CHAPTER 6: FORUM SHOPPING
PRINCIPLES AND CASES IN PRIVATE INTERNATIONAL LAW:
A PROCEDURAL APPROACH
-oOo-
MARK ANGELO S. DELA PEÑA
To cite this online book, please use the following:
Dela Peña. 2023. "Principles and Cases in Private International Law: A Procedural Approach." Published by Project Jurisprudence - Philippines. Published: September 17, 2023. Link: [Insert link] Last accessed: [Insert date of access].
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CHAPTER 6:
FORUM SHOPPING
Forum-shopping is a concept that originated from private international law.[1] In earlier times, it was common for non-resident litigants to choose the forum or place wherein to bring their suit for various reasons or excuses, including to secure procedural advantages, to annoy and harass the defendant, to avoid overcrowded dockets, or to select a more friendly venue.[2] To combat these less than honorable excuses, the principle of forum non conveniens was developed whereby a court, in conflicts of law cases, may refuse an invocation of its jurisdiction where it is not the most “convenient” or available forum and the parties are not precluded from seeking remedies elsewhere.
Black’s Law Dictionary[3] defines forum-shopping as one that “occurs when a party attempts to have his action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgment or verdict.” Also, according to Words and Phrases,[4] as quoted by the Supreme Court in the case of First Philippine International Bank v. Court of Appeals,[5] “a litigant is open to the charge of forum shopping whenever he chooses a forum with slight connection to factual circumstances surrounding his suit, and litigants should be encouraged to attempt to settle their differences without imposing undue expense and vexatious situations on the courts.”
In the Philippines, forum shopping is considered against public policy. In fact, there are procedural measures designed to ward off any attempt to engage in this behavior such as but not limited to the requirement of a certification against forum shopping, the remedy of res judicata as a ground for a motion to dismiss, the remedy of litis pendentia as a ground for a motion to dismiss, and forum non conveniens as a ground for refusal to exercise jurisdiction.
The concept of forum shopping has expanded to include not only choices of venue but also choices of remedy. As to the first, the Rules of Court, for example, allows a plaintiff to commence personal actions “where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a nonresident defendant where he may be found, at the election of the plaintiff.”[6] As to remedies, aggrieved parties, for example, are given a choice of pursuing civil liabilities independently of the criminal, arising from the same set of facts. A passenger of a public utility vehicle involved in a vehicular accident may sue on the basis of culpa contractual, culpa aquiliana or culpa criminal, each remedy being available independently of the others although he cannot recover more than once.[7]
Another example of a choice of venue is a contractual venue stipulation between the parties, which may be considered permissive only or exclusive. Exclusive or restrictive venue stipulation limits the venue to the place or geographical location chosen by the parties. On the other hand, as to choice of remedy, a mortgagor-creditor cannot sue for collection of sum of money arising from the mortgage and, later, pursue foreclosure of the property set as security for the credit, the former remedy constituting as the waiver of the latter remedy, thereby preventing forum shopping in the nature of a splitting of a cause of action.
To test whether a case suffers from forum-shopping infirmity, the characteristics of litis pendentia or res judicata may be looked into. Where a litigant (or one representing the same interest or person) sues the same party against whom another action or actions for the alleged violation of the same right and the enforcement of the same relief is/are still pending, the defense of litis pendentia in one case is a bar to the others. Also, a final judgment in one would constitute res judicata to the other, thus justifying the dismissal of the rest. In either case, forum shopping could be cited by the other party as a ground to ask for summary dismissal of the other cases.[8]
As a proactive measure, Section 5 of Rule 7 of the Rules of Court states:
“Section 5. Certification against forum shopping. — The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) calendar days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
“The authorization of the affiant to act on behalf of a party, whether in the form of a secretary's certificate or a special power of attorney, should be attached to the pleading.
“Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.”
[1] Salonga, Private International Law, 1995 ed., p. 56.
[2] First Philippine International Bank v. Court of Appeals, 322 Phil. 280 [ G.R. No. 115849. January 24, 1996 ].
[3] Fifth edition, 1979, p. 590.
[4] Permanent edition, Vol. 17, p. 646.
[5] 322 Phil. 280 [ G.R. No. 115849. January 24, 1996 ].
[6] Section 2 of Rule 4 (Venue of Actions)
[7] First Philippine International Bank v. Court of Appeals, 322 Phil. 280 [ G.R. No. 115849. January 24, 1996 ].
[8] Buan v. Lopez, 229 Phil. 65 [ G.R. No. 75349. October 13, 1986 ].
