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    Conflict of Laws - Chapter I

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    CONTENTS CHAPTER I INTRODUCTION TO PRIVATE INTERNATIONAL LAW.. International Law Branches of International Law... Distinctions between Public and Private International Law. Nevsun Resources, Ltd. v. Araya Transformation to Customary International Law. Abdullahi v. Pfizer... Foreign Element .... Phases in Conflicts Resolution. Hasegawa v. Kitamura .. Steps in Determining Applicable Law.... Choice of Applicable Law... Extraterritoriality.. Small v. United States .. Kiobel v. Royal Dutch Petroleum Co. .. Corporate Liability for Human Rights Violation Jesner v. Arab Bank...... Nevsun Resources, Ltd. v. Araya... Forum Non Conveniens... Saudi Arabian Airlines v. Rebesencio, et al..... Bangladesh Bank v. Rizal Commercial Banking Corporation, et al. CHAPTER I CHOICE OF LAW Choice of Law Principles. Principle 1: Local Law..... The problem of renvoi.. Aznar v. Garcia... Bellis v. Bellis... Principle 2: Needs of the Interstate and International Systems ... Principle 3: Relevant Policies of the Forum Pitzer College v. Indian Harbor Insurance Company.... Cadalin, et al. v. POEA Administrator Bank of America NT & Asia v. American Realty Corporation Dacasin v. Dacasin Principle 4: Relevant Policies of Other Interested States . Kearney v. Salomon Smith Barney... Butler v. Adoption Media, LLC Steps in Governmental Interest Analysis Test.... Criticism of Governmental Interest Analysis Approach Principle 5: Protection of Justified Expectations... Francisco v. Stolt Achievement MT ... Principle 6: Basic Policies Underlying the Particular Field of Law... Principle 7: Certainty, Predictability, and Uniformity a of Result., Principle 8; Ease in the Determination and Application a of the Law to be Applied Other Principles Affecting Choice of Law a Proof of Foreign Law and Processual Presumption. ‘ldvalley Shipping v. Court of Appeals Manufacturers Hanover Trust Co. v. Guerrero. Edi-staff Builders International v. NLRC .... The Apostille Convention Exceptions to Proof of Foreign Law: Norse Management Co. v. National Seamen Board... Scrivener’s Error... Hong Kong and Shanghai Banking Corporation v. Sherman, et al. ... 90 Carnival Cruise Lines, Inc. v. Shute.. CHAPTER III CONTRACTS... Conflict of Laws in Contractual Relations Primacy of Contractual Stipulations ..... Bagong Filipinas Overseas Corporation v. National Labor Relations Commission. Atienza v. Philimare Shipping... Pakistan International Airlines v. Blas Ople...... Choice of Law Stipulations Pandemics and Force Majeure. Waiver of Renvoi... Approaches to Contractual Conflicts of Law ..... Erie Insurance Exchange v. Edmund D. Heffernan IL... Government v. Frank. In re KMH..... Depecage.... Philippines Follows Lex Loci Contractus .. Triple Eight Integrated Services, Inc. v. NLRC... Defenses to Jurisdiction and Choice of Law..... Hasegawa v. Kitamura . CHAPTER Iv TORTS AND DAMAGE! Torts as a Source of Obligation Concept of Negligence..... Conflict of Laws in Torts..... Approaches to Conflicts’ Torts... Dowis, et al. v. Mud Slingers, Inc, et al Melton v. Stephens.. Saudi Arabian Airlines v. Court of Appeals. First National Bank in Fort Collins v. Rostek... Kamelgard v. Macura .. Lankenau v. Boles ... Winter v. Novartis Pharmaceuticals Corp. FutureSelect Portfolio Management, Inc. v. Tremont Group Holdings... Lex Loci Delicti v; Most Significant Relationship Philippines’ Preference for Most Significant Relationship.....144 Abandonment of Stare Decisis . CHAPTER V CITIZENSHIP AND DUAL NATIONALITY. How Acquired.. Citizenship at Birth..,. Multiple Citizenshipz... Natural Born Citizenship... Bengson III v. House of Representatives Electoral Tribunal. Foundlings Are Natural-Born Citizens Poe-Llamanzares v, COMELEC...... Importance of Citizenship. Me Djumantan v. Domingo Relation to Conflict of Laws. Dual Allegiance... 161 Mercado v. Manzano .... Expatriation.... Board of Immigration Commissioners v. Go Callano.... Republic Act No. 9225: Citizenship Retention and Re-acquisition Act.. Jacot v. Dal... Sobejana-Condon v. COMELEC .. Maquiling v. COMELEC ‘Arnado v. COMELEC.... Reacquisition v. Retention. David v. Agbay.... Practice of Professio In Re: Petition to Re-Acquire the Privilege to Practice Law in the Philippines. General Principles in Dealing with Conflict of Nationality Laws... Citizenship under US. Laws... Perez v, Brownell... Afroyim v. Rusk. Republic Act No. 9225 and U.S. Citizenship ... Assisted Reproductive Technology Children and Citizenship Dvash-Banks v. Pompeo... ART Is Not Against Public Policy .. CHAPTER VI DOMICILE .. Kinds Domicile and Citizenshij Loss and Retention Schill v. Cincinnati Ins. Ci Romualdez Marcos v. COMELE( Jalosjos v. COMELEC.... Permanent Residency Overseas and the Process of Foreign Naturalization .... Caballero v. COMELEC.... Caasi v. Court of Appeals... Coquilla v. COMELEC. Poe-Llamanzares v. COMELEC .. Absentee Voting and Domicile... Mazcalintal v. COMELEC... Nicolas-Lewis v. COMELEC... Republic Act No. 10590... Venue in Estate Proceedings... Jao v. Court of Appeals ... San Luis v. San Luis ... CHAPTER VII PROPERTY...... When Conflict Arises . Laurel v. Garcia .. Rule as to Real and Personal Property... Roberts v. Locke ..... Tayag v. Benguet Consolidated. xii iM, 214 215 216 217 19 Specific Rules as to Ownership of Real Property. Ramirez v. Vda. de Ramirez Matthews v. Taylor... Cheesman v. Intermediate Appellate Court. Llantino v. Co Liong Chong... Condominium Act of the Philippines . CHAPTER VIII MARRIAGE AND DIVORCE.. Marriage Conflict of Laws Full Faith and Credit. US v. Jarvison.... Cook v. Cook. Validity of Marriages in Consulates .... In re Marriage of Antonia R. Medina... Importance of Marriage.... Marriages Not Subject of Recognition Obergefell v. Hodge Civil Unions. Langan v. St. Vincent's Hosp. of N.Y... Divorce and Public Policy... Tenchavez v. Escano..... Limited Recognition of Divorce... Van Dorn v. Romillo..... San Luis v. San Luis Pilapil v. Ibay-Somera.. Republic v. Orbecido.. Recognition of Fore ~ 3 : ign Divorce and Correction of Entry, > ‘Orpuz Vv. Sto, Tomas... 34 Continuing Liberalization of Divorce . CORPO Republic v, Manalo .. . 7 Nature of Recognition of Foreign Divorce Proceedings on, Fujiki v. Marinay.... Steelcas R CHAPTER Ix ap WILLS AND SUCCESSION.. = T Conflict of Laws in Succession .. 3 Roger ” Weste Definition 26, ; Extrinsic Validity of Wills... 327 : Allowance of Will Proved Outside of the Philippines Dalton v. Giberson... 330 Hyat Intrinsic Validity of Will Cav Miciano v. Brimo ... Taya Bohanan v. Bohanan. CHAPTER X Nar 334 Ramirez Marcaida y, Aglubat,, 34 Applicable Law at Time of Adoption... 336 Gar Republic v. Mille. 336 Resident or Non-resident Aliens May Adopt 337 Spouses Park y, Liwanag .... 337 R 0 Domestic and Inte t-Country Adoption xiv yO. iat ace CHAPTER XI CORPORATIONS ..... Conflicts Problems on Corporations Domestic and Foreign Corporations Cargill, Inc. v. Intra Strata Assurance Corporation .. Steelcase v. Design International Selections, Inc. Residence of Corporations State Investment House, Inc. v. Citibank. The “Internal Affairs” Rule... Rogers v. Guaranty Trust Co. Western Air Lines, Inc. v. Sobieski Mansfield Hardwood Lumber Co. v. Johnson. State of Incorporation .... Domicile of Corporations.. Hyatt Elevators v. Goldstar Elevators Clavecilla Radio System v. Antillon .. Tayag v. Benguet Consolidated . Nationality of Corporations.. Tests of Corporate Nationality: Control Test..... Tests of Corporate Nationality: Grandfather Rule .. Narra Nickel Mining and Development Corporation v. Redmont Consolidated Mines Corporation . Controlling Doctrine: Control Test .. Capital Refers to Common Shares Gamboa v. Teves. SEC Memorandum Circular No. 8, Series of 2013.. os Validity of SEC Memorandum Circular No. 8, s. of 2013.......... Roy v. Herbosa.... xv a T CHAPTER XII RANS BOUNDARY POLLUTION... _ The Pro st. Aviat “© Problem of Pollution “popicl Climate Change..... wr Paris Climate Agreement .. Guimar Le Philipp Ps Approaches to Transboundary Pollution ... 7 Pakootas v. Teck Cominco Metals, Ltd. Nnadili v. Chevron US.A, Inc... Philip CHAPTER XIII ay, INTELLECTUAL PROPERTY. Other Conflict in Intellectual Property Rights Intellectual Property Code and International Conventions Bridgeman Art Library, Ltd. v. Corel Corp. Approaches to IP Conflicts of Law ... Subafilms, Ltd. v. MGM-Pathe Communications Co. . Allarcom Pay Television v. General Instrument Corp. Itar-Tass Russian News Agency v. Russian Kurier, Inc. Sarl Louis Feraud Intern. v. Viewfinder, Inc. ... CHAPTER XIV ENFORCEMENT OF FOREIGN JUDGMENTS ... Effect of Foreign Judgments .. Res Judicata Effect of Foreign Judgment Fujiki v. Marinay. When Foreign Judgment May Be Repelled . Roehr v. Rodriguez ..... SEs 1] 2 St. Aviation Services v. Grand International Airways .. Tropic Leisure Corp. v. Hailey. Wrong Interpretation of Law Guimaraes v. Brann .. Local Courts Not a Refuge for Failed Business Dealings Philippine Aluminum Wheels v. FASGI Enterprises .. Proof of Foreign Law . The Apostille Convention . LIST OF CASES Philippine Cases US. Cases .. Other Case ... ‘ CHAPTERI * INTRODUCTION TO PRIVATE INTERNATIONAL LAW International Law International law has been defined as the “rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”" It includes not only questions of right between nations but also questions concerning “the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation.”* International law is therefore that branch of law that deals with the relationship of states as well as the relationship of individuals of different states. It has a public character when international subjects are involved and a private character when individuals, domestic laws, or local events intermingle with each other necessitating a determination of the applicable law. Thus, international law has both a public side as well as a private side to it. ‘An example of public international law is when two or more countries have territorial disputes that are governed by international treaties or conventions. For private international law, it usually comes into play when the laws of State A are different from the laws of State B, or when there is an invocation of the doctrine of forum non conveniens. 'Gection 101 of the Restatement (Third) of Foreign Relations Law of the United States (1987). 2Hilton v. Guyot, 159 U.S. 113. NEES ENB ENS Branches of International Law International law has two branches: 1. Public international law - governs the Telationshi and international entities. hip of State, 2. Private international law - comprehends laws regula. Private interactions across national frontiers, It deals ting conflict of laws among the laws of two or more states necessitates a determination of which municipal law a fe to a case. The objective is the harmonization of the ie several states whenever a conflicts of law Situation exists 7 Distinctions between Public and Private International Law As to source, public international law is based on international conventions, international custom, the general Principles of law recognized by civilized nations, and judicial decisions and the teachi of the most highly qualified publicists of the various nations. They are generally known as traditional sources of international law and are commonly referred to as “hard law” because of their binding nature. In recent years, a form of law outside of the traditional sources has become accepted as an additional source of Public international law. Often referred to as “soft law,” they are usually “normative statements in non-binding political instruments such as. declarations, resolutions, and programs of action” where “compliance is expected with the norms that these texts contain.” They are “political commitments that can lead to law, but they are not law, and thus give rise only to political consequences.”* Hence, they are so-called “soft law” because their binding force is questionable. Soft laws come in the form of normative resolutions of international organizations, concluding texts of summit meetings or international conferences, recommendations of treaty bodies overseeing compliance with treaty obligations, bilateral or multilateral memoranda of understanding, executive political agreements, and guidelines or codes of conduct adopted in a variety *Am.Soc’y Int 1L,, “International Law Defined,” in Benchbook on International Lav §1A (Diane Marie ‘Amann, Ed., 2014), available at www.asil.org /benchbook / definition pat ‘Article 38, Statute of the International Court of Justice. tledge ‘Dinah L. Shelton, Soft Law in Handbook of International Law 1 (Rou Press, 2008). oe cz mronre mS INTRODUCTION TO PRIVATE INTERNATIONAL LAW of soft law would be United ‘Nations General declarations and United Nations Commission lutions. Countries may honor or ignore se bodies. Also, decisions of the UN Arbitral ‘on the willingness of the parties to of contexts.” Examples ‘Assembly resolutions or ‘on Human Rights resol recommendations of thet Tribunal have been dependent honor its decision. Private international law, on the other hand, is based on domestic and municipal laws, which include the constitution and statutes adopted by individual countries. Public international law is the same for all states which is not necessarily the case with private international law. As to subjects, public international law has states and international organizations as subjects. On the other hand, private international law has individuals and corporations as subjects thereof. However, recent cases and developments in human rights law and environmental law have started considering individuals and corporations as subjects of public international law. Nevsun Resources, Ltd. v. Araya 2020 SCC 5 Facts: Three Eritrean workers sued Nevsun Resources before a Canadian court for damages arising from violations of customary international law in the form of forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. They claimed that they were forced to join Eritrea’s military service where they experienced violent, cruel, inhuman and degrading treatment arising from a forced labor regime. Nevsun filed a motion to strike the pleadings on the basis of the act of state doctrine that bars domestic courts from reviewing the sovereign acts of a foreign government. Nevsun charged that the claims based on customary international law had no reasonable prospect of success. The lower court judge dismissed the motion, which dismissal was affirmed by the Court of Appeals. __ Issue 1: Do the Eritrean workers have the standing to claim violation of customary international law? Held: Yes. 7Id. at 4. aa CONFLICT OF LAWS While states were historically the main subjects of international law, it has long since evolved from this state. centric template. The past 70 years have seen Proliferation of human rights law that transformed international law and made the individual an integral part of this legal domain, reflected in the creation of a complex network of conventions and normative instruments intended to protect human rights and ensure compliance with those rights. The rapid emergence of human rights signified a revolutionary shift in international law to 4 human-centric conception of global order. The result of these developments is that international law now works not only to maintain peace between states, but to protect the lives of individuals, their liberty, their health, and their education. The context in which international human. rights norms must be interpreted and applied today is one in which such norms are routinely applied to private actors. It is therefore not plain and ‘obvious that corporations today enjoy a blanket exclusion snder customary international law from direct liability for Violations of obligatory, definable, and universal norms of international law. Issue 2: Are the claims of the Eritrean workers barred by the act of state doctrine? Held: No. The act of state doctrine has played no role in Canadian law and is not part of Canadian common law. Whereas English jurisprudence has reaffirmed and reconstructed the act of state doctrine, Canadian law has developed its own approach to addressing the twin principles underlying the doctrine: conflict of laws and judicial restraint. Both principles have developed separately in Canadian jurisprudence rather than as elements of an all-encompassing act of state doctrine. As such, in Canada, the principles underlying the act of state doctrine have been completely subsumed within this jurisprudence. Canadian courts ute questions dealing with the enforcement of aan a heripeh to ordinary private international law pari * which generally call for deference, but allow for j iscretion to decline to enforce foreign laws where such laws are contrary t i Seay i 5 public emeaarerieee public policy, including respect for INTRODUCTION TO PRIVATE INTERNATIONAL LAW ' Note: The act of state doctrine is still a well-respected doctrine in international law. It is a viable defense to a foreign court’s attempt to review the acts of a sovereign and independent state on the basis of international comity. The decision of the Supreme Court of Canada on this issue must be taken to be applicable only to Canada, on the ground of public policy and necessity. Transformation to Customary International Law International law is neither static nor stillborn. There may be conduct which was formerly not considered as a norm of international law but through practice and acceptance by states, have been transformed into a norm ‘of customary international law. For this transformation to happen, the norm must have become universal in character, must be of mutual concern to states, and must be of a specific character that is definite in content. If all three elements converge, 2 norm may be considered to have become customary international law. Abdullahi v. Pfizer 562 F.3d 163 (2d Cir. 2009) Facts: Pfizer had an experimental antibiotic, Trovan, which it administered to young patients in Nigeria without getting the informed consent of the children nor their guardians. Trovan had adverse side effects on the test patients as some died while others became blind, deaf, paralyzed, or brain-damaged. Abdullahi and other plaintiffs sued Pfizer under the Alien Tort Statute (“ATS”) before a United States District Court for the Southern District of New York. They alleged that Pfizer violated international law for non-consensual medical experimentation. Pfizer moved to dismiss for failure to state a claim under the ATS and on the basis of forum non conveniens. The district court granted the motionon the ground that plaintiffs failed to identify a source of international law that “provide[s] a proper predicate for jurisdiction under the ATS.” The court justified its decision on the ground that “[a] cause of action for Pfizer’s failure to get any consent, informed or otherwise, before performing medical experiments on the subject children would expand customary international law far beyond that contemplated by the ATS.” With respect to forum non conveniens, the court held that “plaintiffs had failed to submit specific evidence that the Nigerian judiciary would be biased against its own a CONPLICT op. LAWS, Citizens j A a dequat mae ection against Pfizer” and that “Nigeria was 4, ‘nate forum.” Plaintiffs appealed. Issues; 1, Whether Pfizer violated international law o, non-consensual medical experimentation. " djudicg nether Nigeria offers an adequate forum for i “Shudication of plaintiffs claire, Held: 1. Yes, Pfizer violated international law on non. consensual medical experimentation. 2. No, Nigeria has not been shown to be an adequate forum for the adjudication of plaintiffs’ claims, Turning now to this appeal, and remaining mindful of our obligation to proceed cautiously and self-conscious! in this area, we determine whether the norm alleged: (1) is a norm of international character that States universally abide by, or accede to, out of a sense of legal obligation; (2) is defined with a specificity comparable to the 18th-cent paradigms discussed in Sosa; and (3) is of mutual concern to States. A. The Prohibition of Nonconsensual Medical Experimentation on Humans Appellants’ ATS claims are premised on the existence of a norm of customary international law prohibiting medical experimentation on non-consenting human subjects. To determine whether this prohibition constitutes a universally accepted norm of customary international law, we examine the current state of international law by corpulting the sources identified by Article 38 of the Stane. of the International Court of Justice (“ICy Statute”), to which the United States and all members of the United Nations are parties. Article 38 identifies the authorities that provide “competent proof of the content of customary international law.” These sources consist of: (a) international conventions, or particular, establishing rules exp by the contesting states; whether general ressly recognized (b) international custom, as evidence of a general practice accepted as law; © a a hl eH ii INTRODUCTION TO PRIVATE INTERNATIONAL LAW (c)__ the general principles of law recognized by civilized nations; (d) _..,judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The appellants ground their claims in four sources of international law that categorically forbid medical experimentation on non-consenting human subjects: (1) the Nuremberg Code, which states as its first principle that “[t]he voluntary consent of the human subject is absolutely essential”; (2) the World Medical Association's Declaration of Helsinki, which sets forth ethical principles to guide physicians world-wide and provides that human subjects should be volunteers and grant their informed consent to participate in research; (3) the guidelines authored by the Council for International Organizations of Medical Services (“CIOMS”), which require “the voluntary informed consent of [a] prospective subject”; and (4) Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”), which provides that “no one shall be subjected without his free consent to medical or scientific experimentation.” x x x In sum, it was inappropriate for the district court to forego a more extensive examination of whether treaties, international agreements, or State practice have ripened the pee of nonconsensual medical experimentation on juman subjects into a customary international law norm that is sufficiently (i) universal and obligatory, (ii) specific and definable, and (iii) of mutual concern, to permit courts to infer a cause of action under the ATS. See Sosa, 542 U.S. at 732-35,124 S.Ct. 2739. We now proceed with such an examination. i. Universality The appellants must allege the violation of a norm of customary international law to which States universally subscribe. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739; Vietnam Assn for Victims of Agent Orange, 517 F.3d at 117. The prohibition on nonconsensual medical experimentation on human beings meets this standard because, among other reasons, it is specific, focused, and accepted by nations around the world without significant exception. a CONFLICT OF LAWS rohibition into a no; of the Foogan with the war of Chale mt Rluremberg. The United States, the Soviet Union, Is at Nure dom, and France “acting in the interest of aj} the alte atonal ” established the International Military the uae MT") through entry into the London Agreement Tiana 945, According to the Charter, the IMT had the of August 8, and punish persons who, acting in the interests power (0 ry ae xis countries, whether as individuals or of the Euivoets organizations, committed,” among other es and crimes against humanity. The evolutiot customary internation: as mem f offenses, war crim tried 22 “major” Nazi war criminals leaving “lower-level” war criminals, including “[lleading physicians...and leading German industrialists,” to be tried in subsequent trials by U.S. military tribunals acting “under the aegis of the IMT.” The law that authorized the creation of the US. military tribunals, Control Council Law No. 10, was enacted in 1945 by the Allied Control Council, an authority through which the London Agreement signatories exerted joint-control over Germany. In August 1947, Military Tribunal 1, staffed by American judges and prosecutors and conducted under American procedural rules, promulgated the Nuremberg Code as part of the tribunal's final judgment against 15 doctors who were found guilty of war crimes and crimes against humanity for conducting medical experiments without the subjects’ consent. Among the nonconsensual experiments that the tribunal cited as a basis for their convictions were the testing of drugs for immunization against malaria, epidemic jaundice, typhus, smallpox, and cholera. Seven of the convicted doctors were sentenced to death and the remaining eight were sentenced to varying terms of imprisonment. The judgment concluded that “[mlanifestly human experiments under such conditions are contrary to the Principles of the law of nations as they result from usages os d among civilized peoples, from the laws of ode an from the dictates of public conscience.” The ; as part of the tribunal's judgment, therefore, emphasized as its first principle iit Fttlhe voluntary Consent of the human subject is absolutely essential.” conti agair legal med have with sc Rig of t one or! da Su] INTRODUCTION TO PRIVATE INTERNATIONAL LAW The American tribunal's conclusion that action that contravened the Code’s first principle constituted a crime against humanity is a lucid indication of the international legal significance of the prohibition on nonconsensual medical experimentation. As Justices of the Supreme Court have recognized, “[t]he medical trials at Nuremberg in 1947 deeply impressed upon the world that experimentation with unknowing human subjects is morally and legally unacceptable.” United States v. Stanley, 483 U.S. 669, 687, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) In 1955, the draft International Covenants on Human Rights was revised to add a second sentence to its prohibition of torture and cruel, inhuman, or degrading treatment or punishment. The addition provided that “[iJn particular, no ‘one shall be subjected without his free consent to medical or scientific experimentation involving risk, where such is not required by his state of physical or mental health.” The clause was later revised to offer the simpler and sweeping prohibition that “no one shall be subjected without his free consent to medical or scientific experimentation.” ICCPR, supra, at art. 7. This prohibition became part of Article 7 of the ICCPR, which entered into force in 1976, and is legally binding on the more than 160 States-Parties that have ratified the convention without reservation to the provision. By its terms this prohibition is not limited to state actors; rather, it guarantees individuals the right to be free from non- consensual medical experimentation by any entity — state actors, private actors, or state and private actors behaving in concert. Its status as a norm that states conceive as legally binding — and therefore part of customary international law — is confirmed by Article 2 of the accord, which requires that “[e]ach State Party...undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” ICCPR art, 2(1), The international community's recognition in the ICCPR of its obligation to protect humans against nonconsensual medical experimentation, regardless of the source of the action, is powerful evidence of the prohibition’s place in customary international law. CONFLICT OF LAWS World Medical Association ado th DaeMenT ot Helsinki, which enunciated standange for obtaining informed consent Cnt ao Subjects. jy i d that in clinical research combined witl Professiona| Prove acai possible, consistent with patient psychole : are Lat roid obtain the patient’ freely given consent the docto™ tient has been given a full explanation,” and the at one Pegutic clinical research on a person “cannot jt ror akan without his free consent, after he has been full informed.” World Med. Ass'n, Declaration of Helsinki: Code y Ethics of the World Medical Association, art. 1I(3a), G.A. Rec (1964), http:// www.pubmedcentral.nih. gov / picrender fegiartid=1816102 blob-type=pdf. The Declaration has since been amended five times. The informed consent provision now provides that “subjects must be volunteers and informed participants in the research project. Declaration of Helsinki, supra, at art. 20. The Declaration also requires that “[iJn any research on human beings, each potential subject must be adequately informed of the aims, methods... anticipated benefits and potential risks of the study, and the discomfort it may entail” and that researchers “obtain the subject’s freely-given informed consent, preferably in writing.” Id. at art. 22. Although the Declaration itself is non-binding, since the 1960s, it has spurred States to regulate human experimentation, often by incorporating its informed consent requirement into domestic laws or regulations. Currently, the laws and regulations of at least 84 countries, including the United States, require the informed consent of human subjects in medical research. That this conduct has been the subject of domestic legislation is not, of course, in and of itself proof of a norm. However, the incorporation of this norm into the laws of this country and this host of others 6 @ powerful indication of the international acceptance of this norm as a binding legal obligation, where, as here, states have shown that the norm is of mutual concern by including, itina variety of international accords. This history illust i igi ith the trial of then’ y illustrates that from its origins wil i Nazi doctors at Nuremberg through its evolution in international conventions, agreements, declarations, and domestic laws and regulations, the norm prohibiting A fonsensual medical experimentation on human subjects cepmome firmly embedded and has secured universal acceptance in the community of nations. Unlike our INTRODUCTION TO PRIVATE INTERNATIONAL LAW is lleague’s customary international law analysis, which esgentially ‘ests on the mistaken assumption that ratified international treaties are the only valid sources of customary international law for ATS purposes, see Dissent at 200-02, we reach this conclusion as a result of our review of the multiplicity of sources — including international conventions, whether general or particular, and international custom as identified through international agreements, declarations and a consistent pattern of action by national law-making authorities — that our precedent requires us to examine for the purpose of determining the existence of a norm of customary international law. ii, Specificity Sosa requires that we recognize causes of action only to enforce those customary international law norms that are no “less definite [in] content...than the historical paradigms familiar when [the ATS] was enacted.” Sosa, 542 US. at 732, 124 S.Ct. 2739. The norm prohibiting non-consensual medical experimentation on human subjects meets this requirement. The Nuremberg Code, Article 7 of the ICCPR, the Declaration of Helsinki, the Convention on Human Rights and Biomedicine, the Universal Declaration on Bioethics and Human Rights, the 2001 Clinical Trial Directive, and the domestic laws of at least 84 States all uniformly and unmistakably prohibit medical experiments on human beings without their consent, thereby providing concrete content for the norm. iii, Mutual Concern As we have seen, States throughout the world have entered into two express and binding international agreements prohibiting non-consensual medical experimen- tation: the ICCPR and the Convention on Human Rights and Biomedicine. The entry of over 160 States into these agreements and the European Union’s passage of the 2001 Clinical Trial Directive demonstrates that States have not only acted independently to outlaw large-scale, non- consensual drug testing on humans, but they have also acted in concert to do so. In other words, acting out of a sense of mutual concern, “the nations [of the world] have made it their business, both through international accords nu 2 i CONFLICT OF LAWS . ction,” to demonstrate their intent, and unilatera rof the type alleged in the complain” © ns, we hold that the appellants pled Eo i arto state a cause of action under ra Pr a violation of the norm of customary international lay, prohibiting medical experimentation on human subjects without their consent. In such an instance, ATS jurisdiction exists over plaintiffs’ claims. The district court determined that the norm existed, but concluded that because no single source recognizing the norm was legally binding on the United States and created a private cause of action, it could not infer such a right under the ATS. Presumably, on this basis, it simultaneously held that there was no subject matter jurisdiction over plaintiffs’ claims. Under Sosa, this approach: was not correct. Sosa makes clear that the critical inquiry is whether the variety of sources that we are required to consult establishes a customary international law norm that is sufficiently specific, universally accepted, and obligatory for courts to recognize a cause of action to enforce the norm. Nothing in Sosa suggests that this inquiry can be halted if some of the sources of international law giving rise to the norm are found not to be binding or not to explicitly authorize a cause of action. iv. Forum Non Conveniens Asan alternative to dismissal for failure to state a claim under the ATS, the district court dismissed the actions on the ground of forum non conveniens. Appellants raised this issue on appeal. Ordinarily, we review a forum non conveniens dismissal for abuse of discretion. _ Although we are not now called upon definitively to review the district court's application of, f forum non conveniens, in view of the frequency with which this issue has arisen and remained unsettled in this case, we offer additional Buidance to assist the parties and the district court. The Step analysis set forth in Iragorri v. United Techs. Corp., 65, 71-75 (2d Cir. 2001, i i litigati - 2001, en banc), applies. In this seers Second step of the analysis, which requires ri een 7 ‘consider the adequacy of the alternative Pivotal. Dismissal is not appropriate if an adequate forum, IN and pr forum: adequ it doe a disp forum that it INTRODUCTION TO PRIVATE INTERNATIONAL LAW and presently available alternative forum does not exist. A forum in which defendants are amenable to service of process and which permits litigation of the dispute is generally adequate. Such a forum may nevertheless be inadequate if it does not permit the reasonably prompt adjudication of a dispute, if the forum is not presently available, or if the forum provides a remedy so unsatisfactory or inadequate that it is tantamount to no remedy at all. The defendant bears the burden of establishing, that a presently available and adequate alternative forum exists, and that the balance of private and public interest factors tilts heavily in favor of the alternative forum. Absent a showing of inadequacy by a plaintiff, “considerations of comity preclude a court from adversely judging the quality of a foreign justice system.” Accordingly, while the plaintiff bears the initial burden of producing evidence of corruption, delay, or lack of due process in the foreign forum, the defendant bears the ultimate burden of persuasion as to the adequacy of the forum. Foreign Element The most important component of a conflicts of law problem is the presence of a foreign element. A foreign element is anything which is not domestic and has a foreign component to it. It can be a foreigner, a foreign corporation, an incident happening in a foreign country, or a foreign law chosen by the parties. Without a foreign element, the case is only a domestic problem with no conflicts dimension. Saudi Arabian Airlines v. Court of Appeals* explained the concept of foreign element, thus: A factual situation that cuts across territorial lines and is affected by the diverse laws of two or more states is said to contain a foreign element. The presence of a foreign element is inevitable since social and economic affairs of individuals and associations are rarely confined to the geographic limits of their birth or conception. The forms in which this foreign element may appear are many. The foreign element may simply consist in the fact that one of the parties to a contract is an alien or has a foreign . 122191, October 8, 1998. “it CONFLICT OF LAWS domicile, or that a contract between nationals of one Sta involves properties situated in another State. In other case the foreign element may assume a complex form, , Ina case where two parties enter into a lease contract for a located locally, it can be said that this can only be a local However, when two parties enter into a sales agreement as in a purchase from a merchant located overseas, this can be char as involving a foreign element. If a dispute later on arises the parties, the laws of the state of the merchant, of the buye, stipulated in the sales agreement becomes pertinent and there wil, a need to harmonize these laws to determine which one is applicay, From this standpoint, the foreign element can be the foreign law chose by the parties, or it could be that where the merchant operates, or ite also be the law of the nationality, or the law of the place of busin of the merchant. There is now a question as to the applicable lay, a several foreign laws are implicated. Prop, dis Noni, acter, dete OF th, Phases in Conflicts Resolution There are three phases in the resolution of conflicts of law problen These phases are jurisdiction, choice of law, and recognition ani enforcement of judgments. Jurisdiction concerns the authority of a cour of law to take cognizance of a case, choice of law refers to the applicibe law to the problem, and recognition and enforcement concems te enforcement of foreign laws and judgments in another jurisdiction. Thee phases are important for Purposes of determining the applicable theories of law as well as the defenses available thereto. These three phases are separate from each other and a defers in one phase is not a defense in other phases. For example, th doctrines of lex loci celebrationis and lex loci contractus are not grounds to question the jurisdiction of the court. In like manner, the defens? of forum non conveniens cannot be used as a defense to choice of la" disputes. Thus, it is important to analyze the real issues in a conflic’ » the use of certain theories in * may be deemed improper. Hasegawa vy. Kitamura GR. No. 149177, November 23, 2007 Facts: Petitioner Ni Ltd. (“Nippon”) entere 'Ppon Engineering Consultants Co., d into an Independent Contractor INTR Agreeme Japanese The ag; professi 1, 1999. project Q Kazuh would would that alrea¢ perfo Lipa lack pre-t and prin cou affix the cas the cor ln ord cable lay, a 'W problem, nition and y of a court ‘applicable ncerns the tion. These le theories a defense nple, the grounds defense e of law conflicts roach to ies in a Ds or INTRODUCTION TO PRIVATE INTERNATIONAL LAW ' Agreement (“ICA”) with respondent Minoru Kitamura, a Japanese national permanently residing in the Philippines. The agreement provided that respondent shall extend professional services to Nippon for a year starting on April 1, 1999. Nippon then assigned respondent to work as the project manager in various projects in the Philippines. On February 28, 2000, petitioner’s general manager, Kazuhiro Hasegawa, informed respondent that the company would no longer be renewing his ICA and that his services would be utilized only until March 31, 2000. Nippon insisted that respondent's contract was for a fixed term that had already expired. Respondent subsequently sued petitioners for specific performance and damages with the Regional Trial Court of Lipa City. Petitioners moved to dismiss the complaint for lack of jurisdiction, asserting that the claim for improper pre-termination of respondent's ICA could only be heard and ventilated in the proper courts of Japan following the principles of lex loci celebrationis and lex contractus. The lower court denied the motion to dismiss, a decision which was affirmed by the Court of Appeals (“CA”). The CA held that the principle of lex loci celebrationis was not applicable to the case, because nowhere in the pleadings was the validity of the written agreement put in issue. The CA upheld the lower court's application of the principle of lex loci solutionis. Issue: Whether the subject matter jurisdiction of Philippine courts in civil cases may be assailed on the principles of lex loci celebrationis, lex contractus, the state of the most significant relationship rule, or forum non conveniens. Held: No. They are improper grounds for questioning the jurisdiction of Philippine courts. 1, 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? 1 2. Analytically, jurisdiction and choice of two distinct concepts. Jurisdiction considers wi's2™ fair to cause a defendant to travel to this state tt ity law asks the further question whether the appija<*®* substantive law which will determine the merits of": is fair to both parties. The power to exercise ies (2 does not automatically give a state constitutional | tion to apply forum law. While jurisdiction and the choice lex fori will often coincide, the minimum contacts i the do not always provide the necessary significant con.” for the other. The question of whether the law of a sian be applied to a transaction is different from the questa whether the courts of that state have jurisdiction to ents. judgment. a 3. Inthiscase, only the first phaseis atissue: jurisdiction Jurisdiction, however, has various aspects. For a court validly exercise its power to adjudicate a controversy, it mus 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. 4. Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign authority which establishes and organizes the court. 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. 5. In the instant case, petitioners, in their motion t dismiss, donot claim that the trial courtis not properly vested by law with jurisdiction to hear the subject controversy fo" 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. Wht they rather raise as grounds to question subject matter jurisdiction are the principles of lex loci celebrationis an let contractus, and the state of the most significant relations'P le. 6. The Court fi i ji yunds corner urt finds the invocation of these gf CONFLICT OF Laws Eee INTROT Lex lo ceremony The doctr the law o performes of the co agreed u either ex significa apply to has the the par conside was to or plac accour their n tobe: ee ..}.}. © INTRODUCTION TO PRIVATE INTERNATIONAL LAW mnis relates to the law of the place of the lace where a contract is made. ‘or lex loci contractus means ct is executed or to be Lex loci celebratior ceremony or the law of the pl The doctrine of lex contractus the law of the place where a contra 0 performed. It controls the nature, c truction, and validity Pf 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 court should the parties. In a case involving a contract, 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. 7. 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. 8. 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. 9. It should be noted that when a conflicts case, one involving a foreign element, is brought before a court or administrative agency, there are three alternatives open to the latter in disposing of it: (1) dismiss the case, either because of lack of jurisdiction or refusal to assume jurisdiction over the case; (2) assume jurisdiction over the case and apply the internal law of the forum; or (3) assume jurisdiction over the case and take into account or apply the law of some = Ee CONFLICT OF LAWS Other State or States. The courts power to hear cases , Controversies is derived from the Constitution and the j."! ile it may choose to recognize laws of foreign nations jy court is not limited by foreign sovereign law short of treatio, INTRODUCTH determine what lega or other formal agreements, even in matters regarding ji." aotie. ead Provided by foreign sovereigns: the legal ogee isid 10. Neither can the cand ground raised, forum Nos system will then be deprive the trial jurisdic han neuen a proper basis for a motion to geal Choice of Applicabl because Section 1, Rule 16 of the Rules of Court does no, rc include it as a ground. Second, whether a suit should 1, will govern their cc entertained or dismissed on the basis of the said doctring of the Civil Code : depends largely upon the facts of the particular case anq establish such stip is addressed to the sound discretion of the trial court, j, deem convenient, this case, the RTC decided to assume jurisdiction. Thirg customs, public 01 the propriety of dismissing a case based on this principle ary applied y requires a factual determination; hence, this conflicts ee choice oft principle is more properly considered a matter of defense. 11. Accordingly, since the RTC is vested by law with the power to entertain and’ hear the civil case filed by Extraterritoriali respondent and the grounds raised by petitioners to assail Laws are that jurisdiction are inappropriate, the trial and appellate that the mind o courts correctly denied the petitioners motion to dismiss. of his country v law and provid Steps in Determining Applicable Law independent st Characterization. This involves identification of the issue in tk Laws, ho problem. It is a process of spotting the legal issues as presented by x _legislature. The facts of the case. It is conse abs ss aveper studying F case for the fis — time and who is trying to develop a theory of the case. An impotat country ro Pro step in this process is pinpointing the branch of law implicated" legislate upon the problem. Is it contract, torts, citizenship, succession, etc.? Alt this intrudes identifying the branch of law, the next step will be determining whet’ country. there is a conflicts of law problem by the presence of a foreign ele" apn If one is involved, he then employs applicable conflicts of law doctrine xamination | in determining the applicable law. If none, he just applies the rule 2 : dete ic determined b or jurisprudence prevailing in the forum. often than no! : . i : Connecting factors. Here, an analysis is made with resp which ce which jurisdiction or fora has the most connection to the ca 5 eat a | nationality of the Parties, the location of the act or event, thet iy ‘em P of the agreement or contract, and other matters are looked in'® in the oy the e first ortant od by After ether nent. rines law, ct tO rns o to INTRODUCTION TO PRIVATE INTERNATIONAL LAW determine what legal system between two or more legal systems is ‘a checklist embodying these factors applicable. The preparation of may be very helpful in identifying the applicable legal system. Once the legal system is identified, the applicable branch of law in that legal system will then be applied in resolving the dispute. Choice of Applicable Law Parties to a contract are free to stipulate the applicable law that will govern their contractual relations. This proceeds from Article 1306 of the Civil Code which provides that “[tJhe contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.” Once chosen, the chosen law shall be applied to govern the duties and responsibilities of the parties to each other. It is not necessary that the chosen law be local law, so long as the choice of law does not violate the public policy or the laws of the forum. Extraterritoriality Laws are generally territorial in application. The reason for this is that the mind of the lawmaker is limited to the territorial boundaries of his country when he enacts laws. It is unnatural that he will draft a law and provide therein that it will apply within the borders of another independent state. Laws, however, can be extraterritorial when so provided by the legislature. The question of whether a law is territorial or extraterritorial depends on legislative intent. Its within the right of the legislature of a country to provide that its laws apply outside the territorial boundaries of the state on matters within the competence of the legislature to legislate upon. This is recognized under international law, except when this intrudes with the territorial integrity and sovereignty of another country. The determination of whether a law is extraterritorial involves an examination of the legislative intent. Usually, legislative intent can be determined by looking at the words and phrases used in a statute. More often than not, this expression can be explicit, but it may also be implicit in which case, rules of interpretation can be resorted to. Thus, congressional records and debates may be examined to determine whether a law has territorial application or none. on CONFLICT OF Laws The following are examples of laws Providi ; ‘ ir application in an explicit manner: "8 ater, Art, 15, Laws relating to famiy and duties, or to the status, condition capacity of persons are binding upon the Philippines, even though YY tight and i citi living abroa ied of Art. 16. Real property as well as perso, property is subject to the law of the country where it is situated. However, intestate and successions, both with respect to succession and to the amount of rights and to the intrinsic validity of testament provisions, shall be regulated by the nation.| law of the person whose succession is under consideration, whatever may be the nature of the Property and regardless of the country wherein said property may be found. testamenta, the order of successional plicit in providing, pplication. This is shown by the use of the phrase “ex though living abroad” in Article 15 and “regulated by the national lay Property and regardless of the country wherein si: Property may be found” i i . Provisions, though with extraterritorial applicati i Small v, United States 544 U.S, 385 (2005) Facts: Small was convicted in Japan for smuggling imprison, sentenced by a Japanese court to five years ited Stanen After serving sentence, Small returned to the m a Pennsylvania gun ‘unlawful gun possession” that it shall be “unlawful convicted in any court, of t provid for any person. whofe ed INTRODUCTI crime punish: one year...to... then challenged conviction in Ja the scope of the Isoue: Wi had extraterrit are covered in Held: Ne the statute. 1. The « reference “co entered in a f 2. In de we find help generally Sono has Congress on not extraterr 3. For portion of # as a matter group, forei in importar punishable include ac permit, for that our sc conviction an Americ include a c: far less sev in any cou term excee dangerous foreign cor issue. Ww contrary h ton 8 for even law may said ugh nice r its heir rial ced INTRODUCTION TO PRIVATE INTERNATIONAL LAW toa a crime punishable by imprisonment for a term exceeding one year....to...possess...any firearm.” Small pleaded guilty then challenged his conviction on the ground that his earlier conviction in Japan, being a foreign conviction, fell outside the scope of the unlawful gun possession statute. Issue: Whether the “unlawful gun possession” statute had extraterritorial application such that foreign convictions are covered in its scope. Held: No. Only domestic convictions are covered by the statute. 1. The question before us is whether the statutory reference “convicted in any court” includes a conviction entered in a foreign court. 2. In determining the scope of the statutory phrase we find help in the “common sense notion that Congress generally legislates with domestic concerns in mind.” This notion has led the Court to adopt the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application. 3, For one thing, the phrase describes one necessary portion of the “gun possession” activity that is prohibited as a matter of domestic law. For another, considered as a group, foreign convictions differ from domestic convictions in important ways. Past foreign convictions for crimes punishable by more than one year’s imprisonment may include a conviction for conduct that domestic laws would permit, for example, for engaging in economic conduct that our society might encourage. They would include a conviction from a legal system that is inconsistent with an American understanding of fairness. And they would include a conviction for conduct that domestic law punishes far less severely. Thus, the key statutory phrase “convicted. in any court of, a crime punishable by imprisonment for a term exceeding one year” somewhat less reliably identifies dangerous individuals for the purposes of U.S. law where foreign convictions, rather than domestic convictions, are at issue. 4, We have found no convincing indication to the contrary here. The statute’s language does not suggest any \ CONFLICT OF LaWs —e—eEE intent to reach beyond domestic convictions mention foreign convictions nor is its subject mathe”, say, immigration or terrorism, where one could Py foreign convictions would seem especially relevant thy contrary, if read to include foreign convictions, the fae the language creates anomalies. ute. Neither 5. For example, the statute creates an that allows gun possession despite a prior for an antitrust or business regulatory crime. so, the exception speaks of “Federal or State” antitrus:"® regulatory offenses. If the phrase “convicted in any coy. generally refers only to domestic convictions, this language causes no problem. But if “convicted in any court” inclu’, foreign convictions, the words “Federal or State” preven the exception from applying where a foreign antitrust regulatory conviction is at issue. €XCeption, CONVIctigg, In doin, 6. In sum, we have no reason to believe that Congress considered the added enforcement advantages flowing from inclusion of foreign crimes, weighing them against, say, the potential unfairness of preventing those with inapt foreign convictions from possessing guns. The statute itself and its history offer only congressional silence. Given the reasons for disfavoring an inference of extraterritorial coverage from a statute’s total silence and our initial assumption against such coverage, we conclude that the phrase “convicted in any court” refers only to domestic courts, not to foreign courts. Congress, of course, remains free to change this conclusion through statutory amendment. Kiobel v. Royal Dutch Petroleum Co. 133 S.Ct. 1659 (2013) Facts: Petitioners Kiobel, et al. were Nigerian nationals who sued Dutch, British, and Nigerian corporations undet the Alien Tort Statute (“ATS”) in federal court for violation of the law of nations. Petitioners claimed that the corporations committed atrocities demonstrations directed towards tl respondent cor enlisted, su attacking vile residents and Court dismisse, in suppres he operation of the porations. They claimed that respondents rted, and aided the Nigerian Government il! ‘ges and beating, raping, killing, and arrestin8 destroying or looting property. The district d and allowed some of the claims but whet INTRODUCTIC the case went © Circuit, the Latte ground that the liability. Petitior certiorari Issue: Whe allows courts t of the law of sovereign othe Held: No application. 1. The have stated 2 a daim may a foreign so under the A statutory against © that “[wlhe extraterritor the “presi domestical 2. Tot that Congre it to have € aliens for s not imply ¢ aliens can ¢ Nor does ¢ suggest ap established rebut the p 3. Ne the ATS ¥ application We explait “three pri been iden infringem The first applicatic so in tert INTRODUCTION TO PRIVATE INTERNATIONAL LAW ' the case went on interlocutory appeal before the Second Circuit, the latter dismissed the entire complaint, on the ground that the law of nations did not recognize corporate liability. Petitioners then went to the Supreme Court on certiorari. Issue: Whether and under what circumstances the ATS allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. Held: None, because the ATS has no extraterritorial application. 1, The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign. Respondents contend that claims under the ATS do not, relying primarily on a canon of statutory interpretation known as the presumption against extraterritorial application. That canon provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none,” and reflects the “presumption that United States law governs domestically but does not rule the world.” 2. To begin, nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach — such violations affecting aliens can occur either within or outside the United States. Nor does the fact that the text reaches “any civil action” suggest application to torts committed abroad; it is well established that generic terms like “any” or “every” do not rebut the presumption against extraterritoriality. 3. Nor does the historical background against which the ATS was enacted overcome the presumption against application to conduct in the territory of another sovereign. We explained in Sosa that when Congress passed the ATS, “three principal offenses against the law of nations” had been identified by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy. The first two offenses have no necessary extraterritorial application. Indeed, Blackstone — in describing them — did so in terms of conduct occurring within the forum nation. ee ce Me CONFLICT OF LAW | ‘The third example of a violation of the law of nag, tertias to the Congress that enacted the eee Pinas Piracy typically occurs on the high seas, Pee Ne territory, jurisdiction of the United States or any other country 7, Court has generally treated the high seas the same as foreig, soil for purposes of the presumption Se al application. Petitioners contend that because 'BFESS surely intended the ATS to provide jurisdiction for actions apain,, pirates, it necessarily anticipated the statute would apply ,, conduct occurring abroad. Applying U.S. law to pirates, however, does no, typically impose the sovereign will of the United State onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction. We do not think that the existence of a cause of action against them is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign; pirates may well be a category unto themselves. 5. Finally, thereis no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms. As Justice Story put it, “No nation has ever yet pretended to be the custos morum of the whole world...” It is implausible to suppose that the First Congress wanted their fledgling Republic — struggling to receive international recognition — to be the first. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing. 6. We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS. and that nothing in the statute rebuts that presumption. “[T]here is no clear indication of extraterritoriality here” and petitioners’ case seeking relief for violations of the laW of nations occurring outside the United States is barred. 7, On these facts, all the relevant conduct took place outside the United States. And even where the claims tou! and concern the territory of the United States, they must do INT so with extrater many c corpor; otherw requir Corporate | There liability for protection. that corpo historical | that a cor its officers criminal ¢ The holds th. developr personal are now are one violatior they con human | em oo WO SECEG SEES SS Dm D EY INTRODUCTION TO PRIVATE INTERNATIONAL LAW so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices, If Congress were to determine otherwise, a statute more specific than the ATS would be required, Corporate Liability for Human Rights Violation There are two conflicting views with respect to corporate liability for violations of international law in the area of human rights protection. One view, that espoused by the U.S. Supreme Court, states that corporations cannot violate international law because there is no historical antecedent for holding so. No case in the past has ever held that a corporation can commit or violate human rights and that only its officers may be held liable for violation. Furthermore, international criminal tribunals often have no jurisdiction over corporations. The other view, that held by the Supreme Court of Canada, holds that corporations can violate international law since recent developments in human rights law have conferred upon them a certain personality or standing in the international community. Private actors are now generally liable for human rights violations and corporations are one of them. In view of the heinous nature of human rights violations, corporations must be held accountable for criminal acts that they commit. By imposing this liability, there will be greater respect for human rights in the international sphere. Jesner v. Arab Bank 138 S. Ct. 1386 (2018) Facts: Around 6,000 foreign nationals filed suit in a United States District Court under the Alien Tort Statute (“ATS”) against Arab Bank, PLC. They claimed that Arab Bank officials allowed the transfer of funds to terrorist groups in the Middle East through currency clearances and bank transactions via electronic means in its New York City Offices. These funds were later on used for terrorist activities causing deaths or injuries to the petitioners and their family members for which the Bank should be held liable for damages. The District Court dismissed the ATS claims. On % CONFLICT OF Laws Hideo appeal, the Court of Appeals affirme ‘d, on thy corporations may not be sued under ¢ he ATS, Bung Issue: Are corporations liable fo, Viol international laws that protect human rights? “tion Held: No. thy, 1. The Court must first ask whet! nations imposes liability on corporations for hung 2 violations committed by its employees. The Court an,2 ask whether it has authority and discretion in an ATS. : als, impose liability on a corporation without a Specific direct te from Congress to do so. ion ther the I 2. In modern times, there is no doubt, of com, that “the international community has come to recognin, the common danger posed by the flagrant disreget’, basic human rights,” leading “the nations of the worit¢ recognize that respect for fundamental human Tights js in their individual and collective interest.” That Princip and commitment support the conclusion that human. rights norms must bind the individual men and wome, responsible for committing humanity’s most terrible crimes, not just nation-states in their interactions with one another 3. It does not follow, however, that current principles of international law extend liability — civil or criminal — for human rights violations to corporations or other artifical entities. This is confirmed by the fact that the charters o! respective international criminal tribunals often exclude corporations from their jurisdictional reach. 4. The Charter for the Nuremberg Tribunal, created by lies after World War II, Provided that the Tribunal had isdiction over natural persons only. the Al juri 5. The jurisdictional reach of more recent internation! tribunals also has been limited to “natural persons.” The Rome Statute of the International Criminal Court, 1" example, limits that tribunal's jurisdiction to “natu! Persons.” The drafters of the Rome Statute considered, b rejected, a proposal to give the International Criminal Cou" jurisdiction over corporations. 6. In light of the sources just discussed, the sour? petitioners rely on to support their contention that liability INTRODUCTI corporations is v law lend weak s 7. In addi cases fromother that, according being held lial even assuming most, they de srmissible un That falls far» obligatory nor 8. Inthe are often subj employees, a corporate en law under thy of the offens violation of cited to shov for the crim: community universal, a there is prec Nuremberg law are com by punishi provisions 9. Iti do use cory that violate an instrum serious an communit for permit themselve make it a whether \ corporati not the Ju to make the possi retaliativ INTRODUCTION TO PRIVATE INTERNATIONAL LAW 1 corporations is well established as a matter of international law lend weak support to their position. 7. In addition, petitioners and their amici cite a few cases from other nations and the Special Tribunal for Lebanon that, according to petitioners, are examples of corporations being held liable for violations of international law. Yet even assuming that these cases are relevant examples, at most, they demonstrate that corporate liability might be permissible under international law in some circumstances. That falls far short of establishing a specific, universal, and obligatory norm of corporate liability. 8. Inthe American legal system, of course, corporations are often subject to liability for the conduct of their human employees, and so it may seem necessary and natural that corporate entities are liable for violations of international law under the ATS. It is true, furthermore, that the enormity of the: offenses that can be committed against persons in violation of international human rights protections can be cited to show that corporations should be subject to liability for the crimes of their human agents. But the international community has not yet taken that step, at least in the specific, universal, and obligatory manner required by Sosa. Indeed, there is precedent to the contrary in the statement during the Nuremberg proceedings that “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” 9. Itis also true, of course, that natural persons can and do use corporations for sinister purposes, including conduct that violates international law. That the corporate form canbe an instrument for inflicting grave harm and suffering poses serious and complex questions both for the international community and for Congress. So there are strong arguments for permitting the victims to seek relief from corporations themselves. Yet the urgency and complexity of this problem make it all the more important that Congress determines whether victims of human rights abuses may sue foreign corporations in federal courts in the United States. Congress, not the Judiciary, is the branch with “the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.” 7 |! CONFLICT OF Laws 10. These and other considerations that and instruct the formulation of principles of jr thay, Nrscoucl and domestic law are matters that the politica’ ation are in the better position to define and articulate, Peart, or that the witnesses Teasons, judicial deference requires that any imposig «offers pec salepart sorporate liability on foreign corporations for vinjg ty

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