FORUM NON CONVENIENS A court's discretionary power to decline to exercise its jurisdiction w ere anot er court !ay !

ore con"eniently ear a case# OVERVIE$ Forum non conveniens is a discretionary power t at allows courts to dis!iss a case w ere anot er court% or &oru!% is !uc 'etter suited to ear t e case# ( is dis!issal does not pre"ent a plainti&& &ro! re&ilin) is or er case in t e !ore appropriate &oru!# See Res *udicata# ( is doctrine !ay 'e in"o+ed 'y eit er t e de&endant% or 'y t e court# See sua sponte# $ en deter!inin) w et er or not to exercise &oru! non con"eniens% courts consider se"eral &actors% includin),

( e residence o& t e parties ( e location o& e"idence and witnesses -u'lic policy ( e relati"e 'urdens on t e court syste!s ( e plainti&&'s c oice o& &oru! .ow c an)in) t e &oru! would a&&ect eac party's case E"en i& a plainti&& 'rin)s a case in an incon"enient &oru!% a court will not )rant a &oru! non con"eniens dis!issal i& t ere is no ot er &oru! t at could ear t e case% or i& t e ot er &oru! would not award t e plainti&& any !oney e"en i& e or s e won# Si!ilarly% courts will not )rant a &oru! non con"eniens dis!issal w ere t e alternati"e &oru!'s judicial syste! is )rossly inade/uate# For exa!ple% an A!erican court would not )rant a &oru! non con"eniens dis!issal w ere t e alternati"e &oru! was Cu'a# So!eti!es% courts attac conditions to &oru! non con"eniens dis!issals# For exa!ple% t e court !i) t re/uire t e de&endant to wai"e de&enses t at would pre"ent t e plainti&&&ro! re0&ilin) t e suit in t e alternati"e &oru!# Or t e court !i) t dis!iss t e case in &a"or o& a &orei)n court% 'ut only on t e condition t at t e de&endant allow A!erican0styledisco"ery# On appeal% &oru! non con"eniens decisions are e"aluated usin) an a'use o& discretionstandard# ( e Supre!e Court !ost recently considered &oru! non con"eniens in Piper Aircraft Co. v. Reyno% 121 U#S# 342 567869# In t at case% t e Court eld t at so lon) as t ere was are!edy a"aila'le in t e alternate &oru!% it did not !atter i& t e re!edy was clearly insu&&icient# .owe"er% lower courts do not strictly &ollow t is rule# Instead% t ey usually consider t e ade/uacy o& t e alternati"e &oru!'s re!edy as anot er &actor to 'e 'alanced w en decidin) w et er or not to )rant a &oru! non con"eniens dis!issal#

Forum non conveniens is a :atin p rase t at translates to !ean a &oru! or jurisdiction t at is not con"enient# It is a le)al doctrine t at is !ost o&ten used w en t e jurisdiction c osen 'y t e plainti&& is not con"enient &or witnesses or creates an undue ards ip on t e de&endant# $ en t e doctrine o& forum non conveniens is in"o+ed% t e de&endant !ustpetition t e court to !o"e t e case to anot er% !ore con"enient% jurisdiction# One o& t e 'est ways to 'etter understand t e doctrine o& forum non conveniens is to loo+ at se"eral exa!ples o& ow it is !ost o&ten used durin) le)al proceedin)s# For exa!ple% t e doctrine o& forum non conveniens can 'e used i& a person as a car collision w ile on "acation# I& t e plainti&& &iles er lawsuit in t e place w ere s e actually resides instead o& w ere t e accident occurred% all t e witnesses and t e de&endants will 'e &orced to tra"el &or depositions and court dates# In t at case% t e de&endant !ay as+ t e court i& t e jurisdiction can 'e !o"ed to t e place w ere t e accident occurred# I& )ranted% it will t ere'y release t e witnesses and t e de&endant &ro! tra"elin) lon) distances to attend court and will !a+e t e location !ore con"enient# Foru! non con"eniens is :atin &or ;incon"enient &oru!#; Alt ou) t ere are rules w ic )o"ern w ere a lawsuit !ust 'e &iled% so!eti!es t e location is incon"enient &or t e witnesses or parties# I& a party !a+es an ade/uate s owin) o& incon"enience% t e principle o& &oru! non con"eniens allows a jud)e to decline to ear% or to tran&er% a case e"en t ou) t e court is an appropriate court &or t e case# -rotecti"e principle is a rule o& international law t at allows a so"erei)n state to assert jurisdiction o"er a person w ose conduct outside its 'oundaries t reatens t e states security or inter&eres wit t e operation o& its )o"ern!ent &unctions# ( e &ollowin) is an exa!ple o& a case law on protecti"e principle, Under international law% t e ;protecti"e principle; )i"es a country t e jurisdiction to prescri'e a rule o& law attac in) le)al conse/uences to conduct outside its territory t at t reatens its security as a state or t e operation o& its )o"ern!ental &unctions% pro"ided t e conduct is )enerally reco)ni<ed as a cri!e under t e law o& states t at a"e reasona'ly de"eloped le)al syste!s# =United States "# >e e% ?@6 F# Supp# 67? 5A# Mass# 67829B Protective Principle In t is situation% t e cri!e was co!!itted a'road and neit er t e person w o co!!itted t e cri!e% nor t e "icti!s% were nationals o& t at State# In

t is case% jurisdiction is asserted on t e 'asis t at t e security or t e interests o& t e State is a&&ected 'y an act co!!itted a'road# In Eichmanns case% t e Israeli Court 'ased its jurisdiction on t e protecti"e principle and said t at t e cri!es co!!itted 'y Eic !ann a)ainst t e *ewis a&&ected t e C"ital interestsD o& Israel# Eot passi"e personality and protecti"e principles are a!on) t e less accepted 'asis o& jurisdictionF alt ou) % t ey are increasin)ly used to )et jurisdiction o"er acts o& terroris! co!!itted a'road a)ainst nationals 5passi"e personality principle9 and a)ainst t e interests o& t e State 5protecti"e principle9# people

UNIVERSAL JURISDICTION In t is case% t e cri!e was co!!itted a'road% neit er t e person w o co!!itted t e cri!e% nor t e "icti!s% were nationals o& t at State# Uni"ersal jurisdiction ena'les a person to 'e tried 'e&ore a national court e"en w en t ere is no lin+ to t e State# Under t is principle% jurisdiction is exercised on t e 'asis t at t e cri!e co!!itted is so serious and o& uni"ersal concern t at eac State as an interest to prosecute# In ot er words% t ese cri!es are punis a'le 'y any State# Uni"ersal jurisdiction is a de"elopin) concept in international law and its scope% !et od o& application and extend o& application is contro"ersial# Uni"ersal jurisdiction was exercised in,

t e Eichmann Case w ere Israel used uni"ersal jurisdiction as a 'asis to prosecute Eic !ann &or is in"ol"e!ent in or)ani<in) t e deat s o& *ews% in Ger!any% durin) t e Nat<i era 5re!e!'er t at we said t at t e protecti"e principle was also used9# .ere% Uni"ersal *urisdiction was used on t e 'asis t at Eic !ann co!!itted war cri!es and cri!es a)ainst u!anity#

t e Pinochet Case, .ouse o& :ords in UH exercised uni"ersal jurisdiction on t e 'asis t at -inoc et was responsi'le &or acts o& torture at t e ti!e e was t e ead o& State in C ile#

RECENT DEVELOPMENTS IN UNIVERSAL JURISDICTION See also t e &ollowin) situations in w ic arrest warrants or indict!ents were !ade in t e exercise o& uni"ersal jurisdiction 'y national courts,

In 3@@@% a Eel)iu! Ma)istrate issued an international arrest warrant &or ARCDs Forei)n Minister on c ar)es o& war cri!es and cri!es a)ainst u!anity#

In 3@@3% Frenc

Courts exercised uni"ersal jurisdiction and issued

arrest warrants &or t e -resident o& Con)o and so!e senior Minsters#

In 3@@8% RwandaDs C ie& o& -rotocol was arrested in Ger!any 'y Ger!an o&&icials and issued a warrant &or terroris!D# anded to t e Frenc # ( e Frenc is arrest and was tryin) courts ad i! on t e 'asis o&

uni"ersal jurisdiction on c ar)es o& Cco!plicity to !urder in relation to

In t e sa!e year Spanis u!anity#

Courts indicted &or!er and current !ilitary

o&&icials o& Rwanda o"er )enocide% war cri!es and cri!es a)ainst As you can see t ere is no direct lin+ 'etween Spain% Eel)iu! and France and t e atrocities t at appened durin) t e Con)o or Rwanda con&licts# Iou !ay a"e noticed t at in t e situations t at uni"ersal jurisdiction was u!anity and

exercised in situations o& torture% war cri!es% cri!es a)ainst

)enocide# It can also 'e used to assert jurisdiction o"er pirates 5pro"ided t at t e pirate was cau) t in t e i) seas or wit in t e territorial jurisdiction o& a State9% ijac+ers and terrorists 5Yunis case9# So!e ar)ue t at uni"ersal jurisdiction is a"aila'le under custo!ary international law to prosecute all international cri!esF ot ers &eel its li!ited to cri!es t at are pro i'ited under *us Co)ens nor!s 5See Pinochet case and the Bel ium Arrest !arrant Case9#

Passive Personality Principle In t is situation% t e cri!e was co!!itted a'road and t e person w o co!!itted t e o&&ense was not a national o& t at State# In t is situation% only t e "icti! is a national o& t e State w ic case, US courts decided t at t ey clai!s jurisdiction# In t e Yunis ad jurisdiction o"er Iunis 5a :e'anese

national9 'ased on t e passi"e personality principle 'ecause two US nationals were a'road t e *ordanian airline t at Iunis ijac+ed#

SAUDI ARABIAN AIRLINES (SAUDIA) vs. COURT OF APPEALS, MILAGROS P. MORADA and HON. RODOLFO A. ORTIZ, in his a!a i"# as P$%sidin& '(d&% )* B$an h +,, RTC )* -(%.)n Ci"# G.R. N). /00/,/ O ")1%$ +, /,,+

QUISUMBING, J.:
FACTS: Petitioner SAUDIA hired private respondent MORADA as a flight attendant in 19 ! "ased in #eddah$ On 199%! &hile on a la'(over in #a)arta! Indonesia! she &ent to part' &ith * +ale attendants! and on the follo&ing +orning in their hotel! one of the +ale attendants atte+pted to rape her$ She &as res,-ed "' hotel attendants &ho heard her ,r' for help$ The Indonesian poli,e arrested the *$ MORADA ret-rned to #eddah! "-t &as as)ed "' the ,o+pan' to go "a,) to #a)arta and help arrange the release of the * +ale attendants$ MORADA did not ,ooperate &hen she got to #a)arta$

.hat follo&ed &as a series of interrogations fro+ the Sa-di Co-rts &hi,h she did not -nderstand as this &as in their lang-age$ In 199/! she &as s-rprised! -pon "eing ordered "' SAUDIA to go to the Sa-di ,o-rt! that she &as "eing ,onvi,ted of 011 ad-lter'2 0*1 going to a dis,o! dan,ing and listening to the +-si, in violation of Isla+i, la&s2 and 0/1 so,iali3ing &ith the +ale ,re&! in ,ontravention of Isla+i, tradition! senten,ing her to five +onths i+prison+ent and to * 4 lashes$ Onl' then did she reali3e that the Sa-di ,o-rt had tried her! together &ith the *! for &hat happened in #a)arta$ SAUDIA denied her the assistan,e she re5-ested! 6-t "e,a-se she &as &rongf-ll' ,onvi,ted! Prin,e of Ma))ah dis+issed the ,ase against her and allo&ed her to leave Sa-di Ara"ia$ Shortl' "efore her ret-rn to Manila! she &as ter+inated fro+ the servi,e "' SAUDIA! &itho-t her "eing infor+ed of the ,a-se$ On 7ove+"er */! 199/! Morada filed a Co+plaint for da+ages against SAUDIA! and 8haled Al(6ala&i 09Al(6ala&i:1! its ,o-ntr' +anager$ SAUDIA A;;<=<S: Private respondent>s ,lai+ for alleged a"-se of rights o,,-rred in the 8ingdo+ of Sa-di Ara"ia$ It alleges that the e?isten,e of a foreign ele+ent 5-alifies the instant ,ase for the appli,ation of the la& of the 8ingdo+ of Sa-di Ara"ia! "' virt-e of the le? lo,i deli,ti ,o++issi r-le$ MORADA A;;<=<S: Sin,e her A+ended Co+plaint is "ased on Arti,les 19 and *1 of the Civil Code! then the instant ,ase is properl' a +atter of do+esti, la&$

ISSUE: .O7 the Philippine ,o-rts have @-risdi,tion to tr' the ,ase

HELD: A<S$ On the presen,e of a 9Foreign <le+ent: in the ,ase: A fa,t-al sit-ation that ,-ts a,ross territorial lines and is affe,ted "' the diverse la&s of t&o or +ore states is said to ,ontain a 9foreign ele+ent:$ The presen,e of a foreign ele+ent is inevita"le sin,e so,ial and e,ono+i, affairs of individ-als and asso,iations are rarel' ,onfined to the geographi, li+its of their "irth or ,on,eption$ The for+s in &hi,h this foreign ele+ent +a' appear are +an'$ The foreign ele+ent +a' si+pl' ,onsist in the fa,t that one of the parties to a ,ontra,t is an alien or has a foreign do+i,ile! or that a ,ontra,t "et&een nationals of one State involves properties sit-ated in another State$ In other ,ases! the foreign ele+ent +a' ass-+e a ,o+ple? for+$ In the instant ,ase! the foreign ele+ent ,onsisted in the fa,t that private respondent Morada is a resident Philippine national! and that petitioner SAUDIA is a resident foreign ,orporation$ Also! "' virt-e of the e+plo'+ent of Morada &ith the petitioner Sa-dia as a flight ste&ardess! events did transpire d-ring her +an' o,,asions of travel a,ross national

"orders! parti,-larl' fro+ Manila! Philippines to #eddah! Sa-di Ara"ia! and vi,e versa! that ,a-sed a 9,onfli,ts: sit-ation to arise$ COURT disagrees &ith MORADA that his is p-rel' a do+esti, ,ase$ Bo&ever! the ,o-rt finds that the RTC of C-e3on Cit' possesses @-risdi,tion over the s-"@e,t +atter of the s-it$ Its a-thorit' to tr' and hear the ,ase is provided for -nder Se,tion 1 of Rep-"li, A,t 7o$ D491! to &it: 6P1*9 Se,$ 19$ #-risdi,tion in Civil Cases$ E Regional Trial Co-rts shall e?er,ise e?,l-sive @-risdi,tion: ??? ??? ??? 0 1 In all other ,ases in &hi,h de+and! e?,l-sive of interest! da+ages of &hatever )ind! attorne'F'>s fees! litigation e?penses! and ,ots or the val-e of the propert' in ,ontrovers' e?,eeds One h-ndred tho-sand pesos 0P1%%!%%%$%%1 or! in s-,h other ,ases in Metro Manila! &here the de+and! e?,l-sive of the a"ove(+entioned ite+s e?,eeds T&o h-ndred Tho-sand pesos 0P*%%!%%%$%%1$ 0<+phasis o-rs1 ??? ??? ??? Se,tion * 0"1! R-le G of the Revised R-les of Co-rt E the ven-e! C-e3on Cit'! is appropriate: Se,$ * Hen-e in Co-rts of First Instan,e$ E I7o& Regional Trial Co-rtJ 0a1 ??? ??? ??? 0"1 Personal a,tions$ E All other a,tions +a' "e ,o++en,ed and tried &here the defendant or an' of the defendants resides or +a' "e fo-nd! or &here the plaintiff or an' of the plaintiff resides! at the ele,tion of the plaintiff$ .eighing the relative ,lai+s of the parties! the ,o-rt a 5-o fo-nd it "est to hear the ,ase in the Philippines$ Bad it ref-sed to ta)e ,ogni3an,e of the ,ase! it &o-ld "e for,ing plaintiff 0private respondent no&1 to see) re+edial a,tion else&here! i$e$ in the 8ingdo+ of Sa-di Ara"ia &here she no longer +aintains s-"stantial ,onne,tions$ That &o-ld have ,a-sed a f-nda+ental -nfairness to her$ Moreover! "' hearing the ,ase in the Philippines no -nne,essar' diffi,-lties and in,onvenien,e have "een sho&n "' either of the parties$ The ,hoi,e of for-+ of the plaintiff 0no& private respondent1 sho-ld "e -pheld$ The trial ,o-rt also a,5-ired @-risdi,tion over the parties$ MORADA thro-gh her a,t of filing! and SAUDIA "' pra'ing for the dis+issal of the A+ended Co+plaint on gro-nds other than la,) of @-risdi,tion$ As to the ,hoi,e of appli,a"le la&! &e note that ,hoi,e(of(la& pro"le+s see) to ans&er t&o i+portant 5-estions: 011 .hat legal s'ste+ sho-ld ,ontrol a given sit-ation &here so+e of the signifi,ant fa,ts o,,-rred in t&o or +ore states2 and 0*1 to &hat e?tent sho-ld the ,hosen legal s'ste+ reg-late the sit-ation$ Considering that the ,o+plaint in the ,o-rt a 5-o is one involving torts! the 9,onne,ting fa,tor: or 9point of ,onta,t: ,o-ld "e the pla,e or pla,es &here the tortio-s ,ond-,t or le?

lo,i a,t-s o,,-rred$ And appl'ing the torts prin,iple in a ,onfli,ts ,ase! &e find that the Philippines ,o-ld "e said as a sit-s of the tort 0the pla,e &here the alleged tortio-s ,ond-,t too) pla,e1$ This is "e,a-se it is in the Philippines &here petitioner allegedl' de,eived private respondent! a Filipina residing and &or)ing here$ A,,ording to her! she had honestl' "elieved that petitioner &o-ld! in the e?er,ise of its rights and in the perfor+an,e of its d-ties! 9a,t &ith @-sti,e! give her d-e and o"serve honest' and good faith$: Instead! petitioner failed to prote,t her! she ,lai+ed$ That ,ertain a,ts or parts of the in@-r' allegedl' o,,-rred in another ,o-ntr' is of no +o+ent$ For in o-r vie& &hat is i+portant here is the pla,e &here the over(all har+ or the totalit' of the alleged in@-r' to the person! rep-tation! so,ial standing and h-+an rights of ,o+plainant! had lodged! a,,ording to the plaintiff "elo& 0herein private respondent1$ All told! it is not &itho-t "asis to identif' the Philippines as the sit-s of the alleged tort$ In appl'ing 9State of the +ost signifi,ant relationship: r-le! to deter+ine the State &hi,h has the +ost signifi,ant relationship! the follo&ing ,onta,ts are to "e ta)en into a,,o-nt and eval-ated a,,ording to their relative i+portan,e &ith respe,t to the parti,-lar iss-e: 0a1 the pla,e &here the in@-r' o,,-rred2 0"1 the pla,e &here the ,ond-,t ,a-sing the in@-r' o,,-rred2 0,1 the do+i,ile! residen,e! nationalit'! pla,e of in,orporation and pla,e of "-siness of the parties! and 0d1 the pla,e &here the relationship! if an'! "et&een the parties is ,entered$ As alread' dis,-ssed! there is "asis for the ,lai+ that over(all in@-r' o,,-rred and lodged in the Philippines$ There is li)e&ise no 5-estion that private respondent is a resident Filipina national! &or)ing &ith petitioner! a resident foreign ,orporation engaged here in the "-siness of international air ,arriage$ Th-s! the 9relationship: "et&een the parties &as ,entered here! altho-gh it sho-ld "e stressed that this s-it is not "ased on +ere la"or la& violations$ Fro+ the re,ord! the ,lai+ that the Philippines has the +ost signifi,ant ,onta,t &ith the +atter in this disp-te! raised "' private respondent as plaintiff "elo& against defendant 0herein petitioner1! in o-r vie&! has "een properl' esta"lished$ NOTE: These 9test fa,tors: or 9points of ,onta,t: or 9,onne,ting fa,tors: ,o-ld "e an' of the follo&ing: 011 The nationalit' of a person! his do+i,ile! his residen,e! his pla,e of so@o-rn! or his origin2 0*1 the seat of a legal or @-ridi,al person! s-,h as a ,orporation2 0/1 the sit-s of a thing! that is! the pla,e &here a thing is! or is dee+ed to "e sit-ated$ In parti,-lar! the le? sit-s is de,isive &hen real rights are involved2 0G1 the pla,e &here an a,t has "een done! the lo,-s a,t-s! s-,h as the pla,e &here a ,ontra,t has "een +ade! a +arriage ,ele"rated! a &ill signed or a tort ,o++itted$ The le? lo,i a,t-s is parti,-larl' i+portant in ,ontra,ts and torts2 0K1 the pla,e &here an a,t is intended to ,o+e into effe,t! e$g$! the pla,e of perfor+an,e of

,ontra,t-al d-ties! or the pla,e &here a po&er of attorne' is to "e e?er,ised2 041 the intention of the ,ontra,ting parties as to the la& that sho-ld govern their agree+ent! the le? lo,i intentionis2 0D1 the pla,e &here @-di,ial or ad+inistrative pro,eedings are instit-ted or done$ The le? fori E the la& of the for-+ E is parti,-larl' i+portant "e,a-se! as &e have seen earlier! +atters of 9pro,ed-re: not going to the s-"stan,e of the ,lai+ involved are governed "' it2 and "e,a-se the le? fori applies &henever the ,ontent of the other&ise appli,a"le foreign la& is e?,l-ded fro+ appli,ation in a given ,ase for the reason that it falls -nder one of the e?,eptions to the appli,ations of foreign la&2 and 0 1 the flag of a ship! &hi,h in +an' ,ases is de,isive of pra,ti,all' all legal relationships of the ship and of its +aster or o&ner as s-,h$ It also ,overs ,ontra,t-al relationships parti,-larl' ,ontra,ts of affreight+ent$