Professional Documents
Culture Documents
Nationality principle
Nationality Law Theory
The Philippines adheres to the nationality law theory. Article 15 of the
Civil Code provides that Laws relating to family rights and duties, or to
the status, condition, and legal capacity of persons are binding upon
Filipino citizens, even though living abroad.
It is for each State to determine who are its nationals (Hague
Convention). Thus, the Philippine Constitution enumerates those who
are citizens of the Philippines.
1.
1.
2.
Succession
Kiobel
KIOBEL v. ROYAL DUTCH
Petitioners, Nigerian nationals residing in the United States, filed suit in
federal court under the Alien Tort Statute, alleging that
respondentscertain Dutch, British, and Nigerian corporationsaided
and abetted the Nigerian Government in committing violations of the
law of nations in Nigeria. The ATS provides that [t]he district courts
shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the
United States. 28 U. S. C. 1350. The District Court dismissed several
of petitioners claims, but on interlocutory appeal, the Second Circuit
dismissed the entire complaint, reasoning that the law of nations does
not recognize corporate liability. This Court granted certiorari, and
ordered supplemental briefing on whether and under what
circumstances courts may recognize a cause of action under the ATS,
for violations of the law of nations occurring within the territory of a
sovereign other than the United States.
Held: The presumption against extraterritoriality applies to claims
under the ATS, and nothing in the statute rebuts that presumption. Pp.
314.
(a) Passed as part of the Judiciary Act of 1789, the ATS is a
jurisdictional statute that creates no causes of action. It permits federal
courts to recognize private claims [for a modest number of
international law violations] under federal common law. Sosa v.
Alvarez-Machain, 542 U. S. 692 . In contending that a claim under the
ATS does not reach conduct occurring in a foreign sovereigns
territory, respondents rely on the presumption against extraterritorial
application, which provides that [w]hen a statute gives no clear
indication of an extraterritorial application, it has none, Morrison v.
National Australia Bank Ltd., 561 U. S. ___, ___. The presumption
serves to protect against unintended clashes between our laws and
those of other nations which could result in international discord.
high seas and a foreign shore is at best ambiguous about the ATSs
extraterritorial application; it does not suffice to counter the weighty
concerns underlying the presumption against extraterritoriality. Finally,
there is no indication that the ATS was passed to make the United
States a uniquely hospitable forum for the enforcement of international
norms.
Chromalloy
CHROMALLOY AEROSERVICES, A DIVISION OF CHROMALLOY GAS
TURBINE CORPORATION, Petitioner,
And The ARAB REPUBLIC OF EGYPT, Respondent.
Egypt argues that this Court should deny CAS' Petition to Recognize
and Enforce the Arbitral Award out of deference to its court. (Response
to Petitioner's Post-Hearing Brief at 2.) CAS argues that this Court
should confirm the award because Egypt "does not present any serious
argument that its court's nullification decision is consistent with the
New York Convention or United States arbitration law."
Issue/s & Held
Jurisdiction
This Court has original jurisdiction under the Foreign Sovereign
Immunities Act, 28 U.S.C. 1330, et. seq. (1976), which provides in
relevant part that:
The district courts shall have original jurisdiction without regard to amount in
controversy of any non-jury civil action against a foreign state as defined in section
1603(a) of this title as to any claim for relief in personam with respect to
which the foreign state is not entitled to immunity ... under sections
1605-1607 of this title.
CAS brings this action to confirm an arbitral award made pursuant to
an agreement to arbitrate any and all disputes arising under a contract
between itself and Egypt, a foreign state, concerning a subject matter
capable of settlement by arbitration under U.S. law. See 9 U.S.C. 114. Enforcement of the award falls under the Convention on
Recognition and Enforcement of Foreign Arbitral Awards,
("Convention"), 9 U.S.C. 202, which grants "[t]he district courts of the
United States ... original jurisdiction over such an action or proceeding,
regardless of the amount in controversy." 9 U.S.C. 203.[1]
effect in the United States"). See Weltover, 504 U.S. at 607, 112 S.Ct.
at 2160. Venue for the action would lie with this Court under 28 U.S.C.
1391(f) & (f)(4) (granting venue in civil cases against foreign
governments to the United States District Court for the District of
Columbia).
Examination of the Award under 9 U.S.C. 10
Under the laws of the United States, arbitration awards are presumed
to be binding, and may only be vacated by a court under very limited
circumstances:
(a) In any of the following cases the United States court in and for the
district wherein the award was made may make an order vacating the
award upon the application of any party to the arbitration
(1) Where the award was procured by corruption, fraud, or undue
means.
(2) Where there was evident partiality or corruption in the arbitrators,
or either of them.
(3) Where the arbitrators were guilty of misconduct in refusing to
postpone the hearing, upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the controversy; or of any
other misbehavior by which the rights of any party have been
prejudiced.
(4) Where the arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final, and definite award upon the
subject matter submitted was not made.
9 U.S.C. 10.[3]
An arbitral award will also be set aside if the award was made in "`manifest
disregard' of the law." First Options of Chicago v. Kaplan, ___ U.S. ___, ___, 115 S.Ct.
1920, 1923, 131 L.Ed.2d 985 (1995). "Manifest disregard of the law may be found if
[the] arbitrator[s] understood and 949 F.2d 1175, 1179 (D.C.Cir.1991).
Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, 94 S.Ct. 2449, 2457,
41 L.Ed.2d 270 (1974) (reh. den., 419 U.S. 885, 95 S.Ct. 157, 42
L.Ed.2d 129 (1974)) (citations omitted).
*912 In Scherk, the Court forced a U.S. corporation to arbitrate a
dispute arising under an international contract containing an
arbitration clause. Id. 417 U.S. at 518, 94 S.Ct. at 2456-57. In so doing,
the Court relied upon the FAA, but took the opportunity to comment
upon the purposes of the newly acceded-to Convention:
The delegates to the Convention voiced frequent concern that courts of
signatory countries in which an agreement to arbitrate is sought to be
enforced should not be permitted to decline enforcement of such
agreements on the basis of parochial views of their desirability or in a
manner that would diminish the mutually binding nature of the
agreements.... [W]e think that this country's adoption and ratification
of the Convention and the passage of Chapter 2 of the United States
Arbitration Act provide strongly persuasive evidence of congressional
policy consistent with the decision we reach today.
Id. at n. 15. The Court finds this argument equally persuasive in the
present case, where Egypt seeks to repudiate its solemn promise to
abide by the results of the arbitration.[4]
The Decision of Egypt's Court of Appeal
The Contract
"The arbitration agreement is a contract and the court will not rewrite
it for the parties." Williams v. E.F. Hutton & Co., Inc., 753 F.2d 117, 119
(D.C.Cir.1985) (citing Davis v. Chevy Chase Financial Ltd., 667 F.2d 160,
167 (D.C.Cir.1981)). The Court "begin[s] with the `cardinal principle of
contract construction: that a document should be read to give effect to
all its provisions and to render them consistent with each other.'"
United States v. Insurance Co. of North America, 83 F.3d 1507, 1511
(D.C.Cir.1996) (quoting Mastrobuono v. Shearson Lehman Hutton, Inc.,
___ U.S. ___, ___, 115 S.Ct. 1212, 1219, 131 L.Ed.2d 76 (1995)). Article
XII of the contract requires that the parties arbitrate all disputes that
arise between them under the contract. Appendix E, which defines the
terms of any arbitration, forms an integral part of the contract. The
contract is unitary. Appendix E to the contract defines the "Applicable
Law Court of Arbitration." The clause reads, in relevant part:
It is ... understood that both parties have irrevocably agreed to apply
Egypt (sic) Laws and to choose Cairo as seat of the court of arbitration.
******
The decision of the said court shall be final and binding and cannot be
made subject to any appeal or other recourse.
(Appendix E ("Appendix") to the Contract.)
This Court may not assume that the parties intended these two
sentences to contradict one another, and must preserve the meaning
of both if possible. Insurance Co., 83 F.3d 1507, 1511 (D.C.Cir.1996).
Egypt argues that the first quoted sentence supersedes the second,
and allows an appeal to an Egyptian court. Such an interpretation,
however, would vitiate the second sentence, and would ignore the
plain language on the face of the contract. The Court concludes that
the first sentence defines choice of law and choice of forum for the
hearings of the arbitral panel. The Court further concludes that the
second quoted sentence indicates the clear intent of the parties that
any arbitration of a dispute arising under the contract is not to be
appealed to any court. This interpretation, unlike that offered by Egypt,
preserves the meaning of both sentences in a manner that is
consistent with the plain language of the contract. The position of the
latter sentence as the seventh and final paragraph, just before the
signatures, lends credence to the view that this sentence is the final
word on the arbitration question. In other words, the parties agreed to
apply Egyptian Law to the arbitration, but, more important, they
agreed that the arbitration ends with the decision of the arbitral panel.
The Decision of the Egyptian Court of Appeal
The Court has already found that the arbitral award is proper as a
matter of U.S. law, and that the arbitration agreement between Egypt
and CAS precluded an appeal in Egyptian courts. The Egyptian court
has acted, however, and Egypt asks this Court to grant res judicata
effect to that action.
The "requirements for enforcement of a foreign judgment ... are that
there be `due citation' [i.e., proper service of process] and that the
original claim not violate U.S. public policy." Tahan v. Hodgson, 662 F.2d
862, 864 (D.C.Cir.1981) (citing Hilton v. Guyot, 159 U.S. 113, 202, 16
S.Ct. 139, 158, 40 L.Ed. 95 (1895)). The Court uses the term `public
policy' advisedly, with a full understanding that, "[J]udges have no
license to impose their own brand of justice in determining applicable
public policy." Northwest Airlines Inc. v. Air Line Pilots Association, Int'l,
808 F.2d 76, 78 (D.C.Cir.1987). Correctly understood, "[P]ublic policy
emanates [only] from clear statutory or case law, `not from general
considerations of supposed public interest.'" Id. (quoting American
Chevron case
Chevron v. Dozinger
SUMMARY OF ARGUMENT
This case involves important international legal issues associated with
the exercise of adjudicatory jurisdiction by the District Court in this
case. The District Courts failure to consider and apply international
legal obligation binding on the United States has resulted in reversible
error. The preliminary injunction should be dissolved and the case
dismissed.
First, the preliminary injunction granted in this case is framed in such a
way so as to violate the ancient customary international law principle
of nonintervention. It does this by illegally intruding into Ecuadors
external domestic affairs by, in essence, prohibiting any other state
from independently ruling on the issue of recognition and enforcement
of the Ecuadorian judgment against Chevron.
Second, the assertion of jurisdiction by the District Court is prohibited
by the customary international law limitation of reasonableness
because the defendants in this case lack any internationally legally
significant contact with the United States.
Third, the District Courts preliminary injunction cannot stop
Ecuadorian defendants from seeking to enforce the judgment outside
the United States. It cannot compel any other state from assuming
jurisdiction and deciding for itself the issues of recognition and
enforcement. It is accordingly a futile order and should be dissolved as
improvidently granted.
Fourth, the District Courts injunctive relief offends basic standards of
international comity because the preliminary injunction high handedly
purports to stake out exclusive world-wide jurisdiction.
Fifth, the exhaustion of local remedies by Chevron in Ecuador is
required by international law. Because the judgment in Ecuador is not
final, the District Court should not have accepted jurisdiction.
ARGUMENTS
I. THE DISTRICT COURT ERRED IN GRANTING PRELIMINARY INJUNCTIVE
RELIEF THAT ENJOINS ALL ACTION, IN ALL COURTS ANYWHERE IN THE
WORLD OUTSIDE ECUADOR, BY THE ECUADORIAN DEFENDANTS IN
RELATION TO AN ECUADORIAN JUDGMENT IN THEIR FAVOR
The District Court framed the injunction in these terms:
both the United States and Ecuador are party, specifically provides that
[n]o state has the right to intervene in the internal or external affairs
of another.
As regards the customary law of non-intervention, which governs the
instant case along with Article 8 of the Montevideo Convention in which
the United States expressly committed itself to non-intervention as a
principle of positive law, the International Court of Justice (ICJ) stated in
Case Concerning Military and Paramilitary Activities in and Against
Nicaragua (the Nicaragua case) that:
[t]he principle of non-intervention involves the right of every sovereign
State to conduct its affairs without outside interference; though
examples of trespass against this principle are not infrequent, the
Court considers that it is part and parcel of customary international
law. . . . The existence in the opinio juris of States of the principle of
nonintervention is backed by established and substantial state
practices
In considering the relationships entailed in recognition and
enforcement of foreign judgments, it is certain that each state has
exclusive jurisdiction over the decision. In other words, the decision to
recognize a foreign judgment is a matter of domestic jurisdiction
that international law protects from unwanted intrusion from outside .
. . .
Turning to the preliminary injunction granted by the District Court inthe
instant case, it is clear that it constitutes an internationally unlawful
attempt to intervene in the domestic legal affairs of Ecuador.
First, it is important to remember the posture of this case. This is not
an action by successful foreign litigants for the recognition and
enforcement of a foreign judgment in the United States. Rather, the
unsuccessful foreign defendant, Chevron, has commenced a preemptive action against foreign nationals, over their objection, in a U.S.
Court. It is in this context that the District Court has interposed itself
and asserted what is in essence worldwide exclusive jurisdiction to
determine for the whole world the issues of recognition and
enforcement an undoubted unwanted intrusion into the internal
administration of Ecuadorian justice.
Second, in practical effect, the preliminary injunction directly intrudes
into the external administration of Ecuadorian justice because
recognition and enforcement of Ecuadorian judgments are issues each
state is permitted to decide freely. Here, the District Courts
preliminary injunction purports to interfere with Ecuadors relationship
law in the courts of the United States and retained a lawyer for that
purpose, but that protection was denied in the Southern District of New
York and the Ecuadorian defendants case was ultimately dismissed on
forum non conveniens grounds.
It may also be true that the Ecuadorian defendants have been involved
in other litigation related to this matter in the U.S. because they have
been unlucky enough to have such a dogged adversary as Chevron (as
is its right). However, asserting, protecting or trying to determine valid
legal rights in other litigation is a manifestly insufficient link by which
to bootstrap international adjudicatory jurisdiction as the District Court
has attempted to do in this case.
C. The District Courts Order for Injunctive Relief Constitutes a Futile
Act because the Injunction Cannot Preclude Other States From
Exercising Jurisdiction
Given that the District Courts preliminary injunction violates the
principle of non-intervention and assumes adjudicatory jurisdiction
when international law does not allow so, it is not surprising that the
District Court anticipated that its injunction would not effectively
constrain the defendants conduct. In contemplation of an ultimate
declaration on Chevrons complaint that the Ecuadorian judgment is
unenforceable, the District Court wrote that:
Even if enforcement actions were to be filed abroad in violation of an
injunction, a decision by this Court with respect to enforceability of the
Ecuadorian judgment likely would be recognized as sufficiently
persuasive authority if not binding on the parties to dispose of the
question of enforceability in the foreign fora
clear it is that no injunction, including the outstanding preliminary
injunction, will preclude the courts of
Yauguaje Case
010 (Lifted from the net)
Yaiguaje v. Chevron Corporation: enforcing an Ecuadorian judgment against a U.S.
company in Ontario
In Yaiguaje v. Chevron Corp, 2013 ONCA 758, the Ontario Court of Appeal affirmed that an
Ontario court has the power to recognize and enforce a judgment for approximately US $9.51
billion rendered by Ecuadors National Court of Justice against Chevron Corporation (Chevron),
and its Canadian subsidiary, Chevron Canada Limited (Chevron Canada), which was not a party
to the Ecuadorian action. In doing so, the Ontario Court of Appeal also lifted the stay on the
proceeding which had been granted by the motions judge, rendering the enforcement win
theoretical only. Soon after this decision, however, Chevron and Chevron Canada in Yaiguaje v.
Chevron Corp, 2014 ONCA 40 successfully brought a motion to stay the order pending its appeal
to the Supreme Court of Canada.
Factual History
Between 1972 and 1990, the lands, waterways, livelihoods and way of life of over 30,000
residents of the Sucumbos province were allegedly harmed by environmental pollution. On behalf
of the 30,000 residents, 47 indigenous Ecuadorian villagers sued Chevron in the United States
District Court for the Southern District of New York, and alleged that Texaco, which subsequently
merged with Chevron, polluted the Lago Ario region of Ecuador for 18 years.
The action was dismissed at the United States Court of Appeals for the Second Circuit on the
condition that Texaco submit to the jurisdiction of the Ecuadorian court. A final judgment now
exists in Ecuador against Chevron for US$9.51 billion and the plaintiffs seek to have the
Ecuadorian order recognized and enforced in Ontario against Chevron and Chevron Canada.
Chevron disputes the Ecuadorian judgment and contends that it was the result of fabricated
evidence, judicial coercion and bribery. The U.S. civil suit in that respect, where it appears that
evidence of fraud has been filed, is ongoing, and recently went to trial.
On December 17, 2013, the Ontario Superior Court of Justice found that an Ontario court has the
jurisdiction to enforce the Ecuadorian judgment but stayed the action since Chevron has no
assets in Ontario and therefore, no prospect for recovery by the plaintiffs in Ontario. Both
decisions were appealed to the Ontario Court of Appeal.
The Decisions
With respect to the jurisdictional issue, the Ontario Court of Appeal affirmed the lower courts
decision and reiterated the Supreme Court of Canadas decision in Beals v. Saldanha, 2003 SCC
72, which stated that in recognition and enforcement actions relating to foreign judgments in
Canadian jurisdictions, the exclusive focus is whether there is a real and substantial connection
between the subject matter of the litigation and the foreign court that rendered the judgment. An
inquiry into the relationship between the legal dispute in the foreign country and the Canadian
court being asked to recognize and enforce the judgment is unnecessary and irrelevant. The
Ontario Court of Appeal further noted that there is no comity concern in an action to enforce the
judgment because the Ontario court is not intruding into matters within the jurisdiction of the
foreign court as would be the case in an action of first instance. Accordingly, the test was satisfied
in this case. However, this reasoning applied only to Chevron since Chevron Canada was not a
party to the original action in Ecuador. To assume jurisdiction over Chevron Canada, the Ontario
Court of Appeal agreed with the lower court that Chevron and Chevron Canada maintain an
economically significant relationship and that Chevron Canada has a non-transitory place of
business in Ontario.
With respect to the stay, the Ontario Court of Appeal disagreed with the lower courts decision
mainly because no party had actually requested a stay. Although a court may grant a stay on its
own motion, it can do so only in very rare circumstances and would at least require evidence that
continuance of the action would work an injustice. No such evidence was submitted. Chevron
argued that it was precluded from requesting a discretionary stay on any basis other than
jurisdiction; however, the Ontario Court of Appeal found that it was Chevron and Chevron
Canadas decision not to attorn to Ontario and defend the action using Ontario procedural and
substantive law. By choosing not to attorn, both companies understood that they could rely only
on a jurisdictional objection.
Not surprisingly, Chevron and Chevron Canada requested a stay of the Ontario Court of Appeals
decision pending its appeal to the Supreme Court of Canada. On January 16, 2014, MacPherson
J.A. of the Ontario Court of Appeal held that a stay was justified in the interests of justice. To
arrive at this decision, she applied the three-part test for obtaining a stay of a judgment pending
appeal: (1) is there a serious question to be tried; (2) will the moving party suffer irreparable harm
if the stay is not granted; and (3) does the balance of convenience favor granting the stay?
Justice MacPherson found that the proposed appeal raised at least three serious questions: (i)
the proper test to determine the jurisdiction of a provincial superior court to hear and determine
such an action; (ii) the proper test in such an action when faced with a non-party to the foreign
judgment; and (iii) the role of a corporate veil piercing analysis with respect to a related
corporation in such an action. Given that the appeal was to the Supreme Court of Canada,
MacPherson J.A. also concluded that these three questions are legal issues of public importance.
Chevron and Chevron Canada, however, had difficulty proving irreparable harm. They contended
that without a stay, they would risk either attornment to Ontario by filing a defense, which was
ordered by the Ontario Court of Appeal to be completed by January 16, 2014, or being noted in
default. This submission was rejected because Ontario appellate case law states that compliance
with a court order that requires a party to file a defense does not constitute attornment in an
ongoing jurisdictional challenge. They also argued that without a stay, the $100,000 in costs
ordered by the Ontario Court of Appeal to be paid to the plaintiffs may not be returned if the
appeal succeeds. Although an unlikely scenario given the magnitude of the litigation, MacPherson
J.A. found that permanently losing the costs awarded by the Ontario Court of Appeal after
succeeding on appeal may reflect an irreparable harm.
As Chevron and Chevron Canada were quick to file their leave application to the Supreme Court
of Canada, they were able to tilt the balance of convenience scale in their favor. Justice
MacPherson noted that the leave application would likely be disposed of in approximately 3 to 4
months, resulting in little prejudice to the plaintiffs. Given this timeline, it was in the interests of
justice to grant a stay.
It remains to be seen whether the litigation will continue in Ontario. In the event that leave is
granted, however, this long running legal battle will no doubt contribute to the development of
Canadian law with respect to comity and the enforcement of foreign judgments against foreign
defendants.
From Dann
-For MCQ & True or false re-read the midterm MCQ/T&F questions
- What makes an Arbitration domestic?
- Explain the Nationality Principle, How it is applied and interpreted in
the Philippine context.
- Explain how the court ruled on renvoi in Aznar v. Garcia.
Philippine law should be applied. The State of California prescribes two
sets of laws for its citizens residing therein and a conflict of law rules
for its citizens domiciled in other jurisdictions. Art. 946 of the California
Civil Code states that If there is no law to the contrary in the place
where personal property is situated, it is deemed to follow the person
of its owner and is governed by the law of his domicile. Edward, a
citizen of the State of California, is considered to have his domicile in
the Philippines. The court of domicile cannot and should not refer the
case back to the California, as such action would leave the issue
incapable of determination, because the case would then be tossed
back and forth between the states(doctrine of renvoi). The validity of
Bayot v. CA
Vicente and Rebecca were married on April 20, 1979 in Sanctuario de
San Jose, Greenhills, Mandaluyong City. On its face, the Marriage
Certificate identified Rebecca, then 26 years old, to be an American
citizen born in Agaa, Guam, USA. On November 27, 1982 in San
Francisco, California, Rebecca gave birth to Marie Josephine Alexandra
or Alix. From then on, Vicente and Rebecca's marital relationship
DECISION OF COURTS:
(1) Judicial District of Santo Domingo, Dominican Republic - ordering
the dissolution of the couple's marriage and "leaving them to remarry
after completing the legal requirements," but giving them joint custody
and guardianship over Alix. On March 21, 2001, Rebecca filed another
petition, this time before the Muntinlupa City RTC, for declaration of
absolute nullity of marriage on the ground of Vicente's alleged
psychological incapacity. On June 8, 2001, Vicente filed a Motion to
Dismiss on, inter alia, the grounds of lack of cause of action and that
the petition is barred by the prior judgment of divorce.
(2) RTC: denying Vicente's motion to dismiss Civil Case No. 01-094 and
granting Rebecca's application for support pendente lite
Following the denial of his motion for reconsideration of the above
August 8, 2001 RTC order, Vicente went to the CA on a petition for
certiorari, with a prayer for the issuance of a temporary restraining
order (TRO) and/or writ of preliminary injunction.
(3) CA: issued the desired TRO.
ISSUES:
(1) Whether petitioner Rebecca was a Filipino citizen at the time the
divorce judgment was rendered in the Dominican Republic on February
22, 1996; and
(2) Whether the judgment of divorce is valid and, if so, what are its
consequent legal effects?
RULING:
(1) Rebecca an American Citizen in the Purview of This Case. When
Divorce Was Granted Rebecca, She Was not a Filipino Citizen and Was
not Yet Recognized as One. From the foregoing disquisition, it is
indubitable that Rebecca did not have that status of, or at least was
not yet recognized as, a Filipino citizen when she secured the February
22, 1996 judgment of divorce from the Dominican Republic.
(2) The Divorce is valid. In plain language, Vicente and Rebecca are no
longer husband and wife to each other.
As the divorce court formally pronounced: "[T]hat the marriage
between MARIA REBECCA M. BAYOT and VICENTE MADRIGAL BAYOT is
hereby dissolved x x x leaving them free to remarry after completing
the legal requirements."
The Court has taken stock of the holding in Garcia v. Recio that a
foreign divorce can be recognized here, provided the divorce decree is
proven as a fact and as valid under the national law of the alien
spouse. Be this as it may, the fact that Rebecca was clearly an
American citizen when she secured the divorce and that divorce is
recognized and allowed in any of the States of the Union, the
presentation of a copy of foreign divorce decree duly authenticated by
the foreign court issuing said decree is, as here, sufficient.
The fact that Rebecca may have been duly recognized as a Filipino
citizen by force of the June 8, 2000 affirmation by Secretary of Justice
Tuquero of the October 6, 1995 Bureau Order of Recognition will not,
standing alone, work to nullify or invalidate the foreign divorce secured
by Rebecca as an American citizen on February 22, 1996.
In determining whether or not a divorce secured abroad would come
within the pale of the country's policy against absolute divorce, the
reckoning point is the citizenship of the parties at the time a valid
divorce is obtained.
One thing is clear from a perusal of Rebecca's underlying petition
before the RTC, Vicente's motion to dismiss and Rebecca's opposition
thereof, with the documentary evidence attached therein: The
petitioner lacks a cause of action for declaration of nullity of marriage,
a suit which presupposes the existence of a marriage.
Fujiki v. Marinay
(2) Whether a husband or wife of a prior marriage can file a petition to
recognize a foreign judgment nullifying the subsequent marriage
between his or her spouse and a foreign citizen on the ground of
bigamy.
Ruling: YES
Recognition of a foreign judgment only requires proof of fact of the
judgment, it may be made in a special proceeding for cancellation or
correction of entries in the civil registry under Rule 108 of the Rules of
Court.
Any person interested in any act, event, order or decree concerning the
civil status of persons which has been recorded in the civil register,
may file a verified petition for the cancellation or correction of any
entry relating thereto, with the Regional Trial Court of the province
where the corresponding civil registry is located.
Fujiki has the personality to file a petition to recognize the Japanese
Family Court judgment nullifying the marriage between Marinay and
Maekara on the ground of bigamy because the judgment concerns his
civil status as married to Marinay. For the same reason he has the
personality to file a petition under Rule 108 to cancel the entry of
marriage between Marinay and Maekara in the civil registry on the
basis of the decree of the Japanese Family Court.
There is no doubt that the prior spouse has a personal and material
interest in maintaining the integrity of the marriage he contracted and
the property relations arising from it. There is also no doubt that he is
interested in the cancellation of an entry of a bigamous marriage in the
civil registry, which compromises the public record of his marriage. The
interest derives from the substantive right of the spouse not only to
preserve (or dissolve, in limited instances68) his most intimate human
relation, but also to protect his property interests that arise by
operation of law the moment he contracts marriage.
Section 2(a) of A.M. No. 02-11-10-SC does not preclude a spouse of a
subsisting marriage to question the validity of a subsequent marriage
on the ground of bigamy. On the contrary, when Section 2(a) states
that "[a] petition for declaration of absolute nullity of void marriage
may be filed solely by the husband or the wife"75it refers to the
husband or the wife of the subsisting marriage. Under Article 35(4) of
the Family Code, bigamous marriages are void from the beginning.
Thus, the parties in a bigamous marriage are neither the husband nor
the wife under the law. The husband or the wife of the prior subsisting
marriage is the one who has the personality to file a petition for
declaration of absolute nullity of void marriage under Section 2(a) of
A.M. No. 02-11-10-SC.
is in favour of the Filipino spouse. Only the Filipino spouse can invoke
the second par of Art 26 of the Family Code.
The unavailability of the second paragraph of Art 26 of the Family Code
to aliens does not necessarily strip the petitioner of legal interest to
petition the RTC for the recognition of his foreign divorce decree. The
petitioner, being a naturalized Canadian citizen now, is clothed by the
presumptive evidence of the authenticity of foreign divorce decree with
conformity to aliens national law.
The Pasig City Civil Registry acted out of line when it registered the
foreign decree of divorce on the petitioner and respondents marriage
certificate without judicial order recognizing the said decree. The
registration of the foreign divorce decree without the requisite judicial
recognition is void.
Remedy Available to Alien Spouse
The availability under Art 26(2) of the Family Code to aliens does not
necessarily strip the alien spouse of legal interest to petition the RTC
for the recognition of his foreign divorce decree
The foreign divorce decree itself, after its authenticity and conformity
with the alien's national law have been duly proven according to our
rules of evidence, serves as a presumptive evidence in favor of the
alien spouse, pursuant to Sec. 48, Rule 39 of the Rules of Court which
provides for the effect of foreign judgment (Please see pertinent
provisions of the Rules of Court, particularly Sec. 48, Rule 39 and Sec.
24 Rule 132)
PCIB v. Escolin
The parties were in disagreement as to how Article 16 of the Civil Code
should be applied. On the one hand, PCIB claimed that inasmuch as
Linnie was a resident of the Philippines at the time of her death, under
said Article 16, construed in relation to the pertinent laws of Texas and
the principle of renvoi, what should be applied here should be the rules
of succession under the Civil Code, and, therefore, her estate could
consist of no more than one-fourth of the said conjugal properties, the
other fourth being, as already explained, the legitime of her husband
(Art. 900) which she could not have disposed of nor burdened with any
condition (Art. 872). On the other hand, Avelina denied that Linnie died
a resident of the Philippines, since allegedly she never changed nor
intended to change her original residence of birth in Texas, United
States of America, and contends that, anyway, regardless of the
question of her residence, she being indisputably a citizen of Texas,
under said Article 16 of the Civil Code, the distribution of her estate is
subject to the laws of said State which, according to her, do not
provide for any legitime, hence, Linnies brothers and sisters are
entitled to the remainder of the whole of her share of the conjugal
partnership properties consisting of one-half thereof. Avelina further
maintained that, in any event, Charles had renounced his rights under
the will in favor of his co-heirs, as allegedly proven by the documents
- Succession Cases
- Venue on Arbitration
ADR Law
SEC. 42. Application of the New York Convention. - The New York Convention shall govern the
recognition and enforcement of arbitral awards covered by the said Convention.
The recognition and enforcement of such arbitral awards shall be filled with regional trial court in
accordance with the rules of procedure to be promulgated by the Supreme Court. Said procedural
rules shall provide that the party relying on the award or applying for its enforcement shall file with the
court the original or authenticated copy of the award and the arbitration agreement. If the award or
agreement is not made in any of the official languages, the party shall supply a duly certified
translation thereof into any of such languages.
The applicant shall establish that the country in which foreign arbitration award was made is a party to
the New York Convention.
If the application for rejection or suspension of enforcement of an award has been made, the regional
trial court may, if it considers it proper, vacate its decision and may also, on the application of the party
claiming recognition or enforcement of the award, order the party to provide appropriate security.
Special ADR Rules
Rule 13.3. Venue. - The petition to recognize and enforce a foreign arbitral award shall be filed, at the
option of the petitioner, with the Regional Trial Court (a) where the assets to be attached or levied upon
is located, (b) where the act to be enjoined is being performed, (c) in the principal place of business in
the Philippines of any of the parties, (d) if any of the parties is an individual, where any of those
individuals resides, or (e) in the National Capital Judicial Region.
October10,2007:Toenforcetheaward,petitionerTPIfiledonaPetitionforConfirmation,Recognition,
andEnforcementofForeignArbitralAwardbeforetheRTCofMakatiCity.
RespondentKingfordfiledaMotiontoDismiss.DISMISSED.JudgeAlamedainhibitedhimself.Re
Raffled.JudgeRuiz,inturn,GRANTEDtheMOTanddismissedthepetition.GROUND:Petitionerslack
oflegalcapacitytosueinthePH.
Issue
CanaforeigncorporationnotlicensedtodobusinessinthePhilippines,butwhichcollectsroyaltiesfrom
entitiesinthePhilippines,sueheretoenforceaforeignarbitralaward?
Ruling
Sec.133.Doingbusinesswithoutalicense.Noforeigncorporationtransactingbusinessinthe
Philippineswithoutalicense,oritssuccessorsorassigns,shallbepermittedtomaintainorinterveneinany
action,suitorproceedinginanycourtoradministrativeagencyofthePhilippines;butsuchcorporation
maybesuedorproceededagainstbeforePhilippinecourtsoradministrativetribunalsonanyvalidcauseof
actionrecognizedunderPhilippinelaws.(CORPOCODE)
Thereisnodoubt,therefore,thatTPIhasbeendoingbusinessinthePhilippines,butsansalicensetodoso
issuedbytheconcernedgovernmentagencyofthePhilippines,whenitcollectedroyaltiesfromfive
Philippinetunaprocessors.Thisbeingtherealsituation,TPIcannotbepermittedtomaintainorintervene
inanyaction,suitorproceedingsinanycourtoradministrativeagencyofthePhilippines."Apriori,the
"Petition,etc."extantoftheplaintiffTPIshouldbedismissedforitdoesnothavethelegalpersonalityto
sueinthePhilippines.
HOWEVER,petitionercounters,thatitisentitledtoseekfortherecognitionandenforcementofthe
subjectforeignarbitralawardinaccordancewithRepublicActNo.9285(AlternativeDisputeResolution
Actof2004),theConventionontheRecognitionandEnforcementofForeignArbitralAwardsdrafted
duringtheUnitedNationsConferenceonInternationalCommercialArbitrationin1958(NewYork
Convention),andtheUNCITRALModelLawonInternationalCommercialArbitration(ModelLaw),as
noneofthesespecificallyrequiresthatthepartyseekingfortheenforcementshouldhavelegalcapacityto
sue.Itanchorsitsargumentonthefollowing:
HaciendaLuisita,Incorporatedv.PresidentialAgrarianReformCouncil,thisCourtheld:
Withoutdoubt,theCorporationCodeisthegenerallawprovidingfortheformation,organizationand
regulationofprivatecorporations.Ontheotherhand,RA6657isthespeciallawonagrarianreform.As
betweenageneralandspeciallaw,thelattershallprevailgeneraliaspecialibusnonderogant.
Followingthesameprinciple,theAlternativeDisputeResolutionActof2004shallapplyinthiscaseasthe
Act,asitstitleAnActtoInstitutionalizetheUseofanAlternativeDisputeResolutionSysteminthe
PhilippinesandtoEstablishtheOfficeforAlternativeDisputeResolution,andforOtherPurposeswould
suggest,isalawespeciallyenacted"toactivelypromotepartyautonomyintheresolutionofdisputesorthe
freedomofthepartytomaketheirownarrangementstoresolvetheirdisputes."Itspecificallyprovides
exclusivegroundsavailabletothepartyopposinganapplicationforrecognitionandenforcementof
thearbitralaward.
InasmuchastheAlternativeDisputeResolutionActof2004,amunicipallaw,appliesintheinstantpetition,
wedonotseetheneedtodiscusscompliancewithinternationalobligationsundertheNewYork
ConventionandtheModelLaw.Afterall,bothalreadyformpartofthelaw.
Notoneoftheseexclusivegrounds(ArticleVoftheNewYorkConvention)touchedonthecapacitytosue
ofthepartyseekingtherecognitionandenforcementoftheaward.
PertinentprovisionsoftheSpecialRulesofCourtonAlternativeDisputeResolution,whichwas
promulgatedbytheSupremeCourt,likewisesupportthisposition.
Rule13.1oftheSpecialRulesprovidesthat"anypartytoaforeignarbitrationmaypetitionthecourtto
recognizeandenforceaforeignarbitralaward."
Capacitytosueisnotincluded.
Oppositely,intheRuleonlocalarbitralawardsorarbitrationsininstanceswhere"theplaceofarbitrationis
inthePhilippines,"itisspecificallyrequiredthatapetition"todetermineanyquestionconcerningthe
existence,validityandenforceabilityofsucharbitrationagreement"availabletothepartiesbeforethe
commencementofarbitrationand/orapetitionfor"judicialrelieffromtherulingofthearbitraltribunalon
apreliminaryquestionupholdingordecliningitsjurisdiction"afterarbitrationhasalreadycommenced
shouldstate"[t]hefactsshowingthatthepersonsnamedaspetitionerorrespondenthavelegalcapacityto
sueorbesued."
Indeed,itisinthebestinterestofjusticethatintheenforcementofaforeignarbitralaward,wedeny
availmentbythelosingpartyoftherulethatbarsforeigncorporationsnotlicensedtodobusinessinthe
Philippinesfrommaintainingasuitinourcourts.Whenapartyentersintoacontractcontainingaforeign
arbitrationclauseand,asinthiscase,infactsubmitsitselftoarbitration,itbecomesboundbythecontract,
bythearbitrationandbytheresultofarbitration,concedingtherebythecapacityoftheotherpartytoenter
intothecontract,participateinthearbitrationandcausetheimplementationoftheresult.
AssetPrivatizationTrustv.CourtofAppeals,
xxxArbitration,asanalternativemodeofsettlement,isgainingadherentsinlegalandjudicialcircleshere
andabroad.Ifitstestedmechanismcansimplybeignoredbyanaggrievedparty,onewho,itmustbe
stressed,voluntarilyandactivelyparticipatedinthearbitrationproceedingsfromtheverybeginning,it
willdestroytheveryessenceofmutualityinherentinconsensualcontracts.
Clearly,onthematterofcapacitytosue,aforeignarbitralawardshouldberespectednotbecauseitis
favoredoverdomesticlawsandprocedures,butbecauseRepublicActNo.9285hascertainlyerasedany
conflictoflawquestion.
Finally,evenassuming,onlyforthesakeofargument,thatthecourtaquocorrectlyobservedthatthe
ModelLaw,nottheNewYorkConvention,governsthesubjectarbitralaward,petitionermaystillseek
recognitionandenforcementoftheawardinPhilippinecourt,sincetheModelLawprescribessubstantially
identicalexclusivegroundsforrefusingrecognitionorenforcement.
Premisesconsidered,petitionerTPI,althoughnotlicensedtodobusinessinthePhilippines,mayseek
recognitionandenforcementoftheforeignarbitralawardinaccordancewiththeprovisionsofthe
AlternativeDisputeResolutionActof2004.
DISPOSITIVEPORTIOIN:WHEREFORE,theResolutiondated21November2008oftheRegional
TrialCourt,Branch61,MakatiCityinSpecialProceedingsNo.M6533isherebyREVERSEDandSET
ASIDE.ThecaseisREMANDEDtoBranch61forfurtherproceedings.
- Kogies v. PSMC
DIGEST + ANALYSIS FROM THE ATENEO LAW JOURNAL ARTICLE: Moving
Forward: Developments in Arbitration Jurisprudence by Bernard Joseph Mabiliran
A. The Facts
Korea Technologies Co., Ltd. (KOGIES) is a Korean corporation engaged in the
supply and installation of Liquefied Petroleum Gasoline (LPG) Cylinder
manufacturing plants.9 It entered into a contract with the private respondent
Pacific General Steel Manufacturing Corp. (PGSMC), a domestic corporation
desiring to establish a LPG Cylinder manufacturing plant in Carmona at the
province of Cavite.10 The parties executed the contract on 5 March 1997 in the
Philippines, and an amendment on 7 April 1997 in Korea.
The contract and its amendment provided that KOGIES is to ship machineries and
other facilities necessary for manufacturing LPG Cylinders in exchange for U.S.
$1,224,000. In addition, for the installation and initiation of the plant and upon the
production of 11-kilogram LPG cylinder samples, PGSMC is to pay U.S.
$306,000. Thus, the total contract price stood at U.S.$1,530,000.11
All went well initially, and the machineries, equipment, and facilities promised by
KOGIES were delivered and installed in Carmona. Thus, PGSMC paid the initial
U.S.$1,224,000.12 However, after the installation of the plant, the initial
operation thereof could not be conducted as PGSMC encountered financial
difficulties, affecting the supply of materials. This forced the parties to agree that
KOGIES would be deemed to have completely complied with the terms and
conditions of the 5 March 1997 contract.13
Two postdated checks were issued by PGSMC to cover the remaining U.S.
$306,000. These were dishonored, however, for the reason that payment has been
stopped. While KOGIES sent a demand letter to PGSMC, PGSMC replied with a
letter complaining that KOGIES delivered a different brand of hydraulic press
from that agreed upon and that it had failed to deliver several equipment parts
already paid for.
PGSMC further informed KOGIES on 1 June 1998 that it was cancelling their
contract because of the altered quantity and lowered quality of the machineries,
and that it would dismantle and transfer the machineries already installed from the
Carmona plant. Finally, PGSMC filed before the Office of the Prosecutor a
Complaint-Affidavit for estafa against Mr. Dae Hyun Kang, President of
KOGIES.14
On 15 June 1998, KOGIES informed PGSMC that it could not unilaterally
rescind the contract. Of greater importance to the present article, KOGIES also
insisted that their dispute be settled by arbitration as provided by Article 15
of their contract the arbitration clause.15
Thus, on 1 July 1998, KOGIES instituted an Application for Arbitration before the
Korean Commercial Arbitration Board in Seoul, Korea.16 At almost the same
time, it filed a complaint for Specific Performance on 3 July 1998 against
PGSMC before the Muntinlupa Regional Trial Court (RTC), with a prayer for a
Temporary Restraining Order (TRO).
It averred, among others, that PGSMC violated Article 15 of their contract by
unilaterally rescinding it without resorting to arbitration. PGSMC opposed the
TRO, arguing that the arbitration clause, was null and void for being against
public policy as it ousts the local courts of jurisdiction over the instant
controversy.17
The RTC held that Article 15 of the contract was invalid as it tended to oust the
trial court or any other court jurisdiction over any dispute that may arise between
the parties18 a ruling long abandoned by the Supreme Court in various
decisions.19 KOGIES filed a Motion for Reconsideration of the order of the
court. In the meantime, however, PGSMC filed a Motion for the Inspection of
Things to determine whether there was indeed alteration of the quantity and
lowering of the quality of the machineries and equipment. KOGIES opposed the
motion, stating that the matters in the Motion for Inspection should fall under the
coverage of the arbitration clause. The RTC, nevertheless, granted the Motion for
Inspection of Things.20
KOGIES filed an urgent Motion for Reconsideration, and without waiting for the
resolution of the said Motion, filed a Petition for Certiorari with the Court of
Appeals, claiming that the Sheriff was ill-trained to determine matters as to
whether there was indeed an alteration or lowering of quantity or quality, and that
such issues would better be determined by an arbitration panel knowledgeable
with the machineries and equipment at hand.21
This Petition for Certiorari, however, was denied by the Court of Appeals.22 The
said appellate court agreed with the RTC that an arbitration clause providing for
a final determination of the legal rights of the parties to the contract by arbitration
was against public policy.23 It was then that KOGIES filed a Petition for Review
on Certiorari to the Supreme Court via Rule 45.
Ruling:
The relevant ruling of the Supreme Court was on the issue of the declaration as
null and void of Article 15 the arbitration clause of the contract between the
parties for being contrary to public policy since they oust the courts of
jurisdiction. The High Court sided with KOGIES on this issue and reversed the
rulings both of the RTC and the Court of Appeals. Citing the cases of Gonzales v.
Climax Mining Ltd.25 and Del Monte Corporation-USA v. Court of Appeals,26
the High Court reiterated that an agreement to arbitrate any dispute is itself a
contract, and at the same time part of a contract the container contract.
Absent any showing that the contract was not mutually and voluntarily agreed
upon, the Court said that it should be respected and complied with by the
parties.27 More importantly, the High Court here categorically stated that an
arbitration clause even though it provides that an arbitral award made pursuant
thereto is final and binding is not contrary to public policy. This Court has
sanctioned the validity of arbitration clauses in a catena of cases.28 The Court
then cited cases since 1957, including Eastboard Navigation Ltd. v. Juan Ysmael
and Co., Inc.,29 BF Corporation v. Court of Appeals,30 and LM Power
Engineering Corporation v. Capitol Industrial Construction Groups, Inc.31
Being an inexpensive, speedy, and amicable method of settling disputes,
arbitration along with mediation, conciliation and negotiation is encouraged
by the Supreme Court. Aside from unclogging judicial dockets, arbitration also
hastens the resolution of disputes, especially of the commercial kind.32
The succeeding part of the decision of the Supreme Court is the more interesting,
and perhaps more controversial one. Having found that the arbitration clause is
not contrary to public policy, the High Court raised the question of what governs
an arbitration clause. It held:
In case a foreign arbitral body is chosen by the parties, the arbitration rules
of our domestic arbitration bodies would not be applied. As signatory to
the
Arbitration Rules of the UNCITRAL Model Law on International
Commercial
Arbitration of the United Nations Commission on International Trade Law
(UNCITRAL) in the New York Convention on June 21, 1985, the
Philippines
committed itself to be bound by the Model Law.33
The decision then highlights pertinent features of R.A. [No.] 9285 applying and
incorporating the UNCITRAL Model Law,34 including Sections 24,35 42,36
43,37 44,38 47, and 48. In the same breath, however, the decision also cited
Section 35 of the UNCITRAL Model Law, the Section dealing with the
recognition and enforcement of an arbitral award. It finally stated that the final
foreign arbitral awards are situated in that they need first to be confirmed by
the RTC.39 The Highest Court of the land seemed to have been confused on the
application of these various provisions. This will be explained further in the next
Section. Next, the Supreme Court proclaimed that the RTC has jurisdiction to
review foreign arbitral awards with specific authority and jurisdiction to set
aside, reject, or vacate a foreign arbitral award,40 citing Section 42 in relation to
Section 45 of the ADR Act of 2004. Subsequently, the High Court grouped
international and foreign arbitral awards into one, and provided that the grounds
for setting aside, rejecting, or vacating the award by the RTC are provided under
Article 34 (2) of the UNCITRAL Model Law. As for domestic arbitral awards, the
applicable law would be R.A. [No.] 876, the Arbitration Law.41
In fine, the Supreme Court stated that: PGSMC must submit to the foreign
arbitration as it bound itself through the subject contract. While it may have
misgivings on the foreign arbitration done in KOREA by the KCAB, it has
available remedies under R.A. [No.] 9285. Its interests are duly protected by the
law which require that the arbitral award that may be rendered by KCAB must be
confirmed here by the RTC before it can be enforced.
With our disquisition above, petitioner is correct in its contention that an arbitration
clause, stipulating that the arbitral award is final and binding, does not oust our courts of
jurisdiction as the international arbitral award, the award of which is not absolute and
without exceptions, is still judicially reviewable under certain conditions provided for by
the UNCITRAL Model Law on ICA as applied and incorporated in R.A. [No.] 9285.42
As to the unilateral rescission of the contract, the Supreme Court held that, there being a
valid and binding arbitration clause, PGSMC cannot unilaterally rescind a contract, but
must, therefore, resort and enter into arbitration.43 The Court further declared that the
lower court committed grave abuse of discretion in allowing the Motion for Inspection of
Things. Consequently, the findings and conclusions made by the Sheriff based on the
inspection were considered to be of no worth.
- Maximov
Maximov v. NLMK
Background
Article V(1)(e) of the New York Convention provides that the courts of a
contracting state may refuse to enforce a Convention award if the
defendant proves that it has not yet become binding on the parties, or
has been set aside or suspended by a competent authority of the
country in which, or under the law of which, that award was made.
Yukos Capital v Rosneft
Facts
By an arbitral award of 31 March 2011, an ICAC arbitral tribunal sitting
in Moscow ordered the Russian steel conglomerate, OJSC Novolipetsky
Metallurgichesky Kombinat (NLMK) to pay Nikolai Viktorovich Maximov
(Maximov) RUB 8.9 billion, as balance of the price for purchasing 50%
(plus one share) in Maxi-Group, and costs. Maximov secured payment
by effecting an attachment of NLMKs shares in the Dutch company,
NLMK International BV. In May 2011, Maximov applied to the
Amsterdam District Court for leave to enforce the arbitral award in the
Netherlands.
However, in June 2011, the Moscow Arbitrazh Court set aside the
arbitral award. It stated:
a) The composition of the arbitral tribunal was not in accordance with the
parties agreement because of their failure to inform the other party
that the arbitrators worked at the same institutions
b) Pursuant to Russian law, a dispute related to the validity of transfer of
shares cannot be resolved by means of arbitration proceedings
c) The method of computing the purchase price was contrary to the
mandatory provisions of Russian law
DOCTRINE:
General rule: enforcement of an annulled arbitral award should be
refused
Exception: unless the setting aside is the result of an unfair trial.
Exception to the exception: had the trial been fair, it would still result
to the quashal of the arbitral award
Bonus
1. San courts nag file.ng kaso yung ecuadorians. Sabi ni den wala daw kasi global injunction. Di ko alam sagot.
2. Nakalimutan ko na
3. Mareva injunction
injunction was wrongly obtained and declared that SFI was liable in
damages to the respondent, Pakistan Steel Mills Corporation (Private)
Limited (PSM). The quantum of damages was to be assessed in a
further proceeding.
Held: Appeal allowed.
British Columbia has incorporated the United Nations Convention on
the Recognition and Enforcement of Foreign Arbitral Awards (commonly
known as the New York Convention) into its domestic law by way of
the Foreign Arbitral Awards Act. The New York Convention and the
adopting provincial legislation require the Supreme Court of British
Columbia to recognize and enforce an international arbitration award
on the same basis as a domestic award. The judge erred in setting
aside the Mareva injunction by overlooking this effect of the New York
Convention. The judge erred by conducting a type of forums
conveniens analysis in favour of enforcement in Pakistan and in her
conclusion that the appellant failed to disclose a material fact on its
application for a Mareva injunction. The amplified evidence supported
the representation made by the applicant to the granting judge, that
enforcement of the Final Award in Pakistan would be challenging.