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FORUM NON CONVENIENS RELATES


TO FORUM, NOT TO THE CHOICE OF
GOVERNING LAW; THE CHOICE OF
FOREIGN LAW IS MERELY AN The Author
INCIDENT OF ITS APPLICATION
Atty. Elvin B.
Published by  Atty Elvin B. Villanueva at  May 26, 2017 Villanueva is a
litigation lawyer
specializing in labor
laws. He graduated
Saudi Arabian Airlines (Saudia) and Brenda J. Betia Vs. Ma. Jopette M. from Arellano
Rebesencio Montassah B. Sacar-Adiong, et al. University School of
G.R. No. 198587, January 14, 2015 Law with honors. He
was a recipient of
Facts: the Supreme Court
award for his essay
Respondents (complainants before the Labor Arbiter) were recruited and hired by
on the Role of the
Saudia as Temporary Flight Attendants with the accreditation and approval of the
Rule of Law in
Philippine Overseas Employment Administration.
National
Get an updated copy of the Labor Code (2017), by Atty. Villanueva, as re-numbered Development.
pursuant to R.A. 10151 and per DOLE Department Advisory o1, Series of 2015
Learn More
After undergoing seminars required by the Philippine Overseas Employment
Administration for deployment overseas, as well as training modules offered by
Our mission Opening hours
Saudia (e.g., initial flight attendant/training course and transition training), and Contact us
after working as Temporary Flight Attendants, respondents became Permanent Categories
Flight Attendants. To deliver legal services Monday - Friday:  Unit G03 Makati
that will provide the best  8:30am - 5:30pm Executive Tower
Atty. 2, Dela
Elvin's
They then entered into Cabin Attendant contracts
solution for clients andwith Saudia. Respondents Rosa St., Makati City
Books
continued their employmentbetter with Saudia until they were
results for society. Saturday - from
separated service on
Sunday:
various dates in 2006. Respondents contended that the termination
 Closed of their  (02) Civil
579-9170
Law
employment was illegal. They alleged that the termination was made solely  (02) 831-5881
because they were pregnant. Corporation
 attyelvin@gmail.com
 Law
As respondents alleged, they had informed Saudia of their respective pregnancies learomano77@gmail.com
and had gone through the necessary procedures to process their maternity leaves. Criminal Law
Initially, Saudia had given its approval but later on informed respondents that its Events
management in Jeddah, Saudi Arabia had disapproved their maternity leaves.
Forms and
In addition, it required respondents to file their resignation letters. Respondents Templates
were told that if they did not resign, Saudia would terminate them all the same.
© 2019 EBV Law. All Rights Reserved. Labor Law
The threat of termination entailed the loss of benefits, such as separation pay and
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ticket discount entitlements.
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8/8/2019 FORUM NON CONVENIENS RELATES TO FORUM, NOT TO THE CHOICE OF GOVERNING LAW; THE CHOICE OF FOREIGN LAW I…

Saudia anchored its disapproval of respondents’ Rules of


maternity leaves and demand for their resignation on its Procedure
“Unified Employment Contract for Female Cabin
Attendants” (Unified Contract). Under the Unified Tax Law
Contract, the employment of a Flight Attendant who
TRAIN Law
becomes pregnant is rendered void stating that if the Air
Hostess becomes pregnant at any time during the term of Uncategorized
this contract, this shall render her employment contract
as void and she will be terminated due to lack of medical
fitness.

Faced with the dilemma of resigning or totally losing their Tags


benefits, respondents executed handwritten resignation
120-day rule 240-
letters. In Montassah’s and Rouen Ruth’s cases, their
resignations were executed on Saudia’s blank letterheads
day rule
abandonment
that Saudia had provided. These letterheads already had
the word “RESIGNATION” typed on the subject portions of their headings when abandonment
these were handed to respondents. of work attorney's
fees backwages
Respondents filed a Complaint against Saudia and its officers for illegal dismissal burden of proof
and money claims.
compensability
Saudia assailed the jurisdiction of the Labor Arbiter. It claimed that all the constructive
determining points of contact referred to foreign law and insisted that the dismissal Death
Complaint ought to be dismissed on the ground of forum non conveniens. It added benefit disability

that respondents had no cause of action as they resigned voluntarily. Disability claim
dismissal
LA Ruling: employer-employee
relationship
The Executive Labor Arbiter Fatima Jambaro-Franco rendered the Decision
immutability of judgment
dismissing respondents’ Complaint.
labor-
jurisdiction
NLRC Ruling: only contracting
loss of trust
On respondents’ appeal, the National Labor Relations Commission’s Sixth Division
reversed the ruling of Executive Labor Arbiter Jambaro-Franco. It explained that
and
“[c]onsidering that complainants-appellants are OFWs, the Labor Arbiters and the confidence
NLRC has [sic] jurisdiction to hear and decide their complaint for illegal PEME
termination.” Permanent
On the matter of forum non conveniens, it noted that there were no special
and Total
circumstances that warranted its abstention from exercising jurisdiction. On the Disability
issue of whether respondents were validly dismissed, it held that there was nothing petition for certiorari
Our mission
on record to support Saudia’s claim that respondents resigned voluntarily.Opening hours Contact
piercing theus
veil Post
employment medical
The National Labor RelationsToCommission
deliver legaldenied petitioners’
services MondayMotion for
- Friday:  Unit G03 Makati
examination procedural
Reconsideration. that will provide the best  8:30am - 5:30pm Executive Tower
due process 2, Dela
project
solution for clients and Rosa St., Makati
employment City
quitclaim
CA Ruling:
better results for society. Saturday - Sunday: reinstatement release
Closed  (02) 579-9170
The Court of Appeals denied petitioners’ Rule 65 Petition and modified the Decision resignation res judicata
 (02) 831-5881
of the National Labor Relations Commission with respect to the award of retirement
 attyelvin@gmail.com
separation pay and backwages.
 retrenchment second
The Court of Appeals denied petitioners’ Motion for Reconsideration. Hence, the learomano77@gmail.com
motion for reconsideration

Appeal before the SC. separation pay


serious
Issue/s: misconduct
strained relations
Whether or not the laws of Saudi Arabia apply and the Philippines is a forum non
termination theft third
conveniens
© 2019 EBV Law. All Rights Reserved. doctor valid dismissal
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SC Ruling: waiver willful breach

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8/8/2019 FORUM NON CONVENIENS RELATES TO FORUM, NOT TO THE CHOICE OF GOVERNING LAW; THE CHOICE OF FOREIGN LAW I…

A choice of law governing the validity of contracts or the interpretation of its Willful breach of trust
provisions does not necessarily imply forum non conveniens. Choice of law and willful disobedience work-
forum non conveniens are entirely different matters. relatedness

Choice of law provisions are an offshoot of the fundamental principle of autonomy


of contracts.

In contrast, forum non conveniens is a device akin to the rule against forum
shopping. It is designed to frustrate illicit means for securing advantages and
vexing litigants that would otherwise be possible if the venue of litigation (or
dispute resolution) were left entirely to the whim of either party.

Likewise, contractual choice of law is not determinative of jurisdiction. Stipulating


on the laws of a given jurisdiction as the governing law of a contract does not
preclude the exercise of jurisdiction by tribunals elsewhere. The reverse is equally
true: The assumption of jurisdiction by tribunals does not ipso facto mean that it
cannot apply and rule on the basis of the parties’ stipulation.

Philippine law is definite as to what governs the formal or extrinsic validity of


contracts. The first paragraph of Article 17 of the Civil Code provides that “[t]he
forms and solemnities of contracts . . . shall be governed by the laws of the country
in which they are executed” (i.e., lex loci celebrationis).

In contrast, there is no statutorily established mode of settling conflict of laws


situations on matters pertaining to substantive content of contracts. It has been
noted that three (3) modes have emerged: (1) lex loci contractusor the law of the
place of the making; (2) lex loci solutionis or the law of the place of performance;
and (3) lex loci intentionis or the law intended by the parties.

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.
As mentioned, contractual choice of laws factors into transnational litigation in any
or a combination of four (4) ways. Moreover, forum non conveniens relates to one
of these: choosing between multiple possible fora.

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. 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
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conveniens is a means devised to address parallel litigation arising in multiple
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jurisdictions.
To deliver legal services Monday - Friday:  Unit G03 Makati
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Forum non conveniens literally translates to “the forum isinconvenient.” It is a Executive Tower 2, Dela
solution
concept in private international for clients
law and and to combat the “less than
was devised Rosa St., Makati City
better
honorable” reasons and excuses results
that for society.
litigants Saturday
use to secure - Sunday:
procedural advantages,
Closed
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annoy and harass defendants, avoid overcrowded dockets, select a “friendlier”
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venue. Thus, the doctrine of forum non conveniens addresses the same rationale
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that the rule against forum shopping does, albeit on a multijurisdictional scale.

Unlike the rule on res judicata, as well as those on litis pendentia and forum learomano77@gmail.com
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.

Accordingly, under the doctrine of forum non conveniens, “a court, in conflicts of


law cases, may refuse impositions on ©its2019
jurisdiction
EBV Law.where it is not
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Reserved.
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‘convenient’ or available forum and the parties are not precluded from seeking
remedies elsewhere.”

In Bank of America, NT&SA, Bank of America International, Ltd. v. Court of Appeals, this
court underscored that a Philippine court may properly assume jurisdiction over a
case if it chooses to do so to the extent: “(1) that the Philippine Court is one to
which the parties may conveniently resort to; (2) that the Philippine Court is in a
position to make an intelligent decision as to the law and the facts; and (3) that the
Philippine Court has or is likely to have power to enforce its decision.

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.

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. The SC notes that it is stated in Hasegawa, forum non
conveniens is not a ground for a motion to dismiss. Consistent with forum non
conveniens as fundamentally a factual matter, it is imperative that it proceeds from
a factually established basis. It would be improper to dismiss an action pursuant to
forum non conveniens based merely on a perceived, likely, or hypothetical
multiplicity of fora. Thus, a defendant must also plead and show that a prior suit
has, in fact, been brought in another jurisdiction.

In the greater interest of prudence that a defendant not only allege supposed
dangerous tendencies in litigating in this jurisdiction; the defendant must also
show that such danger is real and present in that litigation or dispute resolution
has commenced in another jurisdiction and that a foreign tribunal has chosen to
exercise jurisdiction.

Forum non conveniens relates to forum, not to the choice of governing law. That
forum non conveniens may ultimately result in the application of foreign law is
merely an incident of its application. In this strict sense, forum non conveniens is
not applicable. It is not the primarily pivotal consideration in this case.

Any evaluation of the propriety of contracting parties’ choice of a forum and its
incidents must grapple with two (2) considerations: first, the availability and
adequacy of recourse to a foreign tribunal; and second, the question of where, as
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between the forum court and a foreign court, the balance of interests inhering in a
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The first is a pragmatic matter. It relates to the viability of ceding jurisdiction to a
solution for clients and Rosa St., Makati City
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better results for society. Saturday - Sunday:
circumstances of the tribunals in alternative fora. Exigencies, like the statute of  (02) 579-9170
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limitations, capacity to enforce orders and judgments, access to records,  (02) 831-5881
requirements for the acquisition of jurisdiction, and even questions relating to the  attyelvin@gmail.com
integrity of foreign courts, may render undesirable or even totally unfeasible 
recourse to a foreign court. As mentioned, we consider it in the greater interest of learomano77@gmail.com
prudence that a defendant show, in pleading forum non conveniens, that litigation
has commenced in another jurisdiction and that a foreign tribunal has, in fact,
chosen to exercise jurisdiction.

Two (2) factors weigh into a court’s appraisal of the balance of interests inhering in
a dispute: first, the vinculum which the parties and their relation have to a given
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capacity as an agent of the sovereign, in choosing to assume or decline jurisdiction.


The first is more concerned with the parties, their personal circumstances, and
private interests; the second concerns itself with the state and the greater social
order.

In considering the vinculum, a court must look into the preponderance of linkages
which the parties and their transaction may have to either jurisdiction. In this
respect, factors, such as the parties’ respective nationalities and places of
negotiation, execution, performance, engagement or deployment, come into play.

In considering public interest, a court proceeds with a consciousness that it is an


organ of the state. It must, thus, determine if the interests of the sovereign (which
acts through it) are outweighed by those of the alternative jurisdiction. In this
respect, the court delves into a consideration of public policy. Should it find that
public interest weighs more heavily in favor of its assumption of jurisdiction, it
should proceed in adjudicating the dispute, any doubt or contrary view arising from
the preponderance of linkages notwithstanding.

Our law on contracts recognizes the validity of contractual choice of law provisions.
Where such provisions exist, Philippine tribunals, acting as the forum court,
generally defer to the parties’ articulated choice. This is consistent with the
fundamental principle of autonomy of contracts. Article 1306 of the Civil Code
expressly provides that “[t]he contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient.” Nevertheless, while a
Philippine tribunal (acting as the forum court) is called upon to respect the parties’
choice of governing law, such respect must not be so permissive as to lose sight of
considerations of law, morals, good customs, public order, or public policy that
underlie the contract central to the controversy.

Article II, Section 14 of the 1987 Constitution provides that “[t]he State . . . shall
ensure the fundamental equality before the law of women and men.” Contrasted
with Article II, Section 1 of the 1987 Constitution’s statement that “[n]o person shall
. . . be denied the equal protection of the laws,” Article II, Section 14 exhorts the
State to “ensure.” This does not only mean that the Philippines shall not
countenance nor lend legal recognition and approbation to measures that
discriminate on the basis of one’s being male or female. It imposes an obligation to
actively engage in securing the fundamental equality of men and women. The
Convention on the Elimination of all Forms of Discrimination against Women
(CEDAW), signed and ratified by the Philippines on July 15, 1980, and on August 5,
1981, respectively, is part of the law of the land. In view of the widespread signing
and ratification of, as well as adherence (in practice) to it by states, it may even be
said that many provisions of the CEDAW may have become customary international
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Section 14.
To deliver legal services Monday - Friday:  Unit G03 Makati
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Saudia’s policy entails the termination of employment of flight  8:30am - 5:30pm
attendants who Executive Tower 2, Dela
become pregnant. At the risksolution for the
of stating clients and pregnancy is an occurrence
obvious, Rosa St., Makati City
better results
that pertains specifically to women. for policy
Saudia’s society. Saturday
excludes - Sunday:
from and restricts
 Closed  (02) 579-9170
employment on the basis of no other consideration but sex.
 (02) 831-5881
Apart from the constitutional policy on the fundamental equality before the law of  attyelvin@gmail.com
men and women, it is settled that contracts relating to labor and employment are 
impressed with public interest. Article 1700 of the Civil Code provides that “[t]he learomano77@gmail.com
relation between capital and labor are not merely contractual. They are so
impressed with public interest that labor contracts must yield to the common
good.”

As the present dispute relates to (what the respondents allege to be) the illegal
termination of respondents’ employment,
© 2019thisEBV
case is immutably
Law. a matter of public
All Rights Reserved.
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jurisprudence, Philippine laws properly find application in and govern this case.
Moreover, as this premise for Saudia’s insistence on the application forum non
conveniens has been shattered, it follows that Philippine tribunals may properly
assume jurisdiction over the present controversy.

There is no basis for concluding that the case can be more conveniently tried
elsewhere. As established earlier, Saudia is doing business in the Philippines. For
their part, all four (4) respondents are Filipino citizens maintaining residence in the
Philippines and, apart from their previous employment with Saudia, have no other
connection to the Kingdom of Saudi Arabia. It would even be to respondents’
inconvenience if this case were to be tried elsewhere.

Second, the records are bereft of any indication that respondents filed their
Complaint in an effort to engage in forum shopping or to vex and inconvenience
Saudia. Third, there is no indication of “unwillingness to extend local judicial
facilities to non-residents or aliens.” That Saudia has managed to bring the present
controversy all the way to this court proves this. Fourth, it cannot be said that the
local judicial machinery is inadequate for effectuating the right sought to be
maintained. Summons was properly served on Saudia and jurisdiction over its
person was validly acquired. Lastly, there is not even room for considering foreign
law. Philippine law properly governs the present dispute.

It does not follow that Philippine tribunals should refrain from exercising
jurisdiction. To recall the Court pronouncements in Puyat, as well as in Bank of
America, NT&SA, it is not so much the mere applicability of foreign law which calls
into operation forum non conveniens. Rather, what justifies a court’s desistance
from exercising jurisdiction is “[t]he difficulty of ascertaining foreign law” or the
inability of a “Philippine Court . . . to make an intelligent decision as to the law[.]

All told, the considerations for assumption of jurisdiction by Philippine tribunals as


outlined in Bank of America, NT&SA99 have been satisfied. First, all the parties are
based in the Philippines and all the material incidents transpired in this
jurisdiction. Thus, the parties may conveniently seek relief from Philippine
tribunals. Second, Philippine tribunals are in a position to make an intelligent
decision as to the law and the facts. Third, Philippine tribunals are in a position to
enforce their decisions. There is no compelling basis for ceding jurisdiction to a
foreign tribunal. Quite the contrary, the immense public policy considerations
attendant to this case behoove Philippine tribunals to not shy away from their duty
to rule on the case.

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