Conflict of Laws Reviewer Midterms

CONFLICT OF LAWS LAWS

LAGURA, J.

Book by Galahad Pe Benito

MIDTERMS REVIEWER (Atty. Cada)

I. Introduction to Private International Law Define, International Law It is defined as rules and regulations of general application dealing with the conduct of states and of international organizations and their relations inter se, as well as their relations with persons, whether natural or juridical.

Two (2) Branches of International Law 1. Public International Law – governs the relationship of states and international entities 2. Private International Law – comprehends laws regulating private interactional across national frontiers. It deals with conflict of laws among the laws of two or more states and necessitates a determination of which municipal law applies to a case. Distinction Public Int’l Law Private Int’l Law As to source Based on: Based on: International Domestic & conventions municipal laws (i.e. constitution ad International statutes . Customs, General principles of law recognized by civilized nations Judicial Decisions and the teachings of the most highly qualified publicists of the various nations As to subjects States & international Individuals and organizations Corporations As to nature International Municipal (Domestic) 

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Case: Abdullahi vs. Pfizer Facts: Petitioner sued Pfizer under the Alien Tort Statute for violating international law for non – consensual medical experimentation. The case, however, was dismissed by the Court on the ground that the plaintiffs failed to identify a source of international law that provides a proper predicate for jurisdiction under the ATS and due to forum non – conveniens. conveniens. Issue: 1. Whether Pfizer violated international law on non – consensual consensual medical experimentation. YES

2. Whether Nigeria offers an adequate forum for adjudication of plaintiff’s claim. NO. Ratio: Whether the norm alleged (a) is of international character that States universally abide by, or accede to, out of sense of legal obligation; (b) is defined with specificity; and (c) is of mutual concern to States. To determine whether this prohibition constitutes a universally accepted norm of customary international law, we examine the current state of international law by consulting the sources indentified by Article 38 of the ICJ, to which the United States and all members of the United Nations are parties: 1. international conventions, whether general or particular, establishing rules expressly recognized by contesting states; 2. international customs, as evidence of a general practice accepted as law; 3. the general principles of law recognized by civilized nations; 4. judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. In sum, it was inappropriate for the district court to forego a more extensive examination of whether treaties, international agreements, or State practice have ripened the prohibition of non-consensual medical experimentation on human subjects into a customary international law norm that is sufficiently (i) universal and obligatory, (ii) specific and definable, and (iii) of mutual concern, concern , to permit courts to infer a cause of action under the ATS. Universality. The history illustrates that from its origins with the trial of the Nazi Doctors at Nuremburg through its evolution in international conventions, agreements, declarations, and domestic laws and regulations, the norm prohibiting nonconsensual medical experimentation on human subjects has become firmly embedded and has secured universal acceptance in the community of nations. Unlike our dissenting colleague’s customary international law analysis, which essentially rests on the mistaken assumption that ratified international treaties are the only valid sources of customary international law for ATS purposes.

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Specificity. SOSA recognize cause of action only to enforce those customary international law norms that are no less definite in content than the historical paradigms familiar when the ATS was enacted. Mutual Concern States throughout the world have entered into two express and binding and international agreements prohibiting nonconsensual medical experimentation: the ICCPR and the Convention on Human Rights and Biomedicine. In other words, acting out of sense if mutual concern, the nations of the world have made it their business, both though international accords and unilateral action, to demonstrate their intention to eliminate conduct of the type alleged in the complaints. Forum Non-conveniens The defendant bears the burden of establishing that a presently available and adequate alterative forum exists, and that the balance of private and public interest factors tilt heavily in favor of the alternative forum. Absent a showing of inadequacy by a plaintiff, “considerations of comity preclude a court from adversely judging the quality of a foreign justice system.” Accordingly, while the plaintiff bears the initial burden of producing evidence of corruption, delay or lack of due process in the foreign forum, the defendant bears the ultimate burden of persuasion as to the adequacy of the forum.

Foreign Element, concept. A factual situation that cuts across territorial lines and is affected by the diverse laws of two or more states is said to contain a foreign element. A foreign element is anything which is not domestic and has a foreign component to it. It can be a foreigner, a foreign corporation, an incident happening in a foreign country, or a foreign law problem with no conflicts dimension. These three phases are separate from each other and a defense in one phase is not a defense in other phases. Phases in Conflicts Resolution 1. Jurisdiction – concerns the authority of a court of law to take cognizance of a case 2. Choice of Law – refers to the applicable law to the problem 3. Recognition and Enforcement of Judgments – concerns the enforcement of foreign laws and judgments in another jurisdiction.

The three (3) phases are separate from each other and a defense in one phase is not a defense in other phases. Case: Hasegawa vs. Kitamura Facts: Nippon entered into a one-year ICA with Minori Kitamura, a Japanese national permanently residing in the Philippines. On February 2000, Kitamura was informed that Nippon is no longer renewing his ICA and his services would only be utilized only until March 31, 2000. Issue: Whether the subject matter jurisdiction of Philippine Courts in civil cases may be assailed on the principles of lex loci celebrationis, lex contractus, the state of most significant relationship rule, or forum of non – conveniens. NO. They are not proper grounds fro questioning the jurisdiction of Philippine Courts. Ratio: Analytically, jurisidiction and choice of law are two distinct concepts. Jurisdiction considers whether it is fair to cause a defendant to travel to this state; Choice of law asks the further question whether the application of a substantive law which will determine the merits of the case is fair to both parties. In this case, only the first phase is at issue: jurisidiction. For a court to validly exercise its power to adjudicate a controversy, it must have jurisdiction over the subject matter, over the issues of the case and, over the res or thing (in case of property). Since these three principles in Conflicts of Laws make reference to the law applicable to a dispute, they are rules proper for the second phase, the choice of law. They determine which state’s law is to be applied in resolving the substantive issues of a conflicts problem. Necessarily, as the only issue in this case is that of jurisidiction, choice of law rules are not only inapplicable but also not yet called for. Lex loci celebrationis relates to the law of the place of the ceremony or the law of the place where a contract is made. Lex contractus or lex loci contractus means the law of the place where a contract is executed or to be performed. It controls the nature, construction, and validity of the contract and it may pertain to the law voluntarily agreed upon by the parties of the law voluntarily agreed upon by the parties or the law intended by them either expressly or implicitly.

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State of the Most Significant Relationship Rule. To ascertain what state law has the most substantial connection to the occurrence and the parties. This rule takes into account several contacts and evaluates them according to their relative importance with respect to the particular issue to be resolved. Invocation of Forum Non-conveniens, improper. First, it is not a proper basis for a motion to dismiss under the Rules of Court. Second, whether the said suit should be entertained or dismissed on the basis of the said doctrine depends largely upon the facts of the particular case and is addressed to the sound discretion of the trial court. Third, the propriety of dismissing a case based on this principle requires factual determination. Three Alternatives for Courts in DISPOSING conflicts cases involving foreign element brought before a court of administrative agency: 1. Lack of jurisdiction or refusal to assume jurisdiction over the case 2. Assume jurisdiction over the case and apply the internal law of the forum; 3. Assume jurisdiction over the case and take into account or apply the law of some other States or states.

STEPS IN DETERMINNING APPLICABLE LAW 1. Characterization a. Identification of issues b. Pinpointing the branch of law implicated by the problem c. Determining the existence of conflicts of law problem by the presence of a foreign element d. If there is a foreign, employ the applicable conflict of law doctrines. If none, the rule, law or jurisprudence in the forum. 2. Connecting factors a. An analysis is made with respect to which jurisdiction or has the most connection to the case. b. The nationality of the parties, the location of the act or event, the terms of the agreement or contract, and other matters are looked into to determine what legal system between two or more legal system is applicable. CHOICE OF APPLICABLE LAW Parties to a contract are free to stipulate the applicable law that will govern their contractual relations (this proceeds from Article 1306 of the Civil Code). It is not necessary that the chosen

law be local law, so long as the choice of law does not violate the public policy or the laws of the forum. EXTRATERRITORIALITY Laws are generally territorial in application. The reason fro this is that the mind of the lawmaker is limited to the territorial boundaries of his country when he enacts laws. The question of whether a law is territorial or extraterritorial depends on the legislative intent. This is recognized under the international law, except when this intrudes with the territorial integrity and sovereignty of another country. An example of a law providing extraterritorial application in an explicit manner is the following: 1. Article 15, NCC. Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. 2. Article 16, NCC Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall b regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. This does not conflict with the territorial integrity or sovereignty of another country. This is also practiced practically by all states. Case: Small vs. United States (2005) Facts: After serving his one year sentence in Japan, Small returned to the US and purchased a gun. He was then charged for unlawful gun possession under a statute that it shall be unlawful for any person who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year. Small challenged the conviction on the ground that his earlier conviction in Japan, being a foreign conviction, fell outside the scope of the unlawful gun possession statue.

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Issue: Whether the “unlawful gun possession” statute had extraterritorial application such that foreign convictions are covered in its scope. NO. Ratio: In determining the scope of the statutory phrase we find help in the “common sense notion that Congress generally legislates with domestic concerns in mind.” This notion has led the Court to adopt the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application. The statutes language does not suggest any intent to reach beyond domestic convictions. Neither does it mention foreign convictions nor is its subject matter special, say, immigration or terrorism, where one could argue that foreign convictions would seem especially relevant. To the contrary, if read to include foreign convictions, the statute’s language creates anomalies. Case: Kiobel vs. Royal Dutch Petroleum Co. Issue: Whether and under what circumstances the ATS allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. Ratio: None, because the extraterritorial application. o

o

o

o

ATS

has

no

The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign. Respondents contend that claims under the ATS do not, relying primarily on a canon of statutory interpretation known as the presumption against extraterritorial application. That canon provides that when a statute gives no clear indication of an extraterritorial application, it has none,” and it reflects the presumption that United States law governs domestically and does not rule the world.” There is no indication that the ATS was passed to make United States a uniquely hospitable forum for the enforcement of international norms. Nor does the historical background against which the ATS was enacted overcome the presumption against application to conduct in the territory of another sovereign. We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. There is no clear indication of extraterritoriality here, and petitioners case seeking relief for violations of

o

the law of nations occurring outside the United States is barred. On these facts, all the relevant conduct took place outside the US. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.

What is Forum Non Conveniens? It simply means that the forum is not convenient (i.e. the palace where the suit is filed has no substantial connection to the parties, or litigation of a dispute become very inconvenient in the chosen venue, or parties are not re sident of the forum, or that the witness are located somewhere).

When Forum Non Conveniens is AVAILABLE AS DEFENSE to dismiss a case: In Puyat vs. Zabarte: 1. The belief that the matter can be tried and decided elsewhere 2. The belief that the plaintiff sought the forum merely to secure procedural advantages or to convey or harass – FORUM SHOPPING 3. Unwillingness to extend local judicial facilities to non-residents or aliens when the docket may already be overcrowded. 4. Inadequacy of the local judicial machinery to effectuate the right sought to be maintained. 5. Difficulty of ascertaining the law Case: Saudi Arabian Airlines vs. Rebesencio Facts: Filipino respondents were terminated as Flight Attendant (Permanent) by Saudi Arabian Airlines due to pregnancy which allegedly was a ground for termination under their employment contract. Respondents sued the petitioners. The petitioners, in turn, filed a motion to dismiss on the ground of forum non conveniens. Issue: Whether the Philippine courts or tribunals offer a convenient and adequate forum for the adjudication of respondent’s claim? YES. Ratio: 1. Forum non conveniens literally translates to the forum is inconvenient. It is a concept in international law and was devised to combat the less than honorable reasons and excuses that litigants use to secure procedural advantages, annoy and harass defendants, avoid overcrowded dockets, and select a friendlier venue. Thus, the doctrine of forum non conveniens addresses the same rationale

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that the rule against forum shopping does, albeit on a multijurisdictional scale.

4. Relevant Policies of the other interested states and the relative interests of those states in the determination of the particular issue 5. Protection of justified expectation 6. Basic policies underlying the particular field of law 7. Certainty, predictability and uniformity of result 8. Ease in the determination and application of the law to be applied

2. Forum non conveniens finds no application and does not operate to divest Philippine Tribunals of jurisdiction and to require the application of foreign law. 3. Forum non conveniens relates to forum, not to the choice of governing law. 4. Forum non conveniens is soundly applied not only to address parallel litigation and undermine a litigant’s capacity to vex and secure undue advantages by engaging in forum shopping on an international scale. It is also grounded on principles of comity ( a deferential gesture to the tribunals of another sovereign) and judicial efficiency.

Principle 1: Local Law This is the general rule and it provides the local law to be the default law that will govern the relationship of the parties to a dispute. Most states have conflicts of law r ules specified in their civil codes and they must be applied before one considers the application of a foreign law (i.e Article 15 and 16, NCC).

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

Problem of renvoi. It literally means to “refer back”. A situation when a local law requires the forum court to apply foreign law to case in dispute. The foreign law, in turn, directs the application of the laws of the forum court to the case under consideration. Thus, there is a reference back to the local laws of the law of the forum court. To solve this problem, and end the endless reference to two laws, the local court must, after looking at the conflicts of law rules of the foreign state, apply the directive of the latter’s law. Thus, if the directive is the application of the forum court’s law, the court must then follow to put an end to the endless throwing back of the case.

II. CHOICE OF LAW a. When parties enter into an agreement, their relationship is usually governed by a particular law. The default law is almost always the local law. There are instances, however, when this is not the case, as when the parties stipulate a foreign law to govern their relationship. These instances usually involve a foreign element necessitating the application of several principles to determine the law applicable to the case. b. Section 6 of the U.S. Restatement (Second) of Laws provides the underlying principles in determining the law applicable to a conflicts case: 1. Statutory directive of its own state on choice of law 2. Needs of the interstate and international systems 3. Relevant policies of the forum

Case: Aznar vs. Garcia Facts: Christensen, a US citizen, died in the Philippines while domiciled therein. He bequeathed a certain sum to Helen and the rest of his estate to Mary. Helen, predicating that he is entitled to receive a legitime more than the sum bequeathed to her, opposed the project partition on the ground that it should be the Philippine law that should govern the distribution of his estate. Issue: Whether California or Philippine Law governs the testamentary dispositions of the deceased. Ratio: 1. The law that governs the testamentary dispositions is defined

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in Article 16 of the Civil Code of the Philippines. The amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country where said property may be found. 2. The laws of California have prescribed two sets of laws for its citizens, one for residents and another for those domiciled in other jurisdiction. Reasons demand that we should enforce the California internal law prescribed for its citizens residing therein, and enforce the conflict of laws rules for the citizens domiciled abroad. 3. As explained in the various authorities cited above the national law mentioned in Article 16 of our Civil Code is the law on conflict of laws in the California Civil Code which authorizes the reference or return of the question to the law of the testator’s domiciles. Under the California Law, a testator may dispose of his property by will in the form and manner he desires. 4. The conflicts of laws in California, Article 946, Civil Code, precisely refers back the case, when decedent is not domiciled in the California, to the law of his domicile, the Philippines in the case at bar. The court of the domicile cannot and should not refer the case back to California; such action would leave the issue incapable of determination because the case will then be like a football, tossed back and forth between the two states, between the country of which the decedent was a citizen and the country of his domicile.

Case: Bellis v. Bellis (1967) Facts: Amos Bellis, a citizen of Texas, US, died testate leaving certain sums to his legitimate and illegitimate children from the first and second marriage. Two of his illegitimate children opposed the project partition on the ground that they were denied of their legitimes. The lower court, however, denied the opposition on the ground that Texas Law, which is the national law of the decedent, and which did not provide for legitimes, governed his successional rights. Issue: Whether the doctrine of renvoi applies in this case? NO. The doctrine of renvoi is usually pertinent where the decedent is a

national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death. So that assuming Texas has a conflict of law rule providing that the domiciliary system should govern, the same would not result in a reference back to Philippine law, but would still refer to Texas Law. Issue: Whether the application of Texas Law is violative of public policy. NO. Appellants would however counter that Art. 17 of the Civil Code prevails as the exception of Article 16, NCC: Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determination of conventions agreed upon in a foreign country. This is not precisely correct. It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent’s national law. Specific provisions must prevail over general ones. PRINCIPLE 2: Needs of the interstate and international systems 1. Courts must consider the needs of the interstate and international systems in determining the applicable law. 2. To prevent stifle in the growth of free trade and discourage people from trading with their counterparts in other countries, courts must formulate principles and reconcile multistate laws with the end in view of encouraging international trade among people. PRINCIPLE 3: Relevant Policies of the forum 1. Each forum considers certain values to be of highest import to them. In the Philippines, courts consider protection for labor to be of highest import. If a case implicate a foreign law which is prejudicial to the interest of the interest of labor, courts are quick to strike down the

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foreign law in favor of the applicability of local law. Case: Cadalin vs. POEA Administrator Facts: Cadalin et al were prematurely terminated from their work in Bahrain and upon return to the Philippines, they sued AIBC and BRII for illegal dismissal and monetary claims. Ultimately, the NLRC reversed the ruling of POEA and held that the period for filing claims was three years under the Labor Code and not ten years (Civil Code) or one year under Amiri Decree No. 23 of Bahrain. Issue: Whether Amiri Decree could be applied in our jurisdiction? Decision: No, Amiri Decree is contrary to our public policy on the protection of labor. The Courts of the forum will not enforce any foreign claim obnoxious to the forum’s public policy. To enforce the one-year prescriptive period of the Amiri Decree as regards the claims in question would contravene the public policy on the protection to labor. Take Note: o o o

o

Promotion of Social Justice Labor: Primary Social Economic Force Full protection to labor, local and overseas Full employment and equality of employment opportunities for all.

Case: Bank of American NT American Realty Corporation

&

Asia

vs.

Issue: Whether or not the petitioner’s act of filing a collection suits against the principal debtors for the recovery of loan before foreign courts constituted a waiver of the remedy of foreclosure. Decision: Yes. In our jurisdiction, the remedies available to the mortgage creditor are deemed alternative and not cumulative. Notably, the election of one remedy operates as a waiver of the other. Ratio: Incidentally, BANTSA alleges that under the English Law, mortgagee does not lose its security interest by simply filing actions for sums of money. 1. Untenable. When the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the said foreign law, judgment order shall not be applied.

Additionally, Article 17 of the NCC provides that Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determination of conventions agreed upon in a foreign country. 2. The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting of a single cause of action under the Rules of Civil Procedure. 3. Moreover, foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum.

Case: Dacasin vs. Dacasin Facts: Harold, an American, and Susan, a Filipino, were married in Manila. Later, they got divorced in the United States. An agreement for the joint custody of Stephanie was executed. Issue: Is the agreement valid and enforceable in the Philippines? Decision: No, Philippine law.

the

agreement

contravenes

It based on our public policy that mothers should never be separated from their young children, seven years and below, to avoid a tragedy where a mother has seen her baby torn away from her. Dacasin stated that this is a matter of wisdom, not a matter of enforceability or validity. Ratio: 1. In this jurisidiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on stipulations contrary to law, morals, good customs, public order, or public policy. 2. At the time the parties executed the Agreement, Stephanie was under seven years old. The relevant Philippine law on child custody for spouses separated in fact or in law is Article 213 of the Family Code, “no child under seven years of age shall be separated from the mother. 3. This decision in Dacasin is controversial in so far as it sanctions the Philippine Law that awards custody of a child under seven years to the mother. No such law or similar law exists in foreign countries, and this law may be unique in the

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Philippine setting. Culturally, it is justifiable since the mother is always the center of a Filipino family. However, to say that joint custody of child below seven years to be against public policy may be a bit of a stretch. PRINCIPLE 4: Relevant interested States

Policies

of

the

1. This principle indulges courts to engage in governmental interest analysis, courts compare the laws and interests of two states, determine if there is a real conflict, and if a real conflict exists, apply the of the state whose interest is more impaired.

Case: Kearney vs. Salomon Smith Barney Facts: Kearney, et.al, all residents of California, filed claims against SSB for malfeasance, fraud and breach of fiduciary duties for recording their telephone conversations without their consent. In their defense, SSB filed a demurrer on the ground that under Georgia and federal law recordings may be lawfully made in Georgia with one party’s consent. Issue: Whether California law or Georgia law governs Kearney’s claim? Decision: California Law. <3 1. By contrast, we believe that, for a number of reasons, the application of California law rather than Georgia Law in the context presented by the facts of this case would have relatively less severe effect on Georgia’s interests. 2. First, because California law, with regard to the particular matter here at issue, is more protective of privacy interests than the comparable Georgia privacy statute, the application of California Law would not violate any privacy interest protected by Georgia law. 3. Furthermore, applying California law to a Georgia business’s recording of telephone calls between its employees and California customers will not severely impair Georgia’s interests. As discussed above, California law does not totally prohibit a party to a telephone call from recording the call, but rather it prohibits only the secret or undisclosed recording of telephone conversations, that is, the recordings of such calls without the knowledge of all parties to the call. 4. Accordingly, to the extent Georgia law is intended to protect the right of a business to record conversations when it has a legitimate business justification for doing

so, the application of California law to telephone calls between customers would not defeat that interest.

Case: Butler vs. Adoption Media, LLC. Facts: Michael and Richard Butler, domestic partners in California, applied to have their profile posted in an internet adoption operated by the respondent. The application was denied as the service was not available to same sex partners. Butlers sued Adoption media for violation of Unruh Civil Rights Act. Issue: Whether California or Arizona Law governs the claim of Butlers? Decision: a) The Court finds that the failure to apply California law in the present case would undermine the Unruh Act for the same reasons. If businesses with headquarters in other states could maintain a regular practice of discriminating California residents, that practice would substantially impair the protection afforded by the statute. b) Similarly, in the present case, the Unruh Act is more protective of consumers than the comparable Arizona law. Application of California law would not violate any right protected by Arizona Law, and the Unruh Act merely provides protection in addition to those specifically enumerated protections in Arizona. Steps in governmental analysis test. 1. The court determines whether the relevant law of the affected jurisdiction with regard to the issue in question is the same or different. 2. If there is a difference, the court examines each jurisdiction’s interest in the application of its own law to determine whether a true conflict exists. 3. If the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisidiction to determine which state’s interest would be more impaired if its policy

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were subordinated to the policy of the other state. The government interest analysis is the approach applied in most western countries in determining the applicable law where true conflict exists. However, in the Philippine setting, rarely is this approach employed. The standard approach of local courts, especially the Supreme Court, is to declare the foreign law to be against public policy where the foreign law conflicts with a Philippine Law. CRITICISMS. a) The fundamental defect of the governmental interest analysis is that it tends to favor laws and interests of the forum court. b) Quite simply, this is comparable to the “home advantage” in sports competition where the home state has a specific advantage over visiting teams due to their familiarity with the venue and their support from the local fans. PRINCIPLE 5: Protection of justified expectations 1. Parties enter into contracts or into legal relations with the objective of achieving a desired result. 2. When parties specify a particular law to govern their legal relations, courts must enforce this choice of law, unless it is contrary to a statutory directive of the forum court, or contravenes public policy.

Case: Francisco vs. Stolt Achievement Facts: Francisco was injured while working on board vessel. He then sued Stolt before Louisiana State Court. Stolt moved for the dismissal of the case on the ground that the employment contract signed by Francisco provides a mandatory arbitration in the Philippines should claims and disputes arises from his employment. Ultimately, the case was dismissed. Issue: Whether Francisco was compelled to arbitrate his claims against Stolt? Decision: Yes! 1. The contract clearly provides remedies for work related personal injuries and states in Par. 29 that “claims and disputes

arising from this employment” are subject to arbitration in the Philippines. We held that the above clause which provides that any and all disputes or controversies arising of or by virtue of this Contract shall be litigated in the Philippines. 2. Especially in light of our general rule, recognized in a Convention Act case, that “whenever the scope of an arbitration clause is in question, the court should construe the clause in favor of arbitration,” we read the contract as mandating arbitration of this dispute in the Philippines. 3. Courts must look at justified expectation in adjudicating cases. Parties have reasons why they choose a particular law as their choice of law or why they choose a particular forum in litigating their case. PRINCIPLE 6: Basic Policies underlying the particular field of law 1. This means that the reason and objectives of the laws in question should be given consideration.

Case: Hancock vs. Watson Issue: What law is applicable to the suit for alienation of affection filed by David against Roger? Decision: The law that is applicable is the law of the place where the tort occurred – MISSISSIPI LAW. a) Choice of law analysis is a three step process: 1. First, the court must determine whether the conflicting laws are substantive or procedural. 2. The then must then classify the substantive area of law – contract, tort, or property – applicable to the conflicting laws, as each area of law has its own choice of law provisions. 3. Finally, the court must apply the appropriate analytical provisions to the conflict. b) Clearly, the conflicting laws are substantive, as the outcome will determine whether David has a viable cause of action. Categorizing the substantive area of law for an

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alienation of affection claim is also a simple step. Alienation of affection claims are tort actions. PRINCIPLE 7: Certainty, predictability and uniformity of result 1. Most judicial systems favor stability in judicial decisions that is why they have formulated principles like res judicata and stare decisis. When the facts of a case fall squarely with the facts of a previously decided case, the doctrine in the latter case is usually applied to the case in dispute. PRINCIPLE 8: Ease in the determination and application of the law to be applied 1. Simplicity is always a virtue in determining which law to apply. If a court is bound by a particular doctrine by virtue of stare decisis, it i s usually simpler for the court to apply the same doctrine in future cases. 2. There is no more need to adopt new and more complicated analyses for what only needs to be done is to apply the law which has been applied before. Other Principles Affecting Choice of Law Processual Presumption. Failure to prove foreign law will result to the exclusion of the foreign law and a presumption will arise that the foreign law is the same local law. This is the doctrine of Processual presumption and it presumes the foreign law to be the same as local law when there is failure to prove foreign law. Proof of Foreign Law Foreign laws have to be properly proved before they are admitted into evidence. Foreign documents will be excluded if they are properly proved. They will be nothing but scraps of paper which the court cannot consider as part of the evidence of the case.

How to prove foreign law? Rule 132 of the Revised Rules Court: 1. May be evidenced by an official publication thereof; or 2. By a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines. 3. If the office in which the record is kept is in foreign country, the certificate 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 the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. 4. The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case maybe. The attestation must be under the official seal of the attesting office, if there be any, or if he be the clerk of court having a seal, under the seal of such court. Case: Wildvalley Shipping vs. Court of Appeals Facts: Due to the negligence of the Venezuelan Pilot, the Philippine Roxas ran aground Orinoco River and obstructed the vessel owned by Wildvalley. A claim for damages was filed by Wildvalley before RTC with a prayer that a Venezuela Law to apply since the owner of the vessel is liable for the negligence of the compulsory pilot, which is not under the Philippine Law. Issue: Whether Venezuela Law is applicable. Decision: No. 1. Said written laws were not proven in the manner provided under Rule 132 of the Rules of Court. Only a photocopy of the said rules was likewise presented as evidence.

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2. The requirement provided under the Rules of Court is not mere technicality but it is intended to justify the giving of full faith and credit to the genuineness of a document in a foreign country. According to the weight of authority, when a foreign statute is involved, the best evidence rule require that it be proved by a duly authenticated copy of the statute. 3. The Venezuelan law was not pleaded for the lower court. A foreign law is considered to be pleaded if there is an allegation in the pleading about the existence of the foreign law, its import and legal consequence on the event or transaction in issue. Case: Manufacturers Hanover Trust Co. vs. Guerrero (2003) Facts: Guerrero filed a complaint against Hanover for damages arising from illegally withheld taxes and illegal conversion of account. Hanover, in its answer, presented the affidavit of a New York Attorney, Allyssa Walden, which essentially stated that New York was the governing law for the contract, and that said law barred Guerrero’s claim. Issue: Was the New York Law proved by the Walden affidavit? Decision: No. The citations in the Walden affidavit do not constitute proof of the official records or decisions of the US Courts. While the Bank attached copies of some of the copies do not comply with Section 24 Rule 132 on proof of official records or decisions of foreign courts. Thus, the Bank has only alleged, but has not proved, what New York Law and Jurisprudence are on the matters at issue. Case: NRLC

Edi-staff

Builders

International

vs.

Facts: Gran was terminated from and upon return to the Philippines, he sued EDI for illegal dismissal. EDI contended that Saudi Labor Laws should apply in the resolution of Gran’s complaint.

identity approach or Processual presumption comes into play. When a foreign law is not pleaded, or if pleaded, is not proved, the presumption is that foreign law is the same as ours. 1. In the present case, the employment contract signed by Gran specifically states that Saudi Labor Laws will govern matters not provided for in the contract (i.e. specific causes for termination, termination procedures). Being the law intended by the parties to apply to the contract, the Saudi Labor Laws should govern. 2. In international law, the party who wants to have a foreign law applied to a dispute has the burden of proving the foreign law. The foreign law is to be treated as a question of fact to be properly pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign law. He is presumed to know only domestic or forum law. EXCEPTIONS to proof of foreign laws 1. Presentation of a foreign-licensed attorney who will testify in open court concerning her knowledge of the law in question 2. Administrative agencies recognizing foreign laws without proof. They are not bound by technical rules of procedure 3. Lack of objection to the improper presentation by one party of proof of foreign law. 4. Recognition of a universally known law or a law whose existence is known to most men due to its universal application 5. Laws appearing in official websites

CASE: Norse Management Co. vs. National Seamen Board (NSB) Facts: Abordo died from a stroke while in the course of his employment with Norse. His wife instituted an action to claim of appurtenant benefits in connection with the death of her husband. She contended that the law of Singapore should govern his claim. This was upheld by the NSB and Ministry of Labor. Issue/s:

Issue: Whether Saudi Labor laws should govern Gran’s dismissal from employment.

1. Whether the Singapore Law or Philippine Law governs the grants of benefits to Abordo’s wife? Yes.

Decision: No. Unfortunately for petitioner, it did not proved pertinent Saudi laws on the matter; thus, International Law doctrine of presumed

2. Whether the National Seamen Board can take judicial notice of Singapore Law absent proof thereof? Yes. It is safe to

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assume that the Board is familiar with pertinent Singapore maritime laws relative to workmen’s compensation. Moreover, NSB may apply the rule on judicial notice because in administrative proceedings, technical rules of procedure do not strictly apply. SCRIVENER’S ERROR This means failure of the agreement to express the intention of the parties (i.e. wrong terminology, missing terminology or simply clerical error). Because there is failure to express the true intent of the parties, the agreement os interpreted according to its plain or obvious meaning. CASE: Hongkong and Shanghai Banking Corporation vs. Sherman et at. (1989) Decision: The parties did not thereby stipulate that only the courts of Singapore, to the exclusion of all the rest, has jurisdiction. In the ordinary habits of life, anyone would be disinclined to litigate before a foreign tribunal, with more reasons as a defendant. However, in this case, private respondent are Philippine residents who would rather face a complaint against them before a foreign court and in the process incur considerable expenses, not to mention convenience. Private r espondents’ stance is hardly comprehensible, unless their ultimate intent is to evade, or at least delay the payment of a just obligation. A state is competent to take hold of any judicial matter it sees fit by making its courts and agencies assume jurisdiction over all kinds of cases brought before them.

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