SALANGSANG, DANDREB CHRISTOPHER
2017-06244-MN-0
JD 3-4 CONFLICT OF LAWS
ATTY. ROSALIE J. DELA CRUZ-CADA
1. Conflict of Laws is the part of law which comes into play when the
issue before the court affects some fact, event or transaction that is so
clearly connected with a foreign system of law as to necessitate recourse
to that system.
2. Public International Law governs sovereign states and entities that are
internationally recognized or possessed of international personality while
Conflict of Laws governs private individuals or corporations. The former
is international in character, while the latter is municipal in character. The
former applies only to transactions in which only sovereign states or
entities with international personality are concerned and which generally
affect public interest, while the latter deals with transactions strictly private
in nature, in which the country as such has generally no interest.
3. The object and function of conflict of laws is to provide rational and valid
rules or guidelines in deciding cases where either the parties, events, or
transaction are linked to more than one jurisdiction.
4. There are two sources of Conflict of Laws. One is Direct Sources
wherein bilateral and multilateral treaties and international conventions,
constitutions, codifications and statutes, judicial decisions, and
international customs. Second is Indirect Sources wherein the same as
other branches of law, among others, the natural moral law, and the
writings of treaties of thinkers and famous writers and jurists on the
subject.
5. 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.
6. (a) Abdullahi v. Pfizer
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. Adbullahi sued Pfizer under the Alien Tort Statute 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 off forum non conveniens. The district court
granted the motion on the ground that plaintiffs failed to identify a source of
international law that provides 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 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 citizens in an action against Pfizer and that Nigeria
was an adequate alternate forum. Thus this petition of appeal.
Issue: Did Pfizer violate the international law on non-consensual
medical experimentation?
Ruling: Yes, Pfizer violated international law on non-consensual
medical experimentation. 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, which require the voluntary
informed consent of a prospective subject, and (4) Article 7 of the
International Covenant on Civil and Political Rights which provides that no
one shall be subjected without his free consent to medical or scientific
experimentation.
Foreign Element: Pfizer a foreign corporation which conducted a
medical experiment to particular citizens of Nigeria wherein it resulted to
grave adverse side effects to the subject patients. Abdullahi, a citizen of
Nigeria filed a complaint against Pfizer before the United States District Court
in New York citing the Alien Tort Statute.
6. (b) Hasegawa vs. Kitamura
Facts: Petitioner Nippon Engineering Consultants Co., Ltd
entered into an Independent Contractor Agreement with respondent Minoru
Kitamura, a Japanese national permanently residing in the Philippines. The
agreement provided that respondent shall extend professional services to
Nippon then assigned respondent to work as the project manager in various
projects in the Philippines.
On February 29, 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
performances 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 off 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. 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 the issue. The CA upheld the lower court’s application of the principle
of lex loci solutionis.
Issue: Whether or not the subject matter jurisdiction of Philippine courts
in civil cases for specific performance and damages involving contracts
executed outside the country by foreign nationals may be assailed on the
principles of lex loci celebrationis, lex contractus, “the state of the most
significant relationship rule,” or forum non conveniens.
Ruling: No. In the judicial resolution of conflicts problems, three
consecutive phases are involved: jurisdiction, choice of law, and recognition
and enforcement of judgments. Jurisdiction and choice of law are two distinct
concepts. Jurisdiction considers whether it is fair to cause a defendant to
travel to this state, choice of law asks the further question whether the
application of a substantive law which will determine the merits of the case
is fair to both parties. The power to exercise jurisdiction does not
automatically give a state constitutional authority to apply forum law. While
jurisdiction and the choice of the lex fori will often coincide, the minimum
contacts for one do not always provide the necessary significant contacts for
the other. The question of whether the law of a state can be applied to a
transaction is different from the question of whether the courts of that state
have jurisdiction to enter a judgment.
In this case, only the first phase is at issue which is the jurisdiction.
Jurisdiction, however, has various aspects. For a court to validly exercise its
power to adjudicate a controversy, it must have jurisdiction over the plaintiff
or the petitioner, over the defendant or 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, Nippon is actually referring to jurisdiction over the subject
matter.
Jurisdiction over the subject matter in a judicial proceeding is conferred
by the sovereign authority which establishes and organizes the court. It is
given only by law and in the manner prescribed by law. It is further
determined by the allegations of the complaint irrespective of whether the
plaintiff is entitled to all or some of the claims asserted therein. To succeed
in its motion for the dismissal of an action for lack of jurisdiction over the
subject matter of the claim, the movant must show that the court or tribunal
cannot act on the matter submitted to it because no law grants it the power
to adjudicate the claims.
In the instant case, Nippon, in its MTD, does not claim that the RTC is
not properly vested by law with jurisdiction to hear the subject controversy
for a civil case for specific performance & damages is one not capable of
pecuniary estimation & is properly cognizable by the RTC of Lipa City. What
they rather raise as grounds to question subject matter jurisdiction are the
principles of lex loci celebrationis and lex contractus, and the “state of the
most significant relationship rule.” The Court finds the invocation of these
grounds unsound.
Lex loci celebrationis relates to the “law of the place of the ceremony”
or the law of the place where a contract is made. The doctrine of lex
contractus or lex loci contractus means the “law of the place where a
contract is executed or to be performed.” It controls the nature, construction,
and validity of the contract and it may pertain to the law voluntarily agreed
upon by the parties or the law intended by them either expressly or implicitly.
Under the “state of the most significant relationship rule,” to ascertain what
state law to apply to a dispute, the court should determine which state has
the most substantial connection to the occurrence and the parties. In a case
involving a contract, the court should consider where the contract was made,
was negotiated, was to be performed, and the domicile, place of business,
or place of incorporation of the parties. This rule takes into account several
contacts and evaluates them according to their relative importance with
respect to the particular issue to be resolved.
Since these three principles in conflict of laws make reference to the
law applicable to a dispute, they are rules proper for the second phase, the
choice of law. They determine which state's law is to be applied in resolving
the substantive issues of a conflicts problem. Necessarily, as the only issue
in this case is that of jurisdiction, choice-of-law rules are not only inapplicable
but also not yet called for.
Further, 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, First,
there should exist a conflict of laws situation requiring the application of the
conflict of laws rules. Also, when the law of a foreign country is invoked to
provide the proper rules for the solution of a case, the existence of such law
must be pleaded and proved.
It should be noted that when a conflicts case, one involving a foreign
element, is brought before a court or administrative agency, there are three
alternatives open to the latter in disposing of it: First, dismiss the case, either
because of lack of jurisdiction or refusal to assume jurisdiction over the case;
Second, assume jurisdiction over the case and apply the internal law of the
forum; or third, assume jurisdiction over the case and take into account or
apply the law of some other State. The court’s power to hear cases and
controversies is derived from the Constitution and the laws. While it may
choose to recognize laws of foreign nations, the court is not limited by foreign
sovereign law short of treaties or other formal agreements, even in matters
regarding rights provided by foreign sovereigns.
Neither can the other ground raised, forum non conveniens, be used
to deprive the RTC of its jurisdiction. First, 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. Second, whether a suit should be entertained or dismissed on
the basis of the said doctrine depends largely upon the facts of the particular
case and is addressed to the sound discretion of the RTC. In this case, the
RTC decided to assume jurisdiction. Third, the propriety of dismissing a case
based on this principle requires a factual determination; hence, this conflicts
principle is more properly considered a matter of defense.
Foreign element: Respondent subsequently sued petitioners for
specific performances 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 off Japan following
the principles of lex loci celebrationis and lex contractus. The foreign element
is if the law of Japan shall apply citing the principle of lex loci celebrationis.
6. (c) Small vs. United States
Facts: Small was convicted in Japan for smuggling and was sentenced
by a Japanese court to five years imprisonment. After serving sentence,
Small returned to the United States, and purchased a gun from a
Pennsylvania gun dealer. He was then charged for unlawful gun possession
under a statute that provided that it shall be unlawful for any person who has
been convicted in any court, of a crime punishable by imprisonment for a
term exceeding one year, to possess 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.
Ruling: No. Only domestic convictions are covered by the statute. In
determining the scope of the statutory phrase we find in the commonsense
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.
Foreign Element: USA contends that Smalls violated the statute in
USA which states that it shall be unlawful for any person who has been
convicted in any court, punishable by imprisonment exceeding one year, to
possess any firearm because he was formerly convicted under the laws of
Japan.
6. (d) Kiobel vs. Royal Dutch Petroleum Co.
Facts: Petitioners Kiobel, et. al were Nigerian nationals who sued Dutch,
British, and Nigerian corporations under the Alien Tort Statute in federal court
for violation of the law of nations. Petitioners claimed that the respondent
corporations committed atrocities in suppressing the demonstrations
directed towards the operation of the respondent corporations. They claimed
that respondents enlisted, supported, and aided the Nigerian Government in
attacking village and beating, raping, killing, and arresting residents and
destroying or looting property. The district court dismissed and allowed some
of the claims but when 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 United States.
Ruling: None, because the ATS has no extraterritorial application. To
begin with, 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 dos 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 tort committed abroad. It is well
established that generic terms like “any” or “every” do not rebut the
presumption against extraterritoriality.
Foreign Element: Dutch, British, and Nigerian corporations who
committed offense in the Nigeria and the Petitioner, citing the ATS, filed a
complained before the court in USA.
6.(e) Saudi Arabian Airlines vs. Rebesencio, et. al.
Facts: Petitioner Saudi Arabian Airlines (Saudia) is a foreign corporation
established and existing under the laws of Jeddah, Kingdom of Saudi Arabia.
Respondents were recruited and hired by Saudia as Flight Attendants with
the accreditation and approval of the Philippine Overseas Employment
Administration (POEA). Respondents continued their employment with
Saudia until they were separated from service on various dates in 2006. The
respondents contended that the termination of their employment was illegal.
They alleged that the termination was made solely because they were
pregnant. As respondents alleged, they had informed Saudia of their
respective pregnancies and had gone through the necessary procedures to
process their maternity leaves. Initially, Saudia had given its approval but
later on informed respondents that its management in Jeddah, Saudi Arabia
had disapproved their maternity leaves. In addition, it required respondents
to file their resignation letters. Respondents were told that if they did not
resign, Saudia would terminate them all the same. The threat of termination
entailed the loss of benefits, such as separation pay and ticket discount
entitlements. The respondents were required to report to the office one
month into their maternity leave.
Saudia anchored its disapproval of respondents' maternity leaves and
demand for their resignation on its "Unified Employment Contract for Female
Cabin Attendants" (Unified Contract) which provides that if the Air Hostess
becomes pregnant at any time during the term of this contract, this shall
render her employment contract as void and she will be terminated due to
lack of medical fitness. The respondents averred that the Unified Contract
took effect after the approval of their maternity leaves. Rather than comply
and tender resignation letters, respondents filed separate appeal letters that
were all rejected. Faced with the dilemma of resigning or totally losing their
benefits, respondents executed handwritten resignation letters.
Respondents filed a complaint with the NLRC for illegal dismissal and for
underpayment of salary, overtime pay, premium pay for holiday, rest day,
premium, service, incentive leave pay, 13th month pay, separation pay, night
shift differentials, medical expense reimbursements, retirement benefits,
illegal deductions, lay-over expense and allowances, moral and exemplary
damages, and attorney’s fees. Saudia challenged the jurisdiction of the labor
Arbiter on the ground of forum non conveniens. The Laboor Arbiter sustained
the challenge and dismissed the complaint. On Appeal to the NLRC, the
Commission’s Sixth Division reversed, holding that there were no special
circumsantances that warranted its abstention from exercising jurisdiction.
Upon appeal, the court of Appeals merely modified the decision of the NLRC
with respect to the award of separation pay and backwages.
Issue: Whether or not the Philippine courts have jurisdiction over the case
Ruling: Yes, the Philippine court has jurisdiction over the case. Saudia
asserts that stipulations set in the Cabin Attendant contracts require the
application of the laws of Saudi Arabia. It insists that the need to comply with
these stipulations calls into operation the doctrine of forum non conveniens
and, in turn, makes it necessary for Philippine tribunals to refrain from
exercising jurisdiction. 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. On the
matter of pleading forum non conveniens, the court state the rule, thus:
Forum non conveniens must not only be clearly pleaded as a ground for
dismissal; it must be pleaded as such at the earliest possible opportunity.
Otherwise, it shall be deemed waived.
It further stated: Forum non conveniens finds no application and does not
operate to divest Philippine tribunals of jurisdiction and to require the
application of foreign law. Saudia invokes forum non conveniens to
supposedly effectuate the stipulations of the Cabin Attendant contracts that
require the application of the laws of Saudi Arabia.
As argued by respondents, Saudia’s policy entails the termination of
employment of flight attendants who become pregnant. At the risk of stating
the obvious, pregnancy is an occurrence that pertains specifically to women.
Saudia’s policy excludes from and restricts employment on the basis of no
other consideration but sex.
The court do not lose sight of the reality that pregnancy does present
physical limitations that may render difficult the performance of functions
associated with being a flight attendant. Nevertheless, it would be the height
of iniquity to view pregnancy as a disability so permanent and immutable that
it must entail the termination of one’s employment. It is clear that any
individual, regardless of gender, may be subject to exigencies that limit the
performance of functions. However, they fail to appreciate how pregnancy
could be such an impairing occurrence that it leaves no other recourse but
the complete termination of the means through which a woman earns a
living. Oddly enough, the petitioner Saudia themselves stated that the Saudi
law does not allow the termination of employment of women who take
maternity leaves;
Consistent with lex loci intentionis, to the extent that it is proper and
practicable (i.e., “to make an intelligent decision”), Philippine tribunals may
apply the foreign law selected by the parties. In fact, (albeit without meaning
to make a pronouncement on the accuracy and reliability of respondents’
citation) in this case, respondents themselves have made averments as to
the laws of Saudi Arabia.
Foreign Element: SAUDIA is a foreign corporation established and
existing under the laws of Jeddah, Kingdom of Saudi Arabia. Rebesencio
was hired as flight attendant in the aforementioned corporation and was later
on its contract of employment was terminated due to the reason of her
pregnancy. Respondent filed a complaint for illegal dismissal before Labor
Arbiter. Saudia challenged the jurisdiction of the Labor Arbiter on the ground
of forum non conveniens.
