Conflict of Laws 2016 TSN

From the lectures of Atty. Vince Juan Ateneo de Davao College of Law | College of Law | Kwatro Manresa | SY 2016 2017

June 21, 2016 (LJSy) How Problems in Conflict of Laws 1.

The occurrence of transactions or events in two or more states; and

2.

The diversity diversity of laws prevailing prevailing in these 2 or more states

Th ere are diverse social norms and set of po licies licies o r custo ms for every certain country. Because of this, we have Private International Law. The re is is t his case case of Miciano vs. Brimo. Brimo . If you remember t hat, t here was this Turkish Turkish guy w ho had a w ill, l, and t he will will was quest ioned, and he was asked asked whe ther the the provisi provisions ons th ere was void; void; in det ermining ermining so, what law do we apply? Phil law law where wh ere t he will will was e xecut xec ut ed or T urkish urkish law, law, the the national law law o f t he t estator? The SC sai said d that we h ave to bas base it w ith Turkish Turkish Law. But since since the Turkish Turkish law law was not proved proved,, we apply processual presumption, hence we presume that Tu rkish rkish law is t he same with wit h th at of Phil law. law. T hat is a common common example example of Conflict Conflict of Law.

Various Various d efinitions of Conflict o f Laws I have chosen 3 w hich are are based on different schools of t hought hought and seeks to define what Private International Law. Definition of Conflict of Laws; Minor 1.

Private Private Int ernational Law embraces embraces thos th ose e universal universal principles principles of o f right and just ice which govern the courts of one state having before them th em cases cases involving involving t he operation and effect effect of the laws of another state or country.

In this definition, it presupposes; (1) that Private International Law is universal in character.

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Yo u can say, as a ped estria est rian n t hat it is private private international law, law, so the refore it is international and he nce agreed upon by t he count ries. ries. But th ere is a problem problem with this because Private international law is not actually international, strictly speaking. It is act ually ually a municipal law, a local law. i.e. Art. 15 , nationality nationality principle, it is a municipal law but it is considered as private international law. Therefore, Private international law does not have a universal sense , because because municipal laws are very diverse and various laws govern a particular matter.

(2) T hat Private Private int ernat ional law law is based b ased on a universal principle of what is just and right.

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The criticis criticism m here is th at it it cannot be be because t hat is is very dangerous. The The result result he re is t hat one state cannot say t hat my private private inte rnational law law is based on nat ural justice justice and and t he basic basic o f w hat hat is right. T hat is inaccurate b ecause there there can be conflicting laws between countries, because one can also claim that t heir law aw is based on right right and justice. Se nse of justice in in one on e particular jurisdiction jurisdiction is differen t from t hat of another state. i.e. divorce in the UK is right and just, but here it is not.

Definition of Conflict of Laws; Westlake 2.

Private Private Internation al Law is t hat departm d epartme ent of private jurisprudence which determine before the courts of what nation each each suit suit should be brought and by the law of what nation should it be decided.

This definition focuses on the settling of issues of Private international law. law. Yo u will will see late late r, t hat w hile t he co urts hav have a great role in de t ermining ermining privat privat e international inte rnational law in in all all t hese hese cases, it is not possible possible for eve n administrative administrative agen cies to deal with private private inte rna rnational tional law, law, say say the case in Persons, Fujiki vs. Mahinay, Corpus vs. Sto. Tomas, Tomas , and Silverio vs. Republic? Republic? In the t he case of Fujiki and St o. t omas, there was her here e a foreigner who sought cancellation of entry of certificate of marria marriage. ge. Th e civil civil registrar was w as conflicte d wit h t his confli con flict ct case. Remember the law which now grants expanded jurisdiction jurisdiction on t he correc t ion of ent ries. ries. So S o he re t he LCR w as confronted on w hether he has the power to de cide cide on this particular matt er, w here the applicant applicant s are foreign nat ionals. So t hat is an example of an administrat administrat ive agenc y being con fronted wit h a confli conf lict ct s case. So t he definition definition o f Westlake, inco incomplete mpletelly captures w hat p rivate rivate international law law is. So, w hat is is the proper definition of w hat private private inte rnational rnational law law is? is? All of the m are are proper but we are looking looking for th e mos most comprehensive definition. definition. Definition Definition of Confli Conf lict ct of Laws; Restat ement ement (c.f. (c.f. Cheslore) 3.

Private Private International Law is is th at part of the law of each state which determines whether in dealing with a factual situation involving a foreign eleme element nt , t he law law of some so me o ther th er state will be recognized.

Private Private International Law is that part of th e law law of e ach state, state, that alone explains that private international law is a municipal law law . Dealing Dealing w ith a fact ual situat situat ion involving involving a foreign fore ign element, so e ach case case has a foreign element element . And w e determine determine w hat law will will be reco gnized. gnized. So you can e asily asily say th at, t he goal of privat privat e international inte rnational law law is merely t o come up with a decision decision or a choice of what law law should be applied in a particular conflicts case – a – a case which has a foreign element. Important Points: (Definition of Conflict of Laws; Restatement (c.f. Cheslore) 1. Private Int International ernational Law is merel merely y a part of the municipal law of each state 2. The subject matter is any factual situation containing a foreign element. Foreign Element – a factual matter in the case which nece ssitates ssitates t he applica application tion of t he law of anot her state. state. Examples: 

Simple: o

o

o



Filipina Filipina marries Philippines

a

fore igner igne r in

the

Tw o Filipi Filipinos nos ent er into a co ntract ntract in Japa Japan n A che ck issued issued t o a Filipino ipino Philippines is indorsed abroad

in the

Complex o

Fili Filipino pino ent ers into a cont ract ract with a Chinese businessman, manufactured 1

To God be the Glory!


o

Tw o Fili Filipinos pinos ent er int int o a cont con t ract involving involving a propert prop ert y in in California California,, USA in Pakist Pakist an, an, to be paid in New Yo rk in Brit Brit ish ish Po unds, and delivered in Manila

contract was celebrated. So lex situs? No, lex loci celebrationis. Two Fili Filipinos pinos enter int into o a cont ract involving involving a prop erty erty in California, USA –

3. Primar Primary y funct ion is to d etermine whether the law of o f another anot her stat e should b e applied applied in t he forum Forum – is t he place whe re the cou rt sits; sits; whe re the case case is filed

(so here t here is is a real prope rty so so it is governed by lex situs) Check issued to t o a Fili Filipino pino in t he Philippines is indorsed abroad – (the validity of the indorsement)

1. Private Private International Law is merel merely y a part o f the municipal law of each state.

Two Fil Filipinos, ipinos, one nat ural born, one naturalized, naturalized, cont racted marriage marriage in a Ph il Embassy Embassy in Canada –

I have already already said said earlier earlier t hat wh ile ile it may be called called international, it is actually not international because each state has its ow n laws. laws. A lso lso you should know, t hat be ing a municipal municipal law, a private international law does not refer to a particular code , it is not a branch of law. law. Yo u cannot equate itit w ith person personss and family family relations relations or the laws of prope rty where you have have separate books for that. Privat Privat e int int ernat ional law law c ut s across all all branches branch es of law. law. Y ou will meet t his in in A rt. 15 and 16. Also Also in t he Constitut Constitut ion, abou aboutt citizenship. Also in commercial law, especially on foreign investme investme nts act or the corporation code. Even remed ial ial laws, laws, on the e nforcement of foreign judgment . This is actually actually the the primary primary reason why w hy Conflict of Laws is given in t he 4th year, because we presume that yo u already already know all all of t hese laws.

Here t here is is no foreign element . There is no foreign foreign element there b ecause ecause there there are are two Fili Filipinos pinos who are are both governed by national law. And since you celeb rated your marriage marriage in a Phil Embassy, by ext raterritori raterrito rial ality ity principle, principle, t he formal requ isite isitess is st ill ill governed by Phil la Filipino ilipino enters int int o a cont ract wit wit h a Chinese Chinese businessman, manufactured in Pakistan to be paid in New York, in British pounds, pou nds, to deliver deliver the th e prod uct in in Manila, Manila, and the th e demand was made made in Denmark, Denmark, and t he reply to the demand was made in Papua New Genie – Althoug Alt houg h that is is an exaggeration, but that can happe happen. n. Mr. Solano, t he Fil Filipi ipino no ent ers a ccont ont ract? Foreign gn element ? None . With a Chinese Chinese businessm businessman? an? W hether hether the Chinese is c apacitat apacitat ed to e nte r into a cont ract ract.. Manufactured in Pakistan? So performance of the cont con t ract, prestation, obje ct, so so whether wh ether it is w ithin ithin the commerce of man. To be paid in New York? So, consideration. British pounds? So whether it is a legal te nde r. Delivered in in Manila? Manila? So deli de livery, very, part of performance.

2. The subject matt er is is any factual situat ion cont aini aining a foreign element. So in a conflict conflict c ase, ase, t he subject matter will will A LWA YS involve involve a situat situat ion, a case case having having a foreign element. Mr. Pusta what is a foreign element. (uhm sir, a foreign element refers to that element t hat are are tho se outside outside the cove rage rage of the municipal municipal law law ) Isn’t Isn’t it t hat in criminal nal law, whe n th ere is no law punishi pu nishing ng it, th ere is is no crime? crime? So, isn’t isn’t it if it beyond our law, law, t hen we simply simply do not apply a part icular icular law. law. S o w hy do we apply private private inte rnational law law in cases w here t here is a foreign element. You see t he logic, if the foreign element , as defined by Mr. Pusta, is beyond t he jurisdi jurisdict ct ion or t he co verage of our municipa municipall law, law, say in o ur criminal criminal law, no w w ill ill that th at be a crime under our law? (Sorry sir sir,, I too cannot see t he logic  ) So again again Mr. Mr. Pusta define a foreign element . (as define define d in the the case of S AUDIA, a foreign element is a factual situation situation that cuts across t erritorial lines, lines, and is affecte affec te d by the diverse laws of two or more state s is said said to c ont ain ain a f oreign element element ) So foreign foreign element , is a case or a situ situ ation wh ich nece ssitat ssitat es the the applica application tion of a law of anot her stat stat e. Because if it does not not nece ssitate, ssitate, like ke in criminal criminal law, law, the n th ere is no need t o resor resortt to a law law of another state. Here in in private private international law, law, the re is is a case, and and t he case case involves involves an element , of one n ot co vered by our municipa municipall law, law, but o ur law law provides provides o f a p ointing to or a refe rence t o anoth another er law of anothe r state. Examples: Filipina Filipina marries a foreigner in the Philippines – Ms. Ms. Logramont Logramont e, w hat is is the foreign element t her here? (th e foreign e lement t here is the foreigner) So w hat is the foreign element there? (the national law of the foreigner) So what particular particular matte r? That is the capacity capacity to marry. marry. W hy do we de cide that we should should apply apply t he national law law of t he foreigner, it is be caus cause we adhere t o t he nat ionali ionality ty principle. principle. Two Filipinos enter into a contract in Japan – (the rules governing the validity of the contract) Specific validi validity, ty, because we apply t he law law whe re the

It is easy. I hope we only nee d to det ermine ermine ifif it is a foreign element or not . But But t he next quest ion is, is, if it is a foreign foreign element , w hat law law should govern? A nd the most difficult difficult part is is that if you know what law should govern, and you were asked asked to resolve it, that is even more difficult. 3. Primary Primary funct ion is is to det ermine ermine whether the law law of another stat e should be applied applied in the f orum. So, w hat is a forum? Mr. Mr. Remullo. Remullo. (w here t he action action w ill ill be filed) filed) W here he re the th e act act ion is actuall act ually y filed. Bec ause ifif it is still to be filed, filed, then there is yet a conflicts case. Forum is t he place w here t he court court sits; sits; whe re t he case case is filed. filed. In this particular case, there are 3 lines of questioning that the court would have have t o go t hrough: 1.

W/ N th ey would ent ertain a particula particularr conflict conflict s case? case? Foreign Foreign element , check. Quest ion is, is, you filed filed the the particular co mplaint nt , will the c ourt e ntertain ntertain that ? It It is is a question of jurisdiction.

2.

If that particular matter that has been properly adjudicated adjudicated by a foreign judgment, d o w e recogniz recognize that foreign foreign judgment? If not, then we have to litigate it anew. Now the question is, how you resolve the matter, specifically what law law should be applied. applied.

So t his gives us the 3 important purposes or functions of Priva Private International law. law. Coming Coming from t he e xperience xperience s of the c ourt in dealing with a foreign element.

3 Main Functions of Private International Law 2



1. To prescribe conditions under which a court or agency is competent to entertain a suit containing a Foreign Element Th is is b est discussed in th e SAUDIA case. This is a question of jurisdiction w ith t he foreign element . 2. To specify the circumstances in which foreign judgments will be recognized as valid and binding in the forum 3. To determine for each class o f cases th e particular territorial system of law b y reference to which t he rights of the parties must be ascertained. If you notice, #1 and #2 functions, is already governed by relevant remedial laws. Jurisdiction, for example, you have your BP 1 29. T he rules of evidence o n what t o be pleaded. So in most of t he c ases th at w e will encount er, it is really about coming up with a choice in a particular conflicts case. Some boo ks or jurists w ould say th at, if we alread y det ermine what law should be applied, then private international law is done . In ot her w ords, th e main func tion o f private international law is actually geared to wards the cho ice of law.

capacity of the parties to marry, w e will apply Phil law as far as the Filipina is conce rned and Japanese law as far as the Japanese spouse is con cerned and the California law as t o the nationality of t he Church elder. Correct? No, t here is no need for the nationality of t he Church elder. W e on ly need t o de termine whe th er he is authorized t o solemnize marriage.

Proper name: Conflict of Law s or Private International Law? 1.

National not International

2.

Not really a Conflict

Th is is act ually we ird we call it inte rnational but actu ally it is a municipal law. It is also weird to call it a conflict whe n our goal is act ually to harmonize by doing the choice of law. So w hat do we c all it? Ambot . The re are jurist who w ant to call it, extraterritorial law and international civil law. So private int ernat ional law is the less c riticized. W hat is important is you know the law.

Public International Law vs. Private International Law 1.

Wh ile t he rules under Public International Law are international in nature, the rules under Private Inte rnational Law are national or municipal in character except when embodied in international conventions

2.

Public International Law de als fo r t he most part w ith Stat es, while Private International Law deals with private individuals (Can individuals be subject to international law?)

3.

Public International Law recognizes only transactions in which sovereign state s are inte rested, w hile Private Inte rnational Law assumes control on transact ions strict ly private in nature.

Important Points: 1. The rule of Private Internat ional Law apply only to certain given facts not characterized as creating so me legal relationship. It means that your rule on private international law will not te l you w het her or not a particular marriage is valid, for example. Yo ur private internat ional law will on ly te ll you wh at law should be applied in order to de termine whether the marriage is valid. Say, a Filipina marries a Japanese before a ch urch elder in California. So you ask, is t he marriage valid? T he role of private international law the re is to de te rmine w hat law should govern because it has foreign element . Foreign element s the re is the nationality of the Japanese spouse and the place of the celebration of t he marriage. Y ou w ould say the diversity of law, you are not allowe d to be married before a church e lder in the Phil. But it may be allowed in California law. 2. The choice of legal system open to the court is limited to those simultaneously valid.

History of Private International Law 1.

Italian City-States and Theory of Statutes

2.

French jurists and t he c ustoms

3.

Dutch jurists and the Doctrine of Comitas Gentium

4.

Modern Jurists

So, in the example, there is only 3 possible laws here. The Philippine law, the Japanese law and th e law w here t he marriage was ce lebrate d, so California law. So in private internat ional law, you cannot have a choice of law, like th e law of A frica, I like it coz it’s kinda applicable here. And you would see it in jurisprudenc e, how t he SC handpicke d t he law wh ich applies. Yo u should establish a connec tion with t he foreign e lement . 3. The choice of legal system is limited only to those legal systems prevailing in different countries or states. Wh at is need to be e mphasized he re is th at it also refer to st ates. Because like in t he US, t hey have different laws for every state. So you ne ed to look on whe ther the case is valid according to the law of t he state. Like t he case of Christensen? 4. The legal effect s of a certain set of facts are not at all always det ermined by one legal system. Precisely t his is private inte rnational law. Like in the example, if you are to co mprehensively address the problem as to the

a.

International syste m – exists a single body of international rules that would solve all legal questions that contains foreign element

b.

Territorial system – only th e law of the state applies to persons and things within its territory; foreign law is not applied in the forum

c.

Statutory system (our system) – 2 or more indepe nde nt laws are applicable to a con flicts case and t hen the job is to d et ermine what law should gove rn.

Historic Codifications: 1.

Napoleonic Code

2.

German Civil Code

Sou rces of Private International Laws in the Philippines 1.

New Civil Code 3



2.

Special Laws – Commercial Laws

3.

Treaties and International conven tions

4.

Case laws

5.

International Customs

6.

Constitution

July 5 (EEscovilla) Reporting Part: (Sir’s comment s and i n puts) Conflicts of Law Provisions Civil Code Why is Art icle 17 co nsidered a conflicts provision? W hat is the foreign element in this case? Does this refer us to anot her law in the same sense as Article 15 tells us that it is this particular law that should apply in a particular matter? Read the cases of: Delsa Coro vs Philsec Bank of America v CA St rictly speaking it is not a conflict s provision bec ause it does not point us to another law outside our internal law. It only beco mes relevant when w e try t o avoid t he application of foreign law. For example, if t he foreign law w ould be against our public policy t hen we apply t he p articular provision un der Art icle 1 7. Commercial Laws

If for example the death penalty would be revived and we apply it to an accused. Yo u have your co ntention o n political rights or human rights w hich says t hat as much as possible de ath penalty should not be met ed. Is that a conflict provision now ? Because there are tw o things – municipal law that says apply death penalty and t he c onvention which says that you don’ t. Is that a conflicts of law now? Why is that distinction important here? Because it will require different application of laws. That’s why I t old you right from t he st art you have t o understand this matter kasi pag nagkamali ka sa point of inquiry mo, mali ka na agad sa gagamitin mong batas. There are two different sets of principles th at would apply there . The assignment w as therefore know ing whet her a provision is a con flict s provision bec ause if it is the n it wou ld require th e application of your conflicts principles.

Lecture Part: JURISDICTION If you remember the primary pu rpose or function of your Private International Law is to det ermine w hat will be the law t hat w ill apply o n the case which involves a foreign element . Before the court decides what law should apply in a p articular matter involving a foreign element, there has to be a determination whe th er the co urt has jurisdict ion o ver t hat particular case bec ause the qu estion is: If this involves a foreign e lement, does the court o r if I am the judge does my court has jurisdiction to handle this case? In other words, as you may have read in Saudia and all th e ot her cases, t here are three op tions when faced w ith a case involving foreign element .

Why is A rt 175 3 considered a conflict s provision? It is considered a conflicts of law provision because there is a foreign element as the vessel traverses several foreign territories. So in other words, what will apply is the law of destination which will be different from t he law maybe of t he Philippines. The refore the provision points us t o t he law of anot her state. That is why it is a conflicts law.

The re are th ree point s of inquiry that t he court will have to tackle:

Point us to a provision w hich provides t hat “T his is the law which you should follow ” othe rwise if you cannot point it out , then that is a conflicts principle not a source of a conflict of law in the Philippines.

3. Assume jurisdiction over t he foreign case and apply and t ake int o account the foreign law on t he matter – the internal law of another state

1.

The court may refuse t o assume jurisdiction;

2.

If t he co urt would assume jurisdiction, whe ther the court would apply its ow n internal law witho ut any regard t o a foreign law; or

Constitution

In t hese three points of inquiry, stress is given t o t he concept of jurisdiction.

If example th ere is a foreign judgment t o be recogn ized in the Philippines, do w e refuse its recognition because th e de cision does not state clearly the adjudication of right s?

Yo u know what judicial jurisdiction is I suppo se. But jurisdiction come s also from a larger ide a which is a concept in international law

Wh en yo u come to think of it that brings us back t o the lex situs rule under Article 16 whe re it is t he law of t he count ry or the place where t he property is locate d that governs the disposition and issues as regards the title thereof. If you follow t hat then it brings us back, for e xample the property is in t he Philippines and the t itle is in the name of foreigner, then we go t o this provision of the Constitution. Treaties and International Conventions What particular provisions of t he W arsaw Conve ntion t ake us to different referrals to possible foreign laws on t he matte r? The Warsaw Covention has the limitation on the liability while our Civil Code does not . So if the re is a question is w ith regard to the amount o f liability the n w e refer not to o ur Civil Code but to the Warsaw Convention provided that the circumstances so require. If you have here a Civil Code provision t hat says the prescriptive period is 1 year and on t he ot her hand RA 123 5 years the reafter that says the prescriptive period is 5 years. Conflicts provision or not? No it is not. That would only require application of municipal law. It d oes not point us in any othe r law.

It refers to the right of a state to exercise authority: 1.

Over pe rsons and t hings within its boundaries;

2.

Over property and nationals of the state beyond its boundaries

The first one, walang problema, because its easy t o unde rstand. Whatever is within t he territory of a particular stat e, the general principle of international law is that it has jurisdiction over it. Th at springs from t he basic conce pt of sovereignty. A particular state has pow er over a particular state of affair that happens within its boundary. Anot her one under the int ernational sense of jurisdiction it refers also to t he right o f t he stat e to exercise aut hority ove r the property and nat ionals of the state beyond its boundaries. If you remember the principle o f ext rate rritoriality where the state, the Philippines for example, still h as jurisdiction o ver actions made outside of the country but are extensions of its own te rritory like in the case of embassies wh ich are properties of the Ph ilippines. So w hen you come to think of this, the state has the absolute jurisdiction over anyt hing that relates t o its “being a st ate” b ut while t hat is the idea that is not always practiced in 4



international law. The c ommon attitude is self-restraint and whe re the state refuses to assume t he general jurisdiction in dealing w ith matt ers involving t heir stat e.

1.

How do es the state exercise self-restraint in international law? 1.

So if the q uestion is “Does t he court have jurisdict ion over this subject matter?” we merely point out to a relevant law – BP 129.

It legislates and sets out specific circumstances th at t hey may only exercise jurisdict ion

Yo u have to read t he case of Tijam v Sibonghanoy whe re by virtue of laches the jurisdiction as provided by law was not fo llow ed. I’m sure Sir Sake and Sir Jik Jik already t hat if you had to use t his case it must be in all fou rs since it is an exc ept ion. A very controversial exception at that.

Like in the Philippines, we have BP129 where we set out court jurisdiction on a particular dispute without wh ich, kung walay BP 129, w e can always admit or assume jurisdiction over anything under the sun wh ere the Philippines is involved either remotely or otherwise. 2.

It e nt ers into t reaties and c onventions w here they give up some of t heir jurisdiction and the ir power to some other state Like in the case of ambassadors or heads of the stat e visiting th e Philippines committ ing crimes here, w e kno w that in th e Vienna Convention they are immune from our jursiduction.

3.

It e nt ers into bilate ral agreement s with ot her count ries where a state gives up its jurisdiction over a property w ithin its t errito ry. A common example is your Visiting Forces Agreement wh ere the military base is still considered an extension of the US territory.

So t hese are e xamples of limitations in t he sovereignty of the state particularly with nations and their jurisdiction in international law sense. A relevant matt er to consider in out class is th e matt er as regards judicial jurisdict ion. Ot her jurisdiction (executive jurisdiction, legislative jurisdiction) th at’s nice to know but particularly in our study of the law we will focus on judicial jurisidiction which is the first te st before a court assumes jurisdiction over a co nflicts case. Wh at is judicial jurisdiction? It refe rs to t he pow er of the court to hear, try and decide a case. Recent ly, it ha bee n added th at t he complet e definition should also include the po wer to enforce th e dec ision. In int ernat ional law you call th at t he principle of e ffect ivene ss. That is a possible exam question in the same way that the question last ye ar was asked “W hat is expanded jurisdiction?” It just refers t o t he Constitut ional provision as discussed in the case of City of Iloilo vs CA. In th e language of international law, the pow er of the c ourt to enforce a decision is re ferred t o as your principle of effectiveness which makes sense be cause a judgment w ill not be e ffective if it cannot be enforced in the Phiippines. What are the elements of jurisdiction in the Pilippines particularly in civil cases? Wh y do w e discuss this? We discuss this be cause this is t he first question – whe ther the court woud assume jurisdiction over a conflicts case.

The jurisdict ion over t he subject matt er is something th at is conferred by law and is the refore not subject to any agreement by the parties

2.

It is de te rmined by the allegations on t he complaint. It does not depend on the defenses of the defendant.

Again, point of inquiry on t he part of the court, “Is there a law wh ich provides that I should take cognizance of this matt er?” If the answer is yes, the n th e court acquires jurisdiction ove r the subject matt er. Saudia v CA . W hat happened to her is very import ant because that was her basis fo r filing the case and that is also t he basis why t he court ruled t hat it has jurisdiction over the subject matter. Wh at happene d to her? She was harassed and whe n she went back to Jeddah whe re she w as mislead to do actions which in the en d cleared t he t wo persons who allege dly harassed her. She was also made t o sign a document wh ich she did not understand and had t he effect of a confe ssion of judgment wh ich became the basis of why she w as liable, imprisoned and paddled. Late r on she was forgiven by the Prince. She w ent back to t he Philippines and filed a case against SA UDIA. W hat case was filed? It w as an action for damages based o n Art icle 1 9, 20 and 21. In filing th e case, what did SAUDIA do? SAUDIA filed a Motion To Dismiss raising as a de fense th at our court s have no jurisdiction o ver the cases since t he incident happened in Saudi. The SC said th at when t here is a que stion of subjec t matter jurisdiction you have to ask, is there a law which allows the court to try and hear this particular c ase regardless w het her it happened somewhere e lse or t he law t hat applies here is foreign law. Pag ang que stion is subject matt er yun lang dalawa ang tanong: 1. Is there a conferment by law on this particular matter? 2. Wh at’s the basis? Based on t he pleading. That’ s it. The co urt in a w ay scolded SA UDIA here, ayaw kog atik-atika diri do ng pag subject mat ter gani mao ra nay pangutana. Nagfile siyag c omplaint for damages, ang qu estion naa ba koy as an RTC is that within my jurisidiction? Yes! Hasegawa v Kitamura. Th is has a very int eresting discussion on how you distinguish th is kind of quest ion on jurisdiction over the subject matter as to any oth er question involving th e case.

Jurisdiction over the subject matter

Wh y is the re no jurisdiction? The cont ract was execut ed in Japan. T herefore w hat did the y invoke t here? The p rinciple of lex loci celebrationis. And what’s so wrong about that according to th e SC? Sabi ng SC d iyan, again point of inquiry lang, do I have jurisdiction over t his particular case for recission or for th is cont ract in disput e? Go t o BP 129. If t here is that particular provision th at allow s me to exe rcise jurisdiction and t hen game. Th en w hat about the invocation of lex loci celebrat ionis? Di yan! It’s irrelevant. That now becomes relevant if we decide w hat law to apply on t he matt er. So that invocation of lex loci celebrationis is irrelevant with respect to the determination of jurisdiction over subject matt er.

Wh at are th e very important principles that should come t o mind here?

In ot her words, what do es th e court te ach us to do here when the re is a co nflicts of law case? Be very sensitive t o your

We have four: 1.

Jurisidction over the subject matter

2.

Jurisdiction o ver t he pe rson

3.

Jurisdiction over t he res

4.

Juridsiction over the issues

5 To God be the Glory!


question and issue. Wh at is the point of inquiry because t hat w ill tell you the answer. If your question is about jurisdiction on subject matt er, go to a law. If your que stion is choice of law then that’s the time you go to your lex loci celebrationis. Dacasin v Dacasin. So there are tw o things here – one is the divorce de cree in Illnois and the other is an agreeme nt they ente red into after the divorce. Wh at is the case file in the RTC? Enforcement of the agreement. Wh at did t he trial court say? It c annot enfo rce the agreement ent ered into by the parties b ecause the Illinois divorce decree was construed as a limitation. All other matters as regards to the divorce d ecree (c ustody of children) will have to be decided within th e jurisdict ion of the Illinois court such t hat t he RTC does not have power to e nforce it. So w hat did th e SC say on t he matt er? As regards the jurisdict ion on subject matt er, the court said it has jurisdiction b ecause the complaint was in the n ature of specific performance and what kind of act ion is that ? An act ion incapable of pe cuniary estimation w hich is within th e jurisdict ion of t he RTC.

Jurisdiction over the person or parties

In your Criminal Proce dure ho w is jurisdiction acquired over the person? 1. Arrest Service of a w arrant of arrest

3.

If the accused surrenders.

voluntarily

submits

himself

or

In Civil Proce dure how is it acquired? Plaintiff: 1.

Action in rem – is an action directed against t he thing, status or property of a person. Action quasi in rem – is an action against persons seeking to subject the prope rty of such person to discharge the claim. The re is a main defe ndant but we merely name the de fendant but th e point of t he action is t o subject his property over a burden like att achment et c. In act ions in personam there is a requirement that summons be served in a particular manner. How? 1.

Service in person

2.

Substituted service

3. Vo luntary appe arance Wh at about in action in rem? Is t here a requirement that summons be served? Service by publication is sufficient.

July 12 (DMSolano)

Th is refe rs to th e power to render a personal judgme nt through the service of process or by voluntary appearance of a party during the progress of t he case which w ill bind t he parties in the case.

2.

Action in personam – is an act ion against a pe rson on the basis of his pe rsonal liability. Yo u are exp ecting something t o be done by t hat particular person.

We already c overed this, the primary funct ion of private international law and t hat is to det ermine what is t he law applicable in t he case w hich involves a foreign element, and we have said that there are two options: 1.

the court may refuse or

2.

assume jurisdiction over the matter

The re is act ually 2 case t here e h, dalawa lang yan eh, t atlo kasi yung pangalawa can be subdivided by tw o. Dalawa lang yan its eith er t hey refuse to take jurisdiction or they accept or en tertain the matter. (Other w ords) 1.

Wh en t hey refuse to t ake jurisdict ion over the case, the question is whether or no t there is that particular municipal law which does not allow them or does not give t hem the power to entertain the particular case.

2.

Th ey may also assume/accept jurisdiction o ver the case, in doing so they may apply the internal law witho ut regard to foreign rules or law, whe n doe s that happen? W hy is it th at t hey will apply inte rnal law? We will discuss that next meeting.

3.

The y may assume jurisdiction of the case and they will take into account , the y will use not only t heir internal law, and the rules of law of o the r jurisdiction of another country. The forum will apply the foreign law for that particular matter. W hen does that happen? We will discuss that next meeting

By filing of th e co mplaint

Defendant: 1. Valid service o f co ercive process 2. Vo luntary submission t o jurisdiction of court How was this shown in the case of SAUDIA ? How was volunt ary submission in a civil case done? What did the defe ndant do? Filed a motion t o dismiss. What were the grounds in the MTD? 1. There is no cause of action; 2. Defe ndant is not a real party-in-inte rest; 3. The claim as b een abandoned; 4. RTC has no jurisdiction on subject matter. By filing that MTD, did the court acquire jurisdict ion over the person of the defendant? Yes. Even if it was coupled with a que stion as to the jurisdiction, b ecause it has already sought for an affirmative relief, it had already voluntarily submitted to the jurisdiction. One important principle here is that t his jurisdiction on the person of t he parties is requ ired in an action in pe rsonam but not ne cessarily in a act ion in rem or quasi in re m. Wh y is that so? In actions in rem or quasi in rem the subject of the case is the res and not the person. How are t hey different? Northwest Orient v CA. The det ermination of w hether there is proper service of summons w ill have to dep end on the det ermination w hether the action is one in personam, in rem or quasi in rem. Distinguish t he t hree of the m:

Basically wh en does the court refuse or assume jurisdiction? Th is is an easy subject for you bec ause you already t aken this up when you were in 3 rd year. W ell there are a lot of t opics that you c an remember in jurisdiction. In the subject of private inte rnational law t here are import ant principles that you need to remember in addition to what you learn in jurisdiction. 



Principle Of Effect iveness – Actually refers to the question whether or not the court can enforce a judgmen t over a matt er in the context of private international law which involves foreign element. Can they enforce judgment? Then the exercise of jurisdiction w ill be effe ct ive. Principle Of Submission – T his happens when the que stion is asked, can t he parties submit t hemselves to the jurisdiction or the power of that particular 6



forum?, so the parties would have to submit themselves or voluntary submission, so that the jurisdiction o ver t hem w ill be e xercised by the court. Without these tw o prin ciples of course, t here can be no jurisdiction, there is no po we r or aut hority or t ry and de cide a particular case. The case of course which involves foreign element. What are t he elements of jurisdiction in a civil case? Easy! Jurisdict ion over the subject matte r, person of t he parties, the res, and t he issue, it is e asy to unde rstand and to remember. Let’s just emphasize those which may cut across our subject matter. (FIRST PART IS REVIEW OF LAST WEEK)

a pow er to rende r a judgment ove r the person, how d oes that happen? W e have service of proce ss or b y voluntary appearance of the parties during the progress of the case. Let’s go to criminal, how it is acquired in criminal action? 





It is conferred by law and is never acquired through consent or submission of t he parties to t he case, but t ake note t he case of Tijam vs Sibunghanoy, altho ugh by law the co urt has no jurisdiction over the subject mat ter, but because of laches, and study how t he laches was applied the re, how many number of years, w hat we re the act s done or were not done by th e parties, such th at it w ould warrant the application of th e tijam ruling. If it is not of t he same circumstances on t he matt er, t hen of course you apply t he g eneral/hard rule o n t he matt er t hat is confe rred by law. In t his case we have th e co nstitution, which affords the pow er of t he judiciary and BP 1 29 as amended w hich apportions the power of t he lower courts, the trial court, mtc and rtc. Seco nd one it is det ermined by the allegation of the co mplaint and does not depend on the defenses raised and asked. Also take no te t he cases that w e have discussed (BELOW) . In all the se 3 cases, t he SC said that t he only po int of inquiry whe ther there is subject matt er or jurisdict ion. T he main point of inquiry is w het her or not t here is a law w hich allow s the court to ent ertain this particular matt er: In the case of SA UDIA, it w as a case for violation o f t he human relation provisions, and of course that is a claim for damages, just figure out the amount so that you will know which has jurisdiction of t he case, w het her it be RTC or MTC. Hazegawa vs Kitamura, yo u already learned t hat it involves a co nt ract written in Japanese where most o f the circumstances attendant to its execution were done in Japan, and so it was raised that it w as executed in Japan, so the lex loci celebrationis applies and that it is t he Japanese court and not the Philippine court which should take jurisdict ion over the matte r. The SC said no, the lex loci celebrationis wll only be relevant if the question is already abo ut “what law should apply in t his particular matter” so it was premature for them to raise the defe nse of lex loci celebrationis. Wh at was only asked the re was whe ther the cause of action affect s Hasegawa, was one rescission of c ont ract , and t hat being an action for incapable of pecuniary estimation. RTC had jurisdiction over th e subject matt er. I would really enc ourage you to read the full text . The same with Dacasin vs Dacasin, just be cause there was a foreign element t here , that the divorce was issued in Illinois, the court was no t swayed, the main point of inquiry was, what is the cause of action?, the cause of action was for the enforce ment of a contract in t he nature of specific performance, in w hich case you have t o look in BP 129 and ask whe ther, RTC has jurisdict ion over t he matte r.

Jurisdiction over the person of the parties Now, how do you acquire jurisdiction o ver t he p erson of p arties of t he c ase. How does it happen? In order for t he court to have

Service of warrant of arrest or Voluntary surrender.

In civil you have to distinguish: 

Jurisdiction over the subject matter How do we acquire it? What is it?

Arrest



Plaintiff, by filing a complaint , how else would the plaintiff be subject ed to the jurisdiction of the court over the person? The o ne who ask for relief from the cou rt. Then he is dee med to have submitt ed to th e jurisdiction o f the court. And if you are a defend ant? The re are different ways by which jurisdict ion over you is obtained . o

o

First, volunt ary submission t o the jurisdiction of the court , so you file an answer to t he plaintiff but even if you do n’t file answer like you file a mot ion to dismiss que stioning the jurisdiction of the court, is not subject ing himself to the jurisdiction of t he c ourt unless th e mot ion to dismiss has ot her affirmative allegations, like what we saw in the case of SA UDIA, othe r than questioning t he jurisdict ion of the court, w hat SAUDIA did w as they raise affirmative defe nses, the re was already abando nment and prescription of t he cause of action. Next, valid service of summons, t ake not e, not just service of summons bu t “valid”, or you can say service of summons as required by law. Kung sabihin mo service of summon s yan, ipadala mo by LBC, pw ede ba yan? The n ang defe ndant nasa labas? W ell, Lite ral meaning of t he w ord “service” natanggap niya, but is it somet hing th at is provided by law? Is it compliant? It is not . So jurisdiction over the defendant may be shown later on be fore t he cou rt. Now how do w e serve, ito pinaka importante dito itong voluntary submission to t he jurisdiction of t he court, hindi naman complicate d but t ake not e ito ng valid service of summons: Lets go to RULE 14 [RULES OF COURT], the first of course one is the basic that is provided in section 6, service in personam. 1) Section 6. Service in person on defendant . — Whenever practicable, t he summons shall b e served by handling a co py thereof to t he defendant in person, or, if he refuses to receive and sign fo r it, by t ende ring it to him. Th at is your service in pe rson you have to take note na iba yan sa personal service ha, because in your personal service is unde r your Rule 13 is different from service in person, because personal service refer to your service in pleadings, w hen you have to copy furnished t he pleading to t he ot her party you have to use th eir personal service. Whe n it come s to summons, the proper te rm is service in person, how d o you do that ? Whe never/wherever practicable. Kahit saan mo siya hindi kailangan yung de fen dant mo nasa bahay nya, kahit saan mo makita, sa school, in the most unexpe cted place, you can serve the summons the re. Second is substituted service found in section 7 2) Section 7. 7



Substitut ed service . — If, for justifiable causes, the defend ant cannot be served within a reasonable time as provided in th e prece ding section, service may be effected (a) by leaving copies of the summons at the defe ndant's residence with some person of suitable age and discret ion the n residing the rein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. For example you are a defendant in a particular case, and the n th ey went to yo ur house, and you r mother is the re. Let ’s say your mothe r is of sound mind, can I leave the summons to her? You have to show that the re are several att empt s made, w hat would your first att empt? Se rvice in pe rson. A nd you have t o show the justifiable circumstance s wh ich preve nt ed you by serving it in person. Kaya nga tinawag yan na substituted kasi it is a last resort. If you cannot serve it pe rsonally, you have an alternative. The 3 rd one is, service b y p ublication, unde r section 14. Actually there are three unde r service by publication. 3) Section 14. Service upon defendant whose identity or whereabouts are unknown . — In any action where the d efen dant is d esignate d as an unknow n owner, or the like, or whe never his whe reabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. Th is applies in two unknown circumstances there, one is the identity of you defen dant, is that possible? Pwe de naman Or you know t he ident ity of your defendant but you don’t know his whereabouts, you can ask t he co urt for leave to serve by publication what is important to no te he re that there must be leave of court, and there was a question whether what particular matter doesthis apply? Does it apply in personam action or in rem? T he old rule would say that it only applies to in rem but the latest ruling of the court, it applies to any action, action in rem, quasi in rem or in personam you can resort to service by publication. Sec tion 15 is extraterritorial service of summons. What are the circumstances here? 4) Section 15. Extraterritorial service . — W hen t he defe ndant does not reside and is not foun d in the Philippines, and the action affect s the pe rsonal stat us of t he plaintiff or relate s to, o r the subject of w hich is, property w ithin the Philippines, in wh ich the de fendant has or claims a lien or inte rest, actual or cont ingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any int erest therein, or the p roperty of t he defe ndant has be en att ached wit hin the Philippines, service may, by leave of co urt, be effect ed out of the Philippines by personal service as under sect ion 6; or by publication in a new spaper of gene ral circulation in such places and fo r such time as t he court may order, in which case a copy of the summons and o rder of t he court shall be sent by registe red mail to the last know n address of the

defe ndant, or in any ot her manner t he court may dee m sufficient . Any order granting such leave shall specify a reasonable t ime, which shall not be less than sixty (60) days after not ice, within w hich the defendant must answer. (17a) In what instance s does t his apply? 1. When the action affect s the personal stat us of the plaintiff Can you give an e xample? For example you are an illegitimate child and you want to establish filiation. It always that the fathe r is an e x military man, w hich is based in Subic and you found out t hat your father is already rich in US. 2. The subject of which is, prop erty within the Philippines, in which the defendant has or claims a lien or interest For example you w ant to file a case against your co heir and you want to partition the property inherited by you and your other siblings and your ot her siblings are in the ot her count ry and you are not in good t erms with them and you wanted it to be partitioned, yo u can ask for an extraterritorial service. 3. In which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein 4. The p roperty of the defendant has been attached within the Philippines When you pray for example for attachment, remember your discussion in diffe rent kind of actions, if it is an action in personam or an action in rem. Collection for sum of money? It is an act ion in pe rsonam, because that is a personal liability for t he payment of money. How do you convert that into an in rem procee ding or q uasi in rem? You att ach property, you can resort now t o sect ion 15. How do you do that again? 1. By personal service as under Section 6. Pwede kang pumunta sa US if andun yung defe ndant mo. But you must ask first for leave of c ourt. A sk the c ourt t o deputize you to be the agent of t he court in serving t he summons upon the person, so t hat is your service in person. Or pw ede ito, matut uwa and sheriff sayo. Pwede mong ideputize ang sheriff applyan mo siya ng visa p apunt ahin mo siya doon via cebu pacific, t o US, no n air. Lol 2. By publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy o f the summons and order of the court shall be sent by registered mail t o t he last known address of the defendant. It is easy t o unde rstand but please t ake note of the two requirements there. There is publication, t here has to be registered mail to the last known address of the defe ndant. And t he last is: 3. Or in any other manner the court may deem sufficient. 8



Well you know already the basic principles when we talk about rules of procedure, it should not be just mere techinaclity, it is a to ol in order to de te rmine rights or afford relief t o t he person. This happened to an old case, I cannot remember, whe re there is a pauper litigant isang pobreng illegitimate c hild w ho wants to establish his filiation or relation to his father who is already in America, extraterritorial service pw ede naman siya section 15, pauper litigant so he cant afford the filing fees diba? So o k you go t here and do service in pe rson under sect ion 15? W ala nga akong pera judge for filing fees pamasahe pa kaya. So w hat t hey did was the person the re served the summons by registere d mail to t he US. Is it warranted in the rules, is it a service in person? A substitu te d service? Definitely no but the SC considered it as under the third cate gory in any ot her manner th e court may deem sufficient. Well one of the circumstances the SC considered there is anyway nantanggap naman talaga ng fathe r ang summons. So the end of service of summons was accomp lished. But we do not want t o abuse this and you must show t hat t he inten t of resorting to the last option is for the interest of justice. It wo uld have bee n different if the one who filed was rich bec ause you can do personal service or publication in a new spaper of ge neral circulation. So lets go to section 16.

pagdating niya sa de fendant, eh w alang tao, t inanong san na si sir mo, ang sabi pumunta sa Alaska kasi may wo rld t our, and who is present th ere is a someone of suitable age, w ho resides t here. So what the sheriff did he served th e summons to the p erson of suitable age? Tama ba yun? And t hen t he SC laid dow n t he land mark doctrine, actually itong section 16 we are talking actually of a p erson who resides in the Philippines on ly te mporarily out , and w hen you are t emporarily ou t of the country, it is expected to have let someone to manage your affairs, unless you are o verco ming something trying to move on from a heartbreak and you w ant t o e scape from anyone backhome. And your agent upon receiving the notice for the summons wo uld normally get in to uch with you, huy may summons ka dito. Ganyan t alaga diba ang nangyayari, may maiiwan dito then may natanggap kayong order. What’ s th e normal react ion of a Filipino? Dawaton unya dili ihatag, kasi I don’t want to disturb yo u sir e h, default naka unya 1 year ka nawala.

Special circumstances: 6) Section 8. Service upon e nt ity witho ut juridical personality . — Wh en persons associated in an e ntity without juridical personality are sued unde r th e name by which they are generally or commonly known, service may be effec ted upon all the defe ndants by serving up on any one o f t hem, or upon th e person in charge of the office or place of business maint ained in such name. But such service shall not bind individually any pe rson whose connection with the entity has, upon due notice, been severed before the action w as brought.

5) Section 16. Resident s te mporarily out of t he Ph ilippines . — W hen any action is commence d against a defen dant who ordinarily resides w ithin the Philippines, but who is te mporarily o ut of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (18a) Yo u can follow sect ion 15 mode s of service of summons yung t atlo, and you have t o t ake note that it applies to a person who ordinarily resides with in the Philippines, but w ho is te mporarily out of the country, nagbakasyon lang after 3 month s, or nagvolunteer wo rk somew here in Syria. Now file ngayon siya ng kaso sayo, The trouble happens when, ahhh pwede mo naman hintayin pagbalik n iya, isa din yun, pe ro what if within 3 months or 6 mont hs na mawaw ala siya ngoo verlap ang prescriptive pe riod, yo u have to file a case, how w ould you do it, file a case and avail section 16. You go to section 15 t he t hree instances there and you can also do substituted service under your section 7. Bakit substitut ed service sir? Eh diba pag subst itut ed service it only applies w hen t he action is in personam such that th e pe rson would have t o be in the Philippines in order for you t o validly serve summons upon him, but here in section 16 you are talking of a person who is presumed to be in the Philippines only that he is temporarily outside for personal reasons. Th ere is an o ld case of there is an old case of Mont alban vs Maximo which actually explains it, hindi niya ginawa yun g sect ion 15, ang ginawa niya is nag substituted service siya, pumunta siya sa bahay

The idea is you can serve t he summons upon any member of that entity without juridical personality. 7) Section 9. Service upo n prisoners . — When the defendant is a prisone r confined in a jail or institut ion, service shall be effec ted upon him by t he officer having the managemen t of such jail or institut ion who is deemed deputized as a special sheriff for said purpose. Like for e xample you want ed t o serve summons upon Colangco, you can serve it to secret ary Delima, ano taw ag dun kay delima? Manager of Jail? Hindi. Suitable person in the h ousehold (lol) 8) Section 10. Service upo n minors and incompete nts . — W hen the defe ndant is a minor, insane or ot herwise an incompete nt, service shall be made upon him personally and on his legal guardian if he has one, or if none h is guardian ad litem whose appointment shall be applied for by the plaintiff. In t he case of a minor, service may also be made on h is father o r mothe r. 9) Section 11. Service upon domestic private juridical ent ity . — When the de fendant is a corporation, partnership or association o rganized unde r the laws of the Philippines wit h a juridical personality, service may be made on the president, managing partner, general manager, 9



corporate secretary, treasurer, or in-house counsel. (13a)

2.

If after trying so hard, not so far, still you we re not able t o serve it, yo u can also de cide to what? The case of Montalban vs Maximo, can also be resorted to when a person is t emporarily out of t he count ry but ordinarily resides in the Philippines. It does not if he is outside or in a particular place.

3.

Wh at if the pe rson is non resident of the Philippines? And your action is an action in personam? You want to file a case against Taylor Sw ift? Y ou cannot serve summons to a non resident if it is an act ion in pe rsonam. That is t he reason you cannot apply jurisdiction, in action in personam you have to get pe rsonal liability th at should be in the jurisdiction of the court, because how can the court enfo rce a personal liability on somebody not in the Philippines and the power of the court is limite d only wit hin its t erritorial jurisdiction, th at c annot be done.

Wh o are the responsible officers on w hom th e service of summons may be served? President, managing partner, general manager, corporate secret ary, t reasurer, or in-house cou nsel. 10) Section 12. Service upon foreign private juridical entities . — When the de fendant is a foreign private juridical ent ity which has t ransact ed b usiness in t he Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if the re be no such agent, on t he go vernment official designated by law t o t hat e ffect, or on any of its officers or agents within t he Philippines. Yo u have to make a distinction here , t his wo uld be relevant to our discussion, yo u have t o ask t he q uestion “is th at foreign juridical ent ity do ing business in the Philippines, if yes you apply section 12, it is not, the gen eral rule is you cann ot sue the juridical person, you cannot serve summons upon the person, t he question is anong ibig sabihin ng “doing business in the Philippines” your commercial law w ould te ll you that it depe nds, w e have so many cases, t he c ase of Hahn vs CA. and if it is doing business in the Philippines, how do you serve the summons to them? Designated agent s For example in insurance companies?, upon the insurance commission. 11.) Section 13. Service upon public corporations . — When the defendant is the Republic of the Philippines, service may be effec ted on t he Solicito r General; in c ase of a province, city or municipality, or like public corporations, service may be effec ted o n its exe cutive head, or on such o the r officer or officers as t he law or the court may dir ect. (15)

How about quasi in rem and in rem actions? 1.

Can you do service in person? Y es!

2.

Substitut ed service? YES!

3.

Now out of the country and non resident? Extraterritorial service.

4.

Wh at else? Can yo u do sect ion 14? Y ES! You research for th at case, what is th e rece nt case on t hat matt er? Again sect ion 14, t here is a definitive ruling and the SC clarified that it applies to in rem, quasi in rem and in personam.

How was this applied in the cases. Valmont e vs. CA Wh at act ion was filed in this case? What kind of action is that? Whe re was the summon served? Wh o is Alfredo? Alfredo is a lawyer.

Now w e now kno w a summons must b e served on the defe ndant as a requirement in o rder for the court to acquire jurisdiction ove r the pe rson of t he defendant .

How was it served?

The next question is. Of the se eleven w hat would you use?

What are t he t hree modes of summons under section 15?

Because t he action is in rem and th e pe rson is det ermined to be a non resident of the Philippines, what would have been the applicable rule on the matte r?

First you have to ask yourself:

1. By personal service as under section 6 ,

1. What is your cause of action?

2. by publication in a ne wspape r of general circulation in such places and for such time as the court may order, in wh ich case a copy o f t he summons and order of t he co urt shall be sent by registe red mail t o t he last known address of the defe ndant

2. W hat is the natu re of the act ion, if it is an action in personam, in rem, or quasi in rem? 3. A nd w hat are t he difference between pe rsonal action and real action? 4. W hat is a personal action? A real act ion? For purposes of determining the jurisdiction what is relevant? Which classification? Personal and real act ion classification will determine only venue. Action in personam, in rem, or quasi in rem will det ermine jurisdiction. If it is act ion in pe rsonam, how do you serve summons? 1.

In person

3. or in any other manner the court may deem sufficient . Okay go t hrough that, was the re personal service in this case? As t o t he wife, w as the re pe rsonal service in t his case? Was there publication? Number three, ang last resort na lang ni V almonte , was it was served on the husband. They w ere supposed t o prove there whether the service to the husband was something that is a prope r way of service that may be de emed by the court as such as being prope r. Did t he SC co nsider t hat as sufficient? 10



The main reason was there was no leave of court for service under Sec tion 15 or any other mode. So the lesson the re is you have t o ident ify what is t he applicable rule.T ingnan mo ng ginawa ng abogado nila lahat ginagaw a nila. Yo u just have to go back t o Sect ion 15, alam mo na ng gagawin mo dito. Wala man mawala if you ask t he court for authority of how ever you want it t o be served. Your honor we want t o have it served by me personally or w e w ant it to have it serve to t he husband your honor and we can prove to you that the husband has still communication with t he wife and t hey actually communicate regularly. We can show t o you a facebook account where they are very active they comment on their status message. Is it provided unde r the rules a strict means or ways of serving summons? NO but you can qualify on the third way of doing under this sect ion (Sect ion 15; In any o the r manner the Court may deem sufficient ). In t his case of Valmont e, the SC said that particular service is not a valid service, the jurisdiction over the person of the wife was not acquired. Licaros vs. Licaros What was the action filed here? Where was it filed? What kind of action w as that? If the act ion is QUA SI IN REM, what law would apply? Because the respondent is in California. What was the mode of service? Extraterritorial. Okay let’s go through the three modes. Was there personal service? It’s not t here. Was the re publication? T here w as none. But remembe r in this case t he Supreme Court said t hat service of summon was unde r circumstance number three because it is a mode t hat is dee med sufficient by th e court. W hy did the SC consider that as sufficient? The very important evidence shown the re was the cert ification that th ere was in fact service upon the agent of the party. So there was actual service and the summon w as received by the respondent then t hat is considered sufficient act by the court. In Asiavest case, what was the action there was an enforce ment of personal guarantee and was considered as an action in pe rsonam. Because it is an act ion in pe rsonam, it should apply personal or substituted service of summons. Find out w hy the SC did no t allow that he re because th e defe ndant is a resident of Hong Kon g. In action in personam, you cannot have it served by publication under Rule 14.

FORUM NON-CONVENIENS Even if t he court rightfully has t he forum, the P hilippine forum in our case rightfully has jurisdiction over a matter, does it automatically oblige them to accept the case or assume jurisdiction exe rcise them and therefore t ry the case and there is judgment re ndered on the matter. In your pu blic inte rnational law, in a very strict application of your rules, it seems like this. When th ere is jurisdiction of course the co urt has the power but if it involves foreign element t here is anot her rule or anot her consideration w hich the c ourt is given the opt ion to e xercise. That is the idea of the Forum Non Conveniens. What is this? Courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction where the suit is bet ween aliens or nonresidents, or w here, for kindred reasons, the litigation c an more appropriately be conduc ted in a foreign tribunal. We always start w ith th e foreign element because if there is foreign element, the re is legal possibility t hat th e matter or case be he ard in the Philippines o r in anot her country where the foreign elements fall on the matter such t hat the courts are not obliged t o entert ain it auto matically. On what ground? Take a look at the t erm in terest of justice so you go now to w hat is just and wh at is fair. In w hose point o f view , whose int erest is being protected here. In the case of Gulf Oil Co rp. vs. Guilbert , the Principle of forum non co nveniens is simply th at the court may resist the imposition upon its jurisdiction eve n jurisdiction is authorized by the letter of general venue statute. On what particular consideration? P rivate Interest of the Litigant. Spe cifically what are these factors that would determine whether the private interest of t he litigant is protecte d? 1.

Talk about evidence. San ba mas maraming ebidensya? San ba mas available ang e bidensya. Wo uld it require lot of cost on t he part of the party to produc e evide nce here or will it g ive the m easy access to e vidence or the cost o f it w ould be lesser on t he part of t he litigating parties? 2. Availability of compulsory process for attendance of witnesses, cost of obtaining att endance of willing witnesses, po ssibility of view premises Lahat n g witne sses mo dun lahat sa foreign country. Of course it wo uld be impractical t o have t hem send over here. A nd ang ite te stify lang nila your Honor Yes I saw Mr. Juan the re with someone e lse. T hat would be impractical.

Also the case of Banco de Brazil vs. CA, it pertains to an action for damages, an act ion in personam, the problem is obvious Banco de Brazil is unregistered so you cannot issue summons upon it and the refore, you cannot acquire jurisdiction over its person. Here, ano ther contention t hat was raised is that can we also resort t o Se ction 15 for extraterritorial service? The SC said no t hat is not in pe rsonam, Sect ion 15 is not applied. The same is true with Gomez vs. CA and Palma vs. Galvez. Also read t he case of Perkin vs. Dakila, it’s a very good case because t he S C said that because it involves a collect ion of sum of mone y, it is an act ion in personam, t here can never be ext raterrito rial service but you can convert it t o action quasi in rem if you w ant to pray and ask for provisional remedy of att achment then if it’s already quasi in rem, you can resort to ext raterritorial service. Th e SC said that mere allegation that defe ndant has properties in the Philippines does not automatically convert it to quasi in rem action. The re has to be an exp ress catego rical prayer for at tachment or any reme dy that wo uld subject any particular prope rty to liability. Just an allegation t hat t his particular corporation, altho ugh no t foreign private entity has properties in the Philippines, in this case was referred t o as sto ck corporations does not of itself make t he case or convert the action to quasi in rem.

Relatively ease of access to resources of proof .

Compulsory of Judg ment , principle of effectiveness. In luckily unrelate d matt er, I know that you know that we have just won t he arbitration. O f cou rse, we should be very joyful but the next question is that how do we enforce it. W ell legally speaking we can enforce it in such a w ay that you have legal ground t o ask t he China to move out of t he territo ries or if ever you’re go ing to destroy of t he prope rties of China you know you have the legal ground. (More stories about Justice Carpio Visit and our legal victo ry on West Philippine Sea dispute) 3.

Relative advantages and o bstacles of a fair trial. Dito nagsimula yung co nce pt of forum shopping. What are the foreign elements on the matter. There’s a foreign element if the element in the contract which involves three states, san ba ako ma makakapabor, sino ba ang mas kilala ko duo n na judge. Pupunt a na lang ako kay St ate A . During th e pen dency, pag tingin ko medyo lopsided ako dito , I will go to Stat e B and 11



the n to C. That ’s precisely w hy it is called forum shopping because forum is a private inte rnational law. Dyan nanggaling ang p rinciple of Forum Sho pping. And also ve xation, harassment and oppression. It would be very vexatious if you are the defe ndant and would be filed a case involving a foreign element to be filed there in So uth A frica which requires you to go the re once a month. How do w e summarie th ese? If you co me to look at it t hese are practical c onsiderations in order t o prote ct private interest s as regards disposition of cases. 1) 2) 3)

Wh et her th e forum is o ne t o which the parties may conveniently resorted to; Whet her it is in a position to make an int elligent decision as to the law and as to the facts; Wh et her it has or is likely to have pow er to enforce the decision.

So if the c ourt says th at it is not convenient, that it c annot make an intelligent decision and it does not have powe r to enfo rce the decision, then it does not assume jurisdiction in trying cases. Having said that , th e next question is, Is Forum Non Conveniens a proper ground for a Motion to Dismiss? Rule 16 doe s not include t here. So ho w w ill you treat n o w Forum Non Conveniens? Is t here a possibility wh ere you can ask the court to stop the proceeding on the ground of Forum Non Conve niens? Let’ s simplify this. If it is not a ground for Mot ion to Dismiss, what is it? W hat do you mean is it a matte r of defense? What kind of dismissal is t hat because if it is not a motion to dismiss what kind of dismissal is that?

Wh at w as the pe rsonal injury suffered by t he plaintiffs? It has affect ed t heir right s. The y suffered sterility because of the chemicals. They can no longer reproduce. Wh at did t he SC co nsider that our forum here is a co nvenient forum such t hat t he allegation o f forum non conveniens was not ent ert ained by the SC here? Because this is an act ion to recover from to rtuo us act. Torts were committed, injuries were suffered by t he plaintiffs in t he Philippines. The refore evidence is available in the Philippines. T hus, the Philippines is t he proper forum. Pacific Consultants vs. Schonfeld Did the S C apply th e principle of fo rum non conveniens in t his case? The SC said th at t he employment contract was somet hing that was performed in t he Philippines. So w hatever allegat ions made in t he cont ract can be proved in the Philippine forum. Thus, it does not apply forum non conveniens. SAUDIA vs. CA How was the forum of non conveniens alleged in this case? Wh at are th e specific acts of SA UDIA t hat t he SC con sidered in saying that most o f t he elements or cause of action transpired in the Philippines such that on the issue of jurisdiction, the Philippines is the proper forum? MANILA HOTEL vs. NLRC Wh y did the SC say th at w e are no t the convenient forum here? Why did private respondent resign?

I t hink this was discuss in P HILSEC INVES TMENT vs. CA. What happened in this case?

Wh at did the employer in China did?

PHILSEC INVESTMENT vs. CA

Remembe r that w hen you invoke fo rum of non conveniens, you are already admitt ing that t he court has jurisdict ion over the subject matt er. Only that it would be impract ical for the court or it w ould be inconvenient for t he parties if t he court will exercise its jurisdiction. So if it is a q uest ion of forum of non c onveniens, forget about the law on jurisdict ion but g o to practical consideration w hich is something that involves factual det ermination as to w het her it is practical for t he parties to t ry their case here.

Who is private respondent here? Mr. Ducat Wh at did the private respondent do here in relation to Forum Non Conven iens? The trial court dismissed the case on the ground of Forum Non Conveniens. What is wrong with t hat according to Supreme Court? The US court that is the more convenient forum on the matt er. Is it a proper motion to dismiss? NO. Is it a matte r of defe nse? If it is a matt er of defense you can only de te rmine whe ther the Philippines or th is court is the proper forum afte r dete rmining the fact s, after trial. Yo u show to us exactly ano yung mga factual grounds mo for saying na this is not the proper forum. So w hat does it conte mplate there? It c ontemplates that we will not dismiss it n ow fo r the mot ion to dismiss by just th e allegation here witho ut t rial, we cannot grant it why? A s a matte r of rule it is not a ground. Seco nd, because of defense , we ne ed all t o thresh out all the facts in t he pleading so t hat the de cision late r on, if w e think after det ermining th e facts we cannot make any judgment on the matter, we will abstain from making judgment on the matter. Aft er det ermining the fact s, we can conclude t hat we are inconvenient forum. The same is true as discussed in the case of Pioneer vs. Guadiz. The re are cases where the SC said t hat t here are no forum non conveniens on the mat ter.

How was the forum non c onveniens applied here? Was it used?

In t his case, how did the SC rule on the matter? Isn’t t hat Santos is a Filipino citizen which the court might consider for exercising jurisdiction? The SC said that the only matt er of t he element is that you are a Filipino. Not hing else. So w hat’s now if you are a Filipino? Can that be a basis for a cause of action? No, all th e ot her elements of you r cause of action happened in Oman, in China. The o nly conne ction that Philippines h as in your case is that you are a Filipino and th at cannot be c onsidered. Distinguish that in the case of SAUDIA whe re the elements the cause of action for tortuous damage happened, most of t he significant relationship happened in t he Philippines. She was recruited here. She was dece ived in the Philippines w hen she was aked to go t here. She suffered the damages c aused t o her by SA UDIA in the Philippines. So t he co urt can have an inte lligent discussion from the evidence. No problem if based on forum non c onveniens, the court will refuse to exe rcise jurisdict ion but if the c ourt finds later t hat the ours is no n con venient forum to e xercise jurisdict ion, the next point t here is the choice of law. W hat law will the court apply? Will it be municipal law or foreign law? What will warrant the application of your inte rnal law or foreign law? W e’ll discuss that next meeting.

Navida vs. Judge Dizon Wh at pe rsonal injury case is that?

July 19 (RMonday) 12



of t he case you do not apply the co nflicts law but t he law which your conflicts law refers to.

CHOICE OF LAW Aft er discussing jurisdiction who w ill exe rcise jurisdict ion and decide to xxx in t he case w e will now discuss choice of law whe ther what law will now gove rn in th e disposition and adjudication of the issue o r t he matt er and this is properly called the choice of law, including the purpose and goal of the application of p rivate international law and once t he court w ill be able to make a choice as to w hat law w ill govern properly the legal matt er the e nds of private int ernational law w ill be already achieved.

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2.

Choice of law – co nflicts rule. Prope r disposition of t he merits on t he matter – foreign law being referred in the conflict law.

When the proper foreign law is not properly pleaded and proved, that is the t ime you w ill apply your internal law.

So the q uestion, I think this has bee n discussed in t he case of Saudi Arabian Airlines v CA , t here are 2 things in the choice of law:

This principle is the Doctrine of Processual Presumption, as applied in the case of Philippine Export v Eusebio, CIR v Fisher, Nort hwest A irlines v CA.

(1) W hat legal system should control a g iven situation w here some of the significant fact s occurred in tw o or more states; and (after you det ermined w hat legal system should be applied)

Recit:

(2) To what extent should the c hosen legal system regulate the situation. Number 2 is very important because the forum will make a choice as t o what law shall gove rn the particular controversy and say that you apply what foreign law on t he matter and they will still decide as to whe ther the y will apply t hat and to what ext ent they will apply t hat. Even if we know that we will make a choice a to w hat foreign law will govern here, t he forum will still choice w hether to apply it eve n if it is the most legal th ing to do if t he foreign law w ill violate public policy, go od morals and public order. So w hat are t he 2 options for the court/forum: 1.

Whether they will apply the internal law or

2.

The y w ill apply the foreign law.

In t he strict or the most te chnical cont ext with respect t o legal perspect ive t he default action of the forum is actually to apply inte rnal law because inte rnal law is a matt er of sove reignty. The sovereign is sovereign in its ow n te rrito ry and according to the universal maxim of jurisprudence he has exclusive jurisdiction over everybody and everything within the territory and over every t ransaction t hat is t hereby affected. He can, if he choo ses, refuse to consider any law bu t his ow n. In t he co ntext of Public international law t his is proper because the sovereignty is respecte d in your t errito ry, so yo u can choose to apply and disregard all ot her law in the foreign state.

Philippine Export v Eusebio. So what was the action filed? Collect ion case against signatories of th e guarantee . So t he issue the re is w hen does delay happen in order to consider the party t o have defaulted in th e obligation. What we re t he proposed interpretations of d elay? The Court here ruled th at the construct ion of delay he re is that provided under the Civil Code - article 1169 . The SC ruled t hat the contract entered int o between the parties should, as a rule, be governed by the lex contractus or choice of law. So in a cont ract if you do not provide for a law, what w ill govern is the processual presumption? The re must have bee n some foreign a law t hat w as not proved here – law of Iraq. The foreign law referred to he re in t he parties was not properly pleaded, that law of Iraq. W hene ver a foreign law is no t properly pleaded and proved, the doct rine of processual presumption must be applied. The do ct rine of proce ssual presumpt ion is th at wh en the foreign law is not properly pleaded and proved it is presumed t hat t he foreign law is the same as ours. So if t here is no foreign law that applies on t he mat ter in the forum the best course of action of the court is to not entertain the case and refuse to acquire jurisdiction o n t he matt er. T hat is on the jurisdiction part. T he prop er terminology of proce ssual presumpt ion is, unless properly p leaded and proved, it is presumed that the forum has the reason to presume that t hat foreign law being referred t o is the same as th e inte rnal law. How do we prove t he foreign law? Sect ion 24, Rule 1 32.

But in practice, like what w e are pract icing in the Philippines, we don’ t see m to strictly subscribe t o t his justification but there are times that w e apply the inte rnal law eve n if we know t hat foreign law applies on the matter. What are these instances?

Section 24. Proof of official reco rd. — T he reco rd of public document s refe rred to in paragraph ( a) of Sec tion 19 , when admissible for any purpose, may be evidenced

APPLY INTERNAL LAW:

by a copy attested by the officer having the legal custody of the record, or by his deputy ,

1.

If the conflict rule provides. Like the perennial question if you will determine the capacity of the person who w ill e nte r int o marriage or the personal rights, we have article 15 – national law of the person, so we make refe rence t o t he foreign law; the very important question t here is what law will you actually apply? Foreign law or inte rnal law which is your article 15. Y ou can argue that yo u will apply foreign law b ecause article 15 t ells that you w ill apply t he nat ional law but t hat is possible only because you have article 15 you r internal law. But how do you apply, it is it your article 15 or your foreign law? The proper answer is, as t o de te rmining the choice of law, article 15. As t o de termining whe ther t he foreigner has the legal capacity you apply the foreign law because again for conflict s law we will only det ermine t he choice of law on the matte r, but as to t he proper legal disposition of th e merits

by an official publication thereof or

and accompanied, if t he record is no t kept in the Philippines , with a certificate that such officer has the custody. If th e office in wh ich the record is kept is in foreign country, the certificate may be made by a secret ary of the embassy or legation, c onsul gene ral, con sul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign co unt ry in w hich the record is kept , and authe nticated by the seal of his office. So t he important t hing is while this is t he law, you have to produce the official publication or a copy att este d by the officer having legal custod y the reof. There might be some ot her proof or accept ed proof w herein foreign law may be proved, can you give example? In t he case of Willamette Iron and Steel Works v. Muzzal as cited in the c ase of 13



Asiavest and also discussed in the case of CIR v Fisher. So how was foreign law discussed in these cases? By testimony of lawyer practicing in that foreign state. So here the mere t estimony of t he lawyer practicing in that foreign law jurisdict ion is not sufficient , you ch eck in the circumstance the re as to how the testimony was made. So in the case of Willamett e Iron and St eel Works v. Muzzal, The testimony was considered because it was under oath and the attorney-at-law of San Francisco, California, who quoted verbatim a section of California Civil Code and w ho state d that the same was in force at the time the o bligations w ere cont racte d, as sufficient evidence to establish the existe nce of said law. The same is t rue in the case of CIR v Fisher whe re the counsel for the respondent testified as an act ive member of California bar since 1951 t hat he is familiar wit h th e t ax law of California and wh en asked by t he lower court as to the particular provision of t ax exempt ion of personal prope rties xxx. And that was considered as sufficient proof. We ll if you have t o be very strict about it, t he t estimony in the above ment ioned cases w ere allow ed be cause of the discret ion of t he cou rt and anyway the t ruth of the matter had already bee n explicate d by t he te stimony. The se are excep tions which were allowe d bec ause it w as allowed by the discretion o f t he court because anyway t he truth of the matte r have already bee n explicated by the te stimony of the witnesses but if you have to be st rict about it w hen it is asked in th e bar exam you w ill have to recite you r se ct ion 24 in your rule 132, these are only exceptional circumstances. 3.

When t he case in q uestion falls under any of the basic exceptions t o the application of t he foreign law. When the court or forum would decide on applying the foreign law but the foreign law w ould seem t o xxx on its public p olicy we are constrained t o apply the internal law. What are these circumstances or basic exemptions? (a) If the fo reign law is against p ublic policy. The case involving Pakistani (Pakistan International Airlines) v Ople. Wh y would you apply th e law of Pakistan? Bec ause it was stated in their agreement that the Pakistan law that will govern in te rmination cases. So in t he b asis of w hich alone you already kno w t hat the law on Pakistan w ill apply on the matter But t he he re t he SC refused to apply the Pakistan Law, why? Because it was against public policy, the labor code is applicable in this case. On w hat particular matte r that t he Pakistani Law will apply? (article 2 80 and 28 1 of t he Labor Code) T he provision that whe n th e employment will reach 5 the y will b e considered regular employees Wh at w as stat ed in th eory contract? It was settled t hat their employment w ill only be for 3 ye ars. Policy: It is against our policy to xxx labor, to give importance to labor under the Constitution. Bank of America v American Realty. Policy: The policy of civil law po licy of remedies the Court gives the creditor. Wh at happene d was that your mortgage creditor sought for 2 remedies, one for collection and t he ot her one is for the forec losure. You know already unde r your civil law on c redit transact ion that the remedy is alternative. T hey argued that wh at applies is t he English law w hich allows t he cumulative

application for t he remedies. The SC said that w e do not apply t hat here. Even if we apply the English law it is against public policy. Yo u research now wh at is the public policy affected by that? In the case of Pakistani v Ople, Cadalin v POEA, wh at’s the public po licy prot ected w hy the SC refused to apply the foreign law. In your reading on that, you will learn or come up w ith what is public policy as an e xcept ion to the application o f foreign law, is t hat the same of your law or such ot her sources of xxx. At t he onset we already know that our public policies are embodied in our codes, in our laws. In Cadalin case you have t here your prot ect ion to labor. In your xxx you have there the protection to your mortgagors or debtor on the aspect of public policy. (b) When the foreign law is against good morals or bores mores . Yo u will learn later on that in your article 26 , par 1, of the family code. Art . 26. All marriages solemnized out side th e Philippines, in accordance w ith t he laws in force in the country where they were solemnized, and valid there as such, shall also be valid in t his count ry, except those prohibited under Art icles 35 (1), (4 ), ( 5) and (6), 3637 and 38 . xxx Yo ur family cod e will te ll you those marriages, wh ich were recognized or celebrat ed outside, except those enumerated unde r par 1, among ot hers bigamous marriages and incestuous marriages. PIL on marital laws will tell you that bigamous marriages and incestuous marriages are universally immoral. So even whe rever you go, not o nly in th e Philippines, those marriages are void. So eve n if for example in st ate X, ince stuo us marriage is allowe d and citizens of state X marry in the Philippines. Your national law applies pursuant t o article 15 xxx . The offe nded party in you r penal law is t he st ate. It is the penal law yo u cannot sue someone in th e Philippines on t he basis of a c riminal law t hat is being pu nished outside. But what is important to not e here is that t he penal law here doe s not refer only to your penal law. In the case of Lorenzo v Posadas, the SC interpreted penal law in t he co nte xt of your Private Inte rnational Law, this does not re fer only to your criminal law, t his may refer to law, which has penalty fo r example your t ax law. So a tax law t here fore is be ing considered in Private Inte rnational Law as pe nal law and fore ign count ry cannot be applied in the Philippines in matters involving xxx. (c) When a foreign law is procedural law by allowing a procedural law t o be applied is act ually red oing the set of rules in the cou rt (not sure as to t his sente nce but mao na ang best na madungog nako) . You are not familiar of the rules of a fo reign count ry so this is more practical consideration. (d) Lex situs, wherein regardless of the transactions involving th e real property, w hat governs is the law of the country where the property is located. So if the propert y is located in t he Philippines we do not apply foreign law as regards issues on ownership or transact ions involving t he property. (e) Foreign fiscal or foreign administrat ive law for obvious reason. (f) For obvious reasons, if the foreign law could just result to injustices or injury to local residents and the danger in the interest of estate. 14



(g) Anot her e xample is your law wit h regard to your prope rty relations involving mixed marriages, like marriages bet we en a fo reigner husband and Filipino spouse.

actually recognizing here is on the fact that there is already judgment on t he matt er and because t here is already judgment on t he matt er, any person in whose favor the decision has been rendered has already acquir ed t he the ory of vested right. So t he the ory of vested right is universally accept ed. Once the right is already vest ed w e do not disturb it be cause the reason the re is t hey already started to be nefit, the y already started to do something on xxx.

Wh at w ill govern t heir marriage sett lement if t hey have no marriage set tlement? In strict PIL, you w ill have t o apply your national law o f your hu sband. But t he problem arises if th e family law of t he hu sband, the national law of the husband, disallows or proh ibits any support on the wife due to the marriage, so w e w ill comply with t hat t o t he subscribe t o the national law of the husband we are no w suffering t he Filipino spouse t o the disadvant age of the Filipino spouse that is why the Code Commission said, particularly Sempio Dy, in that case such is non nego tiable on the Philippine jurisdiction regardless of who is t he spouse w het her the spouse or husband is the foreigne r as long as t here is a Filipino bet wee n the couple, we apply the national la of the Filipino spouse specially so if t he application of t he foreign law will be disadvantageous or w ill undermine t he rights of the Filipino spouse under the Philippine law. The re is a case that I gave you whe re the law involved is the law on Net herland whe rein in such law after t he divorce was en te red, the father will no t support t he children. So whe n the father did not support t he children she sued the husband for violation of RA 9262. The defense of the husbands is t hat under my national law such do es not apply to him, such t hat in case of support what applies is his national law and unde r his national law it says that I am not obliged t o give suppo rt so it must no t have violate d the law of your co unt ry. The SC said t hat yes w e should apply your national law, yo u are no t t o making violation RA92 62. But the problem is we w ill not apply your national law bec ause it is disadvantage ous to the right s of the Filipino child. So that is an e xample of no n-application o f foreign law. So the 1 st alternative is you apply the internal law. The seco nd alte rnative w hich the Philippines subscribe is t hat we apply the foreign law. W hy so, w hy do w e apply the foreign law? W e said t hat in t he strict perspect ive you should apply your internal law b ecause that is a matt er of sovereignt y, that is an exercise of sovereignty but w hy do you apply fo reign law and forget about your sovereignty w hen it comes t o conflicts cases?

C.

Local law theory. Th is is mo re of xxx because th ere is absolute refusal (at least in te rms of t he te rm) to apply fo reign law because the court will say that we will apply the internal law but don’t w orry the inte rnal law that we will apply is similar to the fo reign law. Para sabihin na hindi sya nag subscribe sa foreign law, only that the inte rnal law is ident ical or xxx to xxx. We will see in th e cases whe rein the court in interpreting the internal law uses foreign jurisprudenc e w hich is relate d to the matter in which case you ask the law, what did our court apply on the matt er? We apply t he internal law only t hat the inte rnal law is inte rpret ed or is unde rstoo d by considering ident ical or similar in the foreign jurisdiction.

D. Harmony in laws theory. A conflict s problem should receive the same tre atment and disposition what ever the court may happen . This presupposes that we should give treat ment to a legal matte r or cont roversy so that whe never there is breach of co ntract, xxx. But common critique to t his is while th is is idea t his is n ot in to uch w ith the reality because we have different legal system, w e have different laws which apply on the matter depending on the state. While this is ideal his doe s not seem to be practicable. The purists here act ually w anted t o avoid the possibility or to penalize should plaintiffs. Because kung ganun I will just have to shop forum w herein the dec ision will be advantageous to me. We have harmony of laws the ory the shopping w ill not be possible because the result w ill be t he same, but again t his is not po ssible, this is ideal and not always applied.

There are 4 theories that are important to consider here: A.

The theory of comity. This pe rtains to c ourte sy because you have to respect as w ell the law of the ot hers, which applies on the matt er. In the case of Hilto n v Buyon (?), it says t hat comity does not o nly refer t o comity and goodw ill but it refers t o just t he fact of th e condition of, that there are other laws that govern it. So do not dramatize it does not mean that w e apply you law w e subscribe to your legal syste m. It is just that in the legal sense w hat applies is your law and not hing more t han th at. It is more of an international duty and convenience. It presupposes the rights of its own citizens. It presupposes reciprocity. If you accord rights to my citizen while he is in your count ry I will also do the same to yo ur citizen is in my c ountry. That’s the theory of comity.

B.

Protection of vested rights theory. Wh en the right is claimed upon act s occu rring on anothe r country courts look on t he law o f the country not xxx of foreign laws beyond the t errito ry for reason of sovereignty w hich belongs to it. It is not th e foreign law but t he right s acquired under it w hich are xxx of th e co urts of another country. We do not respect here. We are not actually surrendering the sovereignty by protecting the right of t he person but what we are

APPLY FOREIGN LAW: Now afte r deciding whether t o apply foreign law, w hat does the court actually do in choosing the process of the court, what process does that court law or takes in order to de cide what foreign law t o apply on the matter. We have the theory doctrine of characterization, this is in t he case of Saudia v CA. In ot her jurisdiction th ey call it theo ry o f classification or theo ry of qualification, but hey are all th e same. It is just t hat t he process of assigning th e disputed quest ion to its legal categ ory. What are the stages? 1 st level: We find the legal category. In finding th e legal cate gory, you understand th at factual circumstances and de te rmine w hat legal matte r should be used. So w e have here 2 peop le disputing over a property in relation t o a cont ract . What legal categ ory is t hat? Is that a cont ract ual disput e or is t hat a prope rt y disput e. The classification is very important b ecause if it is a cont ractual dispute diffe rent laws will apply, for e xample what w ill apply is t he lex celebrationis or lex voluntatis or the law t hat the parties intende d t o apply on t he matter so the pro perty if it is a cont ractual breach t hey can stipulate what t he law w ill apply o n the matte r but if it is a propert y dispute we know that it is lex situs, you do no t stipulate you only consider the location whe re the property is situat ed. So you see the difference of the proceedings in the court. So if it a 15



cont ract ual breach different set of laws will apply and the property breach, different set of laws w ill apply. It would have bee n easy kung klaro, but the actual case the factual circumstances is complex or vast it wo uld be difficult for you to find t he legal categ ory, like what happe ned in the case of Lim v Government of t he Philippine Islands. Th is case involves spouses who are citizens of US, particularly in California and they settled in the Philippine s. When the wife died the husband sought for the adjudication of their prope rties. The basis was the California law, particularly on property relations which provide that in the conjugal partnership t here is exclusive right of t he husband on the property and t hat of the w ife is merely inchoate, which means walang right si w ife. So the husband said t hat give to me the property because that right belongs to me because it belongs to me according t o my national law which is the California Law. T he Registry o f Dee ds or the Government of t he Philippines opposed it saying that you have to pay inheritanc e tax, t he California guy said no , I will not pay the inheritance tax because that is irrelevant , my case is a prope rty relations case no t succe ssion case. Inheritance tax applies only w hen th ere is an issue on succe ssion or I get t hat under th e estate proceedings. The question t herefore as far as we are conce rned in th e 1 st step of characte rization is how d o you charact erize now xxx, is it a prope rty relations case or estat e t ax case or succession case. It wo uld have be en easy because both of t hem are citizens of California bec ause bot h their international law will apply, but if you c hange the fact w herein one of them is a Filipino citizen, in such case you w ill have to classify if tax case, succe ssion case or property relations case. If this is a succession case and t he dece dent is a Filipino citizen we will apply the national law of the decedent. If it is a prope rty relations case we will apply the national law of the husband. So the re are 2 different set s of law th at will apply.

2 nd step (level): After determining t he legal category on the matter, find the connecting factors. These are circumstances that may serve as particular test for t he det ermination of the applicable law. So what is now, we know the legal category this is a cont ractual dispute. So wh at law will gove rn? What particular con flict s rule w ill now come into play? It may be about th e validity o f the contract (different set of rules), the performance of the contract (different set of rules), it may be damage case or breach case (different set of rules). So you w ill have various set of rules that w ill apply even if you know th at there is already legal cate gory. So for example t he co ntract entered into in the Philippines, was performed in Japan and the breach happe ned in Singapore. You are sure t hat what will apply is foreign law but what foreign law? Japan or Singapore? Wh at law will we apply? In this case t he 2 nd ste p is we have to know the connecting factors in a particular foreign jurisdiction. W hose law are you going to apply on the matter. What are these connecting factors? There are approaches in det ermining the c onnec ting facto rs to det ermine t he application of law: a) We have the single f actor approach, which we apply. As e numerated in the Saudia v CA case:

exercise jurisdiction because of forum of noncon venience and second is the seat o f a legal or juridical person, such as a corporation. Like w hen yo u have here an American citizen who has shares of stocks in the Philippines and enters into a sale contract of that share in t he Philippine corporation in Japan and th e payment was made in London. And if th ere is breach in the cont ract of sale, what do you apply? So if the issue pertain to t he con tract of sale, w alay labot kung asa man ang corporation kay ang akoa cont ract of sale lang . So where was the xxx issued?Where was the contract of sale ent ered int o? But if it is about t he issue of whether the shares are right fully dec lared t o be d elinquent now it is a differen t mat ter and you apply now a different set of rules. (3) The situs of a thing, th at is, the place w here a th ing is, or is de emed t o be situat ed. In particular, the lex situs is decisive when real rights are involved; It is set tled now that we apply lex situs whe n we talk about real rights. Do you remember the case involving th e Roponggi property? In such c ase it was held t hat if th e place whe re an act has been done by xxx. The issue th ere is t hat t he Philippine government wanted to sell the property in Roponggi. The issue t ranspired because the Philippine gove rnment contended that we are allowed to sell it even w ithout the requisite senate resolution because what should govern is the law of Japan, this is a sale contract. But the petitioner is saying that what should apply is t he Philippine law bec ause th e property is xxx Philippines, on ly that it is situate d in Japan. However that is a property of the government of the Philippines. What is important t o not e t here is that w ith regard to lex situs the particular issue involving the prope rty will be governe d by lex situ s. If it is immovable property apply lex situs, but what specific issues involving t he real prope rty are governe d by lex situs? Of course in ow nership. Now how about if it involves mortgage, lease, actions involving administration, contracts involving the property (like the construction involving yo ur prop ert y) will you still apply your lex situ s there? That is a different matter. (4) The place where an act has been done, t he 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 import ant in contracts and torts; The lex loci act us is particulary import ant in c ont racts and t orts, like w hat happen ed in Saudia case w herein the acts complained t ook place in different places. T he SC con sidered the ove r all act s suffere d by Milagros wh ere no t he basis of w hich the SC conc luded that the situs of th e t ortious act or t he lex loci delicti is the Philippines. (5) th e place w here an act is intende d to come into effect, e.g., the place of performance of contractual dut ies, or t he place whe re a power of att orney is to be exercised; (6) t he inte ntion of the con tracting parties as to th e law that should govern their agreement, the lex loci intentionis ;

(2) The seat of a legal or juridical person, such as a corporation;

Just like what happene d in Philippine Export v Eusebio. We ll on the 1st level, he should have applied th e law of Iraq but t here was a problem as to proo f, so there was application of doctrine of processual presumption.

Do you remember the case of Manila Prince v NLRC? W here t here was a point of c ontact the citizenship of the Filipino? W herein even t here was a point of c ontact such th at the plaintiff w as a Filipino but the SC refused to

(7) t he place w here judicial or administrat ive procee dings are institut ed or done. The lex fori the law of the forum is particularly important because, as we have seen earlier, matt ers of procedure not going to the

(1) The nationality of a person, his domicile, his residence, his place of sojourn, or his origin;



substance of t he claim involved are governed by it; and because t he lex fori applies w hen ever the content of the ot herw ise applicable foreign law is e xcluded from application in a given case for the reason that it falls under one of t he e xceptions to the applications of foreign law; and Like in the case of LWV v Dupo . (8) t he flag of a ship, w hich in many c ases is decisive of practically all legal relationships of the ship and of its master or owner as such. It also covers contractual relationships particularly co ntracts of affreightment . Like in the case of Crescent Shipping v M/V Lok Maheswari. It involves, India, Canada, South Korea, New Yo rk, Philippines. Recit: W hat did the t rial court of Cebu do h ere? T he trial court issued a writ of attachment of the vessel. As regards the collect ion suit wh ich involves the att achment. What particular choice o f law or what w as the choice o f law considerations th at were applied? Here th e Court applied Lauritzen t est (Lauritzen v. Larsen). What is Lauritzen test? From FT: “The Supreme Court adopted a multiple-contact test to determine, in the absence of a specific Congressional direct ive as t o t he statute’s reach, which jurisdiction’s law should be applied. The following factors were considered: (1) place of the wrongful act;

Read the se cases: Saudia v CA – gives you the opt ion of considering the plurality of fact ors on he matte r. We ll in the most significant relationship the ory what the SC actually did in th e Saudia case, t hey only run on t he element s of the cause of action and whe re did most of t hese elements transpired? W he re did these elements of th e tortious act transpired? Where were these committed? Like in the case of Saudi where most of these happened in the Philippines so the Philippines was t he con sidere d point of contact on the matter. In t he int erest analysis this is wh ere t he different foreign law is co nsidered t hat may apply o n t he matt er, like the Lauritzen case, M/V Lok Maheswari case, w here t here are many foreign laws t hat may possibly apply on the matter, but t he question is who se inte rest should be prot ected particularly on t his matt er? If it is a collect ion case, basic civil law c ase which involves a private inte rest (Of w hom? It might be a citizen of the Philippines) It might be Philippines has more interest to p revent bec ause if it involves a co rporation o r citizen in the P hilippines whose interest is sought to be protected by the action? But if it is about maritime obligations like the registry of the vessel or th e ow nership of the vessel is quest ioned or affect ed, for example th e vessel wou ld have t o be so ld or auct ioned for the payment of the obligation, th at is a different matt er. The theory of comparative impairment , this is an offshoot (? no t sure) analysis, Who’ s inte rest is mostly impaired. Funct ional analysis, your c hoice influenc e and considerations xxx. Read these on your own. b) We also have modern approach.

(2) law of the flag; (3) allegiance o r domicile of t he injured;

3rd stage: Substance-Procedure Dichotomy

(4) allegiance of the defendant shipowner;

Wh at is the law or the nature of t he law that should be applied here? Is it an issue of substant ive law or proc edu ral law? If it is an issue of proce dural law, we refuse your foreign law, we apply Philippine law. If it is a substantive law it is bet ween the foreign laws that can be con sidered in the 2 nd stage. In our jurisdiction th is comes out in issues as regards prescriptive pe riod. How do w e construe prescriptive period, on a matte r of? Substant ive law is a matt er of procedural law. Because o f it is … pag sabihin nain substantive law yan, if it is in the Philippines tapos ang prescriptive period is 5 years but in state B the prescript ive pe riod is less than t hat, let us say 1 year. Now I w ill now file my case on the 3rd year, as far as t he fore ign law is c oncerne d prescribe na ako. But as far as th e Philippine law, the Philippine law con siders the matte r as a matte r of proce dure such that you w ill apply internal law of t he Philippines w here the cause of action has already prescribed. So paano ka? So I fight mo na no it is a substant ive law such t hat xxx t he lex loci voluntatis which is a foreign law for example, so hindi pa prescribed.

(5) place of contract; (6) inaccessibility of foreign forum; and (7) law of the forum.” In the end, LAURITZEN TEST is your test in your maritime disputes involving different foreign xxx which th e SC used in this case. But th e SC inte rpreted it, when you use yo ur Lauritzen te st or any o f you r multiple factors te st, like all of t hese t hings we discussed in your single factor the doctrinal ruling is t hat t he SC ruled that you do no t use t hat as picking fact or process or matter of quantifying the elements. These are just factors to consider and your job is t o balance t he interests of the different stat es involved in a conflict s case, in which case th e choice of law of t he is Canada because the Canada has the most significant interest in the dispute. How about the st ipulation t hat the New Y ork Law should apply as to the performance of the agreement? The arbitration clause stat es t hat t he New Y ork Law go verns the validity. So w hy did the SC not use that? Because the claim of co llect ion suit here was not based on the cont ract but by violation of law such that it did not comply w ith the arbitration law, such t hat it did not apply the arbitration clause or clause on the contract which says t hat t he New Yo rk law should apply. The SC espoused here that the modern approaches in det ermining the c hoice of law or points of cont act w ill not only be single fact or approach. Y ou w ill have t o balance all the othe r factors, what are the se? What is this approach, which considers the most significant relationship xxx?

Cadalin v POEA. What were the 2 conflicting laws being applied in this case? The Amiri Law and Philippine Law. Under the Philippine Law there are also 2 laws applicable, the provision u nder the Civil Code and Labor Code. On the ot her hand the Amiri Law provides t hat the pre script ive period is only 1 yr. What do w e apply? The 3-year prescriptive pe riod under the labor law. We treat prescriptive period as sui ge neris but under our c ivil procedure (T his is what t he SC used in order to resolve the sui ge neris nature of prescript ive pe riod), under sec 4 8 of code of civil procedure provides that the co untry where the 17



cause of act ion arose, the action is barred it is also barred in the Philippine laws. So what do you call that? BORROWING STATUTE. A "borrow ing stat ute" is a provision in t he forum, w hich refers you t o a state in another forum and allow s using th e statute of another forum as the statute of limitations. So kung barred na sa kanila barred na din sa atin. S o if we apply the Amiri Law in this case is it already barred? Yes, how ever the Court applied the e xception to the e xcept ion, such t hat although we have a borrowing statute the ge neral rule on prescription (sui gen eris), the excep tion is if it is a borrowing statut e, the exception to th e exception is in view of public policy. The public po licy co nsideration in th is case is that: “In the Declaration of Principles and Stat e Policies, the 1987 Constitution emphasized that: 



have the legal capacity, the basic concept of natural law will apply. The y will be bound by t heir national laws. So t here are tw o different laws that will have to operate on t he matter. Now the Bar Exam Question last ye ar was ph rased th is way: Alden and St ella we re bot h Filipino citizens. They were married in t he Philippines but t hey late r migrated to t he US where they were naturalized as Ame rican citizens. They were able to accumulate several properties both in the US and in th e Philippines. Unfortunat ely, they we re not blessed with children. In th e US, the y executed joint w ill institut ing as the common heirs t o divide the ir combined estate in equal shares, the five(5 ) siblings of Alden and t he seven(7) siblings of St ella. A lden passed away in 2013 and a year late r, Ste lla also died. T he siblings of Alden, who are also US citizens, institut ed p robate proceedings in the US cou rt impleading the siblings of St ella, who we re all in the Philippines.

The state shall promote social justice in all phases of national development. (Sec. 10). Th e stat e affirms labor as a primary social eco nomic force. It shall prote ct the rights of wo rkers and promote their welfare (Sec. 18).”

So th e same public policy c onsideration was con sidered by the court in the case of LWV v Dupo .

a)

Was th e joint w ill e xecuted valid? Explain with legal basis.

b)

Can the joint produc e legal effect in the PH with respec t to the properties of Alden and Stella found here? If so, how?

c)

Is t he situat ion present ed an example of depecage?

The joint will is valid under Art icle 816 of the Civil Code . July 26 (DJGolo) One more conc ept as regards choice of law which came out in the bar last year: Depecage – T he process whereby different issues in a single case arising out of a single set of fact s are decided according to the law of different states (Broome v. Antler’s Hunting Club, 595 F.2d 9 21, 1979) We gave an example last time: it is possible for a contract to give rise to a variet y of issues. Pwede ang issue about intrinsic validity, extrinsic validity. And we already said that these different issues, in o ur th eory of characterization, you have to ident ify the ch aract erization: what kind of issue is this. Because in the det ermination kung anong issue siya, it will determine as well what rules on conflict will apply, the rules which will allow us to determine what is the choice of law. So it is possible nga ang isa ka cont ract comes in litigation or comes in cont roversy or bo th the intrinsic or e xtrinsic validity will have t o be determined and t hey have different sets of rules, it is possible t hat t here w ill be different set of laws that applies to that . T he very common example of that contract: a cont ract whe rein they already stipulated what law will govern the particular issue. Example when as regards the issue on the intrinsic validity of a provision, the parties will agree that Canadian Law w ill apply and with respect t o matt ers involving performance, the parties agree t hat it w ill be governed by the law of New York. Wh at if t he p arties t o that co ntract bring about an action on the basis of t he same cont ract , and one issue nee ds to be dete rmined in order to dete rmine t he ot her? (you cannot t alk about p erformance if dili klaro ang intrinsic validity sa contract) So you have to de te rmine or solve t wo issues. We ll in my example, duha kabuok ka law ang mag- gove rn: Canada Law and New Yo rk Law. T hat’s an example of de pecage. O ne set of facts. One case. Three different laws will apply. Anot her case is marriage when bot h legal capacities of the parties (a Filipina and a Foreigne r) are in que stion. The Filipina has a previous marriage and the Foreigner as w ell had a previous marriage. Bot h of them presen ted two different foreign divorce d ecree s. As to the de termination w hether both of them

Art icle 816. The will of an alien who is abroad produces effe ct in the Philippines if made w ith the formalities prescribed by the law of the place in which he resides, or according t o the formalities observed in his count ry, or in conformity with those which this Code prescribes. (n) It is no t an e xample of depe cage because there is only o ne law applicable which is t he US Law: t he national law of A lden and Ste lla whe n t hey executed the joint will. If both of t hem are st ill Filipino citizens whe n th ey executed the joint will, it is still not an e xample of depe cage because only one law remains applicable: the PH law, their national law. Let us say t hat t hey executed separate wills in t he US involving properties both in t he US and PH. W ill that be a problem of depecage? Yes. The issues are: a.

With respect t o the formalities of t he w ill, t he law applied is t he law whe re the wills are exe cut ed;

b. As t o t he intrinsic validity, it w ill be gove rned by the national law; c. As to the properties, it will be governe d by PH law; d. As t o the validity of t he probat e proce edings, the law of the forum.

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT Foreign Law is easy. We know it already. Kung rules of law, Foreign Law is t he law out side of the forum. Foreign Judgments are decisions rendered outside the forum. Th e basic matt er as regards the re cognition and enforcement of foreign judgment is that it is governed b y RULES OF COURT, Rule 132. SEC. 24 . Proof of official record . The record of public documen ts referred to in paragraph (a) o f Sect ion 19, when admissible for any purpo se, may be evidence d by an official publication th ereof or by a c opy att ested by t he office r having the legal custody of the record, or by his deputy, and 18



That is w hy it is important t o prove foreign law in order to det ermine W /N a foreign judgment was duly issued. In t he absence of w hich, whether the jurisdiction w as obt ained o ver the parties. An d in t he absence of proof of fore ign law, processual presumpt ion will apply (Northw est A irlines v. CA)

accompanied, if the record is not kept in the Philippines, with a c ertificate that such officer has the c ustody. If the office in which the record is kept is in a foreign country, the c ertificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of t he Philippines stationed in t he foreign count ry in w hich the record is kept , and authenticated by the seal of his office.

2.

SEC. 25. Wh at atte station of copy must stat e. Whenever a copy of a docume nt or record is att este d for the purpose of th e evidence, t he att estation must state, in substance, that th e copy is a co rrect co py of the original, or a spe cific part th ereof, as the c ase may be. T he att estation must be under th e official seal of t he att esting officer, if the re be any, or if he be t he clerk of a court having a seal, under th e seal of such court.

The validity will be based now kung ano ang bat as on the matter.

This topic right now, we ask the question: if you obtain a judgmen t from a foreign stat e (St ate A), can you e nforce that in anot her state or ot her state s for th at matter? If so, how will you have it recognized and then enforced? In the PH, that is answered by Sec tions 24 and 25. Now t he question, why would a state recognize and enforce a foreign judgment? a.

Comity be tw een states;

b.

In t he interest of reciprocity – some st ates ent er into treaties;

c. Ve sted right theo ry – basic principle in private international law; it will be unjust, unfair if a right established in one state w ill be rende red nugatory in another state; d.

Example: Foreign divorce de cree. We know that it may be enforced in the PH (A rticle 26( 2) of Family Code). T he reco gnition of a foreign divorce de cree validly obt ained by a foreigne r spouse according to his national law dissolving his marriage to the Fil spouse will capacitat e t he Fil spouse t o remarry. T he Fil spouse now w ill have to seek for the recognition of that divorce decree. The action is called reco gnition and en forcement of foreign divorce decree. Why is it called enforcement? Why is a direct action required t here? Bec ause it seeks t o establish a particular right: the capacity o f th e Fil spouse t o remarry. It requires direct action because as discussed in t he case of Recio v. Recio, we do not take judicial co gnizance of fo reign judgment s, it has to be established as a matt er of right. Can you think of an instance where the Philippine as a state recognizes a foreign divorce de cree witho ut resorting to court action? Article 21 of FC, if foreigner spouse ang kailangan lang is ce rtificate of capacity to marry att aching t herewith th e foreign divorce de cree. The Civil Registrar will just accept it and t hen issue a marriage licen se. W as th ere co urt action required of the foreigner spouse? None.

Requisites for the recognition and enforcement of foreign judgment: 1.

Must be rende red by a judicial or quasi-judicial tribunal which had jurisdiction over the parties and the case was conduct ed in t he prope r judicial proce edings;

3.

The judgment must be final and exe cut ory to constitute res judicata in another action;

4.

The state where the foreign judgment was obtained allows recognition or en forcement of foreign judgmen ts (re ciprocity);

5.

The judgment must be for a fixed sum of money;

6.

The judgment must not be contrary to t he public policy or go od morals of t he co untry where it is sought to be enforced; and

7.

The judgment must n ot have bee n obtained by fraud, collusion, mistake of fact or law. The last req uisite is provided by S ect ion 48, Rule 39.

Wh at will be the EFFECT if you recognize foreign judgment in the PH? a.

Judgment or final order is upon a specific thing, the judgmen t or final orde r, is c onclusive upon t he t itle to the t hing, and (act ions in rem o r quasi in rem) ex. Foreign divorce decree

b.

Judgme nt or final o rder is against a pe rson, the judgmen t or final order is presumpt ive evidence of a right as between the parties and their successors in interest by a subsequent title. (act ions in personam)

Res judicata

We have tw o words here: Recog nition and Enforcement. What is the difference between the t wo? As discussed in the case of Mijares v. Ranada, Recognition is th e passive act o f giving effec t t o th e judgment of a forum w ithout necessarily filing an action in anothe r forum. That’s the basic act of reco gnizing it. Enforcement requires the filing of an action to the court.

The judgment must be valid under the laws of t he court that rendered it;

Why presumptive? Because it is subject to avoidance. It s e nforcement may not be allowed under the grounds provided by law.

How do you initiate that ? How do you seek for t he enforcement of foreign judgment? You have to distinguish that from an ordinary complaint. a. As t o basis. For example in a c omplaint for damages, the basis in OC is the act of th e person w hich constitut es a breach of cont ract o n the basis of which you are seeking liability to be imposed against the ot her. T he basis for the petition for the enforcement of a FJ is t hat you only present t he FJ. Do you have to prove? Not anymore. b. As to requirement of proof. In OC, the evidentiary matte r but in the pe tition for the enforcement of a FJ, you just have to present FJ. c. As to available defenses for th e defe ndant. In OC, among ot hers, the grounds for t he motion t o dismiss but t hose cannot be applied in pet ition for the enforceme nt of a FJ be cause the grounds are limited (fraud, collusion, mistake of fact or law)

What is the POLICY OF PRECLUSION? The policy seeks to protect party expectations resulting from previous litigation, to safeguard against the harassment of defe ndants, to insure that the task of courts not be increased by never-ending litigation of t he same disput es. 19



How is that applied in t he case of Mijares v Judge Ranada. Who grant ed the claim for damages? First t he US District Court. What did t hey ask from t he PH co urt to do? t o enforce the judgmen t. What was the defense of the est ate of Marcos? That the action was capable of pecuniary estimation bec ause it w as a claim for damages. The SC ruled it was capable of pecuniary estimation ho we ver at the same t ime, it is also an action based on judgment against an e state, thus placing it beyond the ambit of Sect ion 7(a) of Rule 141. It is cove red by Se ct ion 7( b)(3), involving as it does, "o the r actions not involving prope rty." The superficial issue is t he nonp ayment of correct do cket fees but t here are principles behind t hat. W hat we re the y trying to do? W hat’s wrong with the defense of e state of Marcos by raising nonpayment of t he docket fees for a c omplaint for damages? W hat did t hey w ant pe titioners to do? W hat’s wrong with construing the action as an action for damages? The Court ruled that if you const rue that as an act ion for damages, w hat you are actu ally trying to make the court do is to re-litigate the matter which cannot be done on the ground of preclusion which seeks t o protec t party expect ations resulting from previous litigat ion, to safeguard against t he harassment of defe ndants, to insure t hat the t ask of t he co urts not be increased by neve r-ending litigation of t he same disput es. How do we apply policy of preclusion in the PH? In either case, the judgment or final order may be repe lled by evidence a want of jurisdict ion, want of not ice to the part y, collusion, fraud, or clear mistake of law or fact . (Last paragraph of Sec tion 48, Rule 39) Anong sabi ng estat e of Marcos? Non -payment of docke t fees. Is this one of the grounds? Unfortunately, no. The re is o ne case of e xample of avoiding t he enforcement because of a clear mistake o f law. The case of Nagarmull v. Binalbagan. Sino nanalo sa Arbitral Tribunal? It ruled in favor of Nagarmull. The Bengal Chamber of Commerce ruled in favor of Nagarmull and ordered Binalbagan-Isabela to pay th e sum of 1 8,562 rupees and 8 annas. So from th e t ime of t he de mand since nag increase ang e xport tax, pw ede naman talaga magpadala ng goods, bayaran mo lang ang export tax kasi nag increase. And then nag-de demand ka ngayon sa akin na e- deliver ko yung goods, e quits nalang natin. Yung liability mo sa akin sa export tax at amout of goo d ko, e set off nalang natin. How did the SC appreciate t he matte r? Under the provisions of Sect ion 50 of Rule 39, Rules of Court, a judgment for a sum of money rende red by a foreign court "is presumptive evidence of a right as bet we en the parties and th eir successors in inte rest by a subsequent title", but when suit for its enforcement is brought in a Ph ilippine co urt, said judgment "may be repelled by evidence of a want of jurisdiction, want of not ice to the party, collusion, fraud, or clear mistake of law or fact." How did Nagarmull breach the contract? He failed to d eliver the remaining balance o f t he goods. Since t here was breach, it ent itled Binalbagan to eithe r ask for specific pe rformance or rescind t he c ont ract and may demand damages. The S C said he re that if t here was one who committ ed breach here, it was Nagarmull. Binalbagan had thus the option to rescind t he cont ract or see k for specific performance. So Makita niyo naloko n a. Doon sa Arbitral award siya pa ang nag- demand, siya pa ang nasad-an karon. Th e SC said what is sought here cannot be done because of apparent injustice. One inte resting point he re in Nagarmull case is ano itong sinasabi na mistake of law? Is this foreign law or national law? Law of t he forum The grounds provided under Sect ion 48, Rule 39 applies, as a gene ral rule, in seeking for t he enforcement of FJ. T here is a

separate rule whe n we t alk about Arbitral Awards bec ause we know have special laws on the mat ter --- the Special ADR Rules. So different siya. Like one is th e incapacity of one of t he parties to arbitration, part y not given proper notice, and the award was beyond the t erms. If it is about t he enforce ment of a Foreign A rbitral Aw ard, you do not go t o Se ction 48, yo u go to a specific law o n t he matter, RA 9285 . Case at point is Korea Technologies v. L erma. To w hat exte nt can a foreign judgment be recognized or enforced in t he PH? There are tw o cases on t he matter: Corpus v. Sto . Tomas and Fujiki v. Marinay. The se t alk about foreign divorce decrees. Can a foreigner seek for the recognition of a foreign divorce decree in the PH considering that we have a nationality principle? Le t’ s start w ith Corpus v. St o. Tomas. The question is can Gerbert ask for t he re cognition of a foreign divorce d ecree in the PH c ourt? It come s from the idea under Art icle 26 that th at may be reco gnized for th e purpose of remarriage on t he p art of t he Fil spouse. May apparent obstacle na because hindi pwede kasi 26 is for the bene fit of the Fil spouse. Besides, yo u are a Canadian national, w e do not have business recogn izing your divorce. The p erson who can on ly ask for the rec ognition of t he same is the Fil spouse, is that correct? No. the alien spouse can have th e divorce de cree rec o gnized. The fo reign divorce de cree is presumpt ive evidence of a right that clothes the party with legal interest to petition for its recognition in this jurisdiction. Th e unavailability of t he second paragraph of A rticle 26 of the Family Code to aliens doe s not nec essarily strip Corpuz of legal inte rest to petition t he RTC for the recognition of his foreign divorce de cree. T he foreign divorce decree itself, aft er its authe nticity and conformity with the alien’s national law have be en duly proven according t o our rules of evidence, serves as a p resumptive e vidence of right in favor of Corpuz, pursuant to Se ction 48, Rule 39 of t he Rules of Court. So w hat is t he basis fo r allowing a foreigner to seek fo r the recognition? What is t he requirement under Rule 10 8? He was the real party in inte rest. T herefore meron siyang legal inte rest, he st ands to be be nefited or injured by t he recognition or the non-recognition of the divorce decree. But in th e same action, can the PH c ourt declare his legal capacity to remarry? Meaning, as to what extent then is the declaration of t he P H court as regards the act ion for recognition? Just the fact of recognition. The PH court cannot declare the legal capacity to remarry precisely because that is a matter of your national law and w e do not have business to de clare that. Distinguish that if the one who sought to have the foreign divorce decree recognized is a Filipino, yan! All-out ang declaration diyan. E- recognize niyan ang foreign divorce decree and at the same t ime declare na ang Filipina pw ede na siyang mag remarry. In Fujiki v. Marinay, that is also an example where the SC allowed rec ognition of a fo reign divorce decree . How was legal interest as a requisite explained here? Wh at was referred t o as the aggrieved party in t he pet ition for dec laration of nullity o f marriage on t he grou nd of bigamy? The spouse of t he subsequen t bigamous marriage. Now, why d id the SC con sidered t he legal interest o f such spouse? W hat are the specific injuries? Th e SC basically said here that t he spouse of the subsequent bigamous marriage stands to b e injured by the outcome. Let’s try to graph it out: Foreign Judgment: 1)

***

2)

Section 48, Rule 39 20



Divorce Decree (very common in the Bar) 1)

Obtained by Filipino spouse

2)

Obtained by enforcement? A.

B.

Foreigner

spouse:

who

seeks

By Filipino: (includes) a.

Recognition of decree; and

foreign

divorce

b.

Declaration of Legal Capacity

By Foreigner: (includes) a.

Recognition decree only

of

foreign

divorce

END OF FIRST EXAM COVERAGE. KJavier.


Conflict of Laws 2016 TSN

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