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    * CHAPTER I 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. ‘Section 101 of the Restatement (Third) of Foreign Relations Law of the United States (1987). Hilton v. Guyot, 159 US. 113. conttacTOFtANS nternational Late sto branches ona a= power the Branches of {ntemationat la bo 1, Public international and international ¢ relationship of statey ties al law ~ comprehends laws regu ae ae daw atlonal frontiers? Tt deals wi ta ations across national t deals vl claves of {0 OF MORE slates and ‘of laws among the of conti fl nation of which municipal law applieg est pc objective is the harmonization of the laws of at ettes whenever a conlicts of law situation exist Distinctions between Public and PricateInterational Lavo to sourc, public international law is based on international eevee tneatnal custom, the general. principles ole ed by civilized nations, and judicial decisions and the teachings cof the mast highly qualified publicist ofthe various nations. They are generally known as traditional sources of international law and are commonly referred to as “hard law” because oftheir binding nature, Inrecent yeas, a form of law outside ofthe traditional sources has become accepted as an additional source of public international law, (Often refered to a “soft las” they are usually “normative statements in non-bnding political instruments such as declarations, resolutions, and programs of action” where “compliance is expected with the Teams that these texts contain.”> They are “political commitments Pala] cat a but they are not law, and thus give rise only to tir biningeguenees* Hence, they are so-called “soft law” because nommatine se ste is questionable. Soft laws come in the form of of summt pearltons of international organizations, concluding texts treaty bon 288 F international conferences, recommendations of ore ore of camplans with treaty obligations, baaterat ‘oranda of understanding, executive poli “rrements, and guidelines or codes of conduct adopted in aarissy Am Soc TAL, In “1 su -"Iematona Law Dena inBenchbookon ner iy Ata E26 tessa econ cag URES Sante of ie ttrnatiomal Court of dunce a Pn Stn Ba aw ade fren Law Oa ‘a INTRODUCTION TO PRIVATE INTERNATIONAL LAW ip of contexts.’ Examples of law svould be United Nations: Gem Assembly revolutions ar deca nel United! Nations Commi fon Human Rights resolutions. Countries may honor or recommendations of these boxlies. Also, decisions of th ‘Tribunal have been depe honor its decision, Private international law, on the othe and + which include the constitution and statutes adopted by individual countries. Publi forall states which is not necessarily law. AAs to subjects, public international lay has states and inte organizations as subjects. On the other han, private in has individuals and corpor 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 secs Facts: Three Eritrean workers sued! Nevsun Resources. + before a Canadian court for damages arising from violations, ‘of customary international law in the form of forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. They claimed that they were forced to join Eritrea’s military service where they experienced violent, cruel, inhuman and degrading treatment arising from a forced labor regime. Nevsun filed a motion to strike the pleadings on the basis of the act of state doctrine that bars domestic courts from reviewing the sovereign acts of a foreign government, Nevsun charged that the claims based ‘on customary international law had no reasonable prospect of success. The lower court judge dismissed the motion, which dismissal was affirmed by the Court of Appeals Issue 1: Do the Eritrean workers have the standing to claim violation of customary international law? Held: Yes, - ally the main subjects of While sit ae ce evolved from this state. intentions es past 70 years have seen a proliferation cen law that transformed international law oat the individual an integral part of this legal domain, refeced inthe creation of a complex network of conventions and normative instruments intended to protect human rights and ensure compliance with those rights. The rap emergence of human rights signified a revolutionary shift in international law to a human-centric conception of global order. The result of these developments is that intemational law now works not only to maintain peace ben ses eto ol the ies of individuals thee liberty, their an tucation. The context i ‘eich international human rightsnorms mustbe interpreted and applied today is one in which such norms are routinely, aprled to psvate actors. It is therefore not plain and Ovo a copes today enjoy a blanket exclusion intemational law from direct liability for viola r x = of toto definable, and universal norms of Issue 2: Are the by the act of state doctrine? Held: No, of the Eritrean workers barred os a its own rine, Canadian law Principles Underlying the oat '0 addressing the twin Auda restraint Bott © SOctrine: con fice i , ce of laws and ean jsp PShave developer separately He eOmPaSing act of 'an as elements of an ciples underlying wre corte, A i comple "lying the sce 's such, in Canada, cure gee hn is ut’ doctine have been foreign we ing 8g wih Canadian Haat gh fener ea Private international lao Such | HON to decjir - ot ate cntane Re to enforee oa but allow for Mating a PU poly EN se where 3 respect fo INTRODUCTION TO PRIVATE INTERNATIONAL Law 5 Note: The act of state doctrine is still a well-respected doctrine in international law. It is a viable defense to a foreign coutt’s attempt to review the acts of a sovereign and independent state on the base 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, a norm may be considered to have become customary international law. Abdullahi v. Pfizer 562 F3d 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 Ron-consensual medical experimentation. Pfizer moved to dismiss for failure to state a claim under the ATS and on the basis of forum non conveniens. The district court granted the ‘motion on the ground that plaintiffs failed to identify a source of international law that “provide(s] a proper predicate for jurisdiction under the ATS.” The court justified its decision on the ground that “[a] cause of action for Pfizer's failure to Bet 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 CONFLICT OF LAN? Nigeria was an spot Pfizer” and that citizens inan action 87 intitts appealed: te forum. , Stdequate alterna sir Pier vested international law on et experimentation. dequate forum for the Issues: 1. Wh on-consensual medical 2, Whether Nigeria offers an adjudication of plaintiffs’ claims. elds. 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 cour obligation to proceed cautiously and self-consciously in this area, we determine whether the norm alleged: (1) is a norm of intemational character that States universally abide by, or accede to, out ofa sense of legal obligation; (2) is defined with a specificity comparable to the 18th-century paradigms discussed in Sosa; and (3) is of mutual concern to States. A. The Prohibition of Nonconsensual Medical Experimentation on Humans of « A7pllans’ ATS claims are premised on the existence ses Of customary international law prohibiting niece To genmenation on non-consenting human (© determine whether this prohibition consti the Uni ope, ane wa members of the United Nations “competent proof of teen, the authorities that provide law." These sources consist oft “ustomary international @) internat or prttenationl Conventions, whether general by the contecte blishing rules express ized contesting states, Pressly recognizs ©) intemationa aL Seneral practice accep Sey as evidence of @ INTRODUCTION 10 PRivATE INTERNATIONALLAW (0) _ the general principles o civ) e862 Pinipes of aw recognized by (4) judicial decisions and the teachings most highly qualified publicists of the arrentaoatne as subsidiary means for the determin aw. various nations, ition of rules of _ 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 “[the 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 Intemational Covenant on Civil and Political Rights ("ICCPR”), which provides that “no one shall be subjected without his free consent to medical or scientific experimentation.” xxx 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 rohibition of nonconsensual medical experimentation on Raman subjects ino a customary international law norm that is sufficiently (i) universal and obligatory, (i) specific and definable, and (iii) of mutual concern, to permit courts to infer a cause of action under the ATS. See Sosa, 542 US. at 732-35,124 S.Ct. 2739. We now proceed with such an ‘examination. Universality ellants must allege the violation of a norm of conta) ntematonal law to which States universally subscribe. See Sosa, 542 US. at 732, 124 S.Ct. 2739; Vietnam ‘Assn for Vietims of Agent Orange, 517 F3d at 117. The rohibition on nonconsensual medical experimentation on Raman beings meets this standard because, among other reasons, it is specific, focused, and accepted by nations around the world without significant exception. CONFLICT OF BAN ‘bition into a norm oj The eronion of He Fan ih the War crimes customary internoTe United States, the Soviet Union, trials at Nuremor ed France “acting in the interest of a Pe aed eaerre established the International Military aa CIMT”) through entry into the London Agreement Traupast 1945. According othe Charter the IMT had the “power totry and punish persons who, acting in the interests Of the European Axis countries, whether as individuals or as members of organizations, committed,” among, other offenses, war crimes and crimes against humanity, ‘The IMT tried 22 “major” Nazi war criminals leaving “lower-level” war criminals, including “{lJeading physicians...and leading German industrialists,” to be tried in subsequent trials by US. 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 jaint-control over Germany. In August 1947, Military Tribunal 1, staffed by American judges and prosecutors and conducted under American Procedural rules, promulgated the Nuremberg ly for conducting medical experiments jects consent, i experiments tht the eset Among the nonconsensual ® epidemic jaundi cholera. Seven of Jaundice, typhus, smallpox, and death andthe ett Cot¥icted doctors were sentenced 10 terms of imprisonment © BRE Were sentenced to varying le created ene of public conscience.” The tribunal's j first principle §Uagment, therefore, jee neile that “[t luntary subject is absolee, tlhe volun INTRODUCTION TO PRIVATE INTERNATIONAL Lay The American tribunal's contravened the Code’ against humanity is a lucid indication legal significance of the prohibition on noncomes medical experimentation. As Justices of the Si have recognized, “[t]he medica 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) conclusion 1 first principle t action that constituted a crime Of the international nsual upreme Court trials at Nuremberg in 1947 In 1955, the draft International Covenants on Human Rights was revised toadd asecond sentence toits prohibition of torture and cruel, inhuman, or degrading treatment or punishment. The addition provided that “[iJn particular, no ne 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 2of the accord, which requires that “[elach State Party...undertake to respect and to enstre to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’ ICCPR art, 21). The international commurit in the ICCPR of its obligation to protect humans against onconsenstial medical experimentation, regardless of the source of the action, is powerful evidence of the prohibition’s place in customary international law, 41 association adopted a, the World Medic Cited standards setae ace ining informe ed with p! nal for bt inca esate OTT ent psychology, proviral possible, Onsen aly given consent the dtr shou weal explanation,” and that after the patient has b ‘on a person “cannot be non-therapeutic cine eonsent, after he has been fully undertaken witha an, Declaration of Helsinki: Code of informed.” World Mir association, at Ia), G.A. Res, Ee nt wera pubmedcenttal ih.gov / picrender, te oe ae i602 ‘blob-type=paf. The Declaration has since Sar ded five times. The informed consent provision been ametJos that “subjects must be volunteers and IMerfed participants in the research project.” Declaration of Helsink, supra, at art, 20, The Declaration also requires that “lila 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 at. 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, jpeluding the United States, require the informed consent of human subjects in medical research. That this conduct has aes ora ubiet of domestic legislation is not, of course, in Tha gonstl Proof ofa norm. However the incorporation of i Bee q the laws of this country and this host of others ue a indication of the international acceptance of pel that eo 88 Dligaton, ‘where, as here, states Hinavarty of ination acon ener eY een This hist ; ory illustrates that from its ori talofte ne from its th the in inerahona oat Nuremberg through its evolution i agreements, declarations, INTRODUCTION TO PRIVATE INTERNATIONAL Law dissenting colleague's customary interna sch calf a rao as re international treaties are the only valid eee s of customary international law for ATS purposes, ser Disesn at 200-02, we reach this conclusion as & reult of car got of the multiplicity of sources — including international conventions, whether general or particular, and international custom as identified through international agreements declarations and a consistent pattem 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 ro “ess 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. ili, 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 Sates hare ‘acted independently to outlaw large-scale, non- na ny aed denen ne acted in concert to do so. In other words, acting out of a Sense of mutual concern, “the nations [of the world] have ade it their business, both through international accords feral action,” to demonstrate their intention ¢g and unilat a iminate conduct of the type alleged in the compla For these reasons, we hold that the appellants hayy pled facts sufficient to state a cause of action under the 7s for 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 bass it simultaneously held that there was no subject matter jurisdiction over plaintiffs’ aims. Under Sosa, this approach was not correct. Sosa makes clear that the itical 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, 7 cblgatory for cours to recognize a cause of action to wee the norm. Nothing in Sosa suggests that this inquiry can be halted if some of the sources of international law Eig Ho heer are found not to be binding or not to ly use of action. ix. Forum Non Conveniens review theditritanny capone called upon definitively to invi Plicationof forum eniens fi a ‘non conveniens, and remained uncetigg Pitt Which ths iscue has arisen Buidance to assist the sn. iS case, we offer additional analysis set pears a4 the district court. The 274 F3d 65, 71-75 (og Gir Pel ¥. United Techs. Corp. the second step. of 1," banc), applies. In this i * distictcour toca OF the analysis, wich requires "Pivotal Dismissal ier eeQUACY ofthe alternative ‘Snotappropriate ifan adequate INTRODUCTION To Private INTERNATIONAL Law and presently available altern, lative forum does note forumin whichdefendantsareamenseioe oo LENSE A amenabletoservice, of process and which permits ligation ot the dnp a ees adequate. Such a forum may neverthelese be inadequate if it does not permit the reasonably Prompt adjudication of dispute, ifthe forum is not presently available, of i Ure thar 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 contlicts 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 x. 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 |, October 8, 1958 CONFLICT OF LAWS : contract between nationals of one Si, oes een Situated in another State. In other cana, the forign ‘element may assume a complex form, enter intoa lease contract fora pr located locally, it can be said that this can only be a local Pen However, when two parties enter into a sales agreement purchase from a merchant located overseas this can be as involving a foreign element. If a dis tal the partes, the laws of the state of the merchant, of the buyer, oe stipulated in the sales agreement becomes pertinent and there yi, a need to harmonize these laws to determine which one is apple From this standpoint, the foreign element can be the foreign law ches 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 busing, of the merchant. There is now a question as to the applicable several foreign laws are implicated. Ina case where two parties law 3 Phases in Conflicts Resolution ‘There ae three phases in the resolution of conflicts of law proben Thane Phases are jurisdiction, choice of law, and recognition al ergrement of udgments, Jurisdiction concerns the authority of ax tr wae egzanee of case, choice of law refers to the appli noe ale, and recognition and enforcement concerns & foreign laws and judgments in another jurisdiction. Ths phases are: ‘important for " 7 ‘flaw as well as the defer Ll tseiia the applicable theors a Purpose of utitin, conte dispute Other nling the appropriate approach ® * situation may be deemede Use of certain theories i"? Proper. Pendent Contractor 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 celebrations, lex contracts, the state ofthe ‘most significant relationship rule, or forum now convenien 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 fof 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? 6 CONFLICT OF LAWS: jurisdiction and

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