Ostique,Psyche Shyne P.

Chapter 1: Introduction to Private International Law

Doctrines

*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 inte 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 or another nation.

*International law is 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.

* International law has two branches: (a)public international law which governs the relationship of
states and international entities; (b)private international law which comprehends laws regulating
private interactions across national frontiers. It deals with conflict of laws among the laws of two or
more states and necessitates a determination of which municipal law applies to a case. The
objective is the harmonization of the laws of several states whenever a confict of law situation
exists.

*The sources of public international law are international conventions, international custom, the
general principles of law recognized by civilized nations, and judicial decisions and the teachings 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.

* Private international law is based on domestic and municipal laws, which include the constitution
and statutes adopted by individual countries.

* Public international law has states and international organizations as subjects. On the other hand,
private international law has individuals and corporations as subjects thereof.

*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 rapid emergence of human rights signified a revolutionary shift in international law to a
human-centric conception of global order.

*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.

*Case of Abdullahi v. Pfizer

Important Doctrines

Article 38 of the Statute of the International Court of Justice

Identifies the authorities that provide “competent proof of the content of customary
international law.” These sources consist of:
(a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law.

Four (4) 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. In 1955, the draft International Covenants on Human
Rights was revised to add a second sentence to its prohibition of torture and cruel,
inhuman or degrading treatment or punishment. The addition provided that “[i]n
particular, no one shall be subjected without his free consent to medical or
scientific experimentation involving risk, where such is not required by his
state of physical or mental health.”
Article 2 (ICCPR) 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.”
In the judicial resolution of conflict problems, 3 consecutive phases are involved: jurisdiction,
choice of law, and recognition and enforcement of judgments. Jurisdiction & choice of law are 2
distinct concepts. Jurisdiction considers whether it is fair to cause a defendant to travel to this state;
choice of law asks the further question of whether the application of a substantive law w/c will
determine the merits of the case is fair to both parties. The power to exercise jurisdiction does not
automatically give a state constitutional authority to apply forum law. While jurisdiction and the
choice of the lex foriwill often coincide, the “minimum contacts” for one do not always provide the
necessary “significant contacts” for the other. The question of whether the law of a state can be
applied to a transaction is different from the question of whether the courts of that state have
jurisdiction to enter a judgment.

In this case, only the 1st phase is at issue—jurisdiction. Jurisdiction, however, has various aspects.
For a court to validly exercise its power to adjudicate a controversy, it must have jurisdiction over
the plaintiff/petitioner, over the defendant/respondent, over the subject matter, over the issues of
the case, and, in cases involving property, over the res or the thing w/c is the subject of the
litigation. In assailing the trial court's jurisdiction herein, Nippon is actually referring to subject
matter jurisdiction.

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

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

Lex loci celebrationis relates to the “law of the place of the ceremony” or the law of the place where
a contract is made. The doctrine of lex contractus or lex loci contractusmeans the “law of the place
where a contract is executed or to be performed.” It controls the nature, construction, and validity
of the contract and it may pertain to the law voluntarily agreed upon by the parties or the law
intended by them either expressly or implicitly. Under the “state of the most significant relationship
rule,” to ascertain what state law to apply to a dispute, the court should determine which state has
the most substantial connection to the occurrence and the parties. In a case involving a contract, the
court should consider where the contract was made, was negotiated, was to be performed, and the
domicile, place of business, or place of incorporation of the parties. This rule takes into account
several contacts and evaluates them according to their relative importance with respect to the
particular issue to be resolved.
Since these 3 principles in conflict of laws make reference to the law applicable to a dispute, they
are rules proper for the 2nd phase, the choice of law. They determine which state's law is to be
applied in resolving the substantive issues of a conflict problem. Necessarily, as the only issue in
this case is that of jurisdiction, choice-of-law rules are not only inapplicable but also not yet called
for.

Further, Nippon’s premature invocation of choice-of-law rules is exposed by the fact that they have
not yet pointed out any conflict between the laws of Japan and ours. Before determining which law
should apply, 1st there should exist a conflict of laws situation requiring the application of the
conflict of laws rules. Also, when the law of a foreign country is invoked to provide the proper rules
for the solution of a case, the existence of such law must be pleaded and proved.

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

Neither can the other ground raised, forum non conveniens, be used to deprive the RTC of its
jurisdiction. 1st, it is not a proper basis for a motion to dismiss because Sec. 1, Rule 16 of the Rules
of Court does not include it as a ground. 2nd, whether a suit should be entertained or dismissed on
the basis of the said doctrine depends largely upon the facts of the particular case and is addressed
to the sound discretion of the RTC. In this case, the RTC decided to assume jurisdiction. 3rd, the
propriety of dismissing a case based on this principle requires a factual determination; hence, this
conflict principle is more properly considered a matter of defense.
Steps in Determining Applicable Law

Characterization. This involves identification of the issue in the problem. It is the process of
spotting the legal issues as presented by the facts of the case. An important step in this process is
pinpointing the branch of law implicated by the problem. After identifying the branch of law, the
next step will be determining whether there is conflicts of law by the presence of foreign element.

Connecting Factors. An analysis is made with respect to which jurisdiction or fora has the most
connection to the case. 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 as provided in Article 1306 of the Civil Code. The chosen law
shall be applied to govern the duties and responsibilities of the parties to each other.

Extraterritoriality. Laws are generally territorial in application. This is so because the mind of the
lawmaker is limited to the territorial boundaries of his country when he enacts laws. Laws,
however, can be extraterritorial. The question of whether a law is territorial or extraterritorial
depends on legislative intent. Articles 15 and 16 of the Civil Code are examples of laws with
extraterritorial application.

Case of Small v. United States

Important Doctrines:

Congress generally legislates with domestic concerns in mind. Congress ordinarily intends its
statutes to have domestic, not extraterritorial, application. To reiterate, the mind of the lawmaker is
limited to the territorial boundaries of his country. It is unnatural that he will draft a law and
provide therein that it will apply within the borders of another independent country.

Only domestic convictions are covered by the statute. The statutory reference “convicted in any
court” does not include a conviction entered in a foreign court. The statute’s language does not
suggest any intent to reach beyond domestic convictions.

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. They would include a conviction from a legal system
that is inconsistent with another country’s understanding of fairness. They would also include a
conviction for conduct that domestic law punishes far less severely.
Forum Non Conveniens

As an alternative to dismissal for failure to state a claim under ATS,the district court’s application of
forum non conveniens,in view of the frequency with which this has issue has arisen and remained
unsettled in this case,we offer additional guidance to assist the parties and the district court.The
three-step analysis set forth in Iragorri vs United Techs. Corp.,applies.

In this litigation,the second step of analysis,which requires the district court to consider the
adequacy of the alternative forum,is pivotal.Dismissal is not appropriate if an adequate and
presently available alternative forum does not exist. 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 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 elements

The most important component of a conflicts of Law problem is the presence of 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.In the case of Saudi Arabian Airlines vs. 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.
Case: Kiobel v. Royal Dutch Petroleum Co. 133 S.Ct. 1659 (2013)

Facts:

Petitioners in this case were a group of Nigerian nationals living in the United States. They brought
a lawsuit in federal court against several Dutch, British, and Nigerian corporations, alleging that
these corporations aided and abetted the Nigerian Government in committing violations of
international law in Nigeria. The alleged violations included extrajudicial killings, crimes against
humanity, torture, arbitrary arrest, property destruction, and other violations of human rights. The
corporations were accused of providing support to the Nigerian military and police forces, which
were allegedly responsible for these atrocities.

Issues:

Whether and under what circumstances courts may recognize a cause of action under the Alien
Tort Statute (ATS) for violations of international law occurring within the territory of a sovereign
other than the United States.

Whether claims under the ATS can be brought against corporations for violations of international
law.

Ruling:

The Supreme Court affirmed the judgment of the Court of Appeals and held that claims under the
ATS cannot be brought for violations of international law that occur within the territory of a foreign
sovereign. The Court applied the presumption against extraterritorial application of U.S. laws,
stating that when a statute does not clearly indicate its extraterritorial application, it is presumed to
have none. The ATS is considered a jurisdictional statute, and it does not directly regulate conduct
or provide relief but allows federal courts to recognize certain causes of action based on well-
established international law norms.

The Court rejected the argument that the ATS applied extraterritorially based on its text, history, or
purpose. It found that the ATS did not contain a clear indication of extraterritoriality in its language.
Moreover, historical examples of violations of the law of nations, which the ATS was intended to
address, were primarily related to conduct within U.S. territory or on the high seas. The Court also
noted that applying the ATS extraterritorially could lead to diplomatic tensions with other nations
and could expose U.S. citizens to similar claims abroad.
DOCTRINES AND JURISPRUDENCE

Alien Tort Statute (ATS): The Alien Tort Statute, 28 U.S.C. §1350, is a federal law that allows non-
U.S. citizens (aliens) to bring civil actions in U.S. federal courts for torts (civil wrongs) committed in
violation of the law of nations or treaties of the United States. This statute is a jurisdictional
provision, not a cause of action itself.

Presumption Against Extraterritorial Application: The case discusses the presumption against
extraterritorial application of U.S. laws. This presumption holds that when a statute does not clearly
indicate an intention to apply extraterritorially, it should be presumed to have only domestic (U.S.)
application. This presumption is applied to avoid conflicts with foreign laws and international
relations issues.

Corporate Liability under ATS: The central issue in the case is whether corporations can be held
liable under the ATS for aiding and abetting violations of international law that occur outside the
United States. The Second Circuit had ruled that corporations cannot be held liable under the ATS.

Customary International Law: The case discusses the role of customary international law in ATS
cases. To bring a claim under the ATS, a plaintiff must allege violations of customary international
law norms that are "specific, universal, and obligatory."

Recognition of Causes of Action Under ATS: The case refers to the authority of U.S. federal courts
to recognize causes of action under the ATS based on sufficiently definite norms of international
law. The recognition of such claims must be done with caution, considering potential foreign policy
implications.

Jurisdiction over Extraterritorial Conduct: The central question in the case is whether a cause of
action under the ATS can reach conduct that occurred within the territory of a foreign sovereign (in
this case, Nigeria). The Court emphasizes the need for caution when considering such claims due to
their potential foreign policy consequences.

Historical Context: The case discusses the historical context in which the ATS was enacted and the
types of offenses against the law of nations that were familiar to the Founding Fathers. It highlights
that many of these offenses had no necessary extraterritorial application.

Jurisdiction over Transitory Torts: The case touches on the historical concept of jurisdiction over
"transitory torts," including personal injury actions arising abroad. However, it distinguishes
between jurisdiction over torts under common law and the recognition of causes of action under
the ATS.

International Discord and Diplomatic Strife: The case underscores the potential for
international discord and diplomatic strife that may result from applying U.S. law to conduct
occurring within the territory of another sovereign.
Political Branches' Role in Foreign Affairs: The Court emphasizes the importance of deferring
foreign policy decisions to the political branches (the Executive and Legislative branches) rather
than having courts make such decisions through the application of U.S. law.

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. On 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
tribunal often have no jurisdiction over corporations.

The other view, that held by 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.

*CASE: SAUDI ARABIAN AIRLINE V. REBESENCIO

*When parallel litigation arises strictly within the context of a single jurisdiction, such rules
as those on forum shopping, litis pendentia, and res judicata come into operation. Thus, in
the Philippines, the 1997 Rules on Civil Procedure provide for willful and deliberate forum
shopping as a ground not only for summary dismissal with prejudice but also for citing
parties and counsels in direct contempt, as well as for the imposition of administrative
sanctions. Likewise, the same rules expressly provide that a party may seek the dismissal of
a Complaint or another pleading asserting a claim on the ground "[t]hat there is another
action pending between the same parties for the same cause," i.e., litis pendentia, or "[t]hat
the cause of action is barred by a prior judgment," i.e., res judicata. Forum non conveniens,
like the rules of forum shopping, litis pendentia, and res judicata, is a means of addressing
the problem of parallel litigation. While the rules of forum shopping, litis pendentia, and res
judicata are designed to address the problem of parallel litigation within a single
jurisdiction, forum non conveniens is a means devised to address parallel litigation arising
in multiple jurisdictions.
*Forum non conveniens literally translates to "the forum is inconvenient." It is a concept in
private international law and was devised to combat the "less than honorable" reasons and
excuses that litigants use to secure procedural advantages, annoy and harass defendants,
avoid overcrowded dockets, and select a "friendlier" venue. Thus, the doctrine of forum non
conveniens addresses the same rationale that the rule against forum shopping does, albeit
on a multijurisdictional scale.

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

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

*Consistent with the principle of comity, a tribunal's desistance in exercising jurisdiction on

account of forum non conveniens is a deferential gesture to the tribunals of another
sovereign. It is a measure that prevents the former's having to interfere in affairs which are
better and more competently addressed by the latter. Further, forum non conveniens
entails a recognition not only that tribunals elsewhere are better suited to rule on and
resolve a controversy, but also, that these tribunals are better positioned to enforce
judgments and, ultimately, to dispense justice. Forum non conveniens prevents the
embarrassment of an awkward situation where a tribunal is rendered incompetent in the
face of the greater capability-both analytical and practical- of a tribunal in another
jurisdiction.

The wisdom of avoiding conflicting and unenforceable judgments is as much a matter of

efficiency and economy as it is a matter of international courtesy. A court would effectively
be neutering itself if it insists on adjudicating a controversy when it knows full well that it is
in no position to enforce its judgment. Doing so is not only an exercise in futility; it is an act
of frivolity. It clogs the dockets of a tribunal and leaves it to waste its efforts on affairs,
which, given transnational exigencies, will be reduced to mere academic, if not trivial,
exercises.

*Accordingly, under the doctrine of forum non conveniens, "a court, in conflicts of law cases,
may refuse impositions on its jurisdiction where it is not the most 'convenient or available
forum and the parties are not precluded from seeking remedies elsewhere."
*The use of the word "may" (i.e., "may refuse impositions on its jurisdiction") in the
decisions shows that the matter of jurisdiction rests on the sound discretion of a court.
Neither the mere invocation of forum non conveniens nor the averment of foreign elements
operates to automatically divest a court of jurisdiction. Rather, a court should renounce
jurisdiction only "after 'vital facts are established, to determine whether special
circumstances' require the court's desistance." As the propriety of applying forum non
conveniens is contingent on a factual determination, it is, therefore, a matter of defense.

*The second sentence of Section 1, Rule 9 of the 1997 Rules of Civil Procedure is exclusive in
its recital of the grounds for dismissal that are exempt from the omnibus motion rule: (1)
lack of jurisdiction over the subject matter; (2) litis pendentia; (3) res judicata; and (4)
prescription. Moreover, dismissal on account of forum non conveniens is a fundamentally
discretionary matter. It is, therefore, not a matter for a defendant to foist upon the court at
his or her own convenience; rather, it must be pleaded at the earliest possible opportunity.