaly that petitioner postulates.
In light of the large number of individuals moving transnationally and the undeniable reality of trans-border crime, a variety of
statutory schemes take cognizance of foreign convictions. To do otherwise would create serious disparities in the face of the
increasing prevalence of individual criminals and crimes that are not strictly contained within national boundaries. Indeed, no
country has proven more receptive to the recognition of foreign judgments than the United States. Restatement, supra, at 592
(introductory note).30 What petitioner has not attempted to explain is how Congress could consider large numbers of foreign
courts systems sufficiently fair and reliable to deprive an American citizen of liberty, to incarcerate American citizens abroad, to
trigger civil sex offender notification laws, and to withhold relief under the immigration laws, but not reliable enough to trigger an
essentially civil firearms disability or to bar the possession of biological weapons and explosive materials.31

3. No extensive review for fundamental fairness is required

The court of appeals considered it obvious that foreign convictions were covered by Section 922(g)(1)'s reference to "any court." The
court went on to hold, however, that foreign convictions could provide the predicate for a Section 922(g)(1) prosecution only if they
satisfied the multi-prong test of the Restatement, supra, § 482, at 604. But, as this Court recognized in Lewis, supra, Congress
focused on the fact of conviction and did not want to transform the firearms provisions into a vehicle for collateral attacks on
convictions entered by other jurisdictions. Lewis thus made clear that the fact of a conviction alone triggers Section 922(g)(1)'s
coverage, even if the conviction could be collaterally attacked as unconstitutional. 445 U.S. at 67. A departure from constitutionally
prescribed procedures is no more significant (and is arguably less so) when it occurs in a foreign country than when it occurs at
home.32

Finally, if the Court concludes that some form of collateral review of the foreign conviction is necessary before it can trigger Section
922(g)(1)'s bar, that review should be appropriately deferential and should require nothing more than the most fundamental
rudiments of fair process. Principles of international comity preclude (absent congressional direction to the contrary) re-trying the
merits of foreign judgments or insisting that other nations follow every dictate of the United States Constitution. That is especially
true in cases like this, where the Executive Branch has already exercised its discretion to premise a prosecution on the foreign
conviction. In Hilton, this Court held that the central prerequisites for enforcement of a foreign judgment are (1) jurisdiction in the
trial court, (2) regularized proceedings, (3) notice to the defendant, and (4) "a system of jurisprudence likely to secure an impartial
administration of justice." 159 U.S. at 202; see also Neely, 180 U.S. at 123 (holding that, in extradition cases, the foreign court
system need only be "adequate to the ends of justice" and not discriminate against American citizens). No more should be required
for the mere recognition of a foreign judgment under Section 922(g)(1).33

With respect to petitioner's case, the very type of evidentiary and cross-examination objections to the Japanese proceedings that he
levels (Br. 4-8) were found inadequate to impeach a foreign judgment in Hilton. See 159 U.S. at 205 (Because "the practice followed
and the method of examining witnesses were according to the laws of France, we are not prepared to hold that the fact that the
procedure in these respects differed from that of our own courts is, of itself, a sufficient ground for impeaching the foreign
judgment."); compare Pet. Br. 4 (objecting to lack of a jury trial), with Schriro v. Summerlin, 124 S. Ct. 2519, 2525 (2004) ("the
mixed reception that the right to jury trial has been given in other countries * * * surely makes it implausible that judicial
factfinding so seriously diminishes accuracy as to produce an impermissibly large risk of injustice") (internal quotation marks,
brackets, and emphasis omitted).

4. The rule of lenity does not apply

Petitioner errs (Br. 47-48) in invoking the rule of lenity in the construction of criminal statutes. That rule applies only when the
statutory language is ambiguous, Lewis, 445 U.S. at 65, and, even then, only when "after seizing everything from which aid can be
derived, we can make no more than a guess as to what Congress intended." Muscarello v. United States, 524 U.S. 125, 138 (1998)
(internal quotation marks omitted and punctuation altered). The phrase "any court" is undeniably broad. But the fact that statutory
language is sweeping does not render it ambiguous. Nor does the fact that Congress may not have specifically considered the
application of Section 922(g) to foreign convictions. That a law can apply to situations not anticipated by its drafters "does not
demonstrate ambiguity. It demonstrates breadth." National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 262 (1994) (quotation
marks and citations omitted). The natural expanse of "any court" is clear, both on its face and when considered in light of the
overall structure, purpose, and history of Section 922(g)(1). See Lewis, 445 U.S. at 60 ("The statutory language is sweeping, and its
plain meaning is that the fact of a felony conviction imposes a firearm disability."). That is sufficient to foreclose resort to the rule of
lenity. Bowman, 260 U.S. at 102. Indeed, it is particularly hard for petitioner to contend that, when he purchased a firearm one
week after completing his Japanese sentence, he was not on fair notice that he had been "convicted in any court."

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

PAUL D. CLEMENT
Acting Solicitor General
CHRISTOPHER A. WRAY
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
JOHN A. DRENNAN
Attorney

AUGUST 2004

Kiobel v Royal Dutch Petroleum Co. 

ESTHER KIOBEL, individually and on behalf of her late husband, Dr. BARINEM KIOBEL,
et al., PETI- TIONERS v. ROYAL DUTCH PETROLEUM CO. et al.

on writ of certiorari to the united states court of appeals for the second circuit

[April 17, 2013]

Chief Justice Roberts delivered the opinion of the Court.

Petitioners, a group of Nigerian nationals residing in the United States, filed suit in
federal court against certain Dutch, British, and Nigerian corporations. Petitioners sued
under the Alien Tort Statute, 28 U. S. C. §1350, alleging that the corporations aided and
abetted the Nigerian Government in committing violations of the law of nations in
Nigeria. The question presented is whether and under what circumstances courts may
recognize a cause of action under the Alien Tort Statute, for violations of the law of
nations occurring within the territory of a sovereign other than the United States.

Petitioners were residents of Ogoniland, an area of 250 square miles located in the
Niger delta area of Nigeria and populated by roughly half a million people. When the
complaint was filed, respondents Royal Dutch Petroleum Company and Shell Transport
and Trading Company, p.l.c., were holding companies incorporated in the Netherlands
and England, respectively. Their joint subsidiary, respondent Shell Petroleum
Development Company of Nigeria, Ltd. (SPDC), was incorporated in Nigeria, and
engaged in oil exploration and production in Ogoniland. According to the complaint,
after concerned residents of Ogoniland began protesting the environmental effects of
SPDC’s practices, respondents enlisted the Nigerian Government to violently suppress
the burgeoning demonstrations. Throughout the early 1990’s, the complaint alleges,
Nigerian military and police forces attacked Ogoni villages, beating, raping, killing, and
arresting residents and destroying or looting property. Petitioners further allege that
respondents aided and abetted these atrocities by, among other things, providing the
Nigerian forces with food, transportation, and compensation, as well as by allowing the
Nigerian military to use respondents’ property as a staging ground for attacks.

Following the alleged atrocities, petitioners moved to the United States where they
have been granted political asylum and now reside as legal residents. See Supp. Brief
for Petitioners 3, and n. 2. They filed suit in the United States District Court for the
Southern District of New York, alleging jurisdiction under the Alien Tort Statute and
requesting relief under customary international law. The ATS provides, in full, that “[t]he
district courts shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United States.” 28
U. S. C. §1350. According to petitioners, respondents violated the law of nations by
aiding and abetting the Nigerian Government in committing (1) extrajudicial killings; (2)
crimes against humanity; (3) torture and cruel treatment; (4) arbitrary arrest and
detention; (5) violations of the rights to life, liberty, security, and association; (6) forced
exile; and (7) property destruction. The District Court dismissed the first, fifth, sixth,
and seventh claims, reasoning that the facts alleged to support those claims did not
give rise to a violation of the law of nations. The court denied respondents’ motion to
dismiss with respect to the remaining claims, but certified its order for interlocutory
appeal pursuant to §1292(b).

The Second Circuit dismissed the entire complaint, reasoning that the law of nations
does not recognize corporate liability. 621 F. 3d 111 (2010). We granted certiorari to
consider that question. 565 U. S. ___ (2011). After oral argument, we directed the parties
to file supplemental briefs addressing an additional question: “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.” 565 U. S. (2012). We heard oral argument again and now affirm the judgment
below, based on our answer to the second question.

II

Passed as part of the Judiciary Act of 1789, the ATS was invoked twice in the late
18th century, but then only once more over the next 167 years. Act of Sept. 24, 1789, §9,
1 Stat 77; see Moxon v. The Fanny, 17 F. Cas. 942 (No. 9,895) (DC Pa. 1793); Bolchos v.
Darrel, 3 F. Cas. 810 (No. 1,607) (DC SC 1795); O’Reilly de Camara v. Brooke, 209 U. S. 45
(1908) ; Khedivial Line, S.A.E. v. Seafarers’ Int’l Union, 278 F. 2d 49, 51–52 (CA2 1960)
(per curiam). The statute provides district courts with jurisdiction to hear certain
claims, but does not expressly provide any causes of action. We held in Sosa v. Alvarez-
Machain, 542 U. S. 692, 714 (2004), however, that the First Congress did not intend the
provision to be “stillborn.” The grant of jurisdiction is instead “best read as having been
enacted on the understanding that the common law would provide a cause of action for
[a] modest number of international law violations.” Id., at 724. We thus held that federal
courts may “recognize private claims [for such violations] under federal common law.”
Id., at 732. The Court in Sosa rejected the plaintiff’s claim in that case for “arbitrary
arrest and detention,” on the ground that it failed to state a violation of the law of
nations with the requisite “definite content and acceptance among civilized nations.”
Id., at 699, 732.

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,” Morrison v. National Australia Bank Ltd., 561
U. S. ___, ___ (2010) (slip op., at 6), and reflects the “presumption that United States law
governs domestically but does not rule the world,” Microsoft Corp. v. AT&T Corp., 550
U. S. 437, 454 (2007) .

This presumption “serves to protect against unintended clashes between our laws
and those of other nations which could result in international discord.” EEOC v. Arabian
American Oil Co., 499 U. S. 244, 248 (1991) (Aramco). As this Court has explained:

“For us to run interference in . . . a delicate field of international relations there must be

present the affirmative intention of the Congress clearly expressed. It alone has 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.”
Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138, 147 (1957). The presumption
against extraterritorial application helps ensure that the Judiciary does not erroneously
adopt an interpretation of U. S. law that carries foreign policy consequences not clearly
intended by the political branches.

We typically apply the presumption to discern whether an Act of Congress regulating

conduct applies abroad. See, e.g., Aramco, supra, at 246 (“These cases present the
issue whether Title VII applies extraterritorially to regulate the employment practices of
United States employers who employ United States citizens abroad”); Morrison, supra,
at ___ (slip op., at 4) (noting that the question of extraterritorial application was a
“merits question,” not a question of jurisdiction). The ATS, on the other hand, is “strictly
jurisdictional.” Sosa, 542 U. S., at 713. It does not directly regulate conduct or afford
relief. It instead allows federal courts to recognize certain causes of action based on
sufficiently definite norms of international law. But we think the principles underlying
the canon of interpretation similarly constrain courts considering causes of action that
may be brought under the ATS.

Indeed, the danger of unwarranted judicial interference in the conduct of foreign

policy is magnified in the context of the ATS, because the question is not what
Congress has done but instead what courts may do. This Court in Sosa repeatedly
stressed the need for judicial caution in considering which claims could be brought
under the ATS, in light of foreign policy concerns. As the Court explained, “the potential
[foreign policy] implications . . . of recognizing . . . . causes [under the ATS] should make
courts particularly wary of impinging on the discretion of the Legislative and Executive
Branches in managing foreign affairs.” Id., at 727; see also id., at 727–728 (“Since many
attempts by federal courts to craft remedies for the violation of new norms of
international law would raise risks of adverse foreign policy consequences, they should
be undertaken, if at all, with great caution”); id., at 727 (“[T]he possible collateral
consequences of making international rules privately actionable argue for judicial
caution”). These concerns, which are implicated in any case arising under the ATS, are
all the more pressing when the question is whether a cause of action under the ATS
reaches conduct within the territory of another sovereign.

These concerns are not diminished by the fact that Sosa limited federal courts to
recognizing causes of action only for alleged violations of international law norms that
are “ ‘specific, universal, and obligatory.’ ” Id., at 732 (quoting In re Estate of Marcos,
Human Rights Litigation, 25 F. 3d 1467, 1475 (CA9 1994)). As demonstrated by
Congress’s enactment of the Torture Victim Protection Act of 1991, 106Stat. 73, note
following 28 U. S. C. §1350, identifying such a norm is only the beginning of defining a
cause of action. See id., §3 (providing detailed definitions for extrajudicial killing and
torture); id., §2 (specifying who may be liable, creating a rule of exhaustion, and
establishing a statute of limitations). Each of these decisions carries with it significant
foreign policy implications.

The principles underlying the presumption against extraterritoriality thus constrain

courts exercising their power under the ATS.

III

Petitioners contend that even if the presumption applies, the text, history, and
purposes of the ATS rebut it for causes of action brought under that statute. It is true
that Congress, even in a jurisdictional provision, can indicate that it intends federal law
to apply to conduct occurring abroad. See, e.g., 18 U. S. C. §1091(e) (2006 ed., Supp. V)
(providing jurisdiction over the offense of genocide “regardless of where the offense is
committed” if the alleged offender is, among other things, “present in the United
States”). But to rebut the presumption, the ATS would need to evince a “clear indication
of extraterritoriality.” Morrison, 561 U. S., at ___ (slip op., at 16). It does not.

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. See, e.g., id., at ___ (slip op., at 13–14);
Small v. United States, 544 U. S. 385, 388 (2005) ; Aramco, 499 U. S., at 248–250; Foley
Bros., Inc. v. Filardo, 336 U. S. 281, 287 (1949) .

Petitioners make much of the fact that the ATS provides jurisdiction over civil
actions for “torts” in violation of the law of nations. They claim that in using that word,
the First Congress “necessarily meant to provide for jurisdiction over extraterritorial
transitory torts that could arise on foreign soil.” Supp. Brief for Petitioners 18. For
support, they cite the common-law doctrine that allowed courts to assume jurisdiction
over such “transitory torts,” including actions for personal injury, arising abroad. See
Mostyn v. Fabrigas, 1 Cowp. 161, 177, 98 Eng. Rep. 1021, 1030 (1774) (Mansfield, L.)
(“[A]ll actions of a transitory nature that arise abroad may be laid as happening in an
English county”); Dennick v. Railroad Co., 103 U. S. 11, 18 (1881) (“Wherever, by either
the common law or the statute law of a State, a right of action has become fixed and a
legal liability incurred, that liability may be enforced and the right of action pursued in
any court which has jurisdiction of such matters and can obtain jurisdiction of the
parties”).

Under the transitory torts doctrine, however, “the only justification for allowing a
party to recover when the cause of action arose in another civilized jurisdiction is a well
founded belief that it was a cause of action in that place.” Cuba R. Co. v. Crosby, 222
U. S. 473, 479 (1912) (majority opinion of Holmes, J.). The question under Sosa is not
whether a federal court has jurisdiction to entertain a cause of action provided by
foreign or even international law. The question is instead whether the court has
authority to recognize a cause of action under U. S. law to enforce a norm of
international law. The reference to “tort” does not demonstrate that the First Congress
“necessarily meant” for those causes of action to reach conduct in the territory of a
foreign sovereign. In the end, nothing in the text of the ATS evinces the requisite clear
indication of 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.
See Morrison, supra, at ___ (slip op., at 16) (noting that “[a]ssuredly context can be
consulted” in determining whether a cause of action applies abroad). 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. 542 U. S., at 723, 724; see 4 W. Blackstone,
Commentaries on the Laws of England 68 (1769). The first two offenses have no
necessary extraterritorial application. Indeed, Blackstone—in describing them—did so
in terms of conduct occur- ring within the forum nation. See ibid. (describing the right of
safe conducts for those “who are here”); 1 id., at 251 (1765) (explaining that safe
conducts grant a member of one society “a right to intrude into another”); id., at 245–
248 (recognizing the king’s power to “receiv[e] ambassadors at home” and detailing
their rights in the state “wherein they are appointed to reside”); see also E. De Vattel,
Law of Nations 465 (J. Chitty et al. transl. and ed. 1883) (“[O]n his entering the country
to which he is sent, and making himself known, [the ambassador] is under the
protection of the law of nations . . .”).

Two notorious episodes involving violations of the law of nations occurred in the
United States shortly before passage of the ATS. Each concerned the rights of
ambassadors, and each involved conduct within the Union. In 1784, a French adventurer
verbally and physically assaulted Francis Barbe Marbois—the Secretary of the French
Legion—in Philadelphia. The assault led the French Minister Plenipotentiary to lodge a
formal protest with the Continental Congress and threaten to leave the country unless
an adequate remedy were provided. Respublica v. De Longschamps, 1 Dall. 111 (O. T.
Phila. 1784); Sosa, supra, at 716–717, and n. 11. And in 1787, a New York constable
entered the Dutch Ambassador’s house and arrested one of his domestic servants. See
Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of
the Law of Nations, 18 Conn. L. Rev. 467, 494 (1986). At the request of Secretary of
Foreign Affairs John Jay, the Mayor of New York City arrested the constable in turn, but
cautioned that because “ ‘neither Congress nor our [State] Legislature have yet passed
any act respecting a breach of the privileges of Ambassadors,’ ” the extent of any
available relief would depend on the common law. See Bradley, The Alien Tort Statute
and Article III, 42 Va. J. Int’l L. 587, 641–642 (2002) (quoting 3 Dept. of State, The
Diplomatic Correspondence of the United States of America 447 (1837)). The two cases
in which the ATS was invoked shortly after its passage also concerned conduct within
the territory of the United States. See Bolchos, 3 F. Cas. 810 (wrongful seizure of slaves
from a vessel while in port in the United States); Moxon, 17 F. Cas. 942 (wrongful seizure
in United States territorial waters).

These prominent contemporary examples—immediately before and after passage of

the ATS—provide no support for the proposition that Congress expected causes of
action to be brought under the statute for violations of the law of nations occurring
abroad.

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. See 4 Blackstone,
supra, at 72 (“The offence of piracy, by common law, consists of committing those acts
of robbery and depredation upon the high seas, which, if committed upon land, would
have amounted to felony there”). This Court has generally treated the high seas the
same as foreign soil for purposes of the presumption against extraterritorial
application. See, e.g., Sale v. Haitian Centers Council, Inc., 509 U. S. 155 –174 (1993)
(declining to apply a provision of the Immigration and Nationality Act to conduct
occurring on the high seas); Argentine Republic v. Amerada Hess Shipping Corp., 488
U. S. 428, 440 (1989) (declining to apply a provision of the Foreign Sovereign Immunities
Act of 1976 to the high seas). 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. See 4 Blackstone, supra, at 71. 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. See Morrison, 561 U. S., at
___ (slip op., at 16) (“[W]hen a statute provides for some extraterritorial application, the
presumption against extraterritoriality operates to limit that provision to its terms”);
see also Microsoft Corp., 550 U. S., at 455–456.

Petitioners also point to a 1795 opinion authored by Attorney General William

Bradford. See Breach of Neutrality, 1 Op. Atty. Gen. 57. In 1794, in the midst of war
between France and Great Britain, and notwithstanding the American official policy of
neutrality, several U. S. citizens joined a French privateer fleet and attacked and
plundered the British colony of Sierra Leone. In response to a protest from the British
Ambassador, Attorney General Bradford responded as follows:

So far . . . as the transactions complained of originated or took place in a foreign

country, they are not within the cognizance of our courts; nor can the actors be legally
prosecuted or punished for them by the United States. But crimes committed on the
high seas are within the jurisdiction of the . . . courts of the United States; and, so far as
the offence was committed thereon, I am inclined to think that it may be legally
prosecuted in . . . those courts . . . . But some doubt rests on this point, in consequence
of the terms in which the [applicable criminal law] is expressed. But there can be no
doubt that the company or individuals who have been injured by these acts of hostility
have a remedy by a civil suit in the courts of the United States; jurisdiction being
expressly given to these courts in all cases where an alien sues for a tort only, in
violation of the laws of nations, or a treaty of the United States . . . .” Id., at 58–59.

Petitioners read the last sentence as confirming that “the Founding generation
understood the ATS to apply to law of nations violations committed on the territory of a
foreign sovereign.” Supp. Brief for Petitioners 33. Respondents counter that when
Attorney General Bradford referred to “these acts of hostility,” he meant the acts only
insofar as they took place on the high seas, and even if his conclusion were broader, it
was only because the applicable treaty had extraterritorial reach. See Supp. Brief for
Respondents 28–30. The Solicitor General, having once read the opinion to stand for the
proposition that an “ATS suit could be brought against American citizens for breaching
neutrality with Britain only if acts did not take place in a foreign country,” Supp. Brief
for United States as Amicus Curiae 8, n. 1 (internal quotation marks and brackets
omitted), now suggests the opinion “could have been meant to encompass . . . conduct
[occurring within the foreign territory],” id., at 8.

Attorney General Bradford’s opinion defies a definitive reading and we need not
adopt one here. Whatever its precise meaning, it deals with U. S. citizens who, by
participating in an attack taking place both on the high seas and on a foreign shore,
violated a treaty between the United States and Great Britain. The opinion hardly
suffices to counter the weighty concerns underlying the presumption against
extraterritoriality.

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 . . . .” United States v. The La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (CC.
Mass. 1822). 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.
 The United States was, however, embarrassed by its potential inability to provide
judicial relief to foreign officials injured in the United States. Bradley, 42 Va. J. Int’l L., at
641. Such offenses against ambassadors violated the law of nations, “and if not
adequately redressed could rise to an issue of war.” Sosa, 542 U. S., at 715; cf. The
Federalist No. 80, p. 536 (J. Cooke ed. 1961) (A. Hamilton) (“As the denial or perversion
of justice . . . is with reason classed among the just causes of war, it will follow that the
federal judiciary ought to have cognizance of all causes in which the citizens of other
countries are concerned”). The ATS ensured that the United States could provide a
forum for adjudicating such incidents. See Sosa, supra, at 715–718, and n. 11. Nothing
about this historical context suggests that Congress also intended federal common law
under the ATS to provide a cause of action for conduct occurring in the territory of
another sovereign.

Indeed, far from avoiding diplomatic strife, providing such a cause of action could
have generated it. Recent experience bears this out. See Doe v. Exxon Mobil Corp., 654
F. 3d 11, 77–78 (CADC 2011) (Kavanaugh, J., dissenting in part) (listing recent objections
to extraterritorial applications of the ATS by Canada, Germany, Indonesia, Papua New
Guinea, South Africa, Switzerland, and the United Kingdom). Moreover, accepting
petitioners’ view would imply that other nations, also applying the law of nations, could
hale our citizens into their courts for alleged violations of the law of nations occurring
in the United States, or anywhere else in the world. The presumption against
extraterritoriality guards against our courts triggering such serious foreign policy
consequences, and instead defers such decisions, quite appropriately, to the political
branches.

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,” Morrison, 561 U. S., at ___ (slip op., at
16), and petitioners’ case seeking relief for violations of the law of nations occurring
outside the United States is barred.

IV

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. See Morrison, 561 U. S. ___ (slip op. at 17–24). 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.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Saudi   Arabia   Airlines   v

LEONEN, J.:
All Filipinos are entitled to the protection of the rights guaranteed in the Constitution.

This is a Petition for Review on Certiorari with application for the issuance of a temporary
restraining order and/or writ of preliminary injunction under Rule 45 of the 1997 Rules of
Civil Procedure praying that judgment be rendered reversing and setting aside the June 16,
2011 Decision[1] and September 13, 2011 Resolution[2] of the Court of Appeals in CA-G.R. SP.
No. 113006.

Petitioner Saudi Arabian Airlines (Saudia) is a foreign corporation established and existing
under the laws of Jeddah, Kingdom of Saudi Arabia. It has a Philippine office located at 4/F,
Metro House Building, Sen. Gil J. Puyat Avenue, Makati City. [3] In its Petition filed with this
court, Saudia identified itself as follows:

1. Petitioner SAUDIA is a foreign corporation established and existing under the Royal Decree
No. M/24 of 18.07.1385H (10.02.1962G) in Jeddah, Kingdom of Saudi Arabia ("KSA"). Its
Philippine Office is located at 4/F Metro House Building, Sen, Gil J. Puyat Avenue, Makati
City (Philippine Office). It may be served with orders of this Honorable Court through
undersigned counsel at 4th and 6th Floors, Citibank Center Bldg., 8741 Paseo de Roxas, Makati
City.[4]

Respondents (complainants before the Labor Arbiter) were recruited and hired by Saudia as
Temporary Flight Attendants with the accreditation and approval of the Philippine Overseas
Employment Administration.[5] After undergoing seminars required by the Philippine
Overseas Employment Administration for deployment overseas, as well as training modules
offered by Saudia (e.g., initial flight attendant/training course and transition training), and
after working as Temporary Flight Attendants, respondents became Permanent Flight
Attendants. They then entered into Cabin Attendant contracts with Saudia: Ma. Jopette M.
Rebesencio (Ma. Jopette) on May 16, 1990;[6] Montassah B. Sacar-Adiong (Montassah) and
Rouen Ruth A. Cristobal (Rouen Ruth) on May 22, 1993;[7] and Loraine Schneider-Cruz
(Loraine) on August 27, 1995.[8]

Respondents continued their employment with Saudia until they were separated from service
on various dates in 2006.[9]

Respondents contended that the termination of their employment was illegal. They alleged
that the termination was made solely because they were pregnant.[10]

As respondents alleged, they had informed Saudia of their respective pregnancies and had
gone through the necessary procedures to process their maternity leaves. Initially, Saudia had
given its approval but later on informed respondents that its management in Jeddah, Saudi
Arabia had disapproved their maternity leaves. In addition, it required respondents to file
their resignation letters.[11]

Respondents were told that if they did not resign, Saudia would terminate them all the same.
The threat of termination entailed the loss of benefits, such as separation pay and ticket
discount entitlements.[12]

Specifically, Ma. Jopette received a call on October 16, 2006 from Saudia's Base Manager,
Abdulmalik Saddik (Abdulmalik).[13]Montassah was informed personally by Abdulmalik and a
certain Faisal Hussein on October 20, 2006 after being required to report to the office one (1)
month into her maternity leave.[14] Rouen Ruth was also personally informed by Abdulmalik
on October 17, 2006 after being required to report to the office by her Group Supervisor.
[15]
Loraine received a call on October 12, 2006 from her Group Supervisor, Dakila Salvador. [16]

Saudia anchored its disapproval of respondents' maternity leaves and demand for their
resignation on its "Unified Employment Contract for Female Cabin Attendants" (Unified
Contract).[17] Under the Unified Contract, the employment of a Flight Attendant who becomes
pregnant is rendered void. It provides:

(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.
[18]
(Emphasis supplied)

In their Comment on the present Petition,[19] respondents emphasized that the Unified
Contract took effect on September 23, 2006 (the first day of Ramadan), [20] well after they had
filed and had their maternity leaves approved. Ma. Jopette filed her maternity leave
application on September 5, 2006.[21] Montassah filed her maternity leave application on
August 29, 2006, and its approval was already indicated in Saudia's computer system by
August 30, 2006.[22] Rouen Ruth filed her maternity leave application on September 13, 2006,
[23]
and Loraine filed her maternity leave application on August 22, 2006. [24]

Rather than comply and tender resignation letters, respondents filed separate appeal letters
that were all rejected.[25]

Despite these initial rejections, respondents each received calls on the morning of November
6, 2006 from Saudia's office secretary informing them that their maternity leaves had been
approved. Saudia, however, was quick to renege on its approval. On the evening of November
6, 2006, respondents again received calls informing them that it had received notification
from Jeddah, Saudi Arabia that their maternity leaves had been disapproved. [26]

Faced with the dilemma of resigning or totally losing their benefits, respondents executed
handwritten resignation letters. In Montassah's and Rouen Ruth's cases, their resignations
were executed on Saudia's blank letterheads that Saudia had provided. These letterheads
already had the word "RESIGNATION" typed on the subject portions of their headings when
these were handed to respondents.[27]

On November 8, 2007, respondents filed a Complaint against Saudia and its officers 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.[28] The case was initially
assigned to Labor Arbiter Hermino V. Suelo and docketed as NLRC NCR Case No. 00-11-
12342-07.

Saudia assailed the jurisdiction of the Labor Arbiter.[29] It claimed that all the determining
points of contact referred to foreign law and insisted that the Complaint ought to be dismissed
on the ground of forum non conveniens.[30] It added that respondents had no cause of action
as they resigned voluntarily.[31]

On December 12, 2008, Executive Labor Arbiter Fatima Jambaro-Franco rendered the
Decision[32] dismissing respondents' Complaint. The dispositive portion of this Decision reads:

WHEREFORE, premises' considered, judgment is hereby rendered DISMISSING the

instant complaint for lack of jurisdiction/merit. [33]

On respondents' appeal, the National Labor Relations Commission's Sixth Division reversed
the ruling of Executive Labor Arbiter Jambaro-Franco. It explained that "[considering that
complainants-appellants are OFWs, the Labor Arbiters and the NLRC has [sic] jurisdiction to
hear and decide their complaint for illegal termination." [34] On the matter of forum non
conveniens, it noted that there were no special circumstances that warranted its abstention
from exercising jurisdiction.[35] On the issue of whether respondents were validly dismissed, it
held that there was nothing on record to support Saudia's claim that respondents resigned
voluntarily.

The dispositive portion of the November 19, 2009 National Labor Relations Commission
Decision[36] reads:

WHEREFORE, premises considered, judgment is hereby rendered finding the appeal

impressed with merit. The respondents-appellees are hereby directed to pay complainants-
appellants the aggregate amount of SR614,001.24 corresponding to their backwages and
separation pay plus ten (10%) percent thereof as attorney's fees. The decision of the Labor
Arbiter dated December 12, 2008 is hereby VACATED and SET ASIDE. Attached is the
computation prepared by this Commission and made an integral part of this Decision. [37]
In the Resolution dated February 11, 2010,[38] the National Labor Relations Commission
denied petitioners' Motion for Reconsideration.

In the June 16, 2011 Decision,[39] the Court of Appeals denied petitioners' Rule 65 Petition and
modified the Decision of the National Labor Relations Commission with respect to the award
of separation pay and backwages.

The dispositive portion of the Court of Appeals Decision reads:

WHEREFORE, the instant petition is hereby DENIED. The Decision dated November 19,
2009 issued by public respondent, Sixth Division of the National Labor Relations
Commission - National Capital Region is MODIFIED only insofar as the computation of the
award of separation pay and backwages. For greater clarity, petitioners are ordered to pay
private respondents separation pay which shall be computed from private respondents' first
day of employment up to the finality of this decision, at the rate of one month per year of
service and backwages which shall be computed from the date the private respondents were
illegally terminated until finality of this decision. Consequently, the ten percent (10%)
attorney's fees shall be based on the total amount of the award. The assailed Decision is
affirmed in all other respects.

The labor arbiter is hereby DIRECTED to make a recomputation based on the foregoing.[40]
In the Resolution dated September 13, 2011,[41] the Court of Appeals denied petitioners'
Motion for Reconsideration.

Hence, this Appeal was filed.

The issues for resolution are the following:

First, whether the Labor Arbiter and the National Labor Relations Commission may exercise
jurisdiction over Saudi Arabian Airlines and apply Philippine law in adjudicating the present
dispute;

Second, whether respondents' voluntarily resigned or were illegally terminated; and

Lastly, whether Brenda J. Betia may be held personally liable along with Saudi Arabian
Airlines.

Summons were validly served on Saudia and jurisdiction over it validly acquired.

There is no doubt that the pleadings and summons were served on Saudia through its counsel.
[42]
Saudia, however, claims that the Labor Arbiter and the National Labor Relations
Commission had no jurisdiction over it because summons were never served on it but on
"Saudia Manila."[43] Referring to itself as "Saudia Jeddah," it claims that "Saudia Jeddah" and
not "Saudia Manila" was the employer of respondents because:

First, "Saudia Manila" was never a party to the Cabin Attendant contracts entered into by
respondents;

Second, it was "Saudia Jeddah" that provided the funds to pay for respondents' salaries and
benefits; and

Lastly, it was with "Saudia Jeddah" that respondents filed their resignations. [44]

Saudia posits that respondents' Complaint was brought against the wrong party because
"Saudia Manila," upon which summons was served, was never the employer of respondents.
[45]

Saudia is vainly splitting hairs in its effort to absolve itself of liability. Other than its bare
allegation, there is no basis for concluding that "Saudia Jeddah" is distinct from "Saudia
Manila."

What is clear is Saudia's statement in its own Petition that what it has is a "Philippine Office . .
. located at 4/F Metro House Building, Sen. Gil J. Puyat Avenue, Makati City." [46] Even in the
position paper that Saudia submitted to the Labor Arbiter, [47] what Saudia now refers to as
"Saudia Jeddah" was then only referred to as "Saudia Head Office at Jeddah, KSA," [48] while
what Saudia now refers to as "Saudia Manila" was then only referred to as "Saudia's office in
Manila."[49]

By its own admission, Saudia, while a foreign corporation, has a Philippine office.

Section 3(d) of Republic Act No.. 7042, otherwise known as the Foreign Investments Act of
1991, provides the following:

The phrase "doing business" shall include . . . opening offices, whether called
"liaison" offices or branches; . . . and any other act or acts that imply a continuity of
commercial dealings or arrangements and contemplate to that extent the performance of acts
or works, or the exercise of some of the functions normally incident to, and in progressive
prosecution of commercial gain or of the purpose and object of the business organization.
(Emphasis supplied)
A plain application of Section 3(d) of the Foreign Investments Act leads to no other
conclusion than that Saudia is a foreign corporation doing business in the Philippines. As
such, Saudia may be sued in the Philippines and is subject to the jurisdiction of Philippine
tribunals.

Moreover, since there is no real distinction between "Saudia Jeddah" and "Saudia Manila" —
the latter being nothing more than Saudia's local office — service of summons to Saudia's
office in Manila sufficed to vest jurisdiction over Saudia's person in Philippine tribunals.

II

Saudia asserts that Philippine courts and/or tribunals are not in a position to make an
intelligent decision as to the law and the facts. This is because respondents' Cabin Attendant
contracts require the application of the laws of Saudi Arabia, rather than those of the
Philippines.[50] It claims that the difficulty of ascertaining foreign law calls into operation the
principle of forum non conveniens, thereby rendering improper the exercise of jurisdiction by
Philippine tribunals.[51]

A choice of law governing the validity of contracts or the interpretation of its provisions does
not necessarily imply forum non conveniens. Choice of law and forum non conveniens are
entirely different matters.

Choice of law provisions are an offshoot of the fundamental principle of autonomy of

contracts. Article 1306 of the Civil Code firmly ensconces this:

Article 1306. The 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.

In contrast, forum non conveniens is a device akin to the rule against forum
shopping. It is designed to frustrate illicit means for securing advantages and vexing
litigants that would otherwise be possible if the venue of litigation (or dispute resolution)
were left entirely to the whim of either party.

Contractual choice of law provisions factor into transnational litigation and dispute resolution
in one of or in a combination of four ways: (1) procedures for settling disputes, e.g.,
arbitration; (2) forum, i.e., venue; (3) governing law; and (4) basis for interpretation. Forum
non conveniens relates to, but is not subsumed by, the second of these.

Likewise, contractual choice of law is not determinative of jurisdiction. Stipulating on the laws
of a given jurisdiction as the governing law of a contract does not preclude the exercise of
jurisdiction by tribunals elsewhere. The reverse is equally true: The assumption of jurisdiction
by tribunals does not ipso facto mean that it cannot apply and rule on the basis of the parties'
stipulation. In Hasegawa v. Kitamura:[52]

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.[53]

As various dealings, commercial or otherwise, are facilitated by the progressive ease of

communication and travel, persons from various jurisdictions find themselves transacting
with each other. Contracts involving foreign elements are, however, nothing new. Conflict of
laws situations precipitated by disputes and litigation anchored on these contracts are not
totally novel.

Transnational transactions entail differing laws on the requirements for the validity of the
formalities and substantive provisions of contracts and their interpretation. These
transactions inevitably lend themselves to the possibility of various fora for litigation and
dispute resolution. As observed by an eminent expert on transnational law:

The more jurisdictions having an interest in, or merely even a point of contact with, a
transaction or relationship, the greater the number of potential fora for the resolution of
disputes arising out of or related to that transaction or relationship. In a world of increased
mobility, where business and personal transactions transcend national boundaries, the
jurisdiction of a number of different fora may easily be invoked in a single or a set of related
disputes.[54]

Philippine law is definite as to what governs the formal or extrinsic validity of contracts. The
first paragraph of Article 17 of the Civil Code provides that "[t]he forms and solemnities of
contracts . . . shall be governed by the laws of the country in which they are executed" [55]
(i.e., lex loci celebrationis).

In contrast, there is no statutorily established mode of settling conflict of laws situations on

matters pertaining to substantive content of contracts. It has been noted that three (3) modes
have emerged: (1) lex loci contractus or the law of the place of the making; (2) lex loci
solutionis or the law of the place of performance; and (3) lex loci intentionis or the law
intended by the parties.[56]

Given Saudia's assertions, of particular relevance to resolving the present dispute is lex loci
intentionis.

An author observed that Spanish jurists and commentators "favor lex loci
intentionis."[57] These jurists and commentators proceed from the Civil Code of Spain, which,
like our Civil Code, is silent on what governs the intrinsic validity of contracts, and the same
civil law traditions from which we draw ours.

In this jurisdiction, this court, in Philippine Export and Foreign Loan Guarantee v. V.P.
Eusebio Construction, Inc.,[58] manifested preference for allowing the parties to select the law
applicable to their contract":

No conflicts rule on essential validity of contracts is expressly provided for in our laws. The
rule followed by most legal systems, however, is that the intrinsic validity of a
contract must be governed by the lex contractus or "proper law of the contract."
This is the law voluntarily agreed upon by the parties (the lex loci voluntatis) or
the law intended by them either expressly or implicitly (the lex loci intentionis).
The law selected may be implied from such factors as substantial connection with the
transaction, or the nationality or domicile of the parties. Philippine courts would do well to
adopt the first and most basic rule in most legal systems, namely, to allow the parties to
select the law applicable to their contract, subject to the limitation that it is not against the
law, morals, or public policy of the forum and that the chosen law must bear a substantive
relationship to the transaction.[59] (Emphasis in the original)

Saudia asserts that stipulations set in the Cabin Attendant contracts require the application of
the laws of Saudi Arabia. It insists that the need to comply with these stipulations calls into
operation the doctrine of forum non conveniens and, in turn, makes it necessary for
Philippine tribunals to refrain from exercising jurisdiction.

As mentioned, contractual choice of laws factors into transnational litigation in any or a

combination of four (4) ways. Moreover, forum non conveniens relates to one of these:
choosing between multiple possible fora.

Nevertheless, the possibility of parallel litigation in multiple fora — along with the host of
difficulties it poses — is not unique to transnational litigation. It is a difficulty that similarly
arises in disputes well within the bounds of a singe jurisdiction.

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.
[60]
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 "[t]hat 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,"[61] 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."[62] 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.[63] 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,[64] is a concept originating in common law.
[65]
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. [66]

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."[67] In Puyat v. Zabarte,[68] this court recognized the following situations as
among those that may warrant a court's desistance from exercising jurisdiction:

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

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

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

The inadequacy of the local judicial machinery for effectuating the right sought to be
4)
maintained; and
5) The difficulty of ascertaining foreign law.[69]

In Bank of America, NT&SA, Bank of America International, Ltd. v. Court of Appeals,[70] this
court underscored that a Philippine court may properly assume jurisdiction over a case if it
chooses to do so to the extent: "(1) that the Philippine Court is one to which the parties may
conveniently resort to; (2) that the Philippine Court is in a position to make an intelligent
decision as to the law and the facts; and (3) that the Philippine Court has or is likely to have
power to enforce its decision."[71]

The use of the word "may" (i.e., "may refuse impositions on its jurisdiction"[72]) 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."[73] As the propriety of applying forum non
conveniens is contingent on a factual determination, it is, therefore, a matter of defense. [74]

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.

This court notes that in Hasegawa,[76] this court stated that forum non conveniens is not a
ground for a motion to dismiss. The factual ambience of this case however does not squarely
raise the viability of this doctrine. Until the opportunity comes to review the use of motions to
dismiss for parallel litigation, Hasegawa remains existing doctrine.

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.

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. As has
been noted:

A case will not be stayed or dismissed on [forum] non conveniens grounds unless the plaintiff
is shown to have an available alternative forum elsewhere. On this, the moving party bears the
burden of proof.

A number of factors affect the assessment of an alternative forum's adequacy. The statute of
limitations abroad may have run, of the foreign court may lack either subject matter or
personal jurisdiction over the defendant. . . . Occasionally, doubts will be raised as to the
integrity or impartiality of the foreign court (based, for example, on suspicions of corruption
or bias in favor of local nationals), as to the fairness of its judicial procedures, or as to is
operational efficiency (due, for example, to lack of resources, congestion and delay, or
interfering circumstances such as a civil unrest). In one noted case, [it was found] that delays
of 'up to a quarter of a century' rendered the foreign forum... inadequate for these purposes. [77]
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.

III

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. Thai 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 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 foieign 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:
first, the vinculum which the parties and their relation have to a 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.

Our law on contracts recognizes the validity of contractual choice of law provisions. Where
such provisions exist, Philippine tribunals, acting as the forum court, generally defer to the
parties' articulated choice.

This is consistent with the fundamental principle of autonomy of contracts. Article 1306 of the
Civ:l Code expressly provides that "[t]he contracting parties may establish 'such stipulations,
clauses, terms and conditions as they may deem convenient." [78] Nevertheless, while a
Philippine tribunal (acting as the forum court) is called upon to respect the parties' choice of
governing law, such respect must not be so permissive as to lose sight of considerations of
law, morals, good customs, public order, or public policy that underlie the contract central to
the controversy.

Specifically with respect to public policy, in Pakistan International Airlines Corporation v.

Ople,[79] this court explained that:

counter-balancing the principle of autonomy of contracting parties is the equally general rule
that provisions of applicable law, especially provisions relating to matters affected with
public policy, are deemed written inta the contract. Put a little differently, the governing
principle is that parties may not contract away applicable provisions of law especially
peremptory provisions dealing with matters heavily impressed with public interest.
[80]
(Emphasis supplied)

Article II, Section 14 of the 1987 Constitution provides that "[t]he State ... shall ensure the
fundamental equality before the law of women and men." Contrasted with Article II, Section 1
of the 1987 Constitution's statement that "[n]o person shall ... be denied the equal protection
of the laws," Article II, Section 14 exhorts the State to "ensure." This does not only mean that
the Philippines shall not countenance nor lend legal recognition and approbation to measures
that discriminate on the basis of one's being male or female. It imposes an obligation
to actively engage in securing the fundamental equality of men and women.

The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW),
signed and ratified by the Philippines on July 15, 1980, and on August 5, 1981, respectively,
[81]
is part of the law of the land. In view of the widespread signing and ratification of, as well
as adherence (in practice) to it by states, it may even be said that many provisions of the
CEDAW may have become customary international law. The CEDAW gives effect to the
Constitution's policy statement in Article II, Section 14. Article I of the CEDAW defines
"discrimination against women" as:

any distinction, exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
[82]

The constitutional exhortation to ensure fundamental equality, as illumined by its enabling

law, the CEDAW, must inform and animate all the actions of all personalities acting on behalf
of the State. It is, therefore, the bounden duty of this court, in rendering judgment on the
disputes brought before it, to ensure that no discrimination is heaped upon women on the
mere basis of their being women. This is a point so basic and central that all our discussions
and pronouncements — regardless of whatever averments there may be of foreign law — must
proceed from this premise.

So informed and animated, we emphasize the glaringly discriminatory nature of Saudia's

policy. As argued by respondents, Saudia's policy entails the termination of employment of
flight attendants who become pregnant. At the risk of stating the obvious, pregnancy is an
occurrence that pertains specifically to women. Saudia's policy excludes from and restricts
employment on the basis of no other consideration but sex.

We do not lose sight of the reality that pregnancy does present physical limitations that may
render difficult the performance of functions associated with being a flight attendant.
Nevertheless, it would be the height of iniquity to view pregnancy as a disability so permanent
and immutable that, it must entail the termination of one's employment. It is clear to us that
any individual, regardless of gender, may be subject to exigencies that limit the performance
of functions. However, we fail to appreciate how pregnancy could be such an impairing
occurrence that it leaves no other recourse but the complete termination of the means
through which a woman earns a living.

Apart from the constitutional policy on the fundamental equality before the law of men and
women, it is settled that contracts relating to labor and employment are impressed with
public interest. Article 1700 of the Civil Code provides that "[t]he relation between capital and
labor are not merely contractual. They are so impressed with public interest that labor
contracts must yield to the common good."

Consistent with this, this court's pronouncements in Pakistan International Airlines

Corporation[83] are clear and unmistakable:

Petitioner PIA cannot take refuge in paragraph 10 of its employment agreement which
specifies, firstly, the law of Pakistan as the applicable law of the agreement, and, secondly,
lays the venue for settlement of any dispute arising out of or in connection with the agreement
"only [in] courts of Karachi, Pakistan". The first clause of paragraph 10 cannot be invoked to
prevent the application of Philippine labor laws and'regulations to the subject matter of this
case, i.e., the employer-employee relationship between petitioner PIA and private
respondents. We have already pointed out that the relationship is much affected with public
interest and that the otherwise applicable Philippine laws and regulations cannot be
rendered illusory by the parties agreeing upon some other law to govern their relationship. .
. . Under these circumstances, paragraph 10 of the employment agreement cannot be given
effect so as to oust Philippine agencies and courts of the jurisdiction vested upon them by
Philippine law.[84] (Emphasis supplied)

As the present dispute relates to (what the respondents allege to be) the illegal termination of
respondents' employment, this case is immutably a matter of public interest and public
policy. Consistent with clear pronouncements in law and jurisprudence, Philippine laws
properly find application in and govern this case. 'Moreover, as this premise for Saudia's
insistence on the application forum non conveniens has been shattered, it follows that
Philippine tribunals may properly assume jurisdiction over the present controversy.
Philippine jurisprudence provides ample illustrations of when a court's renunciation of
jurisdiction on account of forum non conveniens is proper or improper.'

In Philsec Investment Corporation v. Court of Appeals,[85] this court noted that the trial court
failed to consider that one of the plaintiffs was a domestic corporation, that one of the
defendants was a Filipino, and that it was the extinguishment of the latter's debt that was the
object of the transaction subject of the litigation. Thus, this court held, among others, that the
trial court's refusal to assume jurisdiction was not justified by forum non conveniens and
remanded the case to the trial court.

In Raytheon International, Inc. v. Rouzie, Jr.,[86] this court sustained the trial court's
assumption of jurisdiction considering that the trial court could properly enforce judgment on
the petitioner which was a foreign corporation licensed to do business in the Philippines.

In Pioneer International, Ltd. v. Guadiz, Jr.,[87] this court found no reason to disturb the trial
court's assumption of jurisdiction over a case in which, as noted by the trial court, "it is more
convenient to hear and decide the case in the Philippines because Todaro [the plaintiff]
resides in the Philippines and the contract allegedly breached involve[d] employment in the
Philippines."[88]

In Pacific Consultants International Asia, Inc. v. Schonfeld,[89] this court held that the fact
that the complainant in an illegal dismissal case was a Canadian citizen and a repatriate did
not warrant the application of forum non conveniens considering that: (1) the Labor Code
does not include forum non conveniens as a ground for the dismissal of a complaint for illegal
dismissal; (2) the propriety of dismissing a case based on forum non conveniens requires a
factual determination; and (3) the requisites for assumption of jurisdiction as laid out
in Bank of America, NT&SA[90] were all satisfied.

In contrast, this court ruled in The Manila Hotel Corp. v. National Labor Relations
Commission[91] that the National Labor Relations Q 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: first,
determine the law 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.

Here, the circumstances of the parties and their relation do not approximate the
circumstances enumerated in Puyat,[92] which this court recognized as possibly justifying the
desistance of Philippine tribunals from exercising 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 the Kingdom of Saudi
Arabia. It would even be to respondents' inconvenience if this case were to be tried elsewhere.

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.

Third, there is no indication of "unwillingness to extend local judicial facilities to non-

residents or aliens."[93] 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.

As the question of applicable law has been settled, the supposed difficulty of ascertaining
foreign law (which requires the application of forum non conveniens) provides no
insurmountable inconvenience or special circumstance that will justify depriving Philippine
tribunals of jurisdiction.

Even if we were to assume, for the sake of discussion, that it is the laws of Saudi Arabia which
should apply, it does not follow that Philippine tribunals should refrain from exercising
jurisdiction. To recall our pronouncements in Puyat,[94] as well as in Bank of America,
NT&SA,[95] it is not so much the mere applicability of foreign law which calls into
operation forum non conveniens. Rather, what justifies a court's desistance from exercising
jurisdiction is "[t]he difficulty of ascertaining foreign law"[96] or the inability of a "Philippine
Court to make an intelligent decision as to the law[.]"[97]

Consistent with lex loci intentionis, to the extent that it is proper and practicable (i.e., "to
make an intelligent decision"[98]), Philippine tribunals may apply the foreign law selected by
the parties. In fact, (albeit without meaning to make a pronouncement on the accuracy and
reliability of respondents' citation) in this case, respondents themselves have made averments
as to the laws of Saudi Arabia. In their Comment, respondents write:

Under the Labor Laws of Saudi Arabia and the Philippines[,] it is illegal and unlawful to
terminate the employment of any woman by virtue of pregnancy. The law in Saudi Arabia is
even more harsh and strict [sic] in that no employer can terminate the employment of a
female worker or give her a warning of the same while on Maternity Leave, the specific
provision of Saudi Labor Laws on the matter is hereto quoted as follows:

"An employer may not terminate the employment of a female worker or give her a warning of
the same while on maternity leave." (Article 155, Labor Law of the Kingdom of Saudi Arabia,
Royal Decree No. M/51.)[99]

All told, the considerations for assumption of jurisdiction by Philippine tribunals as outlined
in Bank of America, NT&SA[100] 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, Philippine tribunals are in a
position to make an intelligent decision as to the law and the facts. 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.

IV

Respondents were illegally terminated.

In Bilbao v. Saudi Arabian Airlines,[101] this court defined voluntary resignation as "the
voluntary act of an employee who is in a situation where one believes that personal reasons
cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to
dissociate oneself from employment. It is a formal pronouncement or relinquishment of an
office, with the intention of relinquishing the office accompanied by the act of
relinquishment."[102] Thus, essential to the act of resignation is voluntariness. It must be the
result of an employee's exercise of his or her own will.
In the same case of Bilbao, this court advanced a means for determining whether an employee
resigned voluntarily:

As the intent to relinquish must concur with the overt act of relinquishment, the acts of the
employee before and after the alleged resignation must be considered in determining
whether he or she, in fact, intended, to sever his or her employment.[103] (Emphasis supplied)
On the other hand, constructive dismissal has been defined as "cessation of work because
'continued employment is rendered impossible, unreasonable or unlikely, as an offer
involving a demotion in rank or a diminution in pay' and other benefits." [104]

In Penaflor v. Outdoor Clothing Manufacturing Corporation,[105] constructive dismissal has

been described as tantamount to "involuntarily [sic] resignation due to the harsh, hostile, and
unfavorable conditions set by the employer."[106] In the same case, it was noted that "[t]he
gauge for constructive dismissal is whether a reasonable person in the employee's position
would feel compelled to give up his employment under the prevailing circumstances." [107]

Applying the cited standards on resignation and constructive dismissal, it is clear that
respondents were constructively dismissed. Hence, their termination was illegal.

The termination of respondents' employment happened when they were pregnant and
expecting to incur costs on account of child delivery and infant rearing. As noted by the Court
of Appeals, pregnancy is a time when they need employment to sustain their families.
[108]
Indeed, it goes against normal and reasonable human behavior to abandon one's
livelihood in a time of great financial need.

It is clear that respondents intended to remain employed with Saudia. All they did was avail of
their maternity leaves. Evidently, the very nature of a maternity leave means that a pregnant
employee will not report for work only temporarily and that she will resume the performance
of her duties as soon as the leave allowance expires.

It is also clear that respondents exerted all efforts to' remain employed with Saudia. Each of
them repeatedly filed appeal letters (as much as five [5] letters in the case of Rebesencio [109])
asking Saudia to reconsider the ultimatum that they resign or be terminated along with the
forfeiture of their benefits. Some of them even went to Saudia's office to personally seek
reconsideration.[110]

Respondents also adduced a copy of the "Unified Employment Contract for Female Cabin
Attendants."[111] This contract deemed void the employment of a flight attendant who becomes
pregnant and threatened termination due to lack of medical fitness. [112] The threat of
termination (and the forfeiture of benefits that it entailed) is enough to compel a reasonable
person in respondents' position to give up his or her employment.

Saudia draws attention to how respondents' resignation letters were supposedly made in their
own handwriting. This minutia fails to surmount all the other indications negating any
voluntariness on respondents' part. If at all, these same resignation letters are proof of how
any supposed resignation did not arise from respondents' own initiative. As earlier pointed
out, respondents' resignations were executed on Saudia's blank letterheads that Saudia had
provided. These letterheads already had the word "RESIGNATION" typed on the subject
portion of their respective headings when these were handed to respondents. [113]

"In termination cases, the burden of proving just or valid cause for dismissing an employee
rests on the employer."[114] In this case, Saudia makes much of how respondents supposedly
completed their exit interviews, executed quitclaims, received their separation pay, and took
more than a year to file their Complaint.[115] If at all, however, these circumstances prove only
the fact of their occurrence, nothing more. The voluntariness of respondents' departure from
Saudia is non sequitur.
Mere compliance with standard procedures or processes, such as the completion of their exit
interviews, neither negates compulsion nor indicates voluntariness.

As with respondent's resignation letters, their exit interview forms even support their claim of
illegal dismissal and militates against Saudia's arguments. These exit interview forms, as
reproduced by Saudia in its own Petition, confirms the unfavorable conditions as regards
respondents' maternity leaves. Ma. Jopette's and Loraine's exit interview forms are
particularly telling:

a. From Ma. Jopette's exit interview form:

3. In what respects has the job met or failed to meet your expectations?

THE SUDDEN TWIST OF DECISION REGARDING THE MATERNITY LEAVE. [116]

b. From Loraine's exit interview form:

1. What are your main reasons for leaving Saudia? What company are you joining?

xxx xxx xxx

Others

CHANGING POLICIES REGARDING MATERNITY LEAVE (PREGNANCY) [117]

As to respondents' quitclaims, in Phil. Employ Services and Resources, Inc. v. Paramio,
[118]
this court noted that "[i]f (a) there is clear proof that the waiver was wangled from an
unsuspecting or gullible person; or (b) the terms of the settlement are unconscionable, and on
their face invalid, such quitclaims must be struck down as invalid or illegal." [119] Respondents
executed their quitclaims after having been unfairly given an ultimatum to resign or be
terminated (and forfeit their benefits).

Having been illegally and unjustly dismissed, respondents are entitled to full backwages and
benefits from the time of their termination until the finality of this Decision. They are likewise
entitled to separation pay in the amount of one (1) month's salary for every year of service
until the fmality of this Decision, with a fraction of a year of at least six (6) months being
counted as one (1) whole year.

Moreover, "[m]oral damages are awarded in termination cases where the employee's
dismissal was attended by bad faith, malice or fraud, or where it constitutes an act oppressive
to labor, or where it was done in a manner contrary to morals, good customs or public
policy."[120] In this case, Saudia terminated respondents' employment in a manner that is
patently discriminatory and running afoul of the public interest that underlies employer-
employee relationships. As such, respondents are entitled to moral damages.

To provide an "example or correction for the public good" [121] as against such discriminatory
and callous schemes, respondents are likewise entitled to exemplary damages.

In a long line of cases, this court awarded exemplary damages to illegally dismissed
employees whose "dismissal[s were] effected in a wanton, oppressive or malevolent
manner."[122] This court has awarded exemplary damages to employees who were terminated
on such frivolous, arbitrary, and unjust grounds as membership in or involvement with labor
unions,[123] injuries sustained in the course of employment,[124] development of a medical
condition due to the employer's own violation of the employment contract, [125] and lodging of
a Complaint against the employer.[126] Exemplary damages were also awarded to employees
who were deemed illegally dismissed by an employer in an attempt to evade compliance with
statutorily established employee benefits.[127] Likewise, employees dismissed for supposedly
just causes, but in violation of due process requirements, were awarded exemplary damages.
[128]

These examples pale in comparison to the present controversy. Stripped of all unnecessary
complexities, respondents were dismissed for no other reason than simply that they were
pregnant. This is as wanton, oppressive, and tainted with bad faith as any reason for
termination of employment can be. This is no ordinary case of illegal dismissal. This is a case
of manifest gender discrimination. It is an affront not only to our statutes and policies on
employees' security of tenure, but more so, to the Constitution's dictum of fundamental
equality between men and women.[129]

The award of exemplary damages is, therefore, warranted, not only to remind employers of
the need to adhere to the requirements of procedural and substantive due process in
termination of employment, but more importantly, to demonstrate that gender
discrimination should in no case be countenanced.

Having been compelled to litigate to seek reliefs for their illegal and unjust dismissal,
respondents are likewise entitled to attorney's fees in the amount of 10% of the total monetary
award.[130]

VI

Petitioner Brenda J. Betia may not be held liable.

A corporation has a personality separate and distinct from those of the persons composing it.
Thus, as a rule, corporate directors and officers are not liable for the illegal termination of a
corporation's employees. It is only when they acted in bad faith or with malice that they
become solidarity liable with the corporation.[131]

In Ever Electrical Manufacturing, Inc. (EEMI) v. Samahang Manggagawa ng Ever

Electrical,[132] this court clarified that "[b]ad faith does not connote bad judgment or
negligence; it imports a dishonest purpose or some moral obliquity and conscious doing of
wrong; it means breach of a known duty through some motive or interest or ill will; it
partakes of the nature of fraud."[133]

Respondents have not produced proof to show that Brenda J. Betia acted in bad faith or with
malice as regards their termination. Thus, she may not be held solidarity liable with Saudia.

WHEREFORE, with the MODIFICATIONS that first, petitioner Brenda J. Betia is not
solidarity liable with petitioner Saudi Arabian Airlines, and second, that petitioner Saudi
Arabian Airlines is liable for moral and exemplary damages. The June 16, 2011 Decision and
the September 13, 2011 Resolution of the Court of Appeals in CA-G.R. SP. No. 113006 are
hereby AFFIRMED in all other respects. Accordingly, petitioner Saudi Arabian Airlines is ordered to pay
respondents:

Full backwages and all other benefits computed from the respective dates in which each
(1)
of the respondents were illegally terminated until the finality of this Decision;

Separation pay computed from the respective dates in which each of the respondents
commenced employment until the finality of this Decision at the rate of one (1) month's
(2)
salary for every year of service, with a fraction of a year of at least six (6) months being
counted as one (1) whole year;

(3) Moral damages in the amount of P100,000.00 per respondent;

(4) Exemplary damages in the amount of P200,000.00 per respondent; and

(5) Attorney's fees equivalent to 10% of the total award.

Interest of 6% per annum shall likewise be imposed on the total judgment award from the
finality of this Decision until full satisfaction thereof.

This case is REMANDED to the Labor Arbiter to make a detailed computation of the
amounts due to respondents which petitioner Saudi Arabian Airlines should pay without
delay.

SO ORDERED.

Carpio, (Chairperson), Velasco, Jr.,* Del Castillo, and Mendoza, JJ., concur.

Aznar v Garcia

G.R. No. L-16749 January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.

ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.

M. R. Sotelo for executor and heir-appellees.

Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.

LABRADOR, J.:

This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special
Proceeding No. 622 of said court, dated September 14, 1949, approving among things the final accounts of the executor,
directing the executor to reimburse Maria Lucy Christensen the amount of P3,600 paid by her to Helen Christensen Garcia
as her legacy, and declaring Maria Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime,
and in case of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator Edward E. Christensen. The will was executed in Manila on March 5,
1951 and contains the following provisions:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs. Bernard Daney), who
was born in the Philippines about twenty-eight years ago, and who is now residing at No. 665 Rodger Young Village,
Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my above named daughter,
MARIA LUCY CHRISTENSEN DANEY.

xxx xxx xxx

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen
years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me,
nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos,
Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the
same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National
Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal
thereof as well as any interest which may have accrued thereon, is exhausted..
 xxx xxx xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN
DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young Village, Los Angeles, California,
U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed,
of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may
have come to me from any source whatsoever, during her lifetime: ....

It is in accordance with the above-quoted provisions that the executor in his final account and project of partition ratified the
payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of the estate be transferred to his
daughter, Maria Lucy Christensen.

Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it deprives her (Helen)
of her legitime as an acknowledged natural child, she having been declared by Us in G.R. Nos. L-11483-84 an
acknowledged natural child of the deceased Edward E. Christensen. The legal grounds of opposition are (a) that the
distribution should be governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar
as it denies to Helen Christensen, one of two acknowledged natural children, one-half of the estate in full ownership. In
amplification of the above grounds it was alleged that the law that should govern the estate of the deceased Christensen
should not be the internal law of California alone, but the entire law thereof because several foreign elements are involved,
that the forum is the Philippines and even if the case were decided in California, Section 946 of the California Civil Code,
which requires that the domicile of the decedent should apply, should be applicable. It was also alleged that Maria Helen
Christensen having been declared an acknowledged natural child of the decedent, she is deemed for all purposes legitimate
from the time of her birth.

The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of California at the
time of his death, the successional rights and intrinsic validity of the provisions in his will are to be governed by the law of
California, in accordance with which a testator has the right to dispose of his property in the way he desires, because the
right of absolute dominion over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d
952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen
Christensen, through counsel, filed various motions for reconsideration, but these were denied. Hence, this appeal.

The most important assignments of error are as follows:

THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT THAT HELEN IS
THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER
OF HER JUST SHARE IN THE INHERITANCE.

II

THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF
SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.

III

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW, PARTICULARLY
UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE
DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE
LAWS OF THE PHILIPPINES.

IV

THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE
EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.

THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN
GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States and of the State of California at the time
of his death. But there is also no question that at the time of his death he was domiciled in the Philippines, as witness the
following facts admitted by the executor himself in appellee's brief:

In the proceedings for admission of the will to probate, the facts of record show that the deceased Edward E.
Christensen was born on November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival in the Philippines, as an
appointed school teacher, was on July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of
Embarkation as the City of San Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904.

In December, 1904, Mr. Christensen returned to the United States and stayed there for the following nine years until
1913, during which time he resided in, and was teaching school in Sacramento, California.
 Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he again departed
the Philippines for the United States and came back here the following year, 1929. Some nine years later, in 1938, he
again returned to his own country, and came back to the Philippines the following year, 1939.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this
Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this
stipulation of facts.
1äwphï1.ñët

Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the Philippines during
World War II. Upon liberation, in April 1945, he left for the United States but returned to the Philippines in December,
1945. Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs.
"MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)

In April, 1951, Edward E. Christensen returned once more to California shortly after the making of his last will and
testament (now in question herein) which he executed at his lawyers' offices in Manila on March 5, 1951. He died at
the St. Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the fact that he was
born in New York, migrated to California and resided there for nine years, and since he came to the Philippines in 1913 he
returned to California very rarely and only for short visits (perhaps to relatives), and considering that he appears never to
have owned or acquired a home or properties in that state, which would indicate that he would ultimately abandon the
Philippines and make home in the State of California.

Sec. 16. Residence is a term used with many shades of meaning from mere temporary presence to the most
permanent abode. Generally, however, it is used to denote something more than mere physical presence. (Goodrich
on Conflict of Laws, p. 29)

As to his citizenship, however, We find that the citizenship that he acquired in California when he resided in Sacramento,
California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a territory of the United States
(not a state) until 1946 and the deceased appears to have considered himself as a citizen of California by the fact that when
he executed his will in 1951 he declared that he was a citizen of that State; so that he appears never to have intended to
abandon his California citizenship by acquiring another. This conclusion is in accordance with the following principle
expounded by Goodrich in his Conflict of Laws.

The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of permanent abode. But
domicile, as has been shown, has acquired a technical meaning. Thus one may be domiciled in a place where he
has never been. And he may reside in a place where he has no domicile. The man with two homes, between which
he divides his time, certainly resides in each one, while living in it. But if he went on business which would require his
presence for several weeks or months, he might properly be said to have sufficient connection with the place to be
called a resident. It is clear, however, that, if he treated his settlement as continuing only for the particular business in
hand, not giving up his former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice
requires the exercise of intention as well as physical presence. "Residence simply requires bodily presence of an
inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it
one's domicile." Residence, however, is a term used with many shades of meaning, from the merest temporary
presence to the most permanent abode, and it is not safe to insist that any one use et the only proper one.
(Goodrich, p. 29)

The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code of the Philippines,
which is as follows:

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 where said property may be found.

The application of this article in the case at bar requires the determination of the meaning of the term "national law"is used
therein.

There is no single American law governing the validity of testamentary provisions in the United States, each state of the
Union having its own private law applicable to its citizens only and in force only within the state. The "national law" indicated
in Article 16 of the Civil Code above quoted can not, therefore, possibly mean or apply to any general American law. So it can
refer to no other than the private law of the State of California.

The next question is: What is the law in California governing the disposition of personal property? The decision of the court
below, sustains the contention of the executor-appellee that under the California Probate Code, a testator may dispose of his
property by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d
952. But appellant invokes the provisions of Article 946 of the Civil Code of California, which is as follows:

If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of
its owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in the California
Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the decision and testified to by a witness.
(Only the case of Kaufman is correctly cited.) It is argued on executor's behalf that as the deceased Christensen was a
citizen of the State of California, the internal law thereof, which is that given in the abovecited case, should govern the
determination of the validity of the testamentary provisions of Christensen's will, such law being in force in the State of
California of which Christensen was a citizen. Appellant, on the other hand, insists that Article 946 should be applicable, and
in accordance therewith and following the doctrine of the renvoi, the question of the validity of the testamentary provision in
question should be referred back to the law of the decedent's domicile, which is the Philippines.

The theory of doctrine of renvoi has been defined by various authors, thus:

The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a jural matter to a
foreign law for decision, is the reference to the purely internal rules of law of the foreign system; i.e., to the totality of
the foreign law minus its Conflict of Laws rules?"

On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is, applied the Conflict
of Laws rule of Illinois which referred the matter back to Michigan law. But once having determined the the Conflict of
Laws principle is the rule looked to, it is difficult to see why the reference back should not have been to Michigan
Conflict of Laws. This would have resulted in the "endless chain of references" which has so often been criticized by
legal writers. The opponents of the renvoi would have looked merely to the internal law of Illinois, thus rejecting the
renvoi or the reference back. Yet there seems no compelling logical reason why the original reference should be the
internal law rather than to the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round,
but those who have accepted the renvoi theory avoid this inextricabilis circulas by getting off at the second reference
and at that point applying internal law. Perhaps the opponents of the renvoi are a bit more consistent for they look
always to internal law as the rule of reference.

Strangely enough, both the advocates for and the objectors to the renvoi plead that greater uniformity will result from
adoption of their respective views. And still more strange is the fact that the only way to achieve uniformity in this
choice-of-law problem is if in the dispute the two states whose laws form the legal basis of the litigation disagree as
to whether the renvoi should be accepted. If both reject, or both accept the doctrine, the result of the litigation will
vary with the choice of the forum. In the case stated above, had the Michigan court rejected the renvoi, judgment
would have been against the woman; if the suit had been brought in the Illinois courts, and they too rejected
the renvoi, judgment would be for the woman. The same result would happen, though the courts would switch with
respect to which would hold liability, if both courts accepted the renvoi.

The Restatement accepts the renvoi theory in two instances: where the title to land is in question, and where the
validity of a decree of divorce is challenged. In these cases the Conflict of Laws rule of the situs of the land, or the
domicile of the parties in the divorce case, is applied by the forum, but any further reference goes only to the internal
law. Thus, a person's title to land, recognized by the situs, will be recognized by every court; and every divorce, valid
by the domicile of the parties, will be valid everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)

X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in Massachusetts,
England, and France. The question arises as to how this property is to be distributed among X's next of kin.

Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as to intestate
succession to movables calls for an application of the law of the deceased's last domicile. Since by hypothesis X's
last domicile was France, the natural thing for the Massachusetts court to do would be to turn to French statute of
distributions, or whatever corresponds thereto in French law, and decree a distribution accordingly. An examination of
French law, however, would show that if a French court were called upon to determine how this property should be
distributed, it would refer the distribution to the national law of the deceased, thus applying the Massachusetts statute
of distributions. So on the surface of things the Massachusetts court has open to it alternative course of action: (a)
either to apply the French law is to intestate succession, or (b) to resolve itself into a French court and apply the
Massachusetts statute of distributions, on the assumption that this is what a French court would do. If it accepts the
so-called renvoi doctrine, it will follow the latter course, thus applying its own law.

This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the forum refers to a foreign
law, the conflict-of-laws rule of which, in turn, refers the matter back again to the law of the forum. This is renvoi in the
narrower sense. The German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp.
523-571.)

After a decision has been arrived at that a foreign law is to be resorted to as governing a particular case, the further
question may arise: Are the rules as to the conflict of laws contained in such foreign law also to be resorted to? This
is a question which, while it has been considered by the courts in but a few instances, has been the subject of
frequent discussion by textwriters and essayists; and the doctrine involved has been descriptively designated by
them as the "Renvoyer" to send back, or the "Ruchversweisung", or the "Weiterverweisung", since an affirmative
answer to the question postulated and the operation of the adoption of the foreign law in toto would in many cases
result in returning the main controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.)

Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the doctrine of renvoi is that the
court of the forum, in determining the question before it, must take into account the whole law of the other jurisdiction,
but also its rules as to conflict of laws, and then apply the law to the actual question which the rules of the other
jurisdiction prescribe. This may be the law of the forum. The doctrine of the renvoi has generally been repudiated by
the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for its application in a country explained by Prof.
Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are quoted
herein below:

The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood as incorporating
not only the ordinary or internal law of the foreign state or country, but its rules of the conflict of laws as well.
According to this theory 'the law of a country' means the whole of its law.

xxx xxx xxx

Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel, in 1900, in the form of
the following theses:

(1) Every court shall observe the law of its country as regards the application of foreign laws.

(2) Provided that no express provision to the contrary exists, the court shall respect:

(a) The provisions of a foreign law which disclaims the right to bind its nationals abroad as regards their
personal statute, and desires that said personal statute shall be determined by the law of the domicile, or
even by the law of the place where the act in question occurred.

(b) The decision of two or more foreign systems of law, provided it be certain that one of them is necessarily
competent, which agree in attributing the determination of a question to the same system of law.

xxx xxx xxx

If, for example, the English law directs its judge to distribute the personal estate of an Englishman who has died
domiciled in Belgium in accordance with the law of his domicile, he must first inquire whether the law of Belgium
would distribute personal property upon death in accordance with the law of domicile, and if he finds that the Belgian
law would make the distribution in accordance with the law of nationality — that is the English law — he must accept
this reference back to his own law.

We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In re Kaufman, Supra,
its internal law. If the law on succession and the conflict of laws rules of California are to be enforced jointly, each in its own
intended and appropriate sphere, the principle cited In re Kaufman should apply to citizens living in the State, but Article 946
should apply to such of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of resorting
to the law of the domicile in the determination of matters with foreign element involved is in accord with the general principle
of American law that the domiciliary law should govern in most matters or rights which follow the person of the owner.

When a man dies leaving personal property in one or more states, and leaves a will directing the manner of
distribution of the property, the law of the state where he was domiciled at the time of his death will be looked to in
deciding legal questions about the will, almost as completely as the law of situs is consulted in questions about the
devise of land. It is logical that, since the domiciliary rules control devolution of the personal estate in case of
intestate succession, the same rules should determine the validity of an attempted testamentary dispostion of the
property. Here, also, it is not that the domiciliary has effect beyond the borders of the domiciliary state. The rules of
the domicile are recognized as controlling by the Conflict of Laws rules at the situs property, and the reason for the
recognition as in the case of intestate succession, is the general convenience of the doctrine. The New York court
has said on the point: 'The general principle that a dispostiton of a personal property, valid at the domicile of the
owner, is valid anywhere, is one of the universal application. It had its origin in that international comity which was
one of the first fruits of civilization, and it this age, when business intercourse and the process of accumulating
property take but little notice of boundary lines, the practical wisdom and justice of the rule is more apparent than
ever. (Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national law is the
internal law of California. But as above explained the laws of California have prescribed two sets of laws for its
citizens, one for residents therein and another for those domiciled in other jurisdictions. Reason demands that We
should enforce the California internal law prescribed for its citizens residing therein, and enforce the conflict of
laws rules for the citizens domiciled abroad. If we must enforce the law of California as in comity we are bound to
go, as so declared in Article 16 of our Civil Code, then we must enforce the law of California in accordance with the
express mandate thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-of-
laws rule for those domiciled abroad.

It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the property is situated"
in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the Philippines and that the law to the contrary
in the Philippines is the provision in said Article 16 that the national law of the deceased should govern. This contention can
not be sustained. As explained in the various authorities cited above the national law mentioned in Article 16 of our Civil
Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or return of the
question to the law of the testator's domicile. The conflict of laws rule in California, Article 946, Civil Code, precisely refers
back the case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines in the case at bar.
The court of the domicile can not and should not refer the case back to California; such action would leave the issue
incapable of determination because the case will then be like a football, tossed back and forth between the two states,
between the country of which the decedent was a citizen and the country of his domicile. The Philippine court must apply its
own law as directed in the conflict of laws rule of the state of the decedent, if the question has to be decided, especially as
the application of the internal law of California provides no legitime for children while the Philippine law, Arts. 887(4) and 894,
Civil Code of the Philippines, makes natural children legally acknowledged forced heirs of the parent recognizing them.

The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil.
867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited by appellees to
support the decision can not possibly apply in the case at bar, for two important reasons, i.e., the subject in each case does
not appear to be a citizen of a state in the United States but with domicile in the Philippines, and it does not appear in each
case that there exists in the state of which the subject is a citizen, a law similar to or identical with Art. 946 of the California
Civil Code.

We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines, the validity of
the provisions of his will depriving his acknowledged natural child, the appellant, should be governed by the Philippine Law,
the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law of California..

WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court with instructions that
the partition be made as the Philippine law on succession provides. Judgment reversed, with costs against appellees.

Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
Bengzon, C.J., took no part.

Bellis v Bellis

G.R. No. L-23678 June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.

Vicente R. Macasaet and Jose D. Villena for oppositors appellants.

Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.

BENGZON, J.P., J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April
30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein. 1äwphï1.ñët

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen,
whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry
A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three
legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and
expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner:
(a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria
Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis,
Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares. 1äwphï1.ñët

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to
probate in the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of
$240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies,
or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various
motions or petitions filed by the latter three requesting partial advances on account of their respective legacies.

On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account,
Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E.
Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the
executor — pursuant to the "Twelfth" clause of the testator's Last Will and Testament — divided the residuary estate into
seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition
on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the
deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt
submitted on April 27, 1964 by the executor. 1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an
order overruling the oppositions and approving the executor's final account, report and administration and project of partition.
Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did
not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants
appealed to this Court to raise the issue of which law must apply — Texas law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar
v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one
country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and
a domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the
domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine
law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling
for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here
involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be
presumed different from ours.3 Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never
invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned
in the third paragraph of Article 17 in relation to Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e)
the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that —

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 he the nature of the property and regardless of
the country wherein said property may be found.

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that —

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public
policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.

prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congress deleted the
phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil
Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the
old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific
provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent,
Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national
law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has
not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia,
the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.

Appellants would also point out that the decedent executed two wills — one to govern his Texas estate and the other his
Philippine estate — arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was
the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v.
Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance
with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those
matters that Article 10 — now Article 16 — of the Civil Code states said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of
Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the
amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the
testacy of Amos G. Bellis.

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.