Philippine Export and Foreign Loan Guarantee Corporation v V.P. Eusebio Construction Inc.

Facts:
1. The State Organization of Buildings (SOB), Ministry of Housing and Construction, Baghdad, Iraq awarded the
construction of the Institute of Physical Therapy-Medical Rehabilitation Center in Iraq to Ayjal Trading and Contracting
Company for a total contract price of about $18M.

2. Spouses Santos, in behalf of 3-Plex International, Inc., a local contractor engaged in construction business, entered
into a joint venture agreement with Ayjal wherein the former undertook the execution of the entire a project, while the
latter would be entitled to a commission of 4%.

3. 3-Plex not accredited by the Philippine Overseas Construction Board (POCB) assigned and transferred all its rights and
interests to VPECI.

4. The SOB required the contractors to submit a performance bond representing 5% of the total contract price, an
advance payment bond representing 10% of the advance payment to be released upon signing of the contract. To
comply with these requirements 3-Plex and VPECI applied for a guarantee with Philguarantee, a government financial
institution empowered to issue guarantees for qualified Filipino contractors.

5. But what SOB required was a guarantee from the Rafidain Bank of Baghdad so Rafidain Bank issued a performance
bond in favor of SOB on the condition that another foreign bank (not Phil Guarantee) would issue the counter-
guarantee. Hence, Al Ahli Bank of Kuwait was chosen to provide the counter guarantee.

6.Afterwards, SOB and the joint venture of VPECI and Ayjal executed the service contract. Under the contract, the joint
venture would supply manpower and materials, SOB would refund 25% of the project cost in Iraqi Dinar and 75% in US
dollars at an exchange rate of 1 Dinar to $3.37.

7.The project was not completed. Upon seeing the impossibility of meeting the deadline, the joint venture worked for
the renewal or extension (12x) of the performance bond up to December 1986.

8. In October 1986, Al Ahli Bank sent a telex call demanding full payment of its performance bond counter-guarantee.
Upon receipt, VPECI requested Iraq Trade and Economic Development Minister Fadhi Hussein to recall the telex for
being in contravention of its mutual agreement that the penalty will be held in abeyance until completion of the project.
It also wrote SOB protesting the telex since the Iraqi government lacks foreign exchange to pay VPECI and the non-
compliance with the 75% billings in US dollars.
9. Philguarantee received another telex from Al Ahli stating that it already paid to Rafidain Bank. The Central Bank
authorized the remittance to Al Ahli Bank representing the full payment of the performance counter-guarantee for
VPECI's project in Iraq.

10. Philguarantee sent letters to respondents demanding the full payment of the surety bond. Respondents failed to pay
so petitioner filed a civil case for collection of sum of money.

11. Trial Court ruling: Dismissed. Philguarantee had no valid cause of action against the respondents. The joint venture
incurred no delay in the execution of the project considering that SOB's violations of the contract rendered impossible
the performance of its undertaking.

12. CA: Affirmed.

Issue:
What law should be applied in determining whether or not contractor (joint venture) has defaulted?

Held:
The question of whether there is a breach of the agreement which includes default pertains to the INTRINSIC validity of
the contract.

No conflicts rule on essential validity of contracts is expressly provided for in our laws. The rule followed by most legal
systems is that the intrinsic validity of a contract must be governed by lex contractus (proper law of the contract). This
may be the law voluntarily agreed upon by the parties (lex loci voluntatis) or the law intended by them either expressly
or implicitly (lex loci intentionis). The law selected may be implied from factors such as substantial connection with the
transaction, or the nationality or domicile of the parties. Philippine courts adopt this: to allow the parties to select the
law applicable to their contract, SUBJECT to the limitation that it is not against the law, morals, public policy of the
forum and that the chosen law must bear a substantive relationship to the transaction.

In the case, the service contract between SOB and VPECI contains no express choice of law. The laws of Iraq bear
substantial connection to the transaction and one of the parties is the Iraqi government. The place of performance is
also in Iraq. Hence, the issue of whether VPECI defaulted may be determined by the laws of Iraq.

BUT! Since foreign law was not properly pleaded or proved, processual presumption will apply.

According to Art 1169 of the Civil Code: In reciprocal obligations, neither party incurs in delay if the other party does not
comply or is not ready to comply in a proper manner what is incumbent upon him.

As found by the lower courts: the delay or non-completion of the project was caused by factors not imputable to the
Joint Venture, it was rather due to the persistent violations of SOB, particularly it's failure to pay 75% of the
accomplished work in US dollars. Hence, the joint venture does not incur in delay if the other party(SOB) fails to perform
the obligation incumbent upon him.
SAUDI ARABIA AIRLINE VS. CA

G.R. No. 122191 October 8, 1998

Laws Applicable: Art 19 and 21 of Civil Code

Lessons Applicable: Conflict of Laws, factual situation, connecting factor, characterization, choice of law, State of the most
significant relationship

FACTS:
 Saudi Arabian Airlines (SAUDIA), foreign airlines corporation doing business in the Philippines and may be
served summons in agent in Makati, hired Milagros P. Morada as a flight attendant for its airlines based in
Jeddah, Saudi Arabia.
 April 27, 1990: While on a lay-over in Jakarta, Indonesia, Morada went to a disco dance with fellow crew
members Thamer Al-Gazzawi and Allah Al-Gazzawi, both Saudi nationals. It was almost morning when they
returned to their hotels so they agreed to have breakfast together at the room of Thamer. Shortly after Allah left
the room, Thamer attempted to rape Morada. Fortunately, a roomboy and several security personnel heard her
cries for help and rescued her. Indonesian police arrested Thamer and Allah Al-Gazzawi, the latter as an
accomplice.
 When Morada returned to Jeddah, SAUDIA officials interrogated her about the Jakarta incident and requested her
to go back to Jakarta to help arrange the release of Thamer and Allah. In Jakarta, SAUDIA Legal Officers
negotiated with the police for the immediate release of the detained crew members but did not succeed. Afraid
that she might be tricked into something she did not want because of her inability to understand the local dialect,
Morado refused to cooperate and declined to sign a blank paper and a document written in the local
dialect. Eventually, SAUDIA allowed Morada to return to Jeddah but barred her from the Jakarta flights.
 Indonesian authorities agreed to deport Thamer and Allah and they were again put in service. While, Morada was
transferred to Manila.
 January 14, 1992: Morada was asked to see Mr. Ali Meniewy, Chief Legal Officer of SAUDIA, in Jeddah, Saudi
Arabia. He brought her to the police station where the police took her passport and questioned her about the
Jakarta incident. The police pressured her to drop the case against Thamer and Allah. Not until she agreed to do
so did the police return her passport and allowed her to catch the afternoon flight out of Jeddah.
 June 16, 1993: Morada, while in Riyadh Saudi Arabia, was not allowed to board the plane to Manila and instead
ordered to take a later flight to Jeddah to see Mr. Miniewy. Khalid of the SAUDIA office brought her to a Saudi
court where she was asked to sign a document written in Arabic. They told her that this was necessary to close
the case against Thamer and Allah but it was actually a notice for her to appear before the court on June 27,
1993. Plaintiff then returned to Manila.
 June 27, 1993: SAUDIA's Manila manager, Aslam Saleemi, assured Morada that the investigation was routinary
and that it posed no danger to her so she reported to Miniewy in Jeddah for further investigation. She was
brought to the Saudi court.
 June 28, 1993: Saudi judge interrogated Morada through an interpreter about the Jakarta incident for an hour and
let her go. SAUDIA officers forbidden her to take flight. She was told to go the Inflight Service Office where her
passport was taken and they told her to remain in Jeddah, at the crew quarters, until further orders.
 July 3, 1993: She was brought to court again and to her astonishment and shock, rendered a decision, translated
to her in English, sentencing her to five months imprisonment and to 286 lashes. The court tried her, together
 with Thamer and Allah, and found her guilty of (1) adultery (2) going to a disco, dancing and listening to the music
in violation of Islamic laws and (3) socializing with the male crew, in contravention of Islamic tradition.
 Failing to seek the assistance of her employer, SAUDIA, she asked the Philippine Embassy in Jeddah to help her
while her case is on appeal. She continued to workon the domestic flight of SAUDIA, while Thamer and Allah
continued to serve in the international flights.
 Because she was wrongfully convicted, the Prince of Makkah dismissed the case against her and allowed her to
leave Saudi Arabia. Before her return to Manila, she was terminated from the service by SAUDIA, without her
being informed of the cause.
 November 23, 1993: Morada filed a Complaint for damages against SAUDIA, and Khaled Al-Balawi, its country
manager.
 January 19, 1994: SAUDIA filed an Omnibus Motion To Dismiss on following grounds: (1) that the Complaint
states no cause of action against SAUDIA (2) that defendant Al-Balawi is not a real party in interest (3) that the
claim or demand set forth in the Complaint has been waived, abandoned or otherwise extinguished and (4) that
the trial court has no jurisdiction to try the case.
 After opposition to the motion to dismiss by Morada and reply by SAUDIA, Morada filed an Amended Complaint
dropping Al-Balawi. SAUDIA filed its Manifestation, Motion to Dismiss Amended Complaint, subsequently motion
for reconsideration which were all denied.
 SAUDIA filed its Petition for Certiorari and Prohibition with Prayer for Issuance of Writ of Preliminary Injunction
and/or Temporary Restraining Order with the Court of Appeals. TRO was granted but Writ of Preliminary
Injunction was denied.
 CA: Philippines is an appropriate forum considering that the Amended Complaint's basis for recovery of damages
is Article 21 of the Civil Code, and thus, clearly within the jurisdiction of respondent Court. It further held that
certiorari is not the proper remedy in a denial of a Motion to Dismiss, inasmuch as the petitioner should have
proceeded to trial, and in case of an adverse ruling, find recourse in an appeal.
 SAUDIA filed its Supplemental Petition for Review with Prayer for Temporary Restraining Order:
o It is a conflict of laws that must be settled at the outset:
§ Morada's claim for alleged abuse of rights occurred in the Kingdom of Saudi Arabia.
§ Existence of a foreign element qualifies the instant case for the application of the law of the Kingdom of Saudi Arabia, by
virtue of the lex loci delicti commissi rule.
 Morada: Amended Complaint is based on Articles 19 and 21 of the Civil Code which is a matter of domestic law

ISSUE: W/N the RTC of Quezon City has jurisdiction over the case and it is the proper forum for recovery of damages
under Art. 21 of the Civil Code which should govern.

HELD: YES. petition for certiorari is hereby DISMISSED. REMANDED to RTC of Quezon City, Branch 89 for further
proceedings
 Where the factual antecedents satisfactorily establish the existence of a foreign element, the problem could
present a "conflicts" case
 A factual situation that cuts across territorial lines and is affected by the diverse laws of two or more states is said
to contain a "foreign element".
o Morada is a resident Philippine national
o SAUDIA is a resident foreign corporation
o by virtue of the employment of Morada with the SAUDIA as a flight stewardess, events did transpire during her many
occasions of travel across national borders, particularly from Manila, Philippines to Jeddah, Saudi Arabia, and vice versa,
that caused a "conflicts" situation to arise
  Forms of foreign element:
o Simple: one of the parties to a contract is an alien or has a foreign domicile, or that a contract between nationals of one
State involves properties situated in another State
o Complex
 Violations of Articles 19 and 21 are actionable, with judicially enforceable remedies in the municipal forum. RTC
of Quezon City possesses jurisdiction over the subject matter of the suit.
 Pragmatic considerations, including the convenience of the parties, also weigh heavily in favor of the RTC
Quezon City assuming jurisdiction:
o private interest of the litigant
o enforceability of a judgment if one is obtained
o relative advantages and obstacles to a fair trial
§ Plaintiff may not, by choice of an inconvenient forum, "vex", "harass", or "oppress" the defendant, e.g. by inflicting upon him
needless expense or disturbance. but unless the balance is strongly in favor of the defendant, the plaintiffs choice of
forum should rarely be disturbed.
 Weighing the relative claims of the parties, the court a quo found it best to hear the case in the Philippines. Had it
refused to take cognizance of the case, it would be forcing plaintiff (private respondent now) to seek remedial
action elsewhere, i.e. in the Kingdom of Saudi Arabia where she no longer maintains substantial connections.
That would have caused a fundamental unfairness to her. Moreover, by hearing the case in the Philippines no
unnecessary difficulties and inconvenience have been shown by either of the parties.
 Trial court possesses jurisdiction over the persons of the parties
o By filing her Complaint and Amended Complaint with the trial court, private respondent has voluntary submitted herself to
the jurisdiction of the court
o SAUDIA has effectively submitted to the trial court's jurisdiction by praying for the dismissal of the Amended Complaint on
grounds other than lack of jurisdiction.
 As to the choice of applicable law, it seeks to answer 2 important questions:
o (1) What legal system should control a given situation where some of the significant facts occurred in two or more states
o (2) to what extent should the chosen legal system regulate the situation
 Although ideally, all choice-of-law theories should intrinsically advance both notions of justice and predictability,
they do not always do so. The forum is then faced with the problem of deciding which of these two important
values should be stressed.
 Before a choice can be made, it is necessary for us to determine under what category a certain set of facts or
rules fall
o "characterization" or the "doctrine of qualification”
§ process of deciding whether or not the facts relate to the kind of question specified in a conflicts rule
§ purpose: to enable the forum to select the proper law
 Choice-of-law rules invariably consist of: (essential element of conflict rules)
o factual situation/relationship or operative fact (such as property right, contract claim); and
§ starting point of analysis
o test or connecting factor or point of contact (such as the situs of the res, the place of celebration, the place of performance,
or the place of wrongdoing) – could be:
§ (1) The nationality of a person, his domicile, his residence, his place of sojourn, or his origin
§ (2) the seat of a legal or juridical person, such as a corporation
§ (3) the situs of a thing, that is, the place where a thing is, or is deemed to be situated. In particular, the lex situs is decisive
when real rights are involved
§ (4) the place where an act has been done, the locus actus, such as the place where a contract has been made, a marriage
celebrated, a will signed or a tort committed. The lex loci actus is particularly important in contracts and torts
§ (5) the place where an act is intended to come into effect, e.g., the place of performance of contractual duties, or the place
where a power of attorney is to be exercised
§ (6) the intention of the contracting parties as to the law that should govern their agreement, the lex loci intentionis;
§ (7) the place where judicial or administrative proceedings are instituted or done. The lex fori — the law of the forum — is
particularly important because, as we have seen earlier, matters of "procedure" not going to the substance of the claim
involved are governed by it; and because the lex fori applies whenever the content of the otherwise applicable foreign law
is excluded from application in a given case for the reason that it falls under one of the exceptions to the applications of
foreign law; and
§ (8) the flag of a ship, which in many cases is decisive of practically all legal relationships of the ship and of its master or
owner as such. It also covers contractual relationships particularly contracts of affreightment
 Note that one or more circumstances may be present to serve as the possible test for the determination of the
applicable law.
 Based on pleadings on record, including allegations in the Amended Complaint:
o Morada was made to face trial for very serious charges, including adultery and violation of Islamic laws and tradition
o SAUDIA may have acted beyond its duties as employer by handing over the person of Morada to Jeddah officials which
contributed to and amplified or even proximately caused additional humiliation, misery and suffering. It also took
advantage of the trust, confidence and faith in the guise of authority as employer.
o Conviction and imprisonment was wrongful but injury or harm was inflicted upon her person and reputation which must be
compensated or redress for the wrong doing
 Complaint involving torts
 "connecting factor" or "point of contact" - place or places where the tortious conduct or lex loci actus occurred =
Philippines where SAUDIA deceived Morada, a Filipina residing and working here.
 "State of the most significant relationship" – applied
o taken into account and evaluated according to their relative importance with respect to the particular issue:
§ (a) the place where the injury occurred
§ (b) the place where the conduct causing the injury occurred
§ (c) the domicile, residence, nationality, place of incorporation and place of business of the parties
§ (d) the place where the relationship, if any, between the parties is centered
v private respondent is a resident Filipina national, working here
v a resident foreign corporation engaged here in the business of international air carriage
Hasegawa and Nippon Eng. Consultants v. Kitamura
Digest
Hasegawa and Nippon Eng. v. Kitamura
G.R. No. 149177 November 23, 2007
Ponente: Justice Nachura

Facts:
1. The petitioner Nippon Engineering Consultants Co. is a Japanese consultancy firm which provides
technical and management support in the infrastructure project of foreign governments. It entered into a
Independent Contractor Agreement (ICA) with respondent Kitamura, a Japanese national permanently
residing in the Philippines. Under the ICA, the respondent will extend professional services to the petitioner
for a year.

2. Subsequently Kitamura was assigned as project manager of STAR project in 1999. In 2000, he was
informed by the petitioner that it will no longer renew the ICA and that he will be retained until its
expiration. Kitamura filed a civil casefor specific performance before the RTC of Lipa and damages.

3. The lower court ruled that it has jurisdiction over the dispute and denied the petitioner's motion to
dismiss since accordingly, it is vested by law with the power to entertain and hear the civil case filed by
Kitamura. The Court of Appeals upheld the lower court's decision.

Issue: Whether or not the RTC has jurisdiction over the case

HELD: YES

1. The only issue is the jurisdiction, hence, choice-of-law rules as raised by the petitioner is inapplicable
and not yet called for (reference to lex loci, lex contractus, or state of most significant rule). The petitioner
prematurelyinvoked the said rules before pointing out any conflict between the laws of Japan and the
Philippines.

2. The doctrine on forum non conveniens cannot be invoked to deprive the RTC of its jurisdiction. Dismissing
the case on this ground requires a factual determination hence the principle is considered to be more a
matter of defense.
Bank Of America V. CA (2003)
G.R. No. 120135 March 31, 2003
Lessons Applicable: forum non conveniens (conflicts of laws)

FACTS:

 Eduardo K. Litonjua, Sr. and Aurelio J. Litonjua (Litonjuas) were engaged in the shipping
business owning 2 vessels: Don Aurelio and El Champion
 Because their business where doing well, Bank of America (BA) offered them to take a loan
for them to increase their ships.
 BA acquired through them as borrowers four more ships: (a) El Carrier; (b) El General; (c) El
Challenger; and (d) El Conqueror. The registration, operation, income, funds, possession of
the vessel belonged to the corporation.
 May 10, 1993: Litonjuas filed a complaint to the RTC Pasig claming that during its operations
and the foreclosure sale, BA as trutees failed to fully render an account of the income.
They lost all their 6 vessels and 10% of their personal funds and they still have an
unpaid balance of their loans.
 BA NT&SA, and BA international filed a Motion to Dismiss on grounds of forum non conveniens and lack of cause of
action against them
 RTC and CA: Dismissed
ISSUE:
1. W/N there is grounds of forum non conveniens
2. W/N there is litis pendentia

HELD: Denied

1. NO.

 The doctrine of forum non-conveniens, literally meaning 'the forum is inconvenient', emerged in private international
law to deter the practice of global forum shopping
 Under this doctrine, a court, in conflicts of law cases, may refuse impositions on its jurisdiction where it is not the
most "convenient" or available forum and the parties are not precluded from seeking remedies elsewhere.
 Whether a suit should be entertained or dismissed on the basis of said doctrine depends
largely upon the facts of the particular case and is addressed to the sound discretion of
the trial court.
 Philippine Court may assume jurisdiction over the case if it chooses to do so; provided, that the following requisites
are met:
 (1) that the Philippine Court is one to which the parties may conveniently resort to; - present
 (2) that the Philippine Court is in a position to make an intelligent decision as to the law and the facts; and, -
present
 (3) that the Philippine Court has or is likely to have power to enforce its decision - present
 This Court further ruled that while it is within the discretion of the trial court to abstain from assuming jurisdiction on
this ground, it should do so only after vital facts are established, to determine whether special circumstances require
the court's desistance; and that the propriety of dismissing a case based on this principle of forum non conveniens
requires a factual determination, hence it is more properly considered a matter of defense
2. NO

 litis pendentia to be a ground for the dismissal of an action there must be:
 (a) identity of the parties or at least such as to represent the same interest in both actions -present
 (b) identity of rights asserted and relief prayed for, the relief being founded on the same acts - not shown
 (c) the identity in the two cases should be such that the judgment which may be rendered in one would, regardless of
which party is successful, amount to res judicata in the other - not shown
 It merely mentioned that civil cases were filed in Hongkong and England

raytheon international vs rouzie gr 162894

FACTS

Brand Marine Services, Inc. (BMSI), a corporation duly organized & existing under the laws of Connecticut, &Stockton Rouzie, Jr., an
American citizen, entered into a contract

BMSI hired Rouzie as its representative to negotiate the sale of services in several government projects in thePhilippines for an agreed
remuneration of 10% of the gross receipts.

Rouzie secured a service contract w/ the Rep. of Phil. on behalf of BMSI for the dredging of rivers affected by the Mt.Pinatubo eruption &
mudflows.

Rouzie filed before the NLRC a suit against BMSI and Rust International (Rust) for alleged nonpayment of commissions, illegal termination,
& breach of employment contract.

The Labor Arbiter order

ed BMSI & Rust to pay Rouzie’s money claims.

Upon appeal, the NLRC reversed & dismissed Rouzie’s complaint on the ground of lack of jurisdiction.

Rouzie filed an action for damages before the RTC of La Union (where he was a resident) against Raytheon International. He reiterated that
he was not paid the commissions due him from the Pinatubo dredging project w/c hesecured on behalf of BMSI. The complaint also averred
that BMSI, RUST and Raytheon had combined & functioned as 1 company.

RAYTHEON SOUGHT THE DISMISSAL OF THE COMPLAINT ON THE GROUNDS OF FAILURE TO STATE ACAUSE OF ACTION & FORUM NON
CONVENIENS & PRAYED FOR DAMAGES BY WAY OF COMPULSORY
COUNTERCLAIM. THE RTC DENIED RAYTHEON’S MOTION. THE CA AFFIRMED.

Raytheon’s contention: The written contract between Rouzie & BMSI included a valid choice of law clause, that is, that the contract shall be
governed by the laws of the State of Connecticut. It also mentions the presence of foreign elements in the dispute, namely that the parties
& witnesses involved are American corporations & citizens & the evidence to be presented is located outside the Philippines, that renders
our local courts inconvenient forums. The foreign elements of the dispute necessitate the immediate application of the doctrine of forum
non conveniens.

ISSUES(a) W/N the RTC had jurisdiction.(b) W/N the complaint should be dismissed on the ground of forum non conveniens.

RULING

(a) YES.
On the matter of jurisdiction over a conflicts-of-laws problem where the case is filed in a Philippine court and where the court has
jurisdiction over the subject matter, the parties and the res, it may or can proceed to try the case even if the rules of conflict-of-laws or the
convenience of the parties point to a foreign forum. This is an exercise of sovereign prerogative of the country where the case is filed.

Jurisdiction over the nature and subject matter of an action is conferred by the Constitution and the law & by the material allegations in the
complaint, irrespective of w/n the plaintiff is entitled to recover all or some of the claims or reliefs sought therein. The case file was an
action for damages arising from an alleged breach of contract. Undoubtedly, the nature of the action and the amount of damages prayed
are w/in the jurisdiction of the RTC.

As regards jurisdiction over the parties, the RTC acquired jurisdiction over Rouzi upon the filing of the complaint. On the other hand,
jurisdiction over the person of Raytheon was acquired by its voluntary appearance in court.

That THE SUBJECT CONTRACT INCLUDED A STIPULATION THAT THE SAME SHALL BE GOVERNED BYTHE LAWS OF THE STATE OF
CONNECTICUT DOES NOT SUGGEST THAT THE PHILIPPINE COURTS,
OR ANY OTHER FOREIGN TRIBUNAL FOR THAT MATTER, ARE PRECLUDED FROM HEARING THE CIVIL ACTION.

JURISDICTION & CHOICE OF LAW ARE 2 DISTINCT CONCEPTS. Jurisdiction considers whether it is fair to cause a defendant to travel to this
state; choice of law asks the further question whether the application of a substantive law which will determine the merits of the case is
fair to both parties. The choice of law stipulation will be come relevant only when the substantive issues of the instant case develop, that is,
after hearing on the merits proceeds before the trial court.

(b) NO.

UNDER THE DOCTRINE OF FORUM NON CONVENIENS, A COURT, IN CONFLICTS-OF-LAWS CASES, MAY
REFUSE IMPOSITIONS ON ITS JURISDICTION WHERE IT IS NOT THE MOST “CONVENIENT” OR
AVAILABLE FORUM AND THE PARTIES ARE NOT PRECLUDED FROM SEEKING REMEDIES ELSEWHERE.
Raytheon’s averments of the foreign elements are not sufficient to oust the RTC of its jurisdiction over the case and the parties involved.

Moreover, the propriety of dismissing a case based on the principle of forum non conveniens requires a factual determination; hence, it is
more properly considered as a matter of defense. While it is w/c the discretion of the trial court to abstain from assuming jurisdiction on
this ground, it should do so only after vital facts are established, to determine whether special circumstances require the court’s desistance.