‘I.

INTRODUCTION TO PRIVATE INTERNATIONAL LAW

a. International Law

b. Branches of International Law

c. Distinctions between Public and Private International Law

i. Nevsun Resources Ltd. v. Araya

Nevsun Resources ltd vs. Araya

Facts:
Three Eritrean workers claim that they were indefinitely conscripted through Eritrea’s military service into a forced labour
regime where they were required to work at a mine in Eritrea. They claim they were subjected to violent, cruel, inhuman
and degrading treatment. The mine is owned by a Canadian company, Nevsun Resources Ltd. The Eritrean workers
started proceedings in British Columbia against Nevsun and sought damages for breaches of customary international law
prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. They
also sought damages for breaches of domestic torts including conversion, battery, unlawful confinement, conspiracy and
negligence. Nevsun brought a motion to strike the pleadings on the basis of the act of state doctrine, which precludes
domestic courts from assessing the sovereign acts of a foreign government. Nevsun also took the position that the claims
based on customary international law should be struck because they have no reasonable prospect of success. The
chambers judge dismissed Nevsun’s motion to strike, and the Court of Appeal agreed.

Per Wagner C.J. and Abella, Karakatsanis, Gascon and Martin JJ.: The act of state doctrine and its underlying principles
as developed in Canadian jurisprudence are not a bar to the Eritrean workers’ claims. The act of state doctrine has played
no role in Canadian law and is not part of Canadian common law. Whereas English jurisprudence has reaffirmed and
reconstructed the act of state doctrine, Canadian law has developed its own approach to addressing the twin principles
underlying the doctrine: conflict of laws and judicial restraint. Both principles have developed separately in Canadian
jurisprudence rather than as elements of an all-encompassing act of state doctrine. As such, in Canada, the principles
underlying the act of state doctrine have been completely subsumed within this jurisprudence. Canadian courts determine
questions dealing with the enforcement of foreign laws according to ordinary private international law principles which
generally call for deference, but allow for judicial discretion to decline to enforce foreign laws where such laws are
contrary to public policy, including respect for public international law.

Issue: Whether or not Respondent’s claims require a determination that Eritrea violated Public International Law.

Ruling:

No. In this context, justiciability turns on whether the outcome of the claims is dependent upon the allegation that the
foreign state acted unlawfully. If this issue is central to the litigation, the claims are not justiciable: e.g., Buck, at pp. 886-
87; Buttes Gas, at pp. 935-38. By contrast, a court may consider the legality of acts of a foreign state under municipal or
international law if the issue arises incidentally: e.g., Hunt; W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp.,
International, 493 U.S. 400 (1990), at p. 406. In Buck, the issue of the validity of the foreign state’s constitution was
central to the plaintiffs’ claim, because the plaintiffs were seeking a declaration that the constitution of Sierra Leone was
invalid: p. 886. Lord Diplock stated:

I do not think that this rule [that a state does not purport to exercise jurisdiction over the internal affairs of
another state], which deprives the court of jurisdiction over the subject-matter of this appeal because it
involves assertion of jurisdiction over the internal affairs of a foreign sovereign state, can be eluded by the
 device of making the Attorney-General of England a party instead of the government of Sierra Leone. [p.
887]

A case to the opposite effect is Kirkpatrick, in which the respondent alleged that the petitioner had obtained a construction
contract from the Nigerian Government by bribing Nigerian officials, which was prohibited under Nigerian law. Scalia J.
found that the factual predicate for application of the act of state doctrine did not exist in that case, as nothing in the claim
required the court to declare an official act of a foreign state to be invalid: p. 405. Scalia J. reasoned that:

[a]ct of state issues only arise when a court must decide — that is, when the outcome of the case turns upon
— the effect of official action by a foreign sovereign. When that question is not in the case, neither is the act
of state doctrine. That is the situation here. Regardless of what the court’s factual findings may suggest as to
the legality of the Nigerian contract, its legality is simply not a question to be decided in the present suit, and
there is thus no occasion to apply the rule of decision that the act of state doctrine requires. [Emphasis in
original; p. 406.]

Similarly, in Hunt, La Forest J. concluded that the issue of the constitutionality of the “foreign” statute arose incidentally,
because it arose in a proceeding in which the plaintiff sought the disclosure of relevant documents, which was barred by
the impugned Quebec statute. In Buttes Gas, on the other hand, Occidental pleaded the tort of conspiracy against Buttes
Gas, but to succeed, the claim required a determination that Sharjah, Umm al Qaiwain, Iran and the United Kingdom had
violated international law. This was not incidental to the claim, and the House of Lords held that it was not justiciable: p.
938.

In the case at bar, the issue of the legality of Eritrea’s acts under international law is central to the respondents’ claims. To
paraphrase Lord Diplock in Buck, at p. 887, the respondents are simply using the appellant, Nevsun Resources Ltd., as a
device to avoid the application of Eritrea’s sovereign immunity from civil proceedings in Canada. The respondents’ central
allegation is that Eritrea’s National Service Program is an illegal system of forced labour (A.R., vol. III, at pp. 162-64) that
constitutes a crime against humanity (p. 175). The respondents allege that “Nevsun expressly or implicitly condoned the
use of forced labour and the system of enforcement through threats and abuse, by the Eritrean military”, and that it is
directly liable for injuries suffered by the respondents as a result of its “failure to stop the use of forced labour and the
enforcement practices at its mine site when it was obvious . . . that the plaintiffs were forced to work there against their
will”: A.R., vol. III, at p. 178.

In other words, the respondents allege that Nevsun is liable because it was complicit in the Eritrean authorities’ alleged
internationally wrongful acts. As was the case in Buttes Gas, Nevsun can be liable only if the acts of the actual alleged
perpetrators — Eritrea and its agents — were unlawful as a matter of public international law. The case at bar is therefore
materially different from Hunt and Kirkpatrick, in which the legality of the acts of a foreign sovereign state, or of an
authority in another jurisdiction, had arisen incidentally to the claim.

To obtain relief, the respondents would have to establish that the National Service Program is a system of forced labour
that constitutes a crime against humanity. This means that determinations that the Eritrean state acted unlawfully would
not be incidental to the allegations of liability on Nevsun’s part. In my view and with respect, Newbury J.A. erred in finding
that the respondents were not asking the court to “inquire into the legality, validity or ‘effectiveness’ of the acts of laws or
conduct of a foreign state”: C.A reasons, at para. 172. As she had noted earlier in her reasons — and I agree with her on
this point — given how the complaint was being pleaded, Nevsun could only be found liable if “Eritrea, its officials or
agents were found to have violated fundamental international norms and Nevsun were shown to have been complicit in
such conduct”: para. 92. The respondents’ claims, as pleaded, require a determination that Eritrea has violated
international law and must therefore fail.

The Court conclude in this case that it is plain and obvious that the respondents’ claims are bound to fail, because private
law claims which are founded upon a foreign state’s internationally wrongful acts are not justiciable, and the respondents’
claims are dependent upon a determination that Eritrea has violated its international obligations. Additionally, for the
reasons given by Brown and Rowe JJ., I find that it is plain and obvious that the respondents’ causes of action which are
inspired by customary international law are bound to fail. Accordingly, I would allow the appeal and dismiss the
respondents’ claims.

d. Transformation to Customary International Law

i. Abdullahi v. Pfizer

Doctrine:

For transformation to customary international law to happen, the norm must have become universal, in character,
must be of mutual concern to state and must be of specific character that is definite in content. Therefore, if all elements
converge a norm is considered customary international law.

Parties: Plaintiff: Rabi Abdullah and other Nigerian Children ( alleged victims of Medical Malpractice)

Respondent: Pfizer

Facts

This case took effect during the epidemic of bacterial meningitis in northern NIgeria. The appellants allege that at
that time, Pfizer sought to gain the approval of U.S FDA for the use on children of its new antibiotic Trovafloxacin
Mesylate ( Trovan). It was alleged there that Pfizer dispatched three of its physician to work with Nigerian doctors and
experiment with Trovan on children who were patients in Nigeria’s Infectious Disease. The team allegedly recruited two
hundred sick children who sought treatment at Nigeria Infectious Disease Hospital and gave half of the children Trovan
and the other Ceftriazone an FDA approved antibiotic .

The appellants in this case argued that Pfizer gave the children a low dose of Ceftriaxone, to misrepresent the
effectiveness of Trovan in relation to Ceftriaxone. After two weeks, the experiment was concluded. According to the
appellant, the test caused the death of eleven children, five of whom had taken Trovan and six of them had taken lowered
dose of Ceftriaxone and left others blind, deaf or paralized. In sum, the appellants argued that Pfizer failed to secure the
consent of either children or their guardians and specially failed to disclose or explain the experimental nature of the study
or risk involved.

In 1998, FDA approved Trovan for adult patient use, after reports of liver failure it was restricted to adult use in the
US, Subsequently European Unit banned its use. Hence, the complainants in this case filed a claim under the Alien Tort
Statute ( ATS) grounded on the prohibition of the Nuremberg Code, World Medical Association Declaration of Helsinki, the
guidelines of Council for International Organization of Medical Service and the International Covenant on the Civil and
Political rights which forbade medical experimentation without consent.

The district court found that “ Non consensual medical experimentation violates the law of nation and therefore the
laws of United States. The district court also determined that US did not sign or ratify or adopt to any of these authorities
except the ICCPR and because even the ICCPR is not self executing and that none of them creates binding international
legal obligation that are enforceable under the federal court

Issue

Whether it is appropriate for the district court to forego a more extensive examination of whether treaties
and state practice have ripened into the prohibition of nonconsensual medical examination on human subjects
into customarily international law..

Ruling

No. It is not appropriate for the district court to forego a more extensive examination of whether treaties,
international agreements or state practice have ripened the prohibition of non consensual medical experimentation on
human subject into a customary international law that is 1. Universal 2. Specific and Definable 3. Mutual concern to
permit a cause of action under ATS.
Issue:Whether the issue on medical experiment satisfies the three test

1. Universality

Yes. As provided, the universal and fundamental rights of human beings are identified in Nuremberg, as
rights against genocide, enslavement and other inhumane acts, and asre recognized as jus cogens. As to the prohibition
on non-consensual experimentation, as a norm that states conceive as legally binding therefore is a part of customarily
international law is confirmed by article 2 of the ICCPR that provides “: The ICCPR recognition to protect humans is an
evidence of prohibition under customary international law.

“Each of the state parties undertakes to respect and ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized under the covenant.

At least eighty four countries require the informed consent of human subjects in medical research. The fact that
the conduct has been subject to domestic legislation does not mean that it is a part of the norm, however
incorporation of this norm to the laws of the country and this host of others is a powerful indication of
international acceptance of this norm as a valid legal obligation. In the case of United States, this norm has been
embedded for more than 45 years and has not been questioned. Also, FDA promulgated rules and regulation required the
informed consent of human subject, hence the government conceived to create these laws from the Nuremberg,
Declaration of Helsinki.

The norm prohibiting non consensual medical examination has been embedded and has secured universal
acceptance in the community of nation, The court ruled that multiplicity of sources including international convention
whether general or particular and international custom as identified by international agreement, declaration and a
consistent pattern of action by national law making authorities that requires the court to examine the purpose of
determining the existence of a norm of customary international law.

2. Specificity

Qualify, it does not apply to isolated failures by medical professionals to obtain the informed consent. The
appellant alleges that Pfizer knowingly and purposely conducted the experiments on a large scale. The allegation
here was that there is a complete failure on the part of Pfizer and Nigerian government to inform appellant of the
existence of Trovan Experiments. The court ruled there that while the prohibition applies to the testing of drugs
without the consent of human subjects, it does not extend to isolated failures by medical professionals to obtain
informed consent such as those arising from simple negligence.

Mutual Concern

Customarily International law provides that only transgressions that are of mutual concern to the state
those involving state actions towards or with regard to each other.Conduct that states have prohibited through
domestic legislation is also actionable under the ATS as violation of customary international law when the nations
of the world have demonstrated by means of express international accord that is wrong of mutual concern. In this
case, the administration of drug trials without the informed consent poses threats to national security without
impairing the relationship with other countries. Hence, failure to obtain consent for human experimentation has the
potential to generate anti-american animus and hostility.

e. Foreign Element

f. Phases in Conflicts Resolution

i. Hasegawa v. Kitamura

Facts:

Nippon Engineering Consultants (Nippon), a Japanese consultancy firm providing technical and management support in
the infrastructure projects national permanently residing in the Philippines. The agreement provides that Kitamaru was to
extend professional services to Nippon for a year. Nippon assigned Kitamaru to work as the project manager of the
Southern Tagalog Access Road (STAR) project. When the STAR project was near completion, DPWH engaged the
consultancy services of Nippon, this time for the detailed engineering & construction supervision of the Bongabon-Baler
Road Improvement (BBRI) Project. Kitamaru was named as the project manger in the contract.

Hasegawa, Nippon’s general manager for its International Division, informed Kitamaru 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.

Kitamaru demanded that he be assigned to the BBRI project. Nippon insisted that Kitamaru’s contract was for a fixed term
that had expired. Kitamaru then filed for specific performance & damages w/ the RTC of Lipa City. Nippon filed a MTD.

Nippon’s contention: The ICA had been perfected in Japan & executed by & between Japanese nationals. Thus, the RTC
of Lipa City has no jurisdiction. The claim for improper pre-termination of Kitamaru’s ICA could only be heard & ventilated
in the proper courts of Japan following the principles of lex loci celebrationis & lex contractus.

The RTC denied the motion to dismiss. The CA ruled hat 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. It held that the RTC was
correct in applying the principle of lex loci solutionis.

Issue:

Whether or not the subject matter jurisdiction of Philippine courts in civil cases for specific performance & 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.

Ruling:

No. In the judicial resolution of conflicts problems, 3 consecutive phases are involved: jurisdiction, choice of law, and
recognition and enforcement of judgments. Jurisdiction & choice of law are 2 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 w/c will determine the merits of the case is fair to both parties. The power to exercise jurisdiction does
not automatically give a state constitutional authority to apply forum law. While jurisdiction and the choice of the lex fori
will often coincide, the “minimum contacts” for one do not always provide the necessary “significant contacts” for the other.
The question of whether the law of a state can be applied to a transaction is different from the question of whether the
courts of that state have jurisdiction to enter a judgment.

In this case, only the 1st 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/petitioner, over the
defendant/respondent, over the subject matter, over the issues of the case and, in cases involving property, over the res
or the thing w/c is the subject of the litigation. In assailing the trial court's jurisdiction herein, Nippon is actually referring to
subject matter jurisdiction.

Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign authority w/c establishes and
organizes the court. It is given only by law and in the manner prescribed by law. It is further determined by the allegations
of the complaint irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein. To succeed in
its motion for the dismissal of an action for lack of jurisdiction over the subject matter of the claim, the movant must show
that the court or tribunal cannot act on the matter submitted to it because no law grants it the power to adjudicate the
claims.

In the instant case, Nippon, in its MTD, does not claim that the RTC is not properly vested by law w/ jurisdiction to hear
the subject controversy for a civil case for specific performance & damages is one not capable of pecuniary estimation &
is properly cognizable by the RTC of Lipa City. What they rather raise as grounds to question subject matter jurisdiction
are the principles of lex loci celebrationis and lex contractus, and the “state of the most significant relationship rule.” The
Court finds the invocation of these grounds unsound.

Lex loci celebrationis relates to the “law of the place of the ceremony” or the law of the place where a contract is made.
The doctrine of lex contractus or lex loci contractus means the “law of the place where a contract is executed or to be
performed.” It controls the nature, construction, and validity of the contract and it may pertain to the law voluntarily agreed
upon by the parties or the law intended by them either expressly or implicitly. Under the “state of the most significant
relationship rule,” to ascertain what state law to apply to a dispute, the court should determine which state has the most
substantial connection to the occurrence and the parties. In a case involving a contract, the court should consider where
the contract was made, was negotiated, was to be performed, and the domicile, place of business, or place of
incorporation of the parties. This rule takes into account several contacts and evaluates them according to their relative
importance with respect to the particular issue to be resolved.

Since these 3 principles in conflict of laws make reference to the law applicable to a dispute, they are rules proper for the
2nd phase, the choice of law. They determine which state's law is to be applied in resolving the substantive issues of a
conflicts problem. Necessarily, as the only issue in this case is that of jurisdiction, choice-of-law rules are not only
inapplicable but also not yet called for.

Further, Nippon’s 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, 1 st there should exist a conflict of
laws situation requiring the application of the conflict of laws rules. Also, when the law of a foreign country is invoked to
provide the proper rules for the solution of a case, the existence of such law must be pleaded and proved.

It should be noted that when a conflicts case, one involving a foreign element, is brought before a court or administrative
agency, there are 3 alternatives open to the latter in disposing of it: (1) dismiss the case, either because of lack of
jurisdiction or refusal to assume jurisdiction over the case; (2) assume jurisdiction over the case and apply the internal law
of the forum; or (3) assume jurisdiction over the case and take into account or apply the law of some other State or States.
The court’s power to hear cases and controversies is derived from the Constitution and the laws. While it may choose to
recognize laws of foreign nations, the court is not limited by foreign sovereign law short of treaties or other formal
agreements, even in matters regarding rights provided by foreign sovereigns.

Neither can the other ground raised, forum non conveniens, be used to deprive the RTC of its jurisdiction. 1st, it is not a
proper basis for a motion to dismiss because Sec. 1, Rule 16 of the Rules of Court does not include it as a ground. 2nd,
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 RTC. In this case, the RTC decided to assume jurisdiction.
3rd, 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.

g. Steps in Determining Applicable Law

h. Choice of Applicable Law

i. Extraterritoriality

i. Small v. United States

Facts:
In this case, Small has been previously convicted in the Japanese Court for trying to smuggle firearms and ammunition
into the said country. He was sentenced to 5 years of imprisonment and when he went back to the United States of
America, he bought a gun. The 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).

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. Small also argued that his Japanese convictions had been obtained through
fundamentally unfair procedures.

Issue:

Whether the “unlawful gun possession” statute had an extraterritorial application such that foreign conviction is covered

Ruling:

No

- The phrase “convicted in any court” describes one necessary portion of the “gun possession” activity that is
prohibited as a matter of domestic law. Moreover, because foreign convictions may include convictions for conduct that
domestic laws would permit, e.g., for engaging in economic conduct that our society might encourage, convictions from a
legal system that are inconsistent with American understanding of fairness, and convictions for conduct that domestic law
punishes far less severely, the key statutory phrase “convicted in any court of, a crime punishable by imprisonment for a
term exceeding one year” somewhat less reliably identifies dangerous individuals for the purposes of U.S. law where
foreign convictions, rather than domestic convictions, are at issue.

- The Court assumes a congressional intent that the phrase “convicted in any court” applies domestically, not
extraterritorially, unless the statutory language, context, history, or purpose shows the contrary.

- The statute’s language suggests no intent to reach beyond domestic convictions. To the contrary, if read to include
foreign convictions, the statute’s language creates anomalies. For example, in creating an exception allowing gun
possession despite a conviction for an antitrust or business regulatory crime, §921(a)(20)(A) speaks of “Federal or State”
antitrust or regulatory offenses. If the phrase “convicted in any court” generally refers only to domestic convictions, this
language causes no problem. But if the phrase includes foreign convictions, the words “Federal or State” prevent the
exception from applying where a foreign antitrust or regulatory conviction is at issue. Such illustrative examples suggest
that Congress did not consider whether the generic phrase “convicted in any court” applies to foreign convictions.
Moreover, the statute’s legislative history indicates no intent to reach beyond domestic convictions.

ii. Kiobel v. Royal Dutch Petroleum Co.

Doctrine:

Corporate liability is not a norm that courts can recognize and apply in actions under the Alien Tort Statute, 28 U.S.C.S. §
1350, because the customary international law of human rights does not impose any form of liability on corporations, civil,
criminal, or otherwise.

Facts:

Pursuant to the Alien Tort Statute (ATS), 28 U.S.C.S. § 1350, plaintiff individuals sued asserting that defendant oil
exploration and production corporations aided the Nigerian government in suppressing their resistance to oil exploration
by allowing corporate property to be used as a staging ground for attacks and by providing food and compensation for
Nigerian soldiers, in violation of the law of nations. The district court dismissed certain of the individuals' claims, denied
the corporations' motion to dismiss the remaining claims, and certified its entire order for interlocutory appeal.

Issue:

Was the district court's dismissal of certain of the claims against the corporations proper? YES.

Ruling:

The court affirmed the district court's order as it dismissed certain of the claims against the corporations and reversed the
district court's order insofar as it declined to dismiss the remaining claims against the corporations. The court found that
the ATS provided jurisdiction over a tort suit brought by an alien alleging a violation of the law of nations or a treaty of the
U.S. Jurisdiction under the ATS was limited to the "law of nations," which involved a violation of an international norm that
was specific, universal, and obligatory; such claims included war crimes and other crimes against humanity such as
genocide and torture. However, customary international law had steadfastly rejected corporate liability for international
crimes. Further, no international tribunal had ever held a corporation liable for a violation of the law of nations, and
sources of customary international law had explicitly rejected the idea of corporate liability. Accordingly, insofar as the
individuals brought claims against corporations, they failed to allege violations of the law of nations, and their claims fell
outside the jurisdiction of the ATS.

iii. Boumediene v. Bush, June 12, 2008

DOCTRINE:

Aliens who are enemy combatants have the right to habeas corpus under the constitution. They could petition federal
courts for writs of habeas corpus to review the legality of their detention.

FACTS:

In 2002 six Algerians were arrested in Bosnia and Herzegovina on suspicion of plotting to attack the U.S. embassy in
Sarajevo. The Supreme Court of the Federation of Bosnia and Herzegovina ordered their release on the ground of lack of
evidence to support the charges. However, they were later on seized by Bosnian police and were turned over to US
military personnel stationed in Bosnia. Petitioners herein are not citizens of countries who are at war with the US.

Since the US considered them as designated enemy combatants, they were imprisoned at the Guantánamo Bay
detention camp on the U.S. naval base at Guantánamo Bay, Cuba. One of the detainees, Lakhdar Boumediene,
petitioned in federal district court for a writ of habeas corpus, which was denied on the grounds that the camp was outside
U.S. territory and therefore not within the court’s jurisdiction.

In 2004, however, the Supreme Court held in Rasul v. Bush that the “plenary and exclusive” jurisdiction of the United
States over the Guantánamo Bay naval base entitled foreign nationals held there to habeas corpus privileges.

Foreseeing a rash of habeas corpus petitions by hundreds of foreign detainees in the camp, Congress passed the Military
Commissions Act [MCA], which stripped the federal courts of jurisdiction to hear habeas corpus petitions on behalf of
foreign detainees who had been designated enemy combatants according to procedures established in the Detainee
Treatment Act (DTA) of 2005. On the basis of the MCA, the United States Court of Appeals for the District of Columbia
Circuit denied Boumediene’s second appeal. The Supreme Court granted a writ of certiorari, and oral arguments were
heard.

ISSUE:

Whether aliens, who are enemy combatants, have the right to habeas corpus under the constitution.

RULING:
Yes. [Suspension Clause is in the US Consti, that would suspend the writ of habeas corpus in times of invasion or
rebellion.]

The Suspension Clause prevents Congress from abrogating Petitioners’ access to the Great Writ. As a majority of this
Court previously concluded, the common law writ known to the Framers ran to territories under the sovereign’s control,
regardless of whether they were formally considered sovereign territory.

As stated in Hamdi, "A brief account of the writ’s history and origins shows that protection for the habeas privilege was
one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the
Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the
Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the
Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public
safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ
by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution’s
essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device,
the writ, to maintain the “delicate balance of governance.”

The framers of the constitution believed that it was a basic tenet of liberty to enjoy freedom from unlawful restraint, and
the writ of habeas corpus was a provision meant to make this freedom secure. The Suspension Clause (Art. I, Section 9,
cl. 2) protects this as well, providing that it may be suspended only in cases of a threat to public safety as in
rebellion or invasion. While the geographical extent to which the clause covers this writ is not clear, at least it is obvious
that the writ as it existed at the time of the original drafting and ratification of the constitution was protected. The
Government (P) pleads that the U.S. does not have sovereignty over the place of incarceration, namely, Guantanamo
Bay, and therefore the petitioners do not have rights under the Clause. However, it is clear that Guanatanamo Bay has
been under U.S. control for more than a hundred years.

In the so-called Insular Cases, the Court held that the Constitution had independent force in the territories [US acquired or
has jurisdiction] that was not contingent upon acts of legislative grace. Yet because of the difficulties and disruption
inherent in transforming the former Spanish colonies’ civil-law system into an Anglo-American system, the Court adopted
the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely
destined for statehood but only in part in unincorporated Territories.

The Government cannot claim that it disclaimed formal sovereignty with Cuba in its 1903 lease, arguing that the
Constitution cannot apply there. The Constitution grants Congress and the President the power to acquire, dispose of,
and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may
switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.” These
concerns have particular bearing upon the Suspension Clause question here, for the habeas writ is itself an indispensable
mechanism for monitoring the separation of powers. [PS. Guantanamo is in no doubt within the “‘territorial jurisdiction" of
the United States.]

In order to decide whether it is covered by the Clause, three factors must be considered: (1) the detainees’ citizenship and
status and the adequacy of the process through which that status was determined; (2) the nature of the sites where
apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s
entitlement to the writ.

In the first place, the petitioners are aliens, arrested outside the U.S. Secondly, the detention center is under the complete
control of the U.S. and is under its jurisdiction. Thirdly, the costs involved are not such as to rule out the habeas
proceedings automatically. Petitioners are therefore entitled to the habeas privilege, and if that privilege is to be denied
them, Congress must act in accordance with the Suspension Clause’s requirements.

Therefore, the Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords
petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. The Military
Commission Act of 2006 is not and was not intended to be a substitute of habeas corpus, and thus the petitioners are
entitled to dispute the lawfulness of their detention by filing the writ.

j. Corporate Liability for Human Rights Violation

i. Jesner v. Arab Bank

FACTS:

Respondent Arab Bank PLC allegedly allowed the transfer of funds to terrorists groups in the Middle East. The suit was
filed by around 6000 foreign nationals in a United States District Court under the Alien Tort Statute (ATS), alleging that the
said funds were used for terrorist activities which caused deaths or injuries to the petitioners and their family members.
The District Court and the Court of Appeals held that corporations may not be sued under ATS.

ISSUE:

W/N Corporations are liable for violation of international laws protecting human rights

HELD:

No. The Court must first ask the following:

- whether the law of nations imposes liability on corporations for human rights violations committed by its employees

- whether it (the Court) has the authority and discretion in an ATS suit to impose liability on a corporation without a specific
direction from Congress

It does not follow that current principles of international law extend liability for human rights violations to corporations or
other artificial entities. The Charter for the Nuremberg Tribunal provides that the Tribunal had jurisdiction over natural
persons only. The Congress must determine whether victims of human rights abuses may sue foreign corporations in
federal courts in the United States. Congress, not the Judiciary, is the branch with the facilities necessary to make such
an important policy decision.

ii. Nevsun Resources Ltd. v. Araya

Facts:

Three Eritrean workers (Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle are refugees
and former Eritrean nationals) claim that they were indefinitely conscripted through their military service into a forced
labour regime where they were required to work at the Bisha mine in Eritrea and subjected to violent, cruel, inhuman and
degrading treatment. The mine is owned by a Canadian company, Nevsun Resources Ltd. The Eritrean workers started
proceedings in British Columbia against Nevsun and sought damages for breaches of customary international law
prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. They
also sought damages for breaches of domestic torts including conversion, battery, unlawful confinement, conspiracy and
negligence.

Nevsun brought a motion to strike the pleadings on the basis of the act of state doctrine, which precludes domestic courts
from assessing the sovereign acts of a foreign government. Nevsun also took the position that the claims based on
customary international law should be struck because they have no reasonable prospect of success. The chambers judge
dismissed Nevsun’s motion to strike, and the Court of Appeal agreed.

Issue: Whether or not corporations can be held liable for violations of international human rights law?

Ruling: “Yes, the context in which international human rights norms must be interpreted and applied today is one in which
such norms are routinely applied to private actors. It is therefore not plain and obvious that corporations today enjoy a
blanket exclusion under customary international law from direct liability for violations of obligatory, definable, and universal
norms of international law.” – as stated in the book.

Additional notes:

· Rights may be violated by private actors: Human rights law in the past several decades has moved
decisively to prohibit violations by private actors in fields as diverse as discrimination, children’s rights, crimes
against peace and security, and privacy. It is clear that individuals today have both rights and responsibilities
under international law. Although expressed in neutral language, many human rights provisions must be
understood today as applying to individuals as well as to states.

· There is no reason, in principle, why “private actors” excludes corporations. Non-state actors like
corporations can be held responsible for violations of international criminal law and concludes that it would not
“make sense to argue that international law may impose criminal liability on corporations, but not civil liability”
(Professor Koh)

· The fact remains that if states and individuals can be held liable under international law, then so too
should corporations, for the simple reason that both states and individuals act through corporations. However,
because some norms of customary international law are of a strictly interstate character, the trial judge will have
to determine whether the specific norms relied on in this case are of such a character. If they are, the question for
the court will be whether the common law should evolve so as to extend the scope of those norms to bind
corporations.

k. Forum Non Conveniens

i. Saudi Arabian Airlines v. Rebesencio et al.

Disclaimer: Followed atty’s book. Ang daming hanash sa case na to sorry

Facts: Respondents Ma. Jopette Rebesencio, Montassah Sacar-Adiong, Rouen Ruth Cristobal, and Loraine Schneider-
Cruz were hired on separate dates by Saudi Arabian Airlines (Saudia) and became permanent flight attendants. They
entered into cabin attendant contracts with Saudia on May 1990 (Ma. Jopette), May 1993 (Montassah and Rouen Ruth),
and August 1995 (Loraine). On various dates in 2006, they were terminated from service on the ground that they became
pregnant. Saudia justified their termination under their employment agreement contract which provided:

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

Respondents filed a complaint with the NLRC for illegal dismissal and for underpayment of salary, overtime pay, premium
pay for holiday, rest day, etc. moral and exemplary damages, and attorneys fees. Saudia challenged the jurisdiction of the
Labor Arbiter on the ground of forum non conveniens. 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.

Issue: Whether Philippine courts or tribunals offer a convenient and adequate forum for the adjudication of respondent’s
complaint.

Ruling: Yes, Philippine courts or tribunals are an adequate forum for the adjudication of respondents’ complaint.

When parallel litigation arises strictly within the context of a single jurisdiction, such rules as those on forum shopping,
litis pendentia, and res judicata come into operation. Thus, in the Philippines, the 1997 Rules on Civil Procedure provide
for willful and deliberate forum shopping as a ground not only for summary dismissal with prejudice but also for citing
parties and counsels in direct contempt, as well as for the imposition of administrative sanctions. Likewise, the same
rules expressly provide that a party may seek the dismissal of a Complaint or another pleading asserting a claim on the
ground "[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," i.e., res judicata.

Forum non conveniens

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

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

Unlike the rule on res judicata, as well as those on litis pendentia and forum shopping, forum non conveniens
finds no textual anchor, whether in statute or in procedural rules, in our civil law system. Nevertheless,
jurisprudence has applied forum non conveniens as basis for a court to decline its exercise of jurisdiction.

Forum non conveniens is soundly applied not only to address parallel litigation and undermine a litigant's
capacity to vex and secure undue advantages by engaging in forum shopping on an international scale.
It is also grounded on principles of comity and judicial efficiency.

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.

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

The use of the word "may" (i.e., "may refuse impositions on its jurisdiction") in the decisions shows that the matter
of jurisdiction rests on the sound discretion of a court. Neither the mere invocation of forum non conveniens nor
the averment of foreign elements operates to automatically divest a court of jurisdiction. Rather, a court should
renounce jurisdiction only "after 'vital facts are established, to determine whether special circumstances' require
the court's desistance."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.

Consistent with forum non conveniens as fundamentally a factual matter, it is imperative that it proceed from &
factually established basis.. Thus, a defendant must also plead and show that a prior suit has, in fact,
been brought in another jurisdiction.

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

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

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

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

Forum non conveniens relates to forum, not to the choice of governing law. That forum non conveniens
may ultimately result in the application of foreign law is merely an incident of its application. In this strict sense,
forum non conveniens is not applicable. It is not the primarily pivotal consideration in this case.
In any case, even a further consideration of the applicability of forum non conveniens on the incidental matter of
the law governing respondents' relation with Saudia leads to the conclusion that it is improper for Philippine
tribunals to divest themselves of jurisdiction.

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

Contrary to Manila Hotel (see Notes below), the case now before us does not entail a preponderance of linkages
that favor a foreign jurisdiction.

First, there is no basis for concluding that the case can be more conveniently tried elsewhere. As established
earlier, Saudia is doing business in the Philippines. For their part, all four (4) respondents are Filipino citizens
maintaining residence in the Philippines and, apart from their previous employment with Saudia, have no other
connection to 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." 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.
All told, the considerations for assumption of jurisdiction by Philippine tribunals as outlined in Bank of America, NT&SA
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.

Notes:
Court ruled in The Manila Hotel Corp. v. National Labor Relations Commission 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.

ii. Bangladesh Bank v. Rizal Commercial Banking Corporation, et al.

Doctrine

Facts

Bangladesh Bank is the central bank of the People’s republic of Bangladesh and is headquartered in Bangladesh.
The bank maintained a US currency account at the Federal Reserve Bank of New York with an average of $1 Billion. The
bank used this account to conduct 85% of its international transaction. On the year 2016, North Korean Hackers broke
into the bank’s computing system and issued false fund transfers and removed $101 millions from Bank’s New Fed
account.The hackers were able to hack the account by sendig spear-phising emails to bank employees which enticed the
employees to click on the links that installed the malware to the bank computers. Eventually $81 million dollars reached
the Philippines passing through bank accounts at defendant’s RCBC and through casinos operated by Defendants.
However, since RCBC does not have a new york Fed account, which the funds could be transferred directly, stopovers at
local correspondent accounts were necessary.

On February 5, 2016, $81 million was moved from the correspondent to four fictitious account at RCBC primarily
the Philrem accounts via intermediary Go-century tex account in the Philippines. RCBC admitted that they knew or
should have known that the accounts belonged to fictitious persons. Since each account holder claimed to earn $28000
per month, and that the driver’s license did not exist in public record. As to the intermediary Go-century,was opened and
that defendant approved $22 million cash deposit into the account from a fictitious account, The funds were later
transferred to PHILREM dollar account and was converted to PHILREM pesos. There were various transaction with
regard to the account leaving only $10,000 in the fictitious account.

RCBC late received a stop pay message from the bank requesting it to freeze the fictitious account due to
doubtful transaction from the New York Fed Account. The bank actually sent the message on Monday through a swift
server, which RCBC mysteriously logged of that time. RCBC forwarded the stop mpay message, but did not freeze the
Go-Centurylex , Philrem, Abba or Beacon account. Hence, the employees continued to transfer stolen funds.

PHILREM later disburse the funds to the Casino defendants and other business. It later deposited 1.4 billion
pesos into the defendant’s bloomberry account outside RCBC. Bloombery later converted the funds into casino chips, and
that it was used to play casino. Plaintiff later sued RCBC defendant casino operators and other defendant before the
Southern District court of New York. The defendants field a motion to dismiss for lack of subject matter jurisdiction, forum
non-conveniens and failure to state a claim under the Racketeer Influence and Corrupt Organization ( RICO)

Issue: Whether or not new york is the appropriate forum for the claim of the bank

RULING

Yes. Dismissal will only be appropriate when it is based on the three part test 1. The deference to be accorded in
the choice of forum of the plaintiff 2. The adequacy of the alternative forum proposed by the defendant 3. The balance
between the private and public interest implicated in the choice of forum

a. Deference as to the choice of forum of the plaintiff

The plaintiff’s choice of forum is accorded preference.Hence, the case should be filed in the southern district of
new york. The theft took place in New York, critical evidence of fraudulent payment orders, the movement of the
stolen funds into the correspondent accounts and the mobemren out of those accounts exist in or close to this
district.

Plaintiff’s choice of forum is accorded deference. While Defendant has identified the Philippines as an adequate
alternative forum, the private interest factors are neutral and the public interest factors weigh toward Plaintiff’s
forum. Given that these three considerations favor Plaintiff on balance, dismissal under the forum non conveniens
doctrine is unwarranted. Although “the choice of a United States forum by a foreign plaintiff is entitled to less
deference” compared to when a plaintiff sues in its home forum, this standard by its terms does not foreclose
deference to a foreign plaintiff. “The more it appears that a domestic or foreign plaintiff’s choice of forum has been
dictated by reasons that the law recognizes as valid, the greater the deference” accorded, such as when the
lawsuit has a “bona fide connection to the United States and to the forum of choice.” Evidence that a foreign
plaintiff is merely forum shopping undercuts deference. Defendant has carried its burden of establishing that the
Philippines is an adequate alternative forum. “An alternative forum is adequate if the defendants are amenable to
service of process there, and if it permits litigation of the subject matter of the dispute.”

Defendants argue, providing affidavits in support, that they are amenable to service in the Philippines. Almost all
Defendants are Philippine residents or corporations, thus facilitating service in the Philippines. Plaintiff argues
that Defendants have not established that the Chinese Defendants will accept service of process in the
Philippines. But this issue is not unique to the Philippines, as Plaintiff has been unable to serve the Chinese
Defendants in this forum as well. The Philippines is also an adequate forum based on the second factor, that the
subject matter of the dispute can be litigated in Philippine courts. Plaintiff does not dispute the availability of an
analogue claim, but argues only that fil ing fees are prohibitively high and that litigation and discovery will
proceed extremely slowly in the Philippines. These claims, however, do not undermine the fact that the
Philippines will “permit litigation of the subject matter of the dispute.”

In considering whether Plaintiff’s forum or the alternative forum is appropriate, courts weigh the private and public
interest. The private interest factors include: “(1) the relative ease of access to sources of proof; (2) the availability
of compulsory process for attendance of unwilling witnesses; (3) the cost of obtaining attendance of willing
 witnesses; (4) issues concerning the enforceability of a judgment; and (5) all other practical problems that make
trial of a case easy, expeditious, and inexpensive.” The public interest factors include: “(1) the administrative
difficulties flowing from court congestion; (2) the local interest in having controversies decided at home; (3) the
interest in having a trial in a forum that is familiar with the law governing the action; (4) the avoidance of
unnecessary problems in conflict of laws or in the application of foreign law; and (5) the unfairness of burdening
citizens in an unrelated forum with jury duty.” In this case, the private interest factors are neutral, but the public
interest factors favor Plaintiff. With respect to the private interest factors, it is too simplistic to conclude that, since
most Defendants are based in the Philippines, evidence is necessarily easier to access there. Much of the
relevant evidence is in electronic form accessible from either forum.

Authorities in both the Philippines and the United States have investigated some of the events in this action. Their
findings are accessible from anywhere on the internet, and in appropriate circumstances, this Court may take
judicial notice of them. Defendant argues, to the contrary, that Philippine data security laws will restrict production
of electronic evidence, but presumably these restrictions would tie Defendants’ hands in any forum. Defendants
argue that a Philippine forum is superior, because a Philippine court can “compel” disclosure of data subject to the
privacy laws, while U.S. courts cannot. This court, however, does have compulsory powers over the Defendant
entities that are parties to this case. “Philippine courts will not question the authority of a New York court or
regulatory body to direct data to be disclosed by a bank that has fallen under the jurisdiction of a New York court.”

With regard to witnesses, the parties may obtain witness testimony through written discovery or conduct
depositions remotely by video conference. The parties have suggested at the initial conference that they are
working with local counsel or contacts in the Philippines, who may facilitate these interactions. To the extent that
third parties are unwilling to comply with discovery requests, both this Court and Philippine courts have
mechanisms to enforce discovery. The parties’ Philippine law experts provide conflicting views on how easily a
U.S. judgment may be domesticated in the Philippines. By contrast, Defendants are indisputably subject to this
Court’s judgment enforcement authority. While it is premature to consider how any U.S. judgment could be
enforced, the Complaint alleges that Defendants have U.S. property that, in theory, could be subject to
attachment. In light of the foregoing, Defendants have failed to carry their burden of showing that the private
interest factors favor the Philippines. The public interest factors, however, slightly favor this forum. This action is
brought under U.S. federal and state law, and this forum is necessarily superior at adjudicating these claims.
Except for Philippine data privacy laws, Defendant has not suggested that any foreign law applies. It would be
highly unlikely for adjudication to take anywhere close to this long in this forum. Finally, the local interest factors
are neutral. Both New York and the Philippines have an interest in this action because critical events took place
in both locations. A New York jury has an interest in adjudicating, and would not be burdened by, a case in which
a major federal institution in the district was cyberattacked. In light of the foregoing, and because the
considerations slightly favor Plaintiff’s choice of forum, the motion to dismiss under the forum non conveniens
doctrine is denied.

b. Adequacy of adequate alternative forum proposed by the defendant

c. Balance between private and public interest

l. State-Sanctioned Killing

i. Colvin v. Syrian Arab Republic, 363 F.Supp.3d 141 (2019)

ate-Sanctioned Killing

Colvin v. Syrian Arab Republic, 363 F.Supp.3d 141 (2019)

Doctrine
Facts
 Syria began to experience the effects of “ Arab spring that swept through Middle East and North Africa
against authoritarian government. As a result, this prompted both a non-violent movement as well as an armed
insurrection government change. As a response to this movement, a group was eatablished by President Bashar
called the (CCMC). The CCMC was the highest national security of the Syrian Government. The CCMC used
reports that it received from Regional intelligence committees to inform the president of the strategy of the anti-
oppostion. As a result of this, the Syrian Government engaged in a widespread suppression of the demonstrators
and rebel groups, thousands were killed, tortured and kidnapped. Hence, as a result of this, Free Syrian Army
was established which consisted of civilians and defectors from military and government.
As a result of suppression of traditional media, “ independent media journalist” was established wherein
these journalist disseminated news through social media networks. The heart of the independent media
movement was in Baba amr. In Baba Amr, there were journalist who would document the demonstration
occurring throughout the country and the government’s response using proxy internet servers. These individuals
were not a part of the opposition, since they do not really participate in hostilities. The Syrian Government
considered these journalist as threats or key centers of the revolution ,hence they launched a joint security
military campaign focusing on media and military groups subjecting the latter to disapprearance, extrajudicial
killings and other abuses.
By the end of 2011, Homs became a key center of the revolution, the Syrian Government formed a
committee ( HMSC)with the sole purpose of military and intelligence operation against the opposition in Homs.
Baba Amr became the focal point of war because of the Media center. The HMSC as directed by the CCMC
isolated Baba Amr , they cut of communication therein. The government was also able to learn that the activist
had smuggled transmitter that gave them access to internet making them able to report on the siege to news
agencies.

Marie Colvin was a highly respected American war journalist. On February 13 she together with British
Photographer Paul Conroy traveled Syria and was able to enter the country through the help of members of the
FSA. Their journey took two days, they traveled through a smugglers route and was able to reach the Baba Amr
Media Center. A day after, Colvin wanted to see the area and speak to locals hence she with the help of Al-Omar
visited facilities who catered to sheltering locals and improvised field hospitals. That evening, rumors of an
invasion an possible attack forced Colvin and Amr to use the same tunnel where they arrived. Colvin was able to
dictate a story to the Sunday times. However, the alleged invasion did not transpire, hence Colvin returned to
Baba Amr despite being told that Baba Amr would most likely be captured.

The HMSC was aware that the foreign journalist were travelling to Baba Amr, and that they wanted to
undertake all the necessary measures to capture them. On the eve of February 22, 2012, Colvin , Conroy and Al
Omar woke up to the sound of shelling. These shelling was different from the past shelling because it was
focused on one specific location. During the onslaught of the rockets, Journalist and Activist ran to evacuate the
media center. Colvin and Ochlik started to run out of the center, but before they could a rocket hit the front of the
Media Center and killed them. After the attack , the Homs Security Chief convened the intelligence officer to
celebrate the death of Marie Colvin.
The plaintiff brought this case against Syria asserting that the latter committed an extrajudicial killing that is a
violation of the FSIA.

Issue : 1. Whether the court has jurisdiction over the plaintiff’s claim under the FSIA.

Ruling:

1. Exemptions to Immunity
The plaintiff was able to demonstrate that the court has jurisdiction to hear the claims and that Syria is
not immune from suit. As a rule, a foreign state is immune from jurisdiction in the US court, but jurisdiction may
exist if the conduct falls with one of the exemptions to immunity. Here the defendant’s conduct falls within state
sponsor of terrorism exception to immunity and plaintiff was able to establish personal jurisdiction through
service.
Subject Matter Jurisdiction
 A foreign state is presumably immune from jurisdiction of the United States unless a specified exception
applies. Terrorism exception to immunity of the FSIA ( Foreign service immunities act) provides that a foreign
state shall not be immune from the jurisdiction of the courts of united states where money damages are sought
against a foreign state for personal injury or death that was caused by the act of torture, extrajudicial killing, air
craft sabotage, hostage taking or provision of material support or resources for such an act if the act or provision
of material support or resources is engaged by an official, employee or agent of such foreign state while acting
within the scope of its office.
In this case, Syria is NOT immune from suit. The plaintiff was able to bring the case against Syrian Arab
Republic seeking money damages for the death of Colvin. It also alleged that defendant committed an
extrajudicial killing since it knew that foreign journalist were inside the media center when they launched an
attack. Third, plaintiff was able to show that the defendant caused the attack. The plaintiff was able t sufficienrly
connect the causation to the injury. The FSIA does not restrict personal injury or death element to injury suffered
by the claimant instead such injury or death must be a claim for which money damages are sought.

2. Additional Requirement Under FSIA.

Before a federal district court may hear the case the 1. Foreign country must be designated as a
state"state sponsor of terrorism at the time [of] the act" giving rise to the claim, (ii) the "claimant or the victim"
must be a "national of the United States," a member of the armed forces, or a government employee at the time
of the act, and (iii) the claimant must have afforded "the foreign state ... a reasonable opportunity to arbitrate the
claim in accordance with the accepted international rules of arbitration

1. Foreign Country must be designated as a state sponsor at the time of terrorism

State sponsor of terrorism, the country at which the government that has repeatedly provided support for
acts of international terrorism. In this case Syria has been designated as a state sponsor of terrorism

2. National of the United States

A national of the United states is a person who owes permanent allegiance to the United states. In this
case the decedent and the plaintiff are citizens of the United states.

3. The claimant must have afforded the foreign state reasonable opportunity to arbitrate the claim in accordance
with Arbitration rules

In this case, there was an offer on the plaintiff’s part to arbitrate with Syria pursuant to international rules
of Arbitration.

The plaintiff was able to establish his right to relief by evidence

Under 1605(A) a foreign state is liable to 1. National of the United states for personal injury or death
caused by the act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or provision of material
support or resources for such an act," committed by "that foreign state, or an official,

employee, or agent of that foreign state" "for which the courts of the United States may maintain

jurisdiction under this section for money damages."

The plaintiff are nationals of united states, the defendants also caused the death of Marie Colvin as the
Syrian Government coordinated and carried out a carefully planned attack on Baba Amr Medical Center. The
plaintiff advances two theories for recovery: 1. Wrongful death and 2. international infliction of Emotional
Distress.

i. Wrongful Death

Here, plaintiffs Cathleen Colvin, on her own behalf and on behalf of minor L.A.C, Justine Araya-Colvin, and

Christopher Araya-Colvin are suing in their capacity as heirs-at-law and beneficiaries of Marie Colvin's estate,

and they seek to recover for Colvin's premature death that is caused by extrajudicial killing

Any deaths resulting from an act of terrorism under section 1605A are properly considered wrongful deaths, and
a plaintiff's recovery under a wrongful death theory is appropriate. Thus, where a foreign state or an
agency/instrumentality thereof is liable for an extrajudicial killing, or the provision of material support thereof, it
may be liable for the economic damages experienced by the decedents heirs

ii. Intentional Infliction of Emotional Distress

Plaintiff Cathleen Colvin has asserted intentional infliction of emotional distress ("IIED") as a theory for

Recovery. Syria could be liable under such a claim if it: (1) engaged in extreme and reckless

conduct, (2) that was directed at a person or persons other than plaintiff, (3) which intentionally or recklessly

caused severe emotional distress, (4) to immediate family members who were present at the time the conduct

occurred.

"Acts of terrorism are by their very definition extreme and outrageous and intended to cause the highest degree
of emotional distress." Thus, the first element is easily established.Second, the attack was directed at the
decedent, Marie Colvin, not the plaintiffs, which fulfills the second element. Third, Syria intentionally carried out
an attack that caused plaintiff Cathleen Colvin severe emotional distress.

In her sworn declaration, Cathleen describes the grief she has experienced since losing her sister in

considerable detail. She talks about sleepless nights, anxiety over the welfare of her own children, and mental

anguish over the loss of the person she was closest to in her family. Colvin Decl.. Even now, six years later,
Cathleen cannot speak about Colvin's murder without tears, , and she thinks of Colvin every day. Cathleen and
her children were exposed to multiple images of Colvin's dead body, and Cathleen was forced to manage the
difficult logistics involved in locating and transporting Colvin's remains. Id. All of this has understandably
caused Cathleen severe emotional distress. Fourth, because plaintiff Cathleen Colvin is Marie Colvin's sister, she
is an "immediate family member." Only Cathleen Colvin claims recovery under IIED, and only Cathleen would be
able to recover under IIED because the other plaintiffs, the decedent's niece and nephew, are not "immediate
family members."
One therefore need not be present at the time of a terrorist attack upon a third person to

recover for severe emotional injuries suffered as a result. (finding that plaintiffs, though not present at the Beirut
bombing, may recovery for emotional injuries they suffered as a result of the attack).Thus, the Court concludes
that plaintiff Cathleen Colvin may recovery under a theory of intentional infliction of emotional distress.

C. Marie Colvin's death was an extrajudicial killing attributable to Syria.

Finally, to establish liability under the FSIA, plaintiffs must assert "an act" such as "torture, extrajudicial

killing, aircraft sabotage, hostage taking, or provision of material support or resources for such an act."

Here, plaintiffs assert that Colvin's death was an extrajudicial killing.

An extrajudicial killing is defined as the "deliberated killing not authorized by a previous judgment pronounced

by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by

civilized peoples." The term "does not include any such killing that, under international law, is lawfully carried
ouunder the authority of a foreign nation." Here, Colvin's death satisfies the definition of an extrajudicial

killing.A "deliberated killing" has been recognized by a court in this jurisdiction as one that is "arrived at or

determined upon as a result of careful thought and weighing of considerations for and against the proposed

course of action."The bombings were also deliberated there is a clear and careful timing and magnitude f the
bombing that killers planted their actions carefully and intended those actions to result to death.

Plaintiffs have provided satisfactory evidence to show that Marie Colvin's killing was "deliberated." The
individual who provided a declaration under the name Ulysses is a defector from the Syrian intelligence

services. Ulysses Decl.he alleged that there was an informants tip which redacted verbal confirmation of Marie
Colvin death and the celebration that followed.The Syrian government launched the attack the morning

immediately after it received an informant's tip as to the location of the Media Center, and after Colvin

conducted live broadcasts which were intercepted and helped to verify the Media Center's location.

Also, two individuals present at the attack, Paul Conroy and Wael al-Omar, described the pattern of the shelling
on the Media Center as consistent with a technique used "to ensure that shells hit their intended target." Conroy
Both Conroy and al-Omar were former soldiers trained in artillery and reconnaissance and were aware of this
technique. Id. ; al-Omar Decl. ¶ 23. Indeed, al-Omar learned this technique during his time in the Syrian Army.

Finally, Colvin's death was not lawful in any way. It was not authorized by a judgment pronounced by any
court. Syria did not charge Marie Colvin with any crime nor was she ever called to appear or stand trial before

any court in Syria. And, this killing was not lawfully carried out under the authority of the foreign nation

pursuant to international law. ("Whatever policy options exist for a foreign country, it has no ‘discretion’ to
perpetrate conduct designed to result in the assassination of an individual or individuals, action that is clearly
contrary to the precepts of humanity as recognized in both national or international law.").

Considering the very detailed affidavits, declarations, and expert reports filed by plaintiffs, this Court finds that

plaintiffs have provided more than satisfactory evidence to demonstrate that the death of Marie Colvin resulted

from an extrajudicial killing committed by defendant.

The Court will award plaintiffs economic, solatium, and punitive damages.

Congress provided that foreign states are liable for

money damages, including "economic damages, solatium, pain and suffering, and punitive damages." 28

U.S.C. § 1605A(c). "To obtain damages against a non-immune foreign state under the FSIA, a plaintiff must

prove that the consequences of the foreign state's conduct were reasonably certain (i.e., more likely than not) to
occur, and must prove the amount of damages by a reasonable estimate consistent with this [Circuit]'s

application of the American rule on damages." The consequences of Syria's actions were certainly known. The
government perpetrated an artillery assault that was reasonably certain – and, indeed, intended – to kill Marie
Colvin and other journalists.

m. Immunity from Suit/Political Question

i. Hwang v. Japan, 413 F.3d 45 (D.C.Cir. 2005)

Doctrine:

Political Question Doctrine : Federal courts will refuse to hear a case if they find that it presents a political
question. The question refers to the idea than an issue politically charged that federal court which are viewed as apolitical
branch of the government should not hear the issue.

Facts

The appellants are fifteen women from China, Taiwan, South Korea and the Philippines who sued Japan district
court under the Alien tort statute. They are seeking for money damages for allegedly subjected to sexual slavery and
torture law before and during the World War II which violates positive and customary international law.

The district court dismissed the complaints of the appellant concluding that Japan’s alleged activities did not arise
in connection with its commercial activity exception of the Foreign Service immunity act. The district court if that Japan
would have been afforded absolute immunity from suit in the United States at the time of alleged activities and that there
is no intent on the part of the congress to apply the exception retroactively to acts prior to May 19 ,1952. However, the
petitioner argued that Supreme Court held in the case of Republic of Austria vs Aliman that FSIA applies to all cases filed
thereunder regardless of when the conduct occurred. An appeal was later made.

Issue: Whether the courts of United States have the jurisdiction to hear and decide the case.

Held: No there are not. In this case, the appellant urged that the district court reverse its decision and remand the same to
the first instance on whether Japan’s action caused a direct effect to the United States. The United states, provides that
Japan enjoys sovereign immunity because its alleged activities were not commercial and that before reaching the political
question doctrine this court must establish jurisdiction under the FSIA. The appellants maintain that the treaties preserved
and Japan maintains that the treaties extinguished war crimes made by citizens against Japan.One of the factor that
indicate a political question is “ a lack of judicially discoverable and manageable standards for resolution or the
impossibility of deciding without initial policy determination of a kind clearly for nonjudicial discretion.

The question whether war related claims of foreign national were extinguished when the government

Entered into a peace treaty with Japan only concerns United States with regard to foreign relations and not

As political branches. The United states closes its door on a possible litigation of war related claims and instead effects
resolution through political means.

As to the argument of the appellant that courts have the authority to construe treaties and executive agreement. The
supreme court ruled that United States is not a party to the dispute and the executive branch does not urge a particular
interpretation. The executive persuaded that adjudication by a domestic court not only would undue a settled foreign
policy of state to state negotiation but could also disrupt the delicate relation with China and Korea creating an effect on
stability in the region. Korea does not agree that a treaty between them extinguishes the appellant’s claim against Japan.
The question now arises is whether it is within the province of the court in the United states to decide whether Korea or
Japan’s reading is correct when the executive himself determined that choosing between the interest of two foreign state
to adjudicate private claims against ne of them will affect foreign relations. The executive judgment that adjudication by
domestic court would be inimical to foreign policy interest of the United states is a compelling and renders this case non
justifiable under the political question doctrine.

ii. Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010

FACTS

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of
a writ of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the DFA, the
Secretary of the DOJ, and the OSG.

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the SEC,
established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the
Second World War.
Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of
the “comfort women” stations in the Philippines. But officials of the Executive Department declined to assist the
petitioners, and took the position that the individual claims of the comfort women for compensation had already been fully
satisfied by Japan’s compliance with the Peace Treaty between the Philippines and Japan.

Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of
discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against humanity
and war crimes committed against them; and (b) compel the respondents to espouse their claims for official apology and
other forms of reparations against Japan before the International Court of Justice (ICJ) and other international tribunals.

Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.

On January 15, 1997, the Asian Women’s Fund and the Philippine government signed a Memorandum of Understanding
for medical and welfare support programs for former comfort women. Over the next five years, these were implemented
by the Department of Social Welfare and Development.

ISSUE: WON the Executive Department committed grave abuse of discretion in not espousing petitioners’ claims for
official apology and other forms of reparations against Japan.

RULING:
Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative
to determine whether to espouse petitioners’ claims against Japan.

Political questions refer “to those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure.”

One type of case of political questions involves questions of foreign relations. It is well-established that “the conduct of the
foreign relations of our government is committed by the Constitution to the executive and legislative–‘the political’–
departments of the government, and the propriety of what may be done in the exercise of this political power is not subject
to judicial inquiry or decision.” are delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they advance or imperil.

But not all cases implicating foreign relations present political questions, and courts certainly possess the authority to
construe or invalidate treaties and executive agreements. However, the question whether the Philippine government
should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive
Department has already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question.

The President, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of
diplomatic, consular and other officials.

The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign
policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region.
For the to overturn the Executive Department’s determination would mean an assessment of the foreign policy judgments
by a coordinate political branch to which authority to make that judgment has been constitutionally committed.
From a municipal law perspective, certiorari will not lie. As a general principle, where such an extraordinary length of time
has lapsed between the treaty’s conclusion and our consideration – the Executive must be given ample discretion to
assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the interests of
the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether further steps
are appropriate or necessary.

In the international sphere, traditionally, the only means available for individuals to bring a claim within the international
legal system has been when the individual is able to persuade a government to bring a claim on the individual’s behalf. By
taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his
behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of
international law.

Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to
whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose
behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they
can do is resort to national law, if means are available, with a view to furthering their cause or obtaining redress. All these
questions remain within the province of municipal law and do not affect the position internationally.

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Petitioners have not
shown that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace
was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained
the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing
obligations owed by States towards the community of states as a whole. Essential distinction should be drawn between
the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the
field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the
rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.

The term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do
not admit derogation, and can be modified only by general international norms of equivalent authority

WHEREFORE, the Petition is hereby DISMISSED.

iii. Movsesian v. Victoria Versicherung AG, 578 F.3d 1052 (9th Cir. 2009)

Facts:

FACTS
In 2000, the California Legislature enacted Senate Bill 1915, which amended California's Code of Civil Procedure
to provide California courts with jurisdiction over certain classes of claims arising out of insurance policies that were held
by "Armenian Genocide victims”. In the legislative findings accompanying the statute, the Legislature provides formal
recognition to an "Armenian Genocide": The Legislature recognizes that during the period from 1915 to 1923, many
persons of Armenian ancestry residing in the historic Armenian homeland then situated in the Ottoman Empire were
victims of massacre, torture, starvation, death marches, and exile. This period is known as the Armenian Genocide.
Section 354.4 was modeled after §§ 354.5 and 354.6, which extended the statute of limitations until 2010 for Holocaust-
era insurance claims and World War II slave labor claims, respectively. Sen. Jud. Com., analysis of Sen. Bill No. 1915
(1999-2000 Reg. Sess.) May 9, 2000, pp. 2, 4. Both of these sister statutes have been found unconstitutional, because
they interfered with the national government's foreign affairs power.
In December 2003, Movsesian filed this class action against Victoria. Movsesian and his fellow class members are
persons of Armenian descent who claim benefits from insurance policies issued by Victoria and Ergo. Munich Re is the
parent company of Victoria and Ergo. Movsesian seeks damages from all three companies for breach of written contract,
breach of the covenant of good faith and fair dealing, unjust enrichment, and other related claims. Munich Re filed a Rule
12(b)(6) motion to dismiss the claims, arguing that the class members lacked standing to bring claims under § 354.4, and
contending that it was not a proper defendant under § 354.4. Munich Re also challenged the constitutionality of § 354.4,
on the grounds that it violated the due process clause of the United States Constitution and was preempted under the
foreign affairs doctrine.

The Motion to Dismiss was granted. The court held that the class members had standing to bring their claims, and that
Munich Re was a proper defendant under § 354.4. The court rejected Munich Re's due process challenge, and held that §
354.4 was not preempted under the foreign affairs doctrine.

ISSUE: Whether § 354.4 is preempted under the foreign affairs doctrine; second, whether Munich Re is a proper
defendant; and third, whether the Plaintiff-Appellees have standing to bring these claims.

HELD:

a. Yes. Section 354.4 Is pre-empted

The concept of field preemption or dominant foreign affairs preemption happens when the absence of any federal
policy, a state law may still be preempted under the foreign affairs doctrine if it intrudes a field of foreign affairs without
addressing a traditional state responsibility.
In the case of Garamedi, the court addressed the constitutionality of California Holocaust Victim Insurance relief
that requires the insurer doing business in California to disclose information about the policies it sold Europe between
1920-1945/ The court concluded that HVIRA was preempted because there exist a direct conflict with the express federal
policy.
Conflict preemption and field preemption can be seen as complementary. If a state simply takes a position on a
matter of foreign policy with no serious claim to address state responsibility the doctrine is Field preemption. On the other
hand, if a state had acted within the traditional competence but in a way affects foreign relations it might make good sense
to require a conflict of a clarity or substantiality that would vary with the strength of traditional importance of the state
concerned. Therefore, Garmendi suggest that under the field preemption doctrine when a state law 1 . Has no serious
claim to address traditional state responsibility 2. Intrudes on federal government affai power the supremeacy
clause prevents the state statute to take effect/

Whether section 354.3 concerns state responsibility - Preemption

Yes. Field preemption is appropriate when a statute intrudes on a matter of foreign policy with no real claim to be
addressing an area of traditional state responsibility. The regulation of stolen property is traditionally an area of state
responsibility. Article 354.3 canot be categorized as a garden or property regulation. It does not apply to all claims of
stolen art. Or even claims of art that was looted in the war. The statute addresses only claims of holocaust victim and their
heir. Courts have consistently struck down state laws which regulate an area of traditional competence but in fact affect
foreign affairs. THOUGH 354.3 real purports to regulate property, an area traditionally left to the states, the real purpose is
to provide for relief to Holocaust victims and their heirs. Hence , California can make no serious claim to address
traditional state responsibility.
Whether Section 354.4 does not concern an area of traditional state responsibility.
Yes. The plaintiff were arguing that it coverns an area of state responsibility because it regulates the filed of
insurance. The court however ruled that there is a necessity to look and determine the real purpose of the law. The real
purpose of section 354.4 is to provide potential monetary relief and a friendly forum for those who suffered from foreign
events. This is the same purpose underlying in HVIRA wherein though the goal is laudable, it is not an area of traditional
state responsibility and therefore subject to filed preemption analysis. In sum, article 354.4 does not concern an area of
traditional state responsibility.
Whether Section 354..4 INTRUDES on the Federal Government Foreign Affairs power
 Yes. The law establishes a particular foreign policy for California, one that decries the action of the Ottomoan
Empire and seeks to provide redress for the Armenian Genocide Victims by subjecting foreign insurance companies to
lawsuits in California. The jurisidciton of the statute is dependent upon a claim that is brought by Armenian Genocide
Victim or his heirs. The court applying this provision therefore had a discretion whether the policy holder escaped to avoid
prosecution which in turn would require inquiry to a conduct of a foreign natuon.
Therefore, section 354.4 has a direct impact upon foreign relations and may as well adversely affect the power of
the central government to deal with those problems. Hence there is an intrusion on federal government exclusive
power to conduct regulat foreign affairs. Hene, since it does not concern an area of traditional state repsonsibiltiy and
intrudes on the field of foreign affairs, entrusted exclusively to the federal government Section 354.4 is pre empted.

n. Indigenous People’s

i. Ha Datu Tawahig v. Cebu City Prosecutor, G.R. No. 221139, March 20, 2019

Facts:

In 2006, Igot filed a complaint-affidavit before the City Prosecutor charging Sumatra with rape. Through a
resolution, Lapinid found probable cause to charge Sumatra with rape and recommended filing a corresponding
information. Judge Singco directed the issuance of a warrant of arrest against Sumatra. Following his arrest, Sumatra filed
a Motion to Quash and Supplemental Motion to Quash on the ground of Sections 15 and 16 of the Indigenous Peoples’
Rights Act.
Judge Singco ruled that the Indigenous Peoples’ Rights Act does not apply to the prosecution of a dispute as it
does not involve claims over ancestral domain nor relate to the rights of indigenous people which would require the
application of customary laws and practices to resolve the “dispute” between the parties.

A petition for mandamus under Rule 65 of the Civil Procedure was filed by Sumatra (Ha Datu Tawahig), praying
that Judge Singco and her co-respondents from Cebu City, be compelled to honor a resolution issued by a body known as
the Datantulan Tribal Court, and be required to put an end to Sumatra’s criminal prosecution. The Datantulan Tribal Court
absolved Sumatra, a tribal leader of the Higaonon Tribe, of liability for charges of rape and discharged him from criminal,
civil, and administrative liability.

Issue:

WON the Court may issue a writ of mandamus ordering respondents Judge Singco, et al. should desist from
proceeding with the rape case against petitioner Roderick D. Sumatra – NO

Held:

The 1987 Constitution vests this Court original jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus. The Court of Appeals and regional trial courts are equally capable of taking cognizance of
petitions for such writs. Petitions for certiorari, prohibition, and mandamus must be filed in keeping with the doctrine of
hierarchy of courts. Applying this doctrine is not merely for practicality; it also ensures that courts at varying levels act in
accord with their respective competencies. It does not escape this Court's attention that an equally effective avenue for
relief was available to petitioner through recourse to the Court of Appeals.

Also, Sections 65 and 66 of the Indigenous People’s Rights Act indicates that disputes still unresolved despite the
exhaustion of remedies under customary laws governing the parties belonging to the same indigenous cultural community
may be brought to the National Commission on Indigenous Peoples. This framework enables the application of customary
laws and practices in dispute resolution for Indigenous peoples. The provisions under Chapter IX do not only lend
legitimacy to and enable the continuing efficacy and viability of customary laws and practices to maintain order and
dispense justice within indigenous cultural communities. They also work to segregate customary laws and practices in two
(2) respects. First, they make customary laws and practices structurally and operationally distinct from enactments of the
legislature and of those upon whom legislative power has been delegated, as well as regulations of general application.
Second, they distinguish disputants belonging to the same indigenous cultural communities as the exclusive objects of the
application of customary laws and practices. In turn, the Indigenous Peoples' Rights Act's provisions on self-governance
and empowerment, along with those on the right to ancestral domains, social justice and human rights, and cultural
integrity, collectively reflect and bring to fruition the 1987 Constitution's aims of preservation.

Section 65 ought not be read as an all-encompassing, unqualified authorization. Rather, it must be viewed within
the confines of how it is a component of a larger mechanism for self-governance. Section 65 is qualified by Section 15.
With respect to dispensing justice, resolving conflicts, and peace-building, the application of customary laws and practices
is permissible only to the extent that it is in harmony with the national legal system. A set of customary laws and practices
is effective only within the confines of the specific indigenous cultural community that adopted and adheres to it. The
impetus, for preservation does not exist in a vacuum. The 1987 Constitution qualifies the State's duty of "recognizing] and
promoting] the rights of indigenous cultural communities" as necessarily operating "within the framework of national unity
and development. This reference to "national unity" is as much an articulation of an ideal as it is a legal formulation. Thus,
it entails the imperative of legal harmony. Customary laws and practices are valid and viable only to the extent that they
do not undermine the proper scope and application of legislative enactments, including criminal statutes.

The Indigenous Peoples' Rights Act does not compel courts of law to desist from taking cognizance of criminal
cases involving indigenous peoples. It expresses no correlative rights and duties in support of petitioner's cause. Thus, a
writ of mandamus cannot be issued. The capacity to prosecute and punish crimes is an attribute of the State's police
power. It inheres in "the sovereign power instinctively charged by the common will of the members of society to look after,
guard and defend the interests of the community, the individual and social rights and the liberties of every citizen and the
guaranty of the exercise of his rights.

The application of customary laws may enable a measure of reparation for private injuries engendered by criminal
offenses, but it will never enable the consummate recompense owed to the State and the Filipino people. Ultimately then,
yielding prosecution would mean sanctioning a miscarriage of justice. It was never the Indigenous Peoples' Rights Act's
intent to facilitate such miscarriage of justice. Its view of self-governance and empowerment is not myopic, but is one that
balances. Preservation is pursued in the context of national unity and is impelled by harmony with the national legal
system. Customary laws cannot work to undermine penal statutes designed to address offenses that are an affront to
sovereignty. Viewed through the lens of the requisites for issuing a writ of mandamus, there is no right or duty to even
speak of here. Nowhere in the Indigenous Peoples' Rights Act does it state that courts of law are to abandon jurisdiction
over criminal proceedings in favor of mechanisms applying customary laws. Hence, petitioner derives no right from the
Dadantulan Tribal Court to be spared from criminal liability.

II. CHOICE OF LAW

a. Choice of Law Principles

b. Principle 1: Local law

c. The problem of renvoi

i. Aznar v. Garcia

ii. Bellis v. Bellis

d. Principle 2: Needs of the interstate and international systems

 e. Principle 3: Relevant policies of the forum

i. Pitzer College v. Indian Harbor Insurance Company

ii. Cadalin et al. v. POEA Administrator

iii. Bank of America NT & Asia v. American Realty Corporation

iv. Dacasin v. Dacasin

f. Principle 4: Relevant policies of other interested states

i. Kearney v. Salomon Smith Barney

ii. Butler v. Adoption Media, LLC

g. Criticism of Governmental Interest Analysis Approach

h. Principle 5: Protection of justified expectations

i. Francisco v. Stolt Achievement MT

i. Principle 6: Basic policies underlying the particular field of law

i. Hancock v. Watson

j. Principle 7: Certainty, predictability, and uniformity of result

k. Principle 8: Ease in the determination and application of the law to be applied

l. Other Principles Affecting Choice of Law

m. Proof of Foreign Law and Processual Presumption

i. Wildvalley Shipping v. Court of Appeals

ii. Manufacturers Hanover Trust Co. v. Guerrero

iii. Edi-staff Builders International v. NLRC

n. The Apostille Convention

o. Exceptions to proof of foreign laws

i. Norse Management Co. v. National Seamen Board

p. Scrivener’s Error

i. Hong Kong and Shanghai Banking Corporation v. Sherman et al.

ii. Carnival Cruise Lines, Inc. v. Shute

III. CONTRACTS

a. Conflict of Laws in Contractual Relations

 i. Tolentino v. Secretary of Finance, 235 SCRA 630

b. Primacy of Contractual Stipulations

i. Bagong Filipinas Overseas Corporation v. National Labor Relations Commission

ii. Atienza v. Philimare Shipping

iii. Pakistan International Airlines v. Blas Ople

c. Choice of Law Stipulations

d. Pandemics and Force Majeure

e. Waiver of Renvoi

f. Approaches to Contractual Conflicts of Law

i. Erie Insurance Exchange v. Edmund D. Heffernan II (Am. Jur. So medj magulo) (2007)

United States Court of Appeals for the District of Maryland

The opinion of the court was delivered by: Greene, J.

DOCTRINE:

AUTO INSURANCE COVERAGE -- CHOICE OF LAW

We must apply Delaware substantial law, in resolving the tort, as it is consistent with Maryland’s public policy as to
questions of liability and damages.

Although the insurance policy(Contract) was formed in Maryland, the law of the situs of the accident controls the tort
aspects of the claim, i.e. what the claimants are "entitled to recover," and, specifically, questions of liability and damages
raised in an uninsured motorist claim.

Therefore, in a breach of contract action against the insurer on the basis of an uninsured/underinsured motorist
claim, the insured must show what he or she is legally entitled to recover, in accordance with the substantive law
of where the accident occurred, unless the contract provides otherwise.

FACTS

On April 18, 2003 at about 6:30 a.m., Mallory Heffernan, a minor, was fatally injured in an automobile accident that
occurred on Route 301 in the State of Delaware. Ms. Heffernan (hereinafter "Decedent") was transported from the scene
and taken to a Delaware hospital, where she subsequently died. The Decedent and another minor, Curtis Jones, had
been passengers in a vehicle driven by John McMahon, Jr., also a minor. (car was owned by Mcmahon’s parents,
and was underinsured. - meaning lumagpas yung claim over the value of the policy)

The accident occurred when John McMahon, Jr. apparently fell asleep at the wheel and collided with a tractor-trailer. (All
of them died, Heffernan, Curtis and Mcmahon)

At the time of the accident, the Decedent resided with her parents, in Queenstown, Maryland. The driver, John
McMahon, Jr., Curtis Jones, were step-brothers who resided with their mother and father in Ingleside, Maryland.
The group of teenagers, all Maryland residents, had driven from Maryland to Pennsylvania after school on A pril 17,
2003 in order to attend a concert in Allentown, Pennsylvania that night. After the concert, they began to make their
way back to Maryland.

The decedent's parents, the Heffernans, instituted the underlying action for benefits pursuant to two policies of insurance
issued to them by Erie Insurance Exchange, contending that the substantive tort law of the situs of the accident should
apply to determine what the claimants are "entitled to recover" in a breach of contract action for uninsured/underinsured
motorist benefits.

Petitioner is seeking that the Laws of Maryland apply because their legislature created a statutory cap on non-economic
damages as public policy to limit claims to ensure affordable damages(so para sa $35k cap lang sila liable) (because the
claimant Haffernan, and Cruz (parents) - asked for $300k each.)

ISSUE

What is ultimately at issue in this case is whether, in determining what the law, and therefore the policies, entitle the
insureds to recover, Maryland would apply its own law or Delaware law. - Apply Delaware, bacause it is likewise public
policy in Maryland in Tort cases.

RULING

We must apply Delaware substantial law, in resolving the tort, as it is consistent with Maryland’s public policy as to
questions of liability and damages. It does not effect the consequences provided in the contract. (A case of depecage - a
case is decided with different laws of different States.)

Although the insurance policy (the contract) was formed in Maryland, the law of the situs of the accident controls the
tort aspects of the claim, i.e. what the claimants are "entitled to recover," and, specifically, questions of liability and
damages raised in an uninsured motorist claim.

Therefore, in a breach of contract action against the insurer on the basis of an uninsured/underinsured motorist claim,
the insured must show what he or she is legally entitled to recover, in accordance with the substantive law of
where the accident occurred, unless the contract provides otherwise.

In addition, we conclude, in the present case, that Maryland's public policy exception to the doctrine of lex loci delicti
does not require the application of Maryland's statutory cap on non-economic damages. Similarly, the public policy
exception does not require the application of Maryland's contributory negligence principles.

The automobile liability insurance policies issued to the Heffernans by Erie in this case were issued in Maryland. At the
time of the collision, the vehicle operated by Mr. McMahon was underinsured with respect to the uninsured/underinsured
motorist provisions of the Erie policy because the damages the Heffernans seek exceed the tortfeasor's liability
insurance policy limits. (mas mahal claims nila based sa insurance policy nung defendant kasi car nila yung
ginamit)
In West American Ins. Co. v. Popa, (1998), we said that [u]nder the Maryland[laws] uninsured/underinsured motorist
statutory provisions, when an insured under an automobile insurance policy has incurred damage s as a result of the
allegedly tortious driving by an uninsured or underinsured motorist, the insured has 2 option:

1.Option 1- of initially bringing a contract action against his or her insurer to recover under the policy's
uninsured/underinsured motorist provisions or of initially bringing a tort action against the tortfeasor.

2. Option 2- notifies his or her insurer of the tort action, the issues of the uninsured/un derinsured defendant's liability and
the amount of damages are resolved in the tort action. (Citations omitted.)

Here, the Heffernans chose OPTION 1 to bring a contract action against their insurer, Erie, and settled the tort claim
against the underinsured tortfeasor, for the policy limits, which w ere $35,000.00. Erie waived any right to subrogation and
allowed the Heffernans to accept the amount offered.

We have applied the same public policy exception analysis under the lex loci contractus rule.   In Kramer v. Bally's Park
Place, Inc., 311 Md. 387, 535 A.2d 466 (1988), the question was whether a New Jersey gambling contract violated
Maryland public policy such that a Maryland court should refuse to apply New Jersey law.

It is consistent with Maryland's public policy to apply the relevant substantive law of Delaware to the questions of
liability and damages in this case. (So no cap and pwede nila I claim nang Heffernan more than the insurance
cap)  

As we stated in Hauch, 295 Md. at 125, 453 A.2d at 1210, “all questions concerning substantive tort law [should] be
governed by the law of Delaware, as it is the state where the collision occurred.”   The principle of contributory negligence
is a matter which relates to Maryland substantive law.   The principle of comparative negligence, however, is a matter
which relates to Delaware substantive law.   See 10 Del. C. § 8132;  Laws v. Webb, 658 A.2d 1000,1005 (Del.1995)
(noting that “[t]he enactment of the comparative negligence statute manifest[ed] a legislative intent to change Delaware's
common law rule of contributory negligence”).   Thus, Erie's suggestion that this Court would apply Maryland substantive
law to resolve the issues of liability and damages in this case is incorrect.   There is a strong public policy in Maryland to
apply the law of the place of the injury in tort conflict of law cases.  

ii. Government of Phil. v. Frank G.R. No. L-2935 (1909)

Supreme Court (Phil.) en banc

JOHNSON, J.

DOCTRINE

No rule is better settled in law than that matters bearing upon the execution, interpretation and validity of a contract are
determined by the law of the place where the contract is made. (Scudder vs. Union National Bank, 91 U. S., 406.) Matters
connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting a
remedy, such as the bringing of suit, admissibility of evidence, and statutes of limitations, depend upon the law of the
place where the suit is brought. (Idem.)

FACTS
In 1903, in the city of Chicago, Illinois, Frank entered into a contract for a period of 2 years with the Plaintiff (Ph.
Gov.), by which Frank was to receive a salary as a stenographer in the service of the said Plaintiff, and in addition
thereto was to be paid in advance the expenses incurred in traveling from the said city of Chicago to Manila, and one-half
salary during said period of travel. With a salary of $1200 per year.

The contract had a provision that in case of a violation of its terms by Frank, he should become liable to the Plaintiff for
the amount expended by the Government by way of expenses incurred in traveling from Chicago to Manila and the one-
half salary paid during such period.

The contract was perfected on April 30, 1903, and was paid half-salary until June 4, 1903, the date of his arrival in the
Philippine Islands.

However, by February 11, 1904 (barely a year), the defendant left refused to comply with the contract.

December, 3 1904, the plaintiff filed with the CFI of Manila to recover from the defendant the sum of 269.23 dollars,
which amount the plaintiff claimed had been paid to the defendant as expenses incurred in traveling from Chicago to
Manila.

It was expressly agreed between the parties to said contract that Laws No. 80 and No. 224 should constitute a part of said
contract.

Frank defendant, alleging in his special defense that the Government of the Philippine Islands had 1. amended Laws No.
80 and No. 224 and had thereby materially altered the said contract, and also that he was a 2. minor at the time the
contract was entered into and was therefore not responsible under the law. (Also sabi niya na Philippine law governs kasi
minor siya sa laws natin kasi below 23 siya, age of majority sa Phil. Is 23, however in Chicago he was already an adult.)

CFI rendered a judgment against Frank and in favor of the Plaintiff for the sum of 265. 90 dollars

ISSUES

Whether the amendment of the laws altered the tenor of the contract entered into between Plaintiff and Defendant? – No.
Whether he was a minor in accordance with Phil. Law – No.

RULING

SC, affirmed CFI. It may be said that the mere fact that the government amended said Acts No. 80 and No. 224 by Acts
No. 643 and No. 1040 did not have the effect of changing the terms of the contract made between the Plaintiff and the
Defendant. The legislative department of the Government is expressly prohibited by section 5 of the Act of Congress of
1902 from altering or changing the terms of a contract. The right which the Defendant had acquired by virtue of Acts No.
80 and No. 224 had not been changed in any respect by the fact that said laws had been amended. These acts,
constituting the terms of the contract, still constituted a part of said contract and were enforceable in favor of the
Defendant. (So even if amended, the provisions of their contract is still enforceable)

Also the defendant alleged in his special defense that he was a minor and therefore the contract could not be enforced
against him. The record discloses that, at the time the contract was entered into in the State of Illinois, he was an adult
under the laws of that State and had full authority to contract. Frank claims that, by reason of the fact that, under that
laws of the Philippine Islands at the time the contract was made, made persons in said Islands did not reach their majority
until they had attained the age of 23 years, he was not liable under said contract, contending that the laws of the
Philippine Islands governed.

It is not disputed — upon the contrary the fact is admitted — that at the time and place of the making of the contract in
question the Defendant had full capacity to make the same. No rule is better settled in law than that matters bearing
upon the execution, interpretation and validity of a contract are determined by the law of the place where the
contract is made. Matters connected with its performance are regulated by the law prevailing at the place of
performance. Matters respecting a remedy, such as the bringing of suit, admissibility of evidence, and statutes of
limitations, depend upon the law of the place where the suit is brought.

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

● Check the book nalang ( repeated case) regarding forum non conveniens sinama ko lang doctrine for contracts

Facts

Saudi Arabian Airlines ( Saudia) is a foreign corporation which is established under the laws of Saudi Arabia, and that it
has a local office here in Makati ( Saudi Manila). The respondents were hired by Saudia as Temporary Flight attendant
with accreditation and approval with the POEA. After undergoing seminar, they became flight attendants. They also
entered into Cabin Attendant Contracts with Saudia.

The respondent was employed with Saudia until 2006 when they were separated due to their pregnancy. The
respondents alleged that they informed Saudia of their pregnancy, initially Saudia approved the maternity leave, but
rejected it soon after. They were later told by Saudia to resign, and that if they did not resign Saudia will terminate them all
the same. The threat of termination carried the loss of benefits, separation pay, and ticket discount entitlement. Saudi on
the other hand, anchored its disapproval as to the resignation of the respondents based on Unified Contract, wherein
when the Flight attendant becomes pregnant it is rendered void.

If the air hostess becomes pregnant at any time during the term of his contract this shall render her employment
contract as void and she will be terminated due to lack of medical fitness.

Faced with no other option, the respondent later executed an handwritten resignation letter. They later filed a complaint
against Saudia and its officer for illegal dismissal and for underpayment of salary, overtime pay , premium pay for holiday
rest day , premium SIL, etc. Saudia assailed the jurisdiction of the labor arbiter asserting that Saudi law should apply and
that the case should be dismissed on the ground of Forum non conveniens and that the respondent resigned voluntarily.

Issue: Whether the Labor Arbiter and the National Labor commission may exercise jurisdiction over Saudi
Arabian Airline and apply Philippine law to adjudicate the present dispute.

Held:

Yes. It may apply Philippine law. As to the claim of Saudi Arabia airlines that Saudi Manila as to which summons were
served was not the employer of the respondent cannot be warranted. The court interpreted this as Saudia, a foreign
corporation has a Philippine office ( Saudi Philippines).

As provided under the foreign investment act, the phase “ doing business shall include the opening of office, whether
called liaison office or branches any other act or acts that imply a continuity of commercial dealings” Applying this in the
present case, Saudia is a foreign corporation doing business here in the Philippines subject to the jurisdiciton of the
Philippine court.

As to the argument of Saudi that Philippine Court are not in a position to make intelligent decision as to the law and facts
of the case

The court ruled that this cannot be warranted. Saudi was alleging that the cabin attendant contract require the application
of laws of Saudi Arabia( choice of law) rather than those of the Philippines. It claims that the difficulty of asserting the
same would amount to forum non conveniens.
The court ruled that a choice of law governing the validity of contracts does not imply forum non conveniens, since choice
of law and forum non conveniens are entirely different matters.

a. Choice of law

As provided under Article 1306: The contracting parties may establish such stipulation, clauses and terms and
condition as they may deem convenient providedt hat they are not contrary to law, morals good custom and public policy.

These factor into transnational litigation and dispute resolution in one of or in a combination of four ways 1.
Procedure for settling disputes, 2. Forum 3. Governing law 4, Basis for interpretation.

b. Forum non conveniens

Is a device akin to the rule of forum shopping. It is designed to frustrate illciti means for securing advantages and
vexing litigants that would be possible if the venue is left with the whim of one party.

The contractual choice of law is not determinative of jurisdiction. The stipulation on laws given jurisdiction as the
governing law of a contract does not preclude the exercise of jurisdiction by tribunals elsewhere. This also means the
same in the opposite, the assumption of jurisdiciton by tribunals does not ipso facto mean that it cannot apply and rule on
the basis of the stipulation of the parties.

Jurisdiction and choice of law are two different concepts. Jurisdiction considers whether it is fair to cause a defendant to
travel to this state , choice of law ask whether the application of substantive law will determine the merits of the case.
Hence the power to exercise jurisdiciton does not automatically give a state constitutional authority to apply forum law.
Therefore, the question as to whether law of the state can be applied to transaction is different from the question as to
whether the courts can have jurisdiciton over the subject.

Transnational transaction often leads to the possibility of various for a for litigation and dispute resolution. Them ore
jurisdiciton having interest even a point of contract, the greater number of potential fora for the resolution of the dispute
arises therein.

-Choice of law: Contract-case doctrine

Substantive: Lex Loci Intentionis

There is no statutory established mode to settle conflict of laws in situation pertaining to the substantive contents of the
contract hence there modes have emerged

1. Lex Loci COntractus- the law of the place of the making

2. Lex loci SOlutionis- the law of the place of the performance

3. Lex loci intentionis- lex loci intentionis( law intended by the parties_ =è this governs as to the intrinsic validity of the
contract

No conflict rule on essential validity of the contract is provided under the law, however is that the intrinsic validity f the
contract must govern by those voluntarily agreed upon by the parties ( lex loci intentions) but these contract must be not
contrary to law, morals and good custom

Generally, Philippine tribunal acting as a forum court defers to the party’s articulated choice. This is in line with Article
1306 which provides that contracting parties may establish stipulations and clauses as they may deemed convenient. The
Philippine court ( forum) is called to respect the party’s choice of governing law, it must not be so permissive as to lose
sight of consideration of law, morals, good customs, public order and public policy that underlie the contract central to the
conversy. Hence, there is a presumption that provisions relating to matters affected with public policy are deemed as
written into the contract. Therefore, parties may not contract away the applicable provisions of law especially peremptory
provision dealing with public interest.

As provided under article II section 14 of the constitution, the state shall ensure the fundemntal equality between the men
and women. As a signatory to the CEDAW it becomes a part of the law of the land as some provision of the CEDAW
becomes customary.

Pregnancy is an occurrence that pertains specifically to women, hence Saudi’s policy discriminates on the basis of sex.
Also, in addition to the fundamental policy of protection for the men and women, labor contracts are also embedded with
public interest. As provided under article 1700 “ the relation between the capital and labor are not merely contractual they
are impressed with public interest that the labor contract yields to a common good’. In this case, since it relates to illegal
termination of respondent’s employment the case is a matter of public interest and policy, hence Philippine law is
applicable in this case.

iv. In re KMH

In the Interest of K.M.H., a child under age eighteen, and K.C.H., a child under age eighteen.

In the Matter of the Paternity of K.C.H. and K.M.H., by and through their next friend, D.H., Appellant, and S.H., Appellee.
Supreme Court of Kansas. October 26, 2007. BEIER, J.:

I. FACTS:

SH – mother
DH – sperm donor
CINC - child in need of care

SH, mother of KMH, is an unmarried female lawyer who wanted to become a parent through artificial insemination from a
known donor. She was a friend of DH, the donor, who is an unmarried male nonlawyer, who agreed to provide sperm for
the insemination.

SH and DH are Kansas residents, and their oral arrangements for the donation occurred in Kansas, but SH underwent
two inseminations with D.H.'s sperm in Missouri.

First attempt did not result in a pregnancy and on both attempts DH delivered his sperm to a medical personnel.

There was no formal written contract between SH and DH concerning the donation of sperm, the artificial insemination, or
the expectations of the parties with regard to DH’s parental rights or lack thereof.
The procedure resulted in SH’s pregnancy and the birth of the twins on May 18, 2005. The day after their birth, S.H. filed a
- child in need of care (CINC) petition concerning the twins, seeking a determination that DH would have no parental
rights. The petition continued to refer to D.H. throughout as the twins' father.

DH filed an answer to the CINC petition and filed a separate paternity action acknowledging his financial responsibility for
the children and claiming parental rights, including joint custody and visitation. The CINC and paternity actions were
consolidated.
SH filed a motion to dismiss the paternity action, invoking K.S.A. 38-1114(f) (Kansas law). The judge ordered the parties
to submit their memorandum concerning choice od law and constitutionality of KSA 38-1114(f) relating to paternity and
paternal rights and other issues arising out of the motion to dismiss.

KSA 38-1114(f): The donor of semen provided to a licensed physician for use in artificial insemination of a woman other
than the donor's wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in
writing by the donor and the woman.

Missouri has no statute barring a presumption of paternity for a known sperm donor for an unmarried woman and that the
paternity is proved by “consanguinity or genetic test.”
The judge granted SH’s motion to dismiss, ruling that Kansas law governed and that DH has no legal or parental rights
over the twins.

SH’s argument:
Kansas law should apply because her original oral agreement with DH took place in Kansas; the parties reside in
Kansas; the sperm resulting in the pregnancy was given to her by DH in Kansas; and the children reside in
Kansas.
The single fact that the procedure was performed by a doctor in Missouri did not constitute a significant contact
with that state, and Missouri did not have a sufficient ongoing interest in the parties or in the subject matter of their
dispute.
She principally relied upon K.S.A. 38-1114(f) and argued that her CINC petition did not constitute her written
assent to D.H.'s parental rights under K.S.A. 38-1114(f).

DH’s argument:
He had a standing to file his paternity action as the biological father of the twins.

On choice of law, he argued that Kansas conflict principles required the court to look to the place of either contract
formation or contract performance. He asserted that the "more sensible" approach in this case would be to apply
the law of the state where performance occurred, which was, according to him, where the artificial insemination
was performed. He said Missouri has no statute barring a presumption of paternity for a known sperm donor for
an unmarried woman; paternity is proved by "consanguinity or genetic test."
He also invokes Adams case (Illinois Supreme Court in In Re Marriage of Adams), which applied the law of the
state where an insemination was performed because it would "fulfill the participants' expectations and help insure
predictability and uniformity of result."

II. ISSUE
Whether Kansas law or Missouri law governed the CINC and paternity suits between SH and DH. (Kansas)

III. RULING

Kansas law applied.

Various factors are relevant to a choice-of-law determination, including the procedural or substantive nature of the
question involved, the residence of the parties involved, and the interest of the State in having its law applied. As long as
Kansas has "`significant contact or [a] significant aggregation of contacts'…to ensure that the choice of Kansas law is not
arbitrary or unfair," constitutional limits are not violated.
Kansas courts apply the Restatement (First) of Conflict of Laws ง 332 (1934), and the doctrine of lex loci contractus, i.e.,
the law of the state where the contract is made governs.
Kansas courts have often leaned toward a lex fori, or law of the forum, approach, opting to apply Kansas law absent a
clear showing that another state's law should apply.

Moreover, the Court of Appeals of Kansas has recognized in a case focused on the legitimacy of a child that, "in our
current mobile society, place of conception of child carries little weight in choice of law determination. Whether a child is
legitimate is determined by the local law of the state which, with respect to the particular issue, has the most significant
relationship to the child and the parent"; considerations include "the relative interests of those states in the determination
of the particular issue," "the protection of justified expectations," "the basic policies underlying the particular field of law,"
and the "certainty, predictability and uniformity of result." Restatement (Second) of Conflict of Laws ง 6, ง 287(1) &
comment d (1969)

In this case, the parties are Kansas residents. Whatever agreement that existed between the parties was arrived at in
Kansas, where they exchanged promises supported by consideration, and D.H. literally delivered on his promise by giving
his sperm to S.H. The twins were born in Kansas and reside in Kansas. The only fact tying any of the participants to
Missouri is the location of the clinic where the insemination was performed.
Under these circumstances, SC held that Kansas law applies and that significant contacts and a significant aggregation of
contacts with Kansas make application of our law to the parties' claims not only appropriate but also constitutional. This
choice is neither arbitrary nor unfair; neither party would have been justified in expecting Missouri to have a controlling
interest as to any dispute between them.

g. Depecage

h. Philippines Follow Lex Loci Contractus

i. Triple Eight Integrated Services, Inc. v. NLRC

Facts:

private respondent Osdana was recruited by petitioner for employment with the latters principal, Gulf Catering Company
(GCC), a firm based in the Kingdom of Saudi Arabia. Under the original employment contract, Osdana was engaged to
work as Food Server for 36 mons.

Osdana claims she was required by petitioner to pay P11,950.00 in placement fees and other charges, for which no
receipt was issued. She was likewise asked to undergo a medical examination conducted by the Philippine Medical Tests
System, a duly accredited clinic for overseas workers, which found her to be Fit of Employment.

Subsequently, petitioner asked Osdana to sign another Contractor-Employee Agreement which provided that she would
be employed as a waitress for 12 months.

Osdana left for Riyadh, Saudi Arabia, and commenced working for GCC. She was assigned to the College of Public
Administration of the Oleysha University and, contrary to the terms and conditions of the employment contract, was made
to wash dishes, cooking pots, and utensils, perform janitorial work and other tasks which were unrelated to her job
designation as waitress. Making matters worse was the fact that she was made to work a gruelling twelve-hour shift, from
six oclock in the morning to six oclock in the evening, without overtime pay.

Osdana then suffered from numbness and pain in her arms. She had to be confined at the Ladies Villa, a housing facility
of GCC. During such time, she was not paid her salaries.

After said confinement, Osdana was allowed to resume work, this time as Food Server and Cook at the Hota Bani
Tameem Hospital, where she worked seven days a week. Again, she was not compensated.
Osdana was again confined at the Ladies Villa for no apparent reason. During this period, she was still not paid her
salary.

She was re-assigned to the Oleysha University to wash dishes and do other menial tasks. As with her previous
assignment at the said University, Osdana worked long hours and under harsh conditions. She was diagnosed as having
Bilateral Carpal Tunnel Syndrome, a condition precipitated by activities requiring repeated flexion, pronation, and
supination of the wrist and characterized by excruciating pain and numbness in the arms. – baka iask ni sir ‘to
LOL

Osdana underwent two surgical operations. Between these operations, she was not given any work assignments even if
she was willing and able to do light work in accordance with her doctors’ advice. Again, Osdana was not paid any
compensation.

After her second operation, Osdana was discharged from the hospital while her medical report stated that she had very
good improvement of the symptoms.

Four days later, however, she was dismissed from work, allegedly on the ground of illness. She was not given any
separation pay nor was she paid her salaries for the periods when she was not allowed to work.

Upon her return to the Philippines, Osdana was thus constrained to file a complaint before the POEA against petitioner for
unpaid and underpaid salaries, salaries for the unexpired portion of the employment contract, moral and exemplary
damages and attorneys fees, as well as the revocation, cancellation, suspension and/or imposition of administrative
sanctions against petitioner.

Labor arbiter ruled in favor of Osdana.

Aggrieved by the labor arbiters decision, petitioner appealed to the NLRC, which affirmed the decision.

Hence, this petition.

Issue:

Whether or not public respondents committed grave abuse of discretion when they ruled that Osdana had been illegally
dismissed by GCC.

Ruling:

No. The argument must fail.

Article 284 of the Labor Code is clear on the matter of termination by reason of disease or illness, viz:

Art. 284. Disease as a ground for termination An employer may terminate the services of an employee who has been
found to be suffering from any disease and whose continued employment is prohibited by law or prejudicial to his health
as well as the health of his co-employees: x x x.

Specifically, Section 8, Rule 1, Book VI of the Omnibus Rules Implementing the Labor Code provides:

Sec. 8. Disease as a ground for dismissal Where the employee suffers from a disease and his continued employment is
prohibited by law or prejudicial to his health or to the health of his co-employees, the employer shall not terminate his
employment unless there is a certification by competent public authority that the disease is of such nature or at such a
stage that it cannot be cured within a period of six (6) months with proper medical treatment. If the disease or ailment can
be cured within the period, the employer shall not terminate the employee but shall ask the employee to take a leave. The
employer shall reinstate such employee to his former position immediately upon the restoration of his normal health.
The manner by which Osdana was terminated was clearly in violation of the Labor Code and its implementing rules and
regulations.

Petitioner attributes good faith on the part of its principal, claiming that It was the concern for the welfare and physical well
being of private respondent that drove her employer to take the painful decision of terminating her from the service and
having her repatriated to the Philippines at its expense. The employer did not want to risk the aggravation of the illness of
private respondent which could have been the logical consequence were private respondent allowed to continue with her
job.

The Court notes, however, that aside from these bare allegations, petitioner has not presented any medical
certificate or similar document from a competent public health authority in support of its claims.

On the medical certificate requirement, petitioner erroneously argues that private respondent was employed in Saudi
Arabia and not here in the Philippines. Hence, there was a physical impossibility to secure from a Philippine public health
authority the alluded medical certificate that public respondents illness will not be cured within a period of six months.

Petitioner entirely misses the point. The rule simply prescribes a certification by a competent public health
authority and not a Philippine public health authority.

If, indeed, Osdana was physically unfit to continue her employment, her employer could have easily obtained a
certification to that effect from a competent public health authority in Saudi Arabia, thereby heading off any complaint for
illegal dismissal.

The requirement for a medical certificate under Article 284 of the Labor Code cannot be dispensed with;
otherwise, it would sanction the unilateral and arbitrary determination by the employer of the gravity or extent of
the employees illness and thus defeat the public policy on the protection of labor.

Petitioner likewise attempts to sidestep the medical certificate requirement by contending that since Osdana was working
in Saudi Arabia, her employment was subject to the laws of the host country.

First, established is the rule that lex loci contractus (the law of the place where the contract is made) governs in this
jurisdiction. There is no question that the contract of employment in this case was perfected here in the
Philippines. Therefore, the Labor Code, its implementing rules and regulations, and other laws affecting labor
apply in this case. Furthermore, settled is the rule that the courts of the forum will not enforce any foreign claim
obnoxious to the forums public policy. Here in the Philippines, employment agreements are more than contractual in
nature. The Constitution itself, in Article XIII Section 3, guarantees the special protection of workers, to wit:

The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law.

xxx.

This public policy should be borne in mind in this case because to allow foreign employers to determine for and by
themselves whether an overseas contract worker may be dismissed on the ground of illness would encourage illegal or
arbitrary pre-termination of employment contracts.

i. Defenses to Jurisdiction and Choice of Law

 i. Hasegawa v. Kitamura

[about jurisdiction; choice of law was prematurely raised]

FACTS

Petitioner Nippon Engineering Consultants Co., Ltd. [Nippon] entered into an Independent Contractor Agreement [ICA]
with respondent Minoru Kitamura, a Japanese national permanently residing in the Philippines. The agreement provided
that respondent was to extend professional services to Nippon for a year starting on April 1, 1999. Nippon then assigned
respondent to work as the project manager in various projects in the Philippines.

On February 28, 2000, petitioner’s general manager, Kazuhiro Hasegawa, informed respondent that the company would
no longer be renewing his ICA and that his services would be utilized only until March 31, 2000. Respondent requested a
negotiation conference, but Nippon insisted that his contract was for a fixed tern that had already expired. He was
replaced by a certain Y. Kotake as project manager of the BBRI Project.

Respondent subsequently sued petitioners for specific performance and damages. Petitioners move to dismiss the
complaint for lack of jurisdiction, asserting that the claim for improper pre-termination of respondent’s ICA could only be
heard and ventilated in proper courts of Japan following the principles of lex loci celebrationis and lex loci contractus. The
lower court denied the motion to dismiss, a decision which was affirmed by the Court of Appeals. The CA held that the
principle of lex loci celebrationis was not applicable to the case because nowhere in the pleadings was the validity of the
written agreement put in issue. The CA upheld the lower court’s application of the principle of lex loci solutionis.

ISSUE

Whether the subject matter of jurisdiction of Philippine courts in civil cases may be assailed on the principles of lex loci
celebrationis, lex loci contractus, the state of the most significant relationship rule, of forum non conveniens.

RULING

No. They are improper grounds for questioning the jurisdiction of the Philippine courts.

Petitioners assert that the RTC of Lipa City is an inconvenient forum since the ICA, which is the subject of the litigation,
was entered into and perfected in Tokyo, Japan, by Japanese nationals, and written wholly in the Japanese language.
Thus, they posit that local courts have no substantial relationship to the parties, following the state of the most significant
relationship rule. [Petitioners invoked both forum non conveniens and state of the most significant relationship rule, in their
petition for review before the SC.]

To elucidate, in the judicial resolution of conflicts problems, three consecutive phases are involved: jurisdiction, choice
of law, and recognition and enforcement of judgments. Corresponding to these phases are the following questions:
(1) Where can or should litigation be initiated? (2) Which law will the court apply? And (3) Where can the resulting
judgment be enforced?

Analytically, jurisdiction and choice of law are two distinct concepts. Jurisdiction considers whether it is fair to cause a
defendant to travel to this state; choice of law asks the further question whether the application of a substantive law
which will determine the merits of the case is fair to both parties. The power to exercise jurisdiction does not automatically
give a state constitutional authority to apply forum law. While jurisdiction and the choice of the lex fori will often coincide,
the “minimum contacts” for one do not always provide the necessary “significant contacts” for the other. The question of
whether the law of a state can be applied to a transaction is different from the question of whether the courts of that state
have jurisdiction to enter a judgment.

In this case, only the first phase is at issue—jurisdiction. Jurisdiction, however, has various aspects. For a court to
validly exercise its power to adjudicate a controversy, it must have jurisdiction over the plaintiff or the petitioner, 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. In assailing the trial court’s jurisdiction herein, petitioners are
actually referring to subject matter jurisdiction.

Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign authority which establishes and
organizes the court. It is given only by law and in the manner prescribed by law. It is further determined by the allegations
of the complaint irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein. To succeed in
its motion for the dismissal of an action for lack of jurisdiction over the subject matter of the claim, the movant
must show that the court or tribunal cannot act on the matter submitted to it because no law grants it the power
to adjudicate the claims.

In the instant case, petitioners, in their motion to dismiss, do not claim that the trial court is not properly vested by law with
jurisdiction to hear the subject controversy for, indeed, Civil Case No. 00-0264 for specific performance and damages is
one not capable of pecuniary estimation and is properly cognizable by the RTC of Lipa City. What they rather raise as
grounds to question subject matter jurisdiction are the principles of lex loci celebrationis and lex contractus, and the “state
of the most significant relationship rule.”

The Court finds the invocation of these grounds unsound.

Lex loci celebrationis relates to the “law of the place of the ceremony” or the law of the place where a contract is made.
The doctrine of lex contractus or lex loci contractus means the “law of the place where a contract is executed or to be
performed.” It controls the nature, construction, and validity of the contract and it may pertain to the law voluntarily agreed
upon by the parties or the law intended by them either expressly or implicitly.

Under the “state of the most significant relationship rule,” to ascertain what state law to apply to a dispute, the court
should determine which state has the most substantial connection to the occurrence and the parties. In a case involving a
contract, the court should consider where the contract was made, was negotiated, was to be performed, and the domicile,
place of business, or place of incorporation of the parties. This rule takes into account several contacts and evaluates
them according to their relative importance with respect to the particular issue to be resolved.

Since these three principles in conflict of laws make reference to the law applicable to a dispute, they are rules proper for
the second phase, the choice of law. They determine which state’s law is to be applied in resolving the substantive
issues of a conflicts problem.

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

Further, petitioners’ premature invocation of choice of law rules is exposed by the fact that they have not yet pointed
out any conflict between the laws of Japan and ours. Before determining which law should apply, first there should exist a
conflict of laws situation requiring the application of the conflict of laws rules. Also, when the law of a foreign country is
invoked to provide the proper rules for the solution of a case, the existence of such law must be pleaded and proved.

It should be noted that when a conflicts case, one involving a foreign element, is brought before a court or administrative
agency, there are three alternatives open to the latter in disposing of it: (1) dismiss the case, either because of lack of
jurisdiction or refusal to assume jurisdiction over the case; (2) assume jurisdiction over the case and apply the internal law
of the forum; or (3) assume jurisdiction over the case and take into account or apply the law of some other State or States.

The court’s power to hear cases and controversies is derived from the Constitution and the laws. While it may choose to
recognize laws of foreign nations, the court is not limited by foreign sovereign law short of treaties or other formal
agreements, even in matters regarding rights provided by foreign sovereigns.

Neither can the ground of forum non conveniens be used to deprive the trial court of its jurisdiction herein. First, it is not a
proper basis for a motion to dismiss because Sec 1, Rule 16 of the ROC does not include it as a ground. Second, whether
a suit should be entertained or dismissed on the basis of the said doctrine depends largely upon the facts of the particular
case and is addressed to the sound discretion of the trial court.
In this case, the RTC decided to assume jurisdiction. Third, the propriety of dismissing a case based on this principle
requires a factual determination; hence, this conflicts principle is more properly considered a matter of defense.

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

IV. TORTS AND DAMAGES

a. Torts as a Source of Obligation

b. Concept of Negligence

c. Conflict of Laws in Torts

d. Approaches to Conflicts’ Torts

i. Dowis et al. v. Mud Slingers, Inc. et al. (HINES, Justice.)

Facts:
Johnny Edwin Dowis (“Dowis”), a Tennessee resident, was hired by a Missouri corporation, Mud Slingers, Inc. (“Mud
Slingers”) to hang large sheets of precast plaster molding at a national chain hotel in Roswell, Georgia. Dowis was injured
at the Roswell project when he fell four stories from the basket of a telescopic boom forklift operated by Graves.
Mud Slingers had workers' compensation insurance in Missouri, where Dowis filed his claim and received benefits. Dowis
later filed this tort action in Georgia seeking damages against Mud Slingers and Graves. Dowis argued that, under
Missouri's workers' compensation law, he could collect benefits and bring a tort action against Mud Slingers and/or
Graves. Applying the exclusive remedy provision of the Georgia Workers' Compensation Act and the lex loci delicti rule
regarding the applicable substantive law, the trial court granted summary judgment to the defendants.  
Court of Appeals affirmed the grant of summary judgment, holding that lex loci delicti and the consequent application of
Georgia's exclusive remedy provision precluded Dowis from maintaining his tort action in Georgia.  

Issue: Whether the conflict of laws rule lex loci delicti should be retained in Georgia.

Ruling: Yes. The rule of lex loci delicti remains the law of Georgia, and the judgment of the Court of Appeals is affirmed.

There are several principle approaches to the resolution of conflict of laws issues in tort cases. The traditional approach,
frequently referred to as the “vested rights” approach, was set forth in the Restatement (First) of Conflict of Laws and
established the rule of lex loci delicti. Under this traditional rule, a tort action is governed by the substantive law of the
state where the tort was committed.
Another approach is that of “choice-influencing considerations”  4 espoused by Robert A. Leflar. Under this theory, five
factors are examined:  (1) predictability of result;  (2) maintenance of the interstate and international order;  (3)
simplification of the judicial task;  (4) advancement of the forum's governmental interest;  and (5) application of the better
rule of law.

A third alternative to the traditional doctrine is lex fori, which provides that the rights and liabilities of the parties are
governed by the law of the forum.

Finally, a majority of the states that have abandoned the rule of lex loci delicti have embraced the formulation expressed
in the Restatement (Second) of Conflict of Laws, which calls for an assessment of which jurisdiction has the “most
significant relationship”  to the dispute, based upon several sets of factors.  
The appellants Dowis urge that Georgia join this group of states and adopt the “most significant relationship” test of the
Restatement (Second) of Conflict of Laws, and thus, allow them under Missouri law to proceed with their Georgia lawsuit
against Mud Slingers and Graves.   But it is well-settled that Georgia will continue to adhere to a traditional conflict of
laws rule until a better approach is found.  

The doctrine of lex loci delicti has served the resolution of conflict of laws issues in tort actions in this State for nearly 100
years. It is desirable to have stability and certainty in the law;  therefore, stare decisis is a valid and compelling argument
for maintaining the doctrine. Moreover, as appellants acknowledge, lex loci delicti has the virtues of consistency,
predictability, and relative ease of application.

Appellants and other opponents of the rule criticize its perceived rigidness and argue that its strict application is
insufficient to address the complexities of modern litigation and can lead to unjust results, in that the results may be
“unrelated to the contemporary interests of the states involved or the realistic expectations of the parties.”  But such
criticism ignores several salient facts. As appellees point out, some courts in other jurisdictions have been motivated to
depart from the traditional rule in order to redress perceived unjust results by applying their own law. In fact, the first
departure by a sister state from the use of lex loci delicti accomplished the application of the law of that state. By contrast,
appellants are asking this Court to abrogate its long-used conflict of laws rule in order to bypass Georgia law.  
Furthermore, the criticism glosses over the fact that the courts of this State have the power to ameliorate the sometimes
seeming harshness of the rule when public policy considerations dictate that they do so.

Appellants also go so far as to assert that the rule of lex loci delicti is premised upon “absolute fortuity,” in that the place of
the incident giving rise to the litigation is an entirely fortuitous factor. But this ignores the reality that the place of an
allegedly tortious act is not irrelevant to the conflict issue, in that a state has an interest in wrongs committed
within its boundaries.   The crux of the matter in regard to criticism of the traditional rule is the common underlying
misconception that the resolution of a conflict of laws in complex litigation requires an equally complicated mechanism to
do so.

This Court will retain its long-held conflict of laws rule not out of blind adherence but rather, out of the candid recognition
that the subsequently-developed theories have significant problems. The relative certainty, predictability, and ease of the
application of lex loci delicti, even though sometimes leading to results which may appear harsh, are preferable to the
inconsistency and capriciousness that the replacement choice-of-law approaches have wrought. As the Court of Appeals
of New York aptly noted, “we should not depart from sound precedent simply for the sake of change or merely because
other courts have arrived at a result different from that which we have espoused.”  

ii. Melton v. Stephens

FACTS

The underlying lawsuit arose out of a motor vehicle collision between Appellees–Plaintiffs, Stacy S. Stephens (Stacy) and
Chad Stephens (Chad) (collectively, Stephens) and Melton at the intersection of U.S. 50 and County Road 900 East in
Lawrence County, Illinois. Stacy, a resident of the State of Indiana, was within the course and scope of her employment
with Knox County EMS of Vincennes, Indiana, and Melton, also a resident of the State of Indiana, was within the course
and scope of his employment with Perdue. Perdue, a Maryland corporation and registered to do business in Illinois, is a
wholly owned subsidiary of FPP Business.

At the time of the accident, Melton had been employed by Perdue for approximately 14 years as a commercial motor
vehicle driver and had made deliveries to Perdue's poultry farms in Illinois at least once or twice a week for each of the
past 14 years. Both individuals were making roundtrips that originated in Indiana and which were designed to return them
to their respective places of employment when their vehicles collided in Illinois. Although Melton made regular deliveries
from Perdue's feed mill in Washington, Indiana to its operations in Illinois, this was the first time Stacy had travelled to
Bridgeport, Illinois at the direction of her employer to transport an Illinois patient to an appointment in Indiana.

Melton, in a semi tractor-trailer, travelled west on U.S. 50, which has a posted speed limit of 50 mph, at a speed of 58
mph. He was behind the 2006 Ford Fusion, driven by Stacy, when Stacy began to slow the car several hundred feet from
the intersection in anticipation of making her turn. She had nearly completed her left turn onto County Road 900 East
when Melton collided into her vehicle. Melton contends that he was attempting to pass Stacy at the time of impact and
claims that Stacy failed to signal her turn as she approached the intersection. He was issued a citation for passing within
100 feet of an intersection, which was adjudicated in the Lawrence Circuit Court, Lawrence County, Illinois.

The Stephens filed a Complaint against Melton and Perdue, alleging negligence by Melton in the operation of the tractor-
trailer.

ISSUE:

Appellants raise one issue on interlocutory appeal, which we restate as: Whether the trial court properly held that Illinois
substantive law is applicable to a collision which occurred in Illinois between two Indiana residents after considering the
choice of law factors delineated in Hubbard

RULING:

The trial court properly held that Illinois substantive law is applicable to a collision which occurred in Illinois between two
Indiana residents

II. Indiana's Choice of Law

The historical choice-of-law rules for torts, like contracts, was lex loci delicti commissi, which applied the substantive law
where the tort was committed. The tort is said to have been committed in the state where the last event necessary
to make an actor liable for the alleged wrong takes place. Rigid application of the traditional rule to this case,
however, would lead to an anomalous result. Had plaintiff Elizabeth Greeson filed suit in any bordering state the only
forum which would not have applied the substantive law of Indiana is Indiana. To avoid this inappropriate result, we look
elsewhere for guidance.

Choice-of-law rules are fundamentally judge-made and designed to ensure the appropriate substantive law applies. In a
large number of cases, the place of the tort will be significant and the place with the most contacts. In such cases, the
traditional rules serves well. A court should be allowed to evaluate other factors when the place of the tort is an
insignificant contact.

Thus, viewed within the Hubbard context, it is clear that our supreme court already took into account the possibility of an
anomalous result by re-defining the choice of law test and ameliorating the harsh effects of the rigid application of the lex
loci delicti.

Rules about the choice of law are among the few fields still dominated by judge-made doctrine and choosing the
applicable substantive law for a given case is a decision made by the courts of the state in which the lawsuit is pending. In
1987, our supreme court issued Hubbard, its seminal case on Indiana's choice of law jurisprudence. Since then, Hubbard
and its progeny have dominated this state's choice of law landscape.

In Hubbard, our supreme court advocated a multiple step inquiry to determine Indiana's choice of law framework in tort
cases. As a preliminary premise, the trial court must determine whether the differences between the laws of the states are
“important enough to affect the outcome of the litigation.” If such a conflict exists, the presumption arises that the
traditional lex loci delicti rule—the place of the wrong—will apply. Under this initial step, the trial court applies the
substantive law of “the state where the last event necessary to make an actor liable for the alleged wrong takes place.”

In a large number of cases, the place of the tort will be significant and the place with the most contacts. In those cases,
the traditional rule serves well. However, this presumption is not conclusive. When the place of the tort is an insignificant
contact, then the trial court should be allowed to evaluate other factors. In these instances, where the place of the tort
bears little connection to the legal action, our supreme court allows the consideration of factors that may be more relevant,
such as: 1) the place where the conduct causing the injury occurred; 2) the residence or place of business of the parties;
and 3) the place where the relationship is centered.

In Simon v. U.S., the court clarified the additional contacts which may be considered when the location of the tort is
deemed insignificant, noting that “[t]hese factors are not an exclusive list nor are they necessarily relevant in every case.
All contacts should be evaluated according to their relative importance to the particular issues being litigated.” This
litigation ought to focus on the essential elements of the whole cause of action, rather than on the issues one party or the
other forecasts will be the most hotly contested given the anticipated proofs.

A. Lex Loci Delicti

Under this presumption, the court applies the substantive laws of the state where the last event necessary to make an
actor liable for the alleged wrong takes place.

“[W]here the issue is the choice between the law of the place where an allegedly wrongful act or omission took place and
the law of the place where physical injury was inflicted, the general rule is that the ‘place of the tort’ is the place where the
injury or death was inflicted and not the place where the allegedly wrongful act or omission took place.”

Although Appellants contest the place where the allegedly wrongful act took place, they do not dispute that Stacy's injury
occurred in Illinois. As such, the lex loci delicti is established in Illinois' substantive law.

B. Significance of Illinois' Substantive Law

Contending that the presumption of the lex loci delicti is overcome in favor of Indiana's substantive law, Appellants assert
that “because the gravamen of the Stephens' claim is wholly centered on conduct which predates the crash and occurred
in Indiana, the place of the tort, Illinois, bears little connection to this action,”

Appellants contend that the Stephens mischaracterize their action as a routine vehicle accident where liability will be
grounded upon violations of the Illinois rules of the road. Instead, Appellants assert, the core of the Stephens' claim is
“focused upon [Melton's] operation of his tractor-trailer when he allegedly knew, or reasonably should have known, he
suffered from untreated obstructive sleep apnea.” Clarifying their position, Appellants maintain that the center of the
Stephens' suit against Melton emphasizes his untreated sleep apnea, while the claim against Perdue and FPP Business
“wholly” relates to the failure to provide training and supervision to Melton and promulgation of appropriate policies—
conduct which occurred entirely in Indiana.

It is a “rare case” where the place of the tort is insignificant. Simon, 805 N.E.2d at 806.

In fact, Simon appears to suggest that most cases involving an automobile accident will be governed by the laws of the
state where the accident occurred. See id. (“Unlike in cases involving an automobile accident, the laws of the state where
the crash occurred did not govern the conduct of the parties at the time of the accident.”

To determine whether this is one of those “rare case[s],” this court should define “the gravamen” of the Stephens'
complaint.

Focusing on the Stephens' Amended Complaints, we note that all the allegations stem from Melton's perceived
negligence in operating his vehicle, be it negligently ignoring the rules of the road or negligently driving with knowledge of
his severe sleep apnea. Through the doctrine of respondeat superior as well as through the independent negligence
claims of failure of supervision and training, the Stephens attempt to also hold Perdue and FPP Business responsible for
Stacy's injuries. Accordingly, without Melton's alleged negligence in operating his vehicle, there would be no need for this
lawsuit.

Moreover, even though at first glance, the claims of negligent supervision and training lodged at Perdue and FPP
Business do not find a contact point in Illinois substantive law, we hasten to clarify that these allegations are also
embedded in Illinois' Rules of the Road. Although we agree with Appellants that Perdue and FPP Business's failure in
supervision and training occurred in Indiana and Maryland, this conduct only became legally negligent as a result of
Melton's accident in Illinois.

Because the drivers' conduct in operating their motor vehicles prior to the collision will be the focus of attention to
determine liability, and that conduct was governed by the rules of the road of the state in which the accident occurred, we
conclude that the presumption of the lex loci delicti remains significant and is not overcome. Moreover, recognizing that
the issues presented by Stephens are substantial and not merely remedial or procedural, the conduct must be
necessarily governed by Illinois' Rules of the Road as “people do not take the laws of their home state with them
when they travel but are subject to the laws of the state in which they act.”

Based on the circumstances before us, we conclude that the place of the tort is significant to the action.

However, even if we were to concur with Appellants' arguments and conclude that the presumption of the lex loci delicti is
overcome, our analysis of Hubbard's additional factors would reach the same result.

B. Second Hubbard Step: Relative Importance of Additional Contacts

Even if we deemed the State of Illinois, as place of the tort, to be an insignificant contact—which we do not—an analysis
of the additional Hubbard factors would yield a similar outcome.

Where the place of the tort bears little connection to the legal action, our supreme court allows the consideration of other
factors that may be more relevant, such as:

1) the place where the conduct causing the injury occurred;

2) the residence or place of business of the parties; and

3) the place where the relationship is centered.

“These factors are not an exclusive list nor are they necessarily relevant in every case.”

All contacts “should be evaluated according to their relative importance to the particular issues being litigated.”

Maintaining that the collision only took place in Illinois by accident, Appellants content that the real connection lies in
Indiana. They especially refer to the second contact point—domicile—to bolster their claim: both Melton and Stacy are
Indiana residents and were employed by Indiana-based corporations at the time of the accident. Focusing on the
negligent acts of supervision, Appellants argue that “[a]lthough the effect of those allegedly negligent acts may have been
felt in Illinois, the conduct which is of the greatest significance to the Stephens' claims ( i.e., that Melton operated his
tractor-trailer when he knew, or reasonably should have known, that he suffered from untreated obstructive sleep apnea
and that Perdue and/or FPP [Business] failed to provide Melton with training on the dangers of driving a[CMV] with
untreated sleep apnea ) is rooted in Indiana.” Thus, Appellants assert that the Hubbard factors favor Indiana because “the
relationship between the two drivers and their employers, which took them on routes just over the Indiana border, are
centered in Indiana.”

Although we agree that the residence element of the Hubbard test favors Indiana, as both Melton and Stacy are Indiana
residents, working for Indiana-based companies, neither of the other two elements support the application of Indiana
substantive law to this cause. Despite Appellants' arguments to center the relationship in Indiana, the ‘relationship’
between the two actors in the collision only came into existence through the accident in Illinois. There is no
evidence, and the parties cannot point us to any, that their paths crossed anywhere else but in Illinois.

Furthermore, unlike Appellants, we deem the place of the conduct causing injury to be centered in Illinois. We have
defined the gravamen of the Stephens' Complaint to be Melton's negligent operation of his vehicle. Therefore, this
conduct is necessarily governed by the law of the state in which he negligently acted, i.e., Illinois. Even though the
Stephens asserted negligent training and supervision against Perdue and FPP Business through the doctrine of
respondeat superior, this negligence only became actionable when the injury occurred at the time of the collision.

As our supreme court noted in Simon, if the state of conduct has a law regulating how the tortfeasor or victim is supposed
to act in the particular situation, courts will apply that standard rather than the law of the parties' residence. In fact, this
preference of the conduct-regulating law of the conduct state is virtually absolute, winning out even over the law of other
interested states. Courts as a practical matter recognize a conduct-regulating exception to the normal interest-based
choice-of-law methods.... This is also true in Indiana.

Accordingly, the trial court correctly determined that in the case at bar, the place of the tort has extensive
connection with the legal action, and thus, the doctrine of lex loci delicti retains its vitality. We hold that the trial
court correctly applied the Hubbard test and concluded that Illinois substantive law governs the action.

iii. Saudi Arabian Airlines v. Court of Appeals

Facts

The plaintiff went to disco dance ( Jakarta) with his fellow crew members Thamer and Allah both Saudi nationals because
it was already morning when they return to their hotels they agreed to have breakfast in the room of Thamer. When they
were in the latter’s room Allah left and that shortly after Thamer attempted to rape the plaintiff. Fortunately, a roomboy and
security guard heard her cries for help and rescued her. Later, an Indonesian police came and arrested Thamer and Allah
as the accomplice.

The plaintiff was asked to return to Jeddah, several saudia official interrogated her about the incident in Jakarta. The then
requested here to go back to Jakarta for the release of Thamer and Allah. In Jakarta, Saudia legal officer and base
manager Baharini negotiated with the police for immediate release of the crew member but did not succeed since the
plaintiff refused to coopeate.

Thamer and Allah was later set free due to the interseesion fo the Sauddi Arabian government. At about two years after,
the plaintiff was requested by Mr. Alli Meniewy the chief legal officer of Saudia wherein she was brough t o a police station
where he passport was confiscated.

One and a half year later, the plaintiff was not allowed to board the plain and instead ordered to take a later flight to
Jeddah to see Mr. Miniewy . When she did she was brought in Saudi court where she was asked to sign a document in
Arabic. It turns out that this document was a notice to appear in court.she was later send home to the Philippines.

However, upon returning to the Philippines she was later summoned to the Saudi court, and that the legal officer brought
the plaintiff to the same Saudi court on June 27 1993. The court interrogated her , it was later found that she is guilty of
adultery, going to disco dancing and listening in violation of Islamic law and socializing with a male crew. She did not
know that she was being interrogated not until the decision of the court was translated to her in English.

Due to the wrongful conviction, the Prince of Makkah dismissed the case against her and allowed here to return to Manila
she was terminated from her services by Saudia. She then field a case against Saudia a motion to dismiss on the ground
that the complaint states no cause of action that the claim or demand set forth in the complaint had been waived,
abandoned or othereise extinshuised and that the trial court had no jurisdiciton to try the case.

Saudia claim conflict of law exist, the claim for alleged abuse of the rights occurred in the Kingdom of Saudi Arabia, it
alleges that the existence of application of the law of Kingdom of Saudi Arabia of lex loci delicti commissi rule. The
respondent on the other hand proposed that article 19 and 21 of the civil code makes this a domestic matter

Issue: Whether the Philippine or Saudi law governs this case

Held:

Philippine. There is a conflict case when the factual antecedent satisfactorily establish the existence of a foreign element it
is foreign element it is a conflict case. A factual situation that cuts across territorial lines and is affected by the diverse
laws of two or more states is said to contain a "foreign element". The presence of a foreign element is inevitable since
social and economic affairs of individuals and associations are rarely confined to the geographic limits of their birth or
conception. 40

The forms in which this foreign element may appear are many. 41 The foreign element may simply consist in the fact that
one of the parties to a contract is an alien or has a foreign domicile, or that a contract between nationals of one State
involves properties situated in another State. In other cases, the foreign element may assume a complex form. 42

In the instant case, the foreign element consisted in the fact that private respondent Morada is a resident Philippine
national, and that petitioner SAUDIA is a resident foreign corporation. Also, by virtue of the employment of Morada with
the petitioner Saudia as a flight stewardess, events did transpire during her many occasions of travel across national
borders, particularly from Manila, Philippines to Jeddah, Saudi Arabia, and vice versa, that caused a "conflicts" situation to
arise.

Pragmatic considerations, including the convenience of the parties, also weigh heavily in favor of the RTC Quezon City
assuming jurisdiction. Paramount is the private interest of the litigant. Enforceability of a judgment if one is obtained is
quite obvious. Relative advantages and obstacles to a fair trial are equally important. Plaintiff may not, by choice of an
inconvenient forum, "vex", "harass", or "oppress" the defendant, e.g. by inflicting upon him needless expense or
disturbance. But unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be
disturbed

Weighing the relative claims of the parties, the court a quo found it best to hear the case in the Philippines. Had it refused
to take cognizance of the case, it would be forcing plaintiff (private respondent now) to seek remedial action elsewhere,
i.e. in the Kingdom of Saudi Arabia where she no longer maintains substantial connections. That would have caused a
fundamental unfairness to her.

Considering that the complaint in the court a quo is one involving torts, the "connecting factor" or "point of contact" could
be the place or places where the tortious conduct or lex loci actus occurred. And applying the torts principle in a conflicts
case, we find that the Philippines could be said as a situs of the tort (the place where the alleged tortious conduct took
place). This is because it is in the Philippines where petitioner allegedly deceived private respondent, a Filipina residing
and working here. According to her, she had honestly believed that petitioner would, in the exercise of its rights and in the
performance of its duties, "act with justice, give her due and observe honesty and good faith." Instead, petitioner failed to
protect her, she claimed. That certain acts or parts of the injury allegedly occurred in another country is of no moment. For
in our view what is important here is the place where the over-all harm or the totality of the alleged injury to the person,
reputation, social standing and human rights of complainant, had lodged, according to the plaintiff below (herein private
respondent). All told, it is not without basis to identify the Philippines as the situs of the alleged tort.

Moreover, with the widespread criticism of the traditional rule of lex loci delicti commissi, modern theories and rules on tort
liability 61 have been advanced to offer fresh judicial approaches to arrive at just results. In keeping abreast with the
modern theories on tort liability, we find here an occasion to apply the "State of the most significant relationship" rule,
which in our view should be appropriate to apply now, given the factual context of this case.

In applying said principle to determine the State which has the most significant relationship, the following contacts are to
be taken into account and evaluated according to their relative importance with respect to the particular issue: (a) the
place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the domicile, 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. 62

As already discussed, there is basis for the claim that over-all injury occurred and lodged in the Philippines. There is
likewise no question that private respondent is a resident Filipina national, working with petitioner, a resident foreign
corporation engaged here in the business of international air carriage. Thus, the "relationship" between the parties was
centered here, although it should be stressed that this suit is not based on mere labor law violations. From the record, the
claim that the Philippines has the most significant contact with the matter in this dispute, 63 raised by private respondent as
plaintiff below against defendant (herein petitioner), in our view, has been properly established.

iv. First National Bank in Fort Collins v. Rostek

FIRST NATIONAL BANK IN FORT COLLINS V. ROSTEK

Facts:

John Rostek, accompanied by his wife, Carol Hardin Rostek, took off from Colorado enroute to Iowa and Vermillion, South
Dakota. The Rosteks intended to remain in Vermillion, South Dakota, overnight, but that evening they just decided to
return to Fort Collins the same night. Two days later, the plane was found approximately 500 feet from the runaway

First National Bank (as the guardian of the natural children of Carol) filed a wrongful death action in Colorado District
Court alleging the negligent operation of the aircraft on the part of John Rostek, which caused the accident and the death
of the passenger, Carol Rostek.

Shirley Rostek (as administratrix of the estate of John Rostek), on the other hand, filed a motion for summary judgment
alleging that the rights of the parties are governed by the South Dakota Aircraft Guest Statute, which requires proof by the
guest-passenger of willful or wanton misconduct on the part of an operator of an aircraft.

Trial Court granted Shirley’s motion for summary judgment.

Issue: Whether the broad rule of lex loci delicti should be adopted and applied to this case -- NO

Ruling:

When the doctrine of lex loci delicti was first established in the mid-nineteenth century, conditions were such that people
only occasionally crossed state boundaries. Under those circumstances, there was legitimacy in a rule which presumed
that persons changing jurisdictions would be aware of the different duties and obligations they were incurring when they
made the interstate journey. Further, even if persons making these occasional journeys into neighboring states were not
actually aware of the changing duties and responsibilities, enforcing the laws of the jurisdiction in which they were
wronged was justified because of the "vested rights" doctrine that was prevalent and widely accepted at that time. Thus,
the rule of lex loci delicti was originally viewed as a practical formula by which individuals could govern their actions in
accordance with prevailing attitudes and customs, providing both uniformity of application and predictability of results.

However, with the industrial revolution and the passage of time, the interstate mobility of the citizenry increased in speed
and availability to such an extent that persons no longer regarded an interstate journey as a rare occurrence entailing a
significant change of surroundings. As these attitudes and conditions changed, it became clear that the mechanical
application of lex loci delicti to every multistate tort controversy often yielded harsh, unjust results, unrelated to the
contemporary interests of the states involved or the realistic expectations of the parties.

To avoid the growing number of undesirable results which strict adherence to lex loci delicti produced, courts devised
various methods of characterizing the issues in the controversy to allow them to deviate from the application of lex loci
delicti without offending stare decisis. By labeling a matter as "procedural" rather than "substantive," or "contractual"
rather than "tortious," courts were able to apply law other than the law of the place of the wrong. In the process the courts
were, in effect, making a choice of law decision without exposing the real choice influencing factors for objective
classification and criticism.
We fully appreciate the arguments made by the defendant that lex loci delicti retains some predictability of result and ease
of application by courts. Yet, the facts in the case at bar classically demonstrate the injustice and irrationality of the
automatic application of the lex loci delicti rule. Both Carol and John Rostek were citizens of Colorado. The airplane in
question was registered in Colorado and was returning to Colorado when the accident occurred. The lawsuit was brought
in a Colorado forum with a Colorado resident as defendant. It becomes evident, therefore, that South Dakota's only
interest in this controversy is the fortuitous occurrence of the accident within its borders. Thus the trial court's decision to
apply South Dakota law to this case can be affirmed only if we are to adhere to a mechanical and unfailing application of
the place of wrong rule, regardless of the interests of the states involved or the expectations of the parties. This we refuse
to do.

Since the scope of our decision to reject the mechanical application of the rule of lex loci delicti extends to all multistate
tort controversies, we must now address ourselves to the question of what rules govern choice of law in Colorado outside
the rules laid down with respect to host-guest controversies which fit those rules. We announce that Colorado will adopt
the general rule of applying the law of the state with the most "significant relationship" with the occurrence and
the parties. Generally, this requires the application of separate rules to various kinds of torts, and defines "significant
contacts" in terms of the issues, the nature of the tort, and the purposes of the tort rules involved. While this rule is
somewhat broad, it is no less precise than the concepts of "reasonableness" or "due process" which courts have applied
for many years.

Since Colorado law was the appropriate law to be applied to the issues in this case, it was error for the trial court to grant
respondent's summary judgment motion on the grounds that South Dakota law barred the suit.

The judgment is reversed and the cause remanded to the trial court for further proceeding not inconsistent with the views
herein expressed.

v. Kamelgard v. Macura

Facts:

The plaintiff, a bariatric surgeon who lives and practices in New Jersey, brought this diversity suit in the federal district
court in Chicago, Illinois.   He claims to have been defamed by the defendant, another bariatric surgeon, who practices in
New York. The district judge dismissed the suit without prejudice, on the ground that venue in Chicago was improper, and
the plaintiff appeals.   The defendant cross-appeals, claiming that the dismissal of the suit should have been with
prejudice because the suit is time-barred.  

The plaintiff had testified against the defendant in a malpractice suit in New York, and the defendant had retaliated-
according to the plaintiff's complaint-by mailing a defamatory letter on or about March 1, 2006, to the American College of
Surgeons, which is located in Chicago.

The defendant argues that the applicable law in this case is not Illinois law, but New Jersey law. If he is right, the suit is
time-barred because New Jersey, though it has a one-year statute of limitations for defamation suits like Illinois, is yet to
reconsider the issue in a future case even if it has suggested a willingness to do so.
Issue:

W/N the applicable law in this case is not Illinois law but New Jersey Law

Held:

Only New Jersey, where the plaintiff has his practice and is therefore likely to suffer tangible harm from defamation that
impugns his professional integrity and competence, even if the defamation is not published there, has a substantial
interest in protecting him from defamation;  and it is therefore New Jersey law that should apply.

The plaintiff is eager to abandon his Florida claim because it would make his suit one charging multistate defamation, and
would thus point-although, as we have just seen, not unwaveringly-to the application of New Jersey law.   He prefers a
claim limited to Illinois and governed by Illinois law with its discovery rule.   But abandoning the Florida claim does not
establish that Illinois law should trump New Jersey law.   The American College of Surgeons is located in Illinois but is no
longer accused of anything, and so Illinois has no interest in the case.   Injury to the plaintiff's reputation, if that should be
presumed to occur every time a bariatric surgeon (or perhaps anyone) learns about the complaint to the College, would
occur wherever members who heard about the complaint live and work, and that could be anywhere in the United States.
  There is nothing to suggest that more bariatric surgeons heard about it in Illinois than in New York or New Jersey or
California or any other major state.   It's not as if bariatric surgeons are concentrated in Illinois.

No defamatory letter, so far as appears, was mailed to New Jersey;  there was no “publication” there.   But absence of
publication in the plaintiff's domicile should not be an absolute bar to the application of the law of that domicile.   What is
true, rather, is that the presumption of the applicability of that law may be rebutted by showing that the plaintiff incurred no
harm at all in his domicile state and if no one in that state had seen or learned of the defamatory statement, even second
hand, this would be a powerful rebuttal to the presumption that there was harm there.   But notice that Hand's analysis
would suggest that the state of the plaintiff's domicile would still be the primary site of the plaintiff's injury, implying that its
law would govern, even if the defamation had been communicated entirely to people in other states and no one in the
plaintiff's state-besides the plaintiff-was even aware of it.

It used to be a flat rule (called lex loci delicti-the law of the place of the wrong) that the law applicable in a tort case is the
law of the place where the tort occurred.

The theory of the old rule, lex loci delicti, as explained in the Holmes and Cardozo opinions that we cited, is that the right
to a tort remedy vests upon injury;  the existence and scope of the right therefore depend on the law of the place of injury;
 and the vested right, viewed as a piece of property acquired in the place of injury, is carried by the plaintiff, like the turtle's
shell, to wherever he decides to sue.
But as the Supreme court explained in the Spinozzi case, the state with the most significant relation to a claim is usually
the state in which the tort (and therefore the injury) occurred.   That state “has the greatest interest in striking a
reasonable balance among safety, cost, and other factors pertinent to the design and administration of a system of tort
law.   Most people affected whether as victims or as injurers by accidents and other injury-causing events are residents of
the jurisdiction in which the event takes place.   So if law can be assumed to be generally responsive to the values and
preferences of the people who live in the community that formulated the law, the law of the place of the accident can be
expected to reflect the values and preferences of the people most likely to be involved in accidents-can be expected, in
other words, to be responsive and responsible law, law that internalizes the costs and benefits of the people affected by
it.”

vi. Lankenau v. Boles

Facts:

Plaintiff, a New York resident, commenced this negligence action in New York seeking damages for injuries she sustained
in a motor vehicle accident that occurred in Pennsylvania.   At the time of the accident, plaintiff was a backseat passenger
in a vehicle operated by her mother, defendant Deena Lankenau, and owned by her father, defendant Douglas Lankenau,
both of whom are also domiciled in New York. The accident occurred when the Lankenau vehicle collided with a tractor-
trailer operated by defendant Patrick K. Boles, an employee of defendant M & S Leasing Co., LLC. Both of those
defendants are domiciled in New Jersey.   In their answers, defendants asserted as an affirmative defense that plaintiff
failed to mitigate her damages because she was not wearing an available seat belt.

Plaintiff contends that the court erred in denying her motion because New York's seat belt affirmative defense regulates
conduct, and thus does not apply in a tort dispute arising from an accident that occurred in Pennsylvania.

Issue:

W/N New York's laws should apply

Held:

Yes, the laws of New York should apply. If conflicting conduct-regulating laws are at issue, the law of the jurisdiction
where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within
its borders. Conversely, where the conflicting laws serve only to allocate losses between the parties, such as vicarious
liability or comparative negligence rules, the jurisdiction where the tort occurred has only a minimal interest in applying its
own law.

New York law allows the trier of fact to consider a plaintiff's failure to wear an available seat belt only in assessing
damages and the plaintiff's mitigation thereof. Hence, the court properly determined that the seat belt defense “allocates
losses after the tort occurs” . The court further concludes that Pennsylvania has at best a minimal interest in applying its
own law in this case. The plaintiff and her defendant parents are residents of New York, where the seat belt defense is
available. None of the parties is domiciled in Pennsylvania and, the situs of the tort notwithstanding, we perceive no basis
for applying Pennsylvania law to deny a potential affirmative defense.

vii. Winter v. Novartis Pharmaceuticals Corp.

Facts:

Ruth Baldwin was a citizen and resident of Missouri. Novartis is a Delaware corporation, headquartered in New Jersey,
which produced and marketed the drugs Aredia and Zometa.

Baldwin developed osteonecrosis of the jaw (ONJ) after two of her teeth were extracted. She sued, alleging Novartis
Pharmaceuticals Corporation negligently failed to provide adequate warnings for two drugs she took, Aredia and Zometa.
After a jury trial, Baldwin received compensatory damages. Novartis appeals, arguing the district court, among others, that
it erred in applying Missouri law to the punitive damages claim.

Novartis seeks judgment as a matter of law, arguing Baldwin did not establish that her injuries were proximately caused
by inadequate warnings.

Issue:

Whether or not the Missouri law applies to the punitive damages claimed.

Ruling:

Yes.

Under Missouri's choice-of-law rules, courts apply the substantive law of the state with the “most significant
relationship” to the occurrence and the parties. Missouri, adopting the Restatement (Second) of Conflict of Laws,
requires consideration of four factors in determining the applicable law for tort actions: “the place where the
injury occurred,” “the place where the conduct causing the injury occurred,” “the domicil, residence, nationality,
place of incorporation and place of business of the parties,” and “the place where the relationship, if any,
between the parties is centered.” Fuqua Homes, 388 F.3d at 621, citing Restatement (Second) of Conflict of Laws
§ 145 (1971). More importantly, for personal injury actions, Missouri applies the law of the place of injury, unless
some other state has a more significant relationship.

Missouri's formulation “essentially establishes a presumption that the state with the most significant relationship
is the state where the injury occurred.”
The district court correctly held that Missouri has the “most significant relationship” to the punitive damages claim.
Missouri is the place where the injury occurred, making it presumptively the state with the most significant relationship.
Missouri is where Novartis's sales representatives failed to warn Baldwin's doctor, making it also, at least in part, the state
of the conduct causing the injury. New Jersey may have an interest in its corporations being governed by its punitive
damages provisions, but as the district court held, Missouri has a strong interest in applying its punitive damages laws to
deter conduct by corporations doing business in Missouri that harms Missouri residents. New Jersey's interest, balanced
against Missouri's, does not overcome Missouri's presumption that the law of the place of injury should apply.

viii. FutureSelect Portfolio Management, Inc. v. Tremont Group Holdings

Facts:

Parties:

Plaintiff: FutureSelect Portfolio Management Inc. - headquartered in Washington and manages a number of investment
funds.

Defendant: Tremont Partners Inc. - headquartered in New York and serves as the general partner to the Rye Funds,
whose status as feeder funds to Bernard L. Madoff Investment Securities LLC (Madoff)

The interaction between FutureSelect and Tremont started when a Tremont representative visited FutureSelect's
Redmond offices in 1997 to solicit FutureSelect's investment in the Rye Funds. There were several discussions about the
Rye Fund between the parties and Tremont claimed that it was offering a rare opportunity to invest with Madoff. Relying
on these assurances and the audit opinions of the accounting firm hired by Tremont, FutureSelect decided to invest in the
Rye Funds in 1998. FutureSelect and Tremont had monthly ongoing communications about Madoff and the performance
of the Rye Funds. Tremont claimed that its ongoing oversight and testing of Madoff proved satisfactory. Tremont also
provided FutureSelect with purported facts proving the health of the Rye Funds.

Between 1998 and late 2008, when Madoff's Ponzi scheme finally came to light, FutureSelect continued to invest more
funds in the Rye Funds as a result of the representations it regularly received from Tremont and its auditors. In all,
FutureSelect invested $195 million with Tremont. But, Madoff never invested any of the capital he received through the
Rye Funds or any other feeder. FutureSelect lost its entire investment. Believing that Tremont had significantly misled it,
FutureSelect sued Tremont.

In its complaint, FutureSelect alleged that the defendants are liable for (1) violating RCW 21.20.0104 and RCW
21.20.430, (2) negligence, and (3) negligent misrepresentation. According to the complaint, Tremont's liability is based on
the direct misrepresentations made by Tremont to FutureSelect that FutureSelect relied on in making, maintaining, and
adding to its investment in the Rye Funds.

It alleged that Tremont acted as MassMutual and Oppenheimer's agent or apparent agent. It alleged Ernst & Young made
direct misrepresentations that FutureSelect relied on in maintaining and adding to its investment in the Rye Funds. The
defendants filed separate motions to dismiss on the pleadings. Without stating the specific grounds for dismissal, the trial
court granted these motions in full after conducting a hearing and considering a number of pleadings, declarations, and
briefs. FutureSelect obtained a CR 54(b) order granting final judgment on the dismissals, allowing this appeal.

The Court of Appeals reversed in part and affirmed in part, finding that:

1. Washington has the most significant relationship to the state securities act claims, negligent misrepresentation
claims, and agency claims

2. The complaint sufficiently alleged personal jurisdiction over Oppenheimer

3. The trial court properly dismissed the apparent agency claim against Oppenheimer and negligence claim against
Tremont.

Issue:

Whether Washington or New York law applies to this case

Held:

Washington Law applies

A. Choice of Law

Defendants argue that New York law applies because New York has the more significant relationship to the dispute and
that dismissal on the pleadings was warranted because there is no private cause of action under New York's state
security law.

B. Actual Conflict

When choice of law is disputed, “there must be an actual conflict between the laws or interests of Washington and the
laws or interests of another state before Washington courts will engage in a conflict of laws analysis.” Here, an actual
conflict exists between the WSSA (Washington Law), ch. 21.20 RCW, and New York's Martin Act, N.Y. Gen. Bus. Law art.
23–A, §§ 352–359. Specifically, the WSSA provides for a private right of action, see RCW 21.20.430, while New York's
Martin Act does not, see N.Y. Gen. Bus. Law art. 23–A, §§ 352–359

C. Significant Relationship

To settle choice of law questions, Washington uses the most significant relationship test as articulated by Restatement
(Second) of Conflict of Laws § 145 (1971). FutureSelect argues we should also formally adopt § 148, which refines the §
145 factors for the fraud and misrepresentation context. The court agrees with FutureSelect.
Haberman and § 145 provide a basic framework for choice of law questions. But we have not shied from applying a
different, more specific section of the Restatement when warranted by a particular tort. Given the nature of
misrepresentation, we find the factors in § 148 to be more helpful than those in § 145.

Previously, the court developed a two-step analysis for the significant relationship inquiry under § 145. Our adoption of §
148 does not alter this approach. Accordingly, first, courts will continue to evaluate the contacts with each interested
jurisdiction. Id. The “approach is not merely to count contacts, but rather to consider which contacts are most significant
and to determine where these contacts are found.” Second, courts will continue to evaluate the interests and public
policies of potentially concerned jurisdictions.

Under § 148, to determine the jurisdiction with the most significant relationship to the dispute, we must consider:

1. the place where plaintiff acted in reliance on the representations;

2. the place where the plaintiff received the representations;

3. the place where the defendant made the representations;

4. the domicile, residence, nationality, place of incorporation, and place of business of the parties;

5. the place where a tangible thing, which is the subject of the transaction between the parties, was situated at the
time;

6. the place where the plaintiff is to render performance under a contract that he has been induced to enter by the
false representations of the defendant.

Much like in Southwell, this case has “not presented this court with a record that is sufficiently developed to enable us to
undertake the factual analysis necessary for proper resolution of the conflicts issue involved.” But for purposes of
reviewing dismissal under a CR 12(b)(6) motion, the court looked to the complaint and conclude that FutureSelect could
show that

1. Washington was the place where FutureSelect acted in reliance on the representations,

2. Washington was the place where FutureSelect received the representations,

3. Washington and New York were the places where the defendants made the representations,

4. Washington and New York were the primary places of business of the parties

5. it cannot be determined either way where FutureSelect was to render performance under the contract that it had
been induced to enter by the false representations of the defendant.16
To complete this analysis, the court must “consider which contacts are most significant” in addition to finding out where
they are found. The record is insufficient to permit us to engage in this inquiry, and so the court left it open.

Data Privacy

a. Rollins Ranches vs. Watson

C/A No.: 0:18-3278-SAL-SVH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

Decided May 22, 2020

Rollins Ranches, LLC, and British Gundogs, LLC, Plaintiffs, vs. Rachael Watson, Defendant.

Shiva V. Hodges, United States Magistrate Judge

FACTS:

Background: Both parties are engaged in the industry of dog training and breeding. In May 2017, Watson brought claims
against Rollins in the Southern District of Florida pursuant to Fair Labor Standards Act seeking unpaid wages and
liquidated damages. This Florida litigation ended with a settlement between the parties. During that time, Watson created
a Facebook page “Tibea Gundogs” which she made private only in September 2017, and which has accumulated 3,000
members by the year 2019.

In December 2018, Plaintiffs filed an action against Watson, alleging defamation and tortious interference with
business relationships based on the latter’s interactions with persons in the dog training and breeding community,
specifically the ones she made thru her Facebook page and email. Watson was served the complaint and summons in
March 2019 but she failed to timely file an answer. Consequently, an entry of default was requested and entered in
April.

In May 2019, Plaintiffs sought and was granted post-judgment discovery to establish the extent of damage they
suffered. Plaintiffs requested Watson to produce access to her social media accounts electronically-stored
information (ESI), electronic mail communications, records of telephone communications, and bank account
records. Plaintiffs argue that they need this information to identify the persons with whom Watson has
communicated, interview the same and, if appropriate, subpoena said person for deposition to discover evidence to
establish the damage Plaintiffs have suffered. This request was not heeded by Watson.
In September 2019, Plaintiffs filed a motion to compel discovery responses and production of records. Watson filed
an opposition. The court ordered both parties to resolve the matter among themselves and, afterwards, file a status
report. Due to Watson’s refusal to participate, the parties failed to file the status report and the court denied the
Plaintiffs’ motion to compel without prejudice.

In November 2019, Plaintiffs filed the instant renewed motion to compel discovery (this is the case being decided) on
the ground that Watson’s production in response to their discovery requests was not responsive. Specifically, Plaintiffs
seek:

1. Access to Defendant’s social media accounts, including the private Facebook account Tibea Gundogs and
the identities and contact information of its members;
2. Access to Defendant’s electronic mail accounts including electronic mail communications and the complete
thread of responses and replies;
3. Unredacted telephone billing statements reflecting numbers called or received;
4. Unredacted copies of bank and credit card statements; and
5. Electronic and unredacted copies of any other communications

...with any person/s engaged in the breeding, training, kenneling, or sales of dogs, which refer to Plaintiffs or their
agents and employees.

In response, Watson invoked the UK Data Protection Act and argues that she does not have emails pertaining to
Plaintiffs, and that her Facebook page does not reference Plaintiffs.

ISSUE:

Can the Court compel discovery of information originating from EU and over Defendant Watson who is a UK citizen?

RULING:

Yes, the District Court granted the Plaintiff’s renewed motion to compel discovery responses and production of records.
The Court also warned Defendant of the possibility of sanctions if she fails to comply.

Held:

The Court rejected Watson’s invocation of the UK Data Privacy Act, the UK's implementation of

the EU's General Data Protection Regulation ("GDPR") for two primary reasons. First, “it is well settled that foreign
statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce
evidence even though the act of production may violate that statute.” (Societe Nationale Industrielle Aerospatiale v.
U.S. Dist. Court for S. Dist. of Iowa)
Note: Due to the data protection act and GDPR in Great Britain and Europe, British citizens would have to give permission
for their details to be given out prior.

Second, “typically, the party resisting the discovery bears the burden in these cases.” (Info. Security & Privacy: A
Guide to Fed & State Law & Compliance) Here, Defendant has not carried her burden. Although she argues, without
support, “the Data Protection Act does apply to any contacts we have within the UK held on any UK mobile device" and
that "this was accepted by the Judge" in the Florida litigation, a review of the Florida litigation docket does not reveal
support for Defendant's position and no further information is provided by Defendant as to the applicability of the
act. Defendant has only provided to the court general reference to the act in question by referencing the following
websites: https://www.gov.uk/data-protection and https://gdpr.eu/compliance-checklist-us-companies. This is insufficient
to carry Defendant's burden.

Note: The Court notes that Plaintiffs have conceded the potential applicability of the referenced act "if and when they seek
information from people in the UK."

Decision on other matters:

The Court rejected Watson’s argument that she does not have the information requested by the Plaintiffs or that she has
offered to provide them the requested information via a Facebook friend request. Defendant is obligated to provide
responses to Plaintiffs' discovery requests. To the extent Plaintiffs seek information that does not exist, Defendant may
indicate in her responses to Plaintiffs' requests, under penalty of perjury.

Summary from an online article (feeling ko dito kinuha ni Sir yung idea na idagdag ito sa syllabus, pati yung next case
Giorgi Global):

In Rollins Ranches, the court was not satisfied that the respondent (Watson) had sufficient evidence to argue that the
principles in the GDPR or the UK Data Protection Act 2018 applied to limit discovery, and highlighted that the burden was
on the respondent to prove that discovery should be resisted. The court cited Societe Nationale Industrielle Aerospatiale
v. U.S. Dist. Court for S. Dist. of Iowa for the proposition that, within the U.S., it “is well settled that foreign blocking
statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even
though the act of production may violate that statute.” The court further noted that the arguments made for applying the
GDPR or UK data protection laws were not conclusive, and that whilst the respondent claimed to have received UK legal
advice on this topic, none was provided to the court.

Read the full article here: https://www.technologylawdispatch.com/2020/06/in-the-courts/gdpr-vs-u-s-discovery-the-

conflict-continues/
 b. Giorgi Global vs Wieslaw

Giorgi Global Holdings vs Smulski et al.

FACTS

Plaintiffs filed the instant suit against Defendants alleging civil violations of the Racketeer Influenced and Corrupt
Organizations Act, breach of contract, violations of the Computer Fraud & Abuse Act and unjust enrichment. Plaintiffs
requested via letter that Defendant Wieslaw Smulski be ordered to produce documents in compliance with the Federal
Rules of Civil Procedure without regard to Polish law and/or the EU General Data Protection Regulation. Defendant
Smulski claimed that he couldn’t produce otherwise discoverable documents in the case because the GDPR and/or
Polish privacy law prohibit him from doing so.

Although Defendant Wieslaw Smulski resides in Poland, he is a US citizen and subject to the jurisdiction of this Court,
having been sued by several American companies here in the Eastern District of Pennsylvania. Both parties have
produced expert reports that address their respective positions as to whether the GDPR applies to forbid Smulski’s
production of documents.

ISSUE

Whether the foreign statute excuses non-compliance with discovery. – NO.

RULING

A review of the law on this issue clearly shows that Smulski cannot rely on the GDPR and/or any other Polish privacy law
to avoid production of relevant documents in this matter.

Generally, a foreign country’s statute precluding disclosure of evidence “do[es] not deprive an American court of the
power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that
statute.”

In determining whether the foreign statute excuses non-compliance with discovery, courts consider a multi-factor
balancing test set forth in the Restatement (Third) of Foreign Relations Law to balance “the interests of the United States
and the party seeking discovery against the foreign state’s interest in secrecy.”

The factors to be considered include: 1) the importance of the documents or other information requested to the
litigation; 2) the degree of specificity of the request; 3) whether the information originated in the United States; 4)
the availability of alternative means of securing the information; and 5) the extent to which noncompliance would
undermine important interests of the United States.

Further, “[t]he party relying on foreign law has the burden of showing such law bars production.”
In analyzing these factors, the importance of the documents to the litigation weighs in favor of disclosure when “there is
a substantial likelihood that the documents will prove to be important to the prosecution of plaintiffs’ claims.”

In this action, Plaintiffs seek documents regarding Mr. Smulski’s alleged asset-stripping/money laundering scheme and
Can-Pack’s outsourcing and have received no such documents from Smulski to date. The Court finds that there is a
substantial likelihood that the documents Plaintiffs seek from Smulski will be important to Plaintiffs’ case ;
accordingly, this factor weighs in favor of production.

The second factor examines the degree of specificity of the request. A thorough reading of Plaintiffs’ requests for
production of documents shows that they are sufficiently specific. Further, Mr. Smulski agreed to produce relevant
documents in response to this discovery before he claimed the GDPR prevented him from doing so. Therefore, this factor
also weighs in favor of production.

The third factor is whether the information originated in the United States. Although Mr. Smulski is a U.S. citizen, it
appears most of the documents Plaintiffs are seeking originated in Poland or elsewhere outside of the United States.
Therefore, this factor weighs against Smulski’s production of documents.

The fourth factor is the availability of alternate means of securing the information. In this matter, Plaintiffs have produced
an expert report that opines that Mr. Smulski deleted information from his Can-Pack computer in 2013 and 2014 and
directed other Can-Pack employees to do the same. Accordingly, it is apparent that Smulski has, at a minimum, emails
and other documents that are no longer in the possession of Can-Pack. As such, there is no alternative means for
Plaintiffs to obtain this information, and this factor weighs in favor of production.

Lastly, the fifth factor is the extent to which noncompliance would undermine important interests of the United
States. This has been described as “the most important factor.”

The United States “has a substantial interest in fully and fairly adjudicating matters before its courts – an interest
only realized if parties have access to relevant discovery – and in vindicating the rights of American plaintiffs. ”
The interest of the United States in adjudicating this matter is substantial and requires production of relevant discovery.

It is true that Poland has an interest in protecting the personal data of its citizens, but the parties in this matter entered into
a Protective Order and ESI Protocol that will protect the personal data of any Polish third parties. (The foreign country’s
interest is diminished “where the court has entered a protective order preventing the disclosure of the secret information.”)
Therefore, this factor also weighs in favor of production.

As stated above, Defendant Smulski, an American citizen sued in the United States, bears the burden of showing that the
GDPR and/or Polish privacy law bar production of these relevant documents. This he cannot do.

Consideration of the Restatement factors above leads to the conclusion that production of relevant discoverable
documents is warranted in this case.
e. Lex Loci Delicti v. Most Significant Relationship

f. Philippines’ preference for Most Significant Relationship

 Midterms coverage ^^^ march 19, 2021