CONFLICT OF LAW DIGESTED BOOK.pdf

7/25/2019 CONFLICT OF LAW DIGESTED BOOK.pdf

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CONFLICTS OF LAW

PART ONE: INTRODUCTION

I. Scope and Conflict of Laws: Nature, Definition and

Importance

A.

Diversity of Laws, Customs and Practices

PRIL: that part of municipal law which covers cases with aforeign element.

Hilton vs. Guyot

(1895)

FACTS: Defendants were sued in France, and the Frenchcourt rendered judgment against them. Plaintiffs sueddefendants on the French judgment in the US. The UScourt held the French judgment conclusive.

HELD: No law has any effect, of its own force, beyond thelimits of the sovereignty form which its authority is derived.The extent to which the law of one nation, as put in force

within its te rritory xxx shall be allowed to operate within the

dominion of another nation, depends upon xxx the comityof nations.

Comity of nations

is the recognition which one nation allowswithin its territory to the legislative, executive or j udicial actsof another nation, having due regard both to

international

duty

andconvenience

, and to the rights of its own citizens orof other persons who are under the protection of its laws.

The reasonable, if not necessary conclusion appears to us tobe that judgments rendered in France, or in any otherforeign country, by the laws of which our own judgments arereviewable upon the merits, are not entitled to full credit andconclusive effect when sued upon in this country, but are

prima facie evidence only of the justice of the plaintiffs

claim.

B. Definition

Second Edition of Jurisprudence:private international law isthat part of the law of each state or nation which determines

whether, in dealing with a legal situation, the law of someother state or nation will be recognized, given effect orapplied.

Distinguished from Public International Law and otherdisciplines:

Public International Law Private International Law

Principally governs statesin their relationshipsamongst themselves

Principally governsindividuals in their privatetransactions whichinvolves a foreign element

As to sources of law:

Codified in Art. 38 of theStatute of InternationalCourt of Justice

Generally derived fromthe internal law of eachstate and not from anyinternational law

extraneous to municipallaw

As to persons involved:

Governs only states andinternationally-recognizedorganizations

Governs individuals orcorporations

As to transactions:

Involves state-to-state orgovernment-to-government matters

Relates to privatetransactions betweenindividuals

As to remedies:

In case of violation, a statemay resort to1) diplomatic protest2) peaceful means ofsettlement (diplomaticnegotiations, arbitrationor conciliation)3) adjudication by filing acase before internationaltribunals4) use force short of war,or eventually go to war

All the remedies areprovided by municipallaws of the state, such asresort to courts oradministrative tribunals

C.

Object, Function and Scope

Object and Function of Conflict of Laws:to provide rationaland valid rules or guidelines in deciding cases where theparties, events or transactions are linked to more than one

JD.

Conflict of law rules aim to promote stability and uniformityof solutions provided by the laws and courts of each statecalled upon to decide conflicts cases.

Scope: covers the entire range of laws as it cuts across thesubjects of JD of local courts or tribunals, the law onevidence or proof of foreign law, the personal law of

individuals and juridical entities, naturalization law, laws ondomicile and residence, family relations, contracts, torts,crimes, corporation law and property law.

3 Issues in Conflict of Laws:

1) Issue of adjudicatory JD: determines the circumstancesthat allow for a legal order to impose upon its judiciary thetask of deciding multi-state and multinational disputes

2) Issue of choice-of-law: refers to the probable sources fromwhich the applicable law of the controversy may be derived

3) Recognition and enforcement of foreign judgments: studyof situations which justify recognition by the forum court of a

judgment rendered by a foreign court or the enforcement ofsuch within the forum

II. A Brief History and Development of Conflict of Laws

A.

Roman Law

Ius gentiumIn PIL, it means the law of nationsIt is used in the early Roman empire to mean the

body of rules developed by the praetor peregrinus toresolve disputes between foreigners or betweenforeigners and Roman citizens

It includes Greek legal doctrines and concept ofbona fides as ius civile only applies t Roman citizens

Italian City StatesThe rise of this city states prompted intensive

study of conflict of laws- Bartolus: Father of Conflict of Laws; formulated

Theory of StatutesBecause Northern Italy was divided into several

city states each having their own laws on private matters,

the Statute was applied to problems of choice of law.

Statute is classified into:a. real applied to immovable property within

the stateb. personal followed the person even outside

the domicile and governed questions onpersonal status, capacity and movables

c. mixed contracts, if entered into by the

different nationals


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16thcentury, France

Charles Dumoulinadvocated a method to determinewhat law would govern contracts between differentnationals

Bertrand DArgentre formulated the principle ofuniversal succession followed in the Spanish Civil Codeand adopted in the Phil. Civil Code

Netherlands

Ulrich Huber first used the term, conflict of laws

Dutch jurists asserted that State has no obligation toapply a foreign law unless imposed by treaty, by comitas

gentium or on consideration of courtesy andexpediency.

Dutch jurists led by Huber developed territorialprinciple where the laws of every state may operate only

within its territorial limit but such sovereign state mayrecognize that a law, which operated in the country of

its origin, shall retain force everywhere provided that itwill not prejudice its subjects.

Comitas Gentium was readily accepted because ofincreasing international transactions.

Ius Commune, applied by Italian and French jurists,was a supranational law based on Roman law and whichbecame the continental European common law.

Nations codified their national laws which includedconflict of laws provisions.

Ex. French Civil Code of 1804- became the pattern for Civil Codes of Spain,

Belgium and Romania

- nationality law principle (contained in Art. 15of our CC) was provided in Art. 3 of theFrench Code

19thCentury

Justice Joseph Story relied on the Europeancontinental theorists concept of territorial sovereignty

and founded conflict of laws on the principle of comityof nations.

Frederich Carl Von Savigny- founder of modern private IL

-application of foreign law was notdue to comity but the resultantbenefits for everyone concerned

- advocated situs theory (seat oflegal relationship): every elementof transaction be governed by thelaw of the place with which saidelement has the most substantiveconnection

Pascuale Mancini

- advanced nationality theory in matters concerningstatus, capacity and private interests of theindividual

B. Modern Developments

Neo-Statutists

- followed Italian theory: when 2 or moreindependent laws are applicable to a Conflictproblem, the method so devised determines whatlaw shall prevail

Internationalists

- there should be a single body of rules that can

solve problems involving a foreign element

Territorialists

- law of the State applies to persons and thingswithin the State, therefore, no foreign law isapplied.

- Branch: only rights vested or acquired underforeign law are recognized in the forum but notforeign law itself

1969- 2nd Restatement of Conflict of Laws, adopted by

American Law Institute under Prof. WilliamReese, proposed that in the absence of statutory

law, law to be applied in Conflict case, is the law ofthe most significant relationship.

Conflict of Laws in the Philippines

Spanish Civil Code enforced in the Philippines until 1950contained the principles adopted from the French CivilCode (Code of Napoleon) particularly the nationality lawprinciple. Art 16, par. 1, which applies lex situs rule wasadopted from Art. 10 of Spanish CC while par. 2 representsthe system of universal succession. Art. 17, par. 1 follows lexloci contractus. But there was no significant jurisprudence onthe subject.

Conflict of Laws was included in law curriculum by UPCollege of Law in 1911 (no less!). Until 1950s, law teacherspredominantly used foreign law books and decisions by

American courts.

In the Bar, it used to be a separate subject along with PILbut when it was revised, PIL was included in Pol Law whilePRIL was merged with Civil Law. But, this does not meanthat PRIL is a part of civil law as this mindview tends to limitthe perspective and scope of analysis required for conflictsproblems.

Now, more problems in Conflict have arisen esp. withFilipinos engaging in foreign business transactions, and ininternational air transport and foreign tort claims and laborcontracts for OFWs.

III. Sources of Conflict of Laws

A.

Codes and Statutes

Conflict of Laws (CL) originated in continental Europe was

most laws were codified.

Primary sources of law are found in the civil codes ofdifferent countries:

1. Roman code codified principles of ius gentium.2. Code of Napoleon contained specific rule on

personal law of individual, this was followed byseveral codes (Netherlands, Romania, Italy, Portugal,Spain)

3. The German civil Code contained manyprovisions on Conflict of Laws.

4. Switzerland also enacted Laws on cases involvingforeign elements.

5. Greece enacted a Civil Code with CL rules whichbecame a model in other countries

6. The Code of Bustamante (in South America) waspatterned after the Code of Napoleon

Conflict Laws of the Philippines

Spanish Civil Code was enforced in the Philippines onDecember 7, 1889 until the Philippine Civil Codes

effectivity on August 30, 1950 which contained theprovisions on conflict of laws of the earlier code.


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Spains Code of Commerce, having some provisions onforeign transactions, were also enforced in the Philippineson Dec 1, 1888.

One basic source of law is the 1987 Constitution whichcontainsprinciples on nationality and comity.

Special statutes were also enacted to govern cases withforeign elements, to wit:

1. Corporation Code2. General Banking Act3. Foreign Currency System Act4. Phil Foreign Law Guarantee Corp5. Retail Business Regulation Act6. Anti-Dummy Law7. Nationalization of Rice and Corn Industry Act8. Insurance Code9. IP Code10. Patent Law11. Trademark Law12. COGSA13. Salvage Law

14. Public Service Act15. Civil Aeronautics Act16. Phil Overseas Shipping Act17. Investment Incentives Act18. Export Incentives Act19. RA 7722

B.

Treaties and International Conventions

The Philippines has entered into a number of treaties andinternational conventions which deal with privateinternational law since it became a Republic.

Some of these treaties/conventions are:

1. Convention on Intl Civil Aviation,2. Warsaw Convention,3. Convention on Offenses Committed on Board Aircraft4. Convention on the Suppression of Unlawful5. Acts against Civil Aviation6. UN Convention COGSA7. Convention on Consent to Marriage, etc8. Convention on Traffic of Persons9. Convention on Elimination of Discrimination against

Women10. Convention on Political Rights of Women

11. IC on the Suppression of Traffic of Women andChildren

12. Convention on World Intellectual PropertyOrganization13. Berne Convention on Protection of Literary and

Artistic Works14. Paris Convention on Protection of Industrial Property.

Although many Hague Conventions on Private InternationalLaw were concluded since 1951, which dealt with issues on:

Personal status

Patrimonial family status Patrimonial status such as agency and

trustsThe Philippines is a signatory to the Convention onRecognition of Foreign Judgment on Civil and CommercialMatters and has ratified the 1993 Convention in Respect ofInter-Country Adoption only.

C. Treatises, Commentaries and Studies of Learned

Societies

In interpreting statutes and codes involving CL, courts resort

to works of distinguished jurists and studies of learnedsocieties.

Distinguished writers in continental Europe include HuberManreas, Savigny (whose work was translated into English byGuthrie), and Weiss.

Distinguished American and English writers, on the otherhand, include Beale, Cavers, Cheatham, Currie, Ehrenzweig,Goodrich, Gussbaum, Story, Wharton, Cheshire, Graveson.

The American Law Institute published 2 studies on CL:Restatement of the Conflict of Laws and a SecondRestatement with William Reese as Reporter.

D.

Judicial decisions

Decisions of courts are the most important source of CLrules and form the main bulk of source of conflict rules.

According to Graveson: This branch of law is morecompletely judge-made than almost any other. In its

application, judges have to deal with All Manner of Peoplemore than any other branch. The claim of justice for right asa basis for conflict of laws is supported not only by the termsof the judicial oath but by judicial dicta in judgments.

PART TWO: JURISDICTION AND CHOICE OF LAW

IV. Jurisdiction

Jurisdiction may mean either a) judicial or b) legislativejurisdiction. (This part talks ofjudicial jurisdiction)

Judicial JD the power or authority of a court to try a case,render judgment and execute it in accordance with law.

Legislative JD the ability of the state to promulgate lawsand enforce them on all persons and property within itsterritory.

4 Major Questions in Analyzing a Conflict of Laws Problem:

1) Has the court JD over the person of the defendantor over his property?

2) Has the court JD over the subject matter(competency)?

3) Has the suit been brought in the proper venue incases where a foreign element is involved?

4) Is there a statute or doctrine under which a courtotherwise qualified to try the case may or may notrefuse to entertain it?

A.

Basis of Exercise of Judicial Jurisdiction

Bases of Judicial Jurisdiction (3 groups):

1) JD over the person (based on forum-defendantcontacts)

2) JD over the res (based on forum-propertycontacts)

3) JD over the subject matter

1.

Jurisdiction over the Person

This is acquired by the voluntary appearance of a party andhis submission to authority.

Over the person of the plaintiff: acquired the moment heinvokes the aid of the court by filing a suit.


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Over the person of the defendant: acquired when he entershis appearance or is served with the legal process within thestate.

When he or his lawyer appears in court, he gives consent tothe forums exercise of JD over him, except where theappearance is for the purpose of protesting the JD over him.

A non-resident plaintiff who files a suit i s deemed to consentto the courts exercise of JD over subsequent proceedings

arising out of his original cause of action (counterclaims).

JD over the defendant may be had by personal orsubstituted service of summons.

Gemperle vs. Schenker

(1967)

FACTS: Paul Schenker (Swiss citizen and resident) filed acomplaint against Gemperle through his wife HelenSchenker, for enforcement of subscription to shares ofstock. Gemperle filed a suit against Paul for damages, saying

that Paul caused allegations to be published attacking hisreputation and bringing him into public hatred and discreditas a businessman. Schenkers defense: court has no JD overthe person of Paul.

HELD: Jurisdiction was acquired by the lower court over theperson of Paul through service of summons addressed tohim upon Helen, it appearing from the answer that she is therepresentative and attorney-in-fact of her husband in the civilcase.

Jurisdiction:

1) over the persona) voluntary appearanceb) submission to authority

rule: in substituted service, the premise is that the defendantis within the territorial JD of the court

exception: Gemperle case because Helen is legallyauthorized to file a case in behalf of Paul, she is alsoauthorized to receive summons

2) over the propertya) in rem the situs could bind the

world

b) quasi in rem

basis of JD:presence of the property within the territory

3) over the subject-matter - WON the court hascompetence to hear the case and render

judgment; the courts JD must be properly

invoked (provided for by statute)_______________

2.

Jurisdiction over the Property

JD over the property results from:

a) seizure of the property under a legal process

b) the institution of legal proceedings whereinthe courts power over the property is

recognized and made effective

This kind of JD is referred to as in remJD; the situs couldbind the world and not just the interest of specific persons.

Basis of exercise of JD: the presence of the property withinthe territorial JD of the forum.

Quasi in rem JD: affects only the interests of particularpersons in that thing (ex. Quieting of title). (actions against aperson in respect of the res)

In these 2 proceedings, all that due process requires is thatthe defendant be given adequate notice and opportunity tobe heard (which are both met by service of summons bypublication).

Pennoyer vs. Neff

(1878)

FACTS: Neff, a California resident, owned land in Oregonwhich was sold under a Sheriffs deed to satisfy a money

judgment against him. The service of summons was made bypublication. He is suing for recovery of said land, allegingthat the sale was invalid for lack of JD of the Oregon courtover him.

HELD: Substituted services by publication, or in any otherauthorized form, may be sufficient to inform parties of theobject of the proceedings taken where property is oncebrought under the control of the court by seizure or someequivalent act to any proceedings authorized by law uponsuch seizure for its condemnation and sale.

But where the entire object of the action is to determine thepersonal rights and obligations of defendants, that is, where

the suit is merely in personam, constructive service in thisform upon a non-resident is ineffectual for any purpose.

The important thing to prove is what kind of action isinvolved (to determine sufficiency of form of service to beused)

International Shoe Co. vs. Washington

(1945)

FACTS: The state of Washington sued International ShoeCo. (a Delaware corporation with principal place of businessin Missouri) to collect the tax laid upon the exercise of theprivilege of employing salesmen within the state.International Shoes defense is that its activities within thestate, consisting merely of exhibiting samples and solicitingorders and nothing more, were not sufficient to manifest its

presence there; hence the state courts had no JD over it.

HELD: The SC of Washington has JD over InternationalShoe. Due process requires only that in order to subject adefendant to a judgment in personam, if he be not present

within the territory of the forum, he should have certainminimum contactswith it, such that the maintenance of thesuit does not offend traditional notions of fair play andsubstantial justice. (Minimum contacts so that the suit willnot offend traditional notions of fair play and substantial

justice.)

The demands of due process regarding the corporations

presence may be met by such contacts of the corporationwith the state of the forum as to make it reasonable xxx to

require the corporation with defend the particular suit which

is brought there.

Its presence can be manifested only by such activities

carried on in its behalf by those who are authorized to act forit.

Mullane vs. Central Hanover Bank Trust Co.

(1950)

FACTS: In an action for judicial settlement of accounts ofCentral Hanover Bank as trustee of a common trust fund,some of the beneficiaries who are non-residents of NY werenotified only by publication in a local newspaper.

HELD: When notice is a persons due, process which is a

mere gesture is NOT due process. The means employed

must be such as one desirous of actually informing theabsentee might reasonably adopt to accomplish it. Within


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the limits of practicability, notice must be such as isreasonably calculated to reach interested parties.

In Mullane, the manner notice was given should reasonablyresult in informing the affected partner; when conditions donot allow such notice, the form chosen should notsubstantially be less likely to bring home notice than other

of the feasible and customary substitutes.

Shaffer vs. Heitner

(1977)

FACTS: Heitner, a non-resident of Delaware with 1 share ofstock in the Delaware corporation Greyhound, suedGreyhound and its officers for allegedly violating its duties.Pursuant to the case, Heitner filed a motion for

sequestration of the defendants stocks in Greyhound. Thestocks, while not physically present in Delaware, areconsidered to be there in view of it being the place ofincorporation.

HELD: The Delaware court cannot exercise JD justbecause the stocks are statutorily present in Delaware. The

property (stocks) is not the subject matter of the litigationnor is the underlying cause of action related to the property.

Also, the facts in CAB does not demonstrate that defendantshave purposefully availed themselves of the privilege ofconducting activities within the forum state in a way that

would justify bringing them before a Delaware court.

In Shaffer, the minimum contacts and fundamental fairnesstest should be satisfied regardless of whether the proceedingsare in rem, quasi in rem or in personam.

Traditional basis for the exercise of judicial JD is the statesphysical power over persons and property within its territory;

this is why in in rem proceedings, it can exercise JD overproperty situated in the state regardless of whether it couldotherwise exercise JD over the persons whose interest wouldbe affected by the decision.

In the US, there is a shifting trend from theory of territorialpower to considerations of minimum contacts andfundamental fairness. This approach demands that there beforum-transaction contacts that will make it fundamentallyfair to require the defendant to defend a suit in the forumregardless of his non-resident status.

Distinction, Shaffer and International Shoe: while

International Shoe requires minimum contacts between thedefendant and the forum, Shaffer demands that minimum

contacts exist among the forum, defendant and the cause ofaction.

The change in the conceptual foundation of JD fromterritorial power to fairness does not significantly affectproceedings in rem,which are suits where the property itselfis the object of the controversy. The physical presence of theproperty within the state establishes the states paramount

interest in adjudicating a claim over it and provides thenecessary minimum contacts.

Long-Arm Statutes

Long-arm statutes specify the kinds of contacts upon whichJD will be asserted. Some long-arm statutes broadlyauthorize courts to assert JD in any case not inconsistent

with the Constitution, leaving it to the court to define itslimitations on a case-by-case basis.

3.

Jurisdiction over the Subject matter

Subject-matter JD is allocated among the courts by

constitutional and statutory laws, according to the nature ofthe controversy, thereby determining the competence of thecourt to try and decide a case.

It is not enough that a court has a power in abstract to tryand decide the case; it is necessary that said power beproperly invoked xxx by filing a petition. Subject-matter JDcannot be conferred by consent of the parties.

Idonah Perkins vs. Roxas

(1941)

FACTS: Eugene Perkins filed a complaint against BenguetConsolidated for the recovery of declared dividends, butBenguet withheld payment upon the opposing claim of

Idonah Perkins, wife of Eugene. Idonah sets up a NYjudgment declaring her to be the sole owner of the Benguetshares and allege that such

judgment is res judicata.

HELD: The CFI has jurisdiction over the case, despite thepresence of the NY judgment. Whether or not the trial

judge in the course of the proceedings will give validity andefficacy to the NY judgment set up by Idonah in her cross-complaint is a question that goes to the merits of thecontroversy and relates to the rights of the parties as betweeneach other, and not to the jurisdiction of the court. The fearthat the trial judge may render judgment annulling the final

judgment of the NY court is not a ground to deny the lowercourt of JD. The test of JD is whether or not the tribunal has

power to enter upon the inquiry, not whether its conclusionin the course of it is right or wrong.

Presence/Jurisdiction:1) Traditional Views

a) Pennoyer actual physical presence2) Modern Views

a) Intl. Shoe contact between the forumand the corporation (even in theabsence of an actual office, etc.)

b) Mullane disregards strict distinctionbetween in remand in personam

c) Shaffer minimum contacts betweenthe properties and forum; fundamentalfairness test

Long-arm statutes: already identify what are the bases of JD.

Jurisdiction and choice of law do not meanthe same thing.

_______________

B. Ways of Dealing with a Conflicts Problem

The court may deal with a conflicts problem, by:

1) dismissing the case for lack of jurisdiction or onthe ground of forum non conveniens

2) assuming jurisdiction and applying either forum or

foreign law

1. Dismiss the case

Doctrine of Forum non Conveniens

This doctrine requires the court to dismiss the case on theground that the controversy may be more suitably triedelsewhere. This phrase literally means the forum isinconvenient.

Reasons for applying forum non conveniens:

1) to prevent abuse of the courts processes (preventharassment of defendant, dissuade a non-resident


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plaintiff from choosing the forum because oflarger jury verdicts, etc.)

2) burdensome on the court or taxpayers (severebacklog of cases)

3) local machinery is inadequate to effectuate a right(no way for court to secure evidence andattendance of witnesses)

4) avoid global forum shopping

English and Scottish courts have applied FNC when there

was another available and more appropriate forum, inwhich the ends of justice would be better served in view ofthe interests of all parties, by eliminating the vexatious oroppressive character of the pending proceedings and byremoving any unfairness to either party which would resultfrom trial in the forum seized of the case.

Heine vs. New York Insurance Co.

(1940)

FACTS: An action for recovery on life insurance policiesmade and issued in Germany was filed by German citizensin Oregon against a NY corporation.

HELD: The Oregon court may refuse to exercise JD. Thecourts of Germany and New York are open and functioningand competent to take JD of the controversies, and servicecan be made upon the defendants in either of such JDs. Torequire the defendants to defend the actions in Oregon

would impose upon them great and unnecessaryinconvenience and expense. The courts of this country areestablished and maintained primarily to determinecontroversies between its citizens and those having businessthere, and manifestly the court may protect itself against a

flood of litigation over contracts made and to be performedin a foreign country, where the parties and witnesses arenonresidents of the forum, and no reason exists why theliability, if any, cannot be enforced in the courts of thecountry where the cause of action arose, or in the state

where the defendant was organized and has its principaloffices.

In re: Union Carbide

(1986)

FACTS: An industrial disaster in a chemical plant of UnionCarbide in Bhopal, India caused deaths and injuries to anumber of residents. India enacted the Bhopal Gas Leak

Disaster Act, which authorized the government (Union ofIndia) to represent the victims. The UOI filed a complaint

in NY in behalf of the victims. Union carbide moved todismiss on the ground of forum non conveniens.

HELD: Indian courts have JD, not US courts. Even if UCChas domicile in the US, this loses significance because it gaveits consent to Indian JD. Moreover, the findings of the courtshow that the proof bearing on the issues to be tried isalmost entirely located in India (principal witnesses anddocuments, detailed designs, implementation of plans, safetyprecautions, etc.).

Wing On Company vs. Syyap

(1967)

FACTS: Syyap failed pay Wing On, a NY-basedpartnership, its obligation for a contract of purchase ofclothing material. Wing On filed an action in the Philippinesagainst Syyap, but Syyap contends that the trial court shouldhave declined JD on the ground of forum non conveniens.

HELD: Forum non conveniens is inapplicable. Unless thebalance is strongly in favor of the defendant, the plaintiffs

choice of forum should be rarely disturbed, and

furthermore, the consideration of inadequacy to enforce thejudgment, which is one of the important factors to beconsidered in the application of said principle, wouldprecisely constitute a problem to the plaintiff if the localcourts decline to assume JD on the basis of said principle,considering that defendant is a resident of the Philippines.

There is no existing catalogue of circumstances that willjustify sustaining a plea of forum non conveniens but, ingeneral, both public and private interests should be weighed.

When the forum is the only state where JD can be obtainedover the defendant and, in addition, some relation with theparties exists or when the forum provides procedural

remedies not available in another state, the forum court maynot resist imposition upon its JD.

Bank of America vs. CA

(2003)

FACTS: The spouses Litonjua are engaged in the shippingbusiness; they executed a contract where Bank of America

was made the trustee of their businesses. But the bus inessessuffered losses in the hands of the bank, so the spouses fileda case for damages for breach of trust and accounting ofrevenues in the Philippines. Bank of America filed a Motionto Dismiss on the ground of forum non conveniens.

HELD: While it is within the discretion of the trial court toabstain from assuming JD on the ground of forum nonconveniens, it should do so only after vital facts areestablished, to determine whether special circumstancesrequire the courts desistance; and the propriety of

dismissing a case based on this principle of forum nonconveniensrequires a factual determination, hence it is moreproperly considered a matter of defense.

The SC also held in Philsec. Investment vs. CA that thedoctrine of FNC should not be used as a ground for amotion to dismiss because Sec. 1 Rule 16 of ROC does notinclude said doctrine as a ground.

Forum non conveniens:

1) prevent abuse of court processes2) burdensome on the court/taxpayers3) prevent global forum shopping

FNC is not something that automatically applies;its application rests in the sound discretion ofthe court

in Wing On vs. Syyap. Prof. Pangalangan doesnot agree with the holding that unless thebalance is strongly in favor of the defendant, the

plaintiffs choice of forum should rarely bedisturbed, because in the first place, it was the

plaintiffwho chose that forum._______________

2.

Assume Jurisdiction

When the court assumes JD, it may apply forum law or

foreign law, although forum law should be applied wheneverthere is good reason to do so because the forum law is thebasic law.

Factors which justify the application of internal law:

1)

A specific law of the forum decrees that

internal law should apply

Examples of this are Art. 16 of Civil Code ( lex nationalegoverns testate and intestate succession of the person whosesuccession is under consideration); Art. 829 of the CivilCode (revocation of wills outside RP); and Art. 819

(prohibition on joint wills by Filipinos).


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Example: prohibitory or mandatory laws ofthe forum

2)

The proper foreign law was not properly

pleaded and proved

Our courts may not take judicial cognizance of any foreignlaw; hence, failure to plead and prove foreign law leads tothe presumption that it is the same as forum law.

Under the Rules of Court, the foreign lawmay be proved by:

a) official publicationb) certification form the officer with official

custody, under seal, and the Phil. Embassymust certify that such officer has officialcustody, etc.: that it is the law in force at thetime etc., etc.

Fleumer vs. Hix

(1930)

FACTS: Fleumer, the special administrator of the estate of

Hix, appealed the denial of the probate of Hixs will, allegingthat since the will was executed in West Virginia by aresident therein, West Virginia law should govern.

HELD: The courts of the Philippines are not authorized totake judicial notice of the laws of the various States of the

American Union. Such laws must be proved as f acts. Herethe requirements of law were not met. There was noshowing that the book from which an extract was taken wasprinted or published under the authority of the state of West

Va. as provided in the Code of Civi l Procedure; nor was theextract from the law attested by the certificate of the officerhaving charge of the original.

Philippine Trust Co. vs. Bohanan

(1960)

FACTS: The will of Bohanan was admitted to probate; inthe probate he was declared to be a citizen of Nevada. In thehearing for the proposed project of partition, Nevada law

was not introduced. Bohanans widow questioned thevalidity of the will under Philippine law; however, if Nevadalaw was to be applied, the will would be valid.

HELD: The law of Nevada, being a foreign law, can only beproved in our courts in the form and manner provided forby our Rules. However, it has been found that during the

hearing for the motion of the widow Bohanan for withdrawalof her share, the foreign law was introduced in evidence by

her counsel. In addition, the other heirs do not dispute theprovisions of the Nevada law. Under these circumstances,the pertinent laws of Nevada can be taken judicial notice ofby the court, without proof of such law having been offeredat the hearing of the project of partition.

As the validity of the testamentary dispositions are to begoverned by the national law of the testator, the order of thecourt approving the project of partition in accordance withNevada law must be affirmed.

3) The case falls under any of the exceptions to

the application of foreign law

a) The foreign law is contrary to an importantpublic policy of the forum

b) The foreign law is penal in naturec) The foreign law is procedural in natured) The foreign law purely fiscal or

administrative in naturee) The application of the foreign law will work

undeniable injustice to the citizens of theforum

f) The case involves real or personal propertysituated in the forum

g) The application of the foreign law mightendanger the vital interest of the state

h) The foreign law is contrary to good morals

V. Choice of Law

A.

The Correlation between Jurisdiction and Choice

of Law

1) The factors that justify exercise of judicialjurisdiction maybe the same factors used to

determine choice of law

2) if the forum applies its internal law because ithas a real interest, the outcome of the case

will be foreordained by the forum

- plaintiff will choose forum who has real interest inapplying its internal law

3) generally, forum will apply its internal law soplaintiff will bring suit where internal law isfavorable to him

BUT these are 2 diff. concepts. A court may exercise

jurisdiction but apply foreign law or not exercise jurisdictionbut the states internal law will be applied.

B. Approaches to Choice of Law

Ideally, the object of all choice of law theories must bejustice and predictability.

1.

Traditional Approaches

- theories that emphasize simplicity, convenienceand uniformity

a. vested rights theory

- advanced by Prof. Beale (1stRestatement)

- an act done in a foreign jurisdiction gives rise to aright if the laws of that state provides so. The right

vests and he can bring suit in any forum hechooses.

- The forum refers law of the place of the last actnecessary to complete the cause of action. (placeof injury)

- If place of the last act creates no legal right,although forum court creates such right if act is

done within its territory, it will not enforce theright.

Gray vs. Gray

(1934)

FACTS: Wife (W) sued husband (H) for damages in NewHampshire where they are residents. Accident happened inMaine. Maine bars suit between spouses.

HELD: The effect of the prohibition in Maine is to divestthe W of any cause of action against H. If there is a conflictbetween lex fori and lex loci, lex loci governs in torts inrespect to the legal effect and incidents of the act.

The status as spouses is determined by New Hampshire lawbut the incidents of that status is governed by the law of theplace of the transaction (Maine).

Alabama Great Southern Railroad vs. Carroll

(1892)

FACTS: Carroll is an employee of Alabama RR. Both areresidents of Alabama. C was injured in the course of workbec. of negligence of co-EE in Mississippi. Mississippi barsrecovery. Alabama makes employer liable. Suit is filed in

Alabama.


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HELD: There can be no recovery in one sate for injuries tothe person sustained in another unless the infliction of theinjuries is actionable under the law of the state in which theinjuries were received.

Although it is claimed that the negligent conduct was done inAlabama, the injury sustained creates the cause of action andnot the negligence. (law of the place of injury)

Criticisms to the Approach: failure to resolve conflicts caseswith considerations of policy and fairness.

b. Cooks Local Law Theory

- treat conflicts cases as a purely domestic case thatdoes not involve a foreign element

- power of a state to regulate within its territory hasno limitation except as imposed by its own positivelaw

- criticism: appeals to narrow-mined who favors anexaggerated local policy bec a sovereign can do asthey please, depreciating the practical andequitable considerations that should control the

case.

c. Cavers Principles of Preference

- choice-of-law decisions should be made withreference to principles of preference which areconceived to provide a fair accommodation ofconflicting state policies and afford fair treatmentto the parties.

- Cavers principles have a territorialist bias; it looksto the place where the significant events occurredor where the legal relationship is centered.

-

Court should:1) scrutinize the event/ transaction giving rise to

the issue2) compare carefully the proffered rule of law &

the result of its application with the rule ofthe forum & its effect

3) appraise these results from the standpoint ofjustice between the litigants or ofconsiderations of social policy

2. Modern Approaches

a. Place of the Most Significant

Relationship

-identifies a plurality of factors:

i. needs of the interstate and intl systemii. relevant policies of the concerned statesiii. relevant policies of other interested

statesiv. protection of justified expectations of

the partiesv. basic policies underlying the particular

field of lawvi. certainty, predictability and uniformity

of resultvii. ease in the determination and

application of law to be applied

Examples of application:

i. torts place of injury, place of tortiousconduct, domicile, residence ornationality of parties, place whererelationship is entered

ii. contracts choice of law of the parties,place of contracting, place ofperformance, domicile, residence,nationailty, place of incorporation and

place of business

Auten vs. Auten

(1954)FACTS: Spouses were married and lived in England. H leftand went to NY. Spouses executed support agreement inNY. H failed to pay support. W sued H for legal separation.

W sued in NY to enforce agreement. H claimed that legalseparation suit, extinguished liability under NY law.

HELD: English law should govern the parties. England hasall the truly significant contacts while the nexus to NY isentirely fortuitous.

England is the seat of marital domicile and the place whereW & children were to be, it has the greatest concern indefining and regulating the rights and duties existing underthe agreement and the circumstances that affect it. WhereasNY is only the place of the agreement and where the trustee,

where moneys will be paid for the account the W &children, had his office.

In applying the grouping of contacts theory, courts, insteadof regarding as conclusive the intention of the parties or theplace of making or performance, lay emphasis rather on thelaw of the place which has the most significant contacts with

the matter in dispute.

Haag vs. Barnes

(1961)

FACTS: Barnes & Haag had an affair in NY. H becamepregnant. After giving birth, H went to Chicago. Partiesentered into a support agreement in Chicago. Theagreement contained a choice of law clause (Illinois). H &child went back to live in NY. H filed support action in NYagainst B. Under NY law, agreement is not binding. Bs

defense: Illinois agreement bars suit.

HELD: Suit is barred by the prior support agreement. Courtfound that Illinois has the most significant contacts. It is whatthe parties intended to apply, the place of performance, theplace of business of B & the agents and the place wheresupport are being made compared to NY whose contacts areof less weight & significance. (place of liaison & residence ofH & child)

Criticisms to approach: no standard to evaluate the relativesignificance/importance of each contact such that court mayuse approach to support any preconceived result withoutexplaining its real motives.

b.

Interest Analysis

- resolve conflicts cases by looking at the policybehind the laws of the involved states and theinterest each state has in applying its own law.

- Tasks of the court:1st: determine whether the case involves a true,

false or apparent conflict (false conflict: only onestate has an actual interest in having the lawapplied and the failure to apply the other state law

will not impair its policy)2

nd

: if there is apparent or true conflict, court

should take a second look on the policies andinterests of the states. If only one has a realinterest, the other is insubstantial, then there isfalse conflict. If both have real interests in applyingtheir law, then the apparent conflict is a trueconflict.

Babcock vs. Jackson

(1963)

FACTS: Babcock & Jackson, NY residents, met a caraccident in Ontario thru Js fault. B sued J in NY fordamages. Ontario bars recovery under a guest statute. NYdoes not have a similar rule.


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HELD: B should be allowed to recover. NY had a greater &

more direct interest than Ontario. NYs policy is to affordcompensation to a guest against tortfeasor host while

Ontarios policy is to prevent fraudulent collusion to theprejudice of Ontario defendants-insurance companies.Thus, Ontario had no interest in denying a remedy to a NYguest against a NY host.

The rule on tort claim is:Where the issue involves standard of conduct, law of the

place of the tort is controlling, but as to other issues, courtmust apply the law of the state which has the strongestinterest in the resolution of the issue presented.

Criticisms to Approach: not all state legislatures publishreports that explain the background and purpose of the laws,thus court is left to speculate on the purpose of the law andnot all reflected policy or had a purpose other than to decidecases.

Pangalangan on Interest analysis: why considerwhat the state wants when interes ts of individualsare in issue?

c. Comparative Impairment

- subordination of the state objective which wouldbe least impaired

- How? Court should weigh conflicting interests andapply the law of the state whose interest would bemore impaired if its laws were not followed

d. Trautmans Functional Analysis

- this approach looks into:1) the general policies of the state beyond those

reflected in substantive law2) policies and values reflecting effective and

harmonious relationship between statesex. Reciprocity, advancement of multistate

activity, protecting justifiable expectations,evenhandedness and effectiveness.

- after determining these policies, court should then

weigh the relative strength of a state policy

- HOW? Court should consider whether the law ofa state reflects an emerging or regressingpolicy.

e.

Leflars Choice-Influencing

Considerations

5 major choice-influencing considerations1) predictabilityof results2) maintenance of interstate and intl order3) simplificationof the judicial task4) application of the better rule of law5) advancement of the forums governmental

interest

- court should prefer a law that make goodsocioeconomic sense and are sound in view ofpresent day conditions

- Criticism: no principled or objective standard todetermine better rule.

Traditional approaches do not consider policy; all modern

approaches look at policy.______________

VI. The Problem of Characterization

A.

Characterization and the Single-Aspect Method

Single-aspect method: choice of law theories traditionallyconcentrated on one element of a situation to connect caseto particular legal community.Goal: simplicity, convenience, uniformity

Multi-aspect method: modern approach by which allimportant factors (non/territorial) are analyzed.

The applicable law is arrived at by elaborating policies &purposes underlying rules, and the needs of internationalintercourse.

Goal: just resolution of case

The Philippines follows single-aspect method. Our conflictsrules are mostly found in the Civil Code.

Art 15: Laws relating to family rights & duties, or to the

status, condition and legal capacity of persons are bindingupon citizens of the Philippines, even though living abroad.

Art 16: Real property as well as personal property is subjectto the law of the country where it is situated.

However, intestate and testamentary succession, both withrespect to the order of succession and to the amount ofsuccessional rights and to the intrinsic validity oftestamentary provisions shall be regulated by the Nationallaw 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. (AOI)

Art 17: The forms and solemnities of contracts, wills, andother public instruments shall be governed by the laws of thecountry in which they are executed.

When the acts referred to are executed before thediplomatic or consular officials of the Republic of thePhilippines in a foreign country, the solemnities establishedby Philippine laws shall be observed in their execution.

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 bylaws or judgments promulgated, or by determinations orconventions agreed upon in a foreign country.

The rules specify geographical location in accordance withtraditional approach. The problem with this: inherentrigidity, unjust decisions.

Solution: Characterization, Renvoi, Escape devices

Characterization: the process by which a court assigns adisputed question to an area in substantive law. It is a part oflegal analysis and a pervasive problem since at least 2

jurisdictions with divergent laws are involved.

Two Types of Characterization:

1. Subject matter Characterization

This calls for classification of a factual situation into a legalcategory. It is significant in a single-aspect method becausethe legal category to which an issue is assigned determinesgoverning law

Gibbs vs Govt of PI

(1933)

FACTS: Spouses Allison & Eva were residents & citizens ofCalifornia owning parcels of land in Manila. Eva died.


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Allison, as administrator files petition to declare lands in hisfavor pursuant to California law. California Civil Codeprovides that upon wifes death previous to husband ,community property belongs absolutely to husband.

HELD: California Civil Code will not apply. The law of theplace where land is situated governs its descent, alienation&transfer & for the effect & construction of wills & otherconveyances.

As mandated by Philippine law, the lands were acquired ascommunity property in the conjugal partnership. The wife

was vested with a title equal to that of her husband. Uponher death, if there are no obligations of the decedent, hershare in the conjugal property is transmitted to the heirs bysuccession.

Though the court was silent on the matter ofcharacterization, it had the task of categorizing the issue asone involving:

b) property to be governed by lex situs, orc) succession to be governed by decedents

national law (California)

Characterization problems are considered a threat totraditional choice-of-law theories whose aims are uniformity& predictability of results.

Problems:

A) C, is adopted in the Philippines by a former Filipinocitizen and moves to the US with her adoptive mother, M.By Ms laws, C will not be an heir. Will C be entitled to an

intestate share in Ms estate?

The court would have to decide whether it is a Q relating to

1. Legality & effects of adoption: law of state wherelegal relationship of adoption was established or where theadoption decree was granted shall govern; or

2. Succession: adopters personal law shall prevail

B) Principal authorizes a person to act as his agent inanother country. Agent commits a negligent act. What law

will determine the principals liability?It depends on the courts characterization of the case as:

1. Contractual: law of the place where the contractof agency was entered into; or

2. Tortious: law of the place where tortuousconduct or injury occurred

2. Substance Procedure Dichotomy

Directs the court to the extent it will apply foreign law.

If issue substantive: court may apply foreign lawIf issue procedural: follow forum law

Why apply forum law to matters of procedure?

One of the main goals of a rational system of CL rules:Rights & Duties of parties arising from a legal situation shallnot be substantially varied because the forum in w/c action isbrought.

Courts of all civilized states now seek to protect parties, byreferring to foreign law, against a substantial change ofposition because of fortuitous circumstance that suit wasbrought in that forum.

The means provided for compulsion, or the limitation uponcompulsion are in most cases of equal practical importanceto the declaration of the validity of the plaintiffs claim.

Such all inclusive reference to foreign law is never made. Itwould be too burdensome on the part of the forum andadministration of justice will be delayed. Thus, it is necessaryto limit the scope of reference to foreign law.

This limitation excludes phases of the case which make theadministration of foreign law inconvenient or violative oflocal policy. In such instances, local rules of the forum areapplied & are classified as matters of procedure.

Grant vs. Mcauliffe

(1953)

FACTS: Plaintiffs, Grant, et al., (California residents) wereinjured in Arizona when their vehicle collided with that of

Pullens (California resident), who died of accident. Thesuit against estate of Pullen filed by Grant to recoverdamages was dismissed because under Arizona law- a tortaction not commenced before the death of the tortfeasormust be abated.But under California law, an action for tortsurvives the death of tortfeasor.

HELD: Survival statutes are procedural. Thus, California

(forum) law applies. Forum law governs if issue isprocedural. Under California Civil Code the action out of a

wrong resulting to a physical injury shall not abate because ofthe death of the wrongdoer. Plaintiffs cause of actionsurvives Pullens death.

The reaction to Grant was generally negative. It wascriticized as being based on an erroneous characterizationgreatly influenced by sympathy.

Other view: Correct result but arrived at using dubious

method.

Currie: The court availed of one of several escape devices -characterization. It characterized the problem differently,such producing the result previously recognized as the soundresult.

This device is not ideal. It is better if courts could expresslystate the considerations that helped them determine theresults and indicate clearly how these considerations will beused in other cases.

No objective standard has been suggested. An attempt to

explain the court decision in terms of demands of justiceor social policy would create uncertainty & arousecriticism.

Procedural issues are governed by forum law so that thecourt will not be unduly burdened by task of studyingpeculiarities of another legal system. It must be noted,though, that some matters cannot be clearly defined asprocedural or substantive.

Two Issues whose classification (as procedural orsubstantive) is debatable:

1) Statute of FraudsIt is considered substantive if words of law relate toforbidding the creation of obligation. One that forbids theenforcement of the obligation is characterized as procedural

Marie vs. Garrison: Defendant maintains that the NYStatute of Frauds affects the remedy upon a contract w/in itstermsa rule prescribing evidence & deemed a rule ofprocedure. Garrison claims that rules of the forum must befollowed.Marie claims that NY law was constructed as a ruleof substance going into existence of contract; determined bylex loci contractus.


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Issue: Whether a contract declared void by a stature still

subsists as a contract w/ the only effect of depriving party of aremedy or mere evidence.Held: It was a word of substance because the statuteprovided that the contract of sale of any interest in land shallbe void unless it was in writing ex contrario to a law statingthat no action shall be brought of the requirement was not

complied with.

2) Statutes of Limitations (SL) & Borrowing Statutes

Statutes of limitations are traditionally classified asprocedural because they only barred the legal remedy

w/out impairing the substantive right involved.

Thus, a suit can still be maintained in another JD w/c has alonger SL. However, certain SLs have been classified as

substantive for conflicts purposes if providing a shorterperiod for certain claim types falling w/in wider class coveredby the general SL.

Specificity test:to determine whether an SL is substantive or

procedural.

An SL of a foreign country is treated as substantivewhenlimitation was directed to newly created liability so

specificallyas to warrant saying that it qualified the right

Borrowing statutes

Purpose: Many states, the Philippines among others, havepassed borrowing statutes to eliminate forum-shopping.

However, in the case of Cadalin, the court said that toenforce the borrowed statute would contravene public policyon protection of labor.

Cadalin vs. POEA Administrator

(1994)

FACTS: Cadalin et al. instituted a class suit with the POEAfor money claims arising from their recruitment by AIBCand BRII for pretermination of employment contracts.Under Bahrain law where some of the complainants weredeployed, the prescriptive period for claims arising out of acontract of employment is one year.

HELD: Even though a law on prescription may beconsidered as substantial or procedural, its characterization

as either becomes irrelevant when the country of the forumhas a borrowing statute. Said statute has the practical effect

of treating the foreign statute of limitation as one ofsubstance. Under the ROC of the Philippines, it is providedthat ifby the laws of the state or country where the cause ofaction arose, the action is barred, it is also barred in thePhilippines. The Bahrain law on prescription should apply.

However, it cannot be enforced as it would contravene thepublic policy on the protection to labor. Philippine law willthen be applied.

B. Depecage

From depecer,which means to dissect.

Different aspects of a case involving a foreign element maybe governed by different systems of laws.

Von Mehren & Trautman: A man dies intestate domiciledin state A & w/ movable properties in State B.

How will the mans estate be divided?

State A conflict rules refer to laws of domicile. Intestate lawof State B gives the widow a definite share in the estate of

deceased. But the determination of WON the womanclaiming the share is a wife is referred to family law, notlaws on succession.

Issues of law governing movable properties & successionalrights of spouse are of primary importance, embodyingsubstance of claim. Validity of marriage affects solutionbecause it answers a preliminary or incidental Q.

The presence of an incidental Q is one instance which callsfor the employment of depecage.

Merits of Depecage:This technique allows other relevant interests of parties to be

addressed. Thus, it permits courts to arrive at a functionallysound result w/out rejecting the methodology of thetraditional approach. This nuanced single-aspect methodemploys depecageby choice.

Haumschild vs. Continental Casualty

(1959)

FACTS: Haumschild and Gleason were married inWisconsin, their domicile. Haumschild was injured inCalifornia while riding a motor truck driven by Gleason.Their marriage was later annulled. An action for recovery ofdamages was filed by Haumschild in Wisconsin. Continental

alleges that under California law, a spouse is immune fromsuit by the other spouse.

HELD: The law of the domicile ought to be applied in anyissue of incapacity to sue based upon family relationship.The policy reason for denying the capacity to sue(preventing family discord) more properly lies within thesphere of family law, where domicile usually controls the lawto be applied, than it does tort law, where the place of theinjury generally determines the substantive law which willgovern.

The court decided that the law of the place of accident(California) governed the issue of negligence while

Wisconsin law governed the issue of interspousal immunity.The characterization process was taken one step further bynot limiting the classification to the case itself but likewise, tothe issue arising from the case.

The 1969 Restatement 2d adopted depecage & set out anumber of factors to be considered in choosing theapplicable law:

a. needs of interstate & international system

b. relevant policies of the forum

c. relevant policies of other interested states & therelative interests of those states in thedetermination of a particular issue

d. protection of the justified expectations of theparties

e. the basic policies underlying the particular field oflaw

f. certainty, predictability, uniformity of results, and

g. ease in determination & application of law to beapplied

The consideration of any elements & acceptance by courtsof depecagehelp ease restrictions of single aspect method.

Courts not compelled to apply entire law to all aspects ofcasethat might produce egregious results. Cutting up thecase issue by issue is fair & reasonable.

But even if a useful tool in modern choice-of-law analysis,the express reference to depecagein case law, both in US &

the Phil still uncommon.


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VII. The Problem of Renvoi

A.

Definition

Renvoi a procedure whereby a jural matter presented isreferred by the conflict of laws rules of the forum to aforeign state, the conflict of laws rule of which, in turn, refers

the matter to the law of the forum or a third state.

Remission: reference is made back to the law of the forum

Transmission:reference to a third state

Renvoi has been employed in cases where the domiciliaryand nationality laws are applied to the same individual inissues involving succession, domestic relations and realproperties.

Renvoi:

B.

Various ways of dealing with the Problem of

Renvoi

4 Ways of Dealing with the Problem of Renvoi (Prof.

Griswold):

1) if the conflicts rules of the forum court refer thecase to the law of another state, it is deemed tomean only the internal law of that state (internal

law: that which would be applied to a domesticcase that has no conflict-of-laws complications) rejects the renvoi

2) the court may accept the renvoiand refer not justto another states internal law but to the wholelaw (includes choice-of-law rules applicable inmulti-state cases)

Aznar vs. Garcia

(1963)

FACTS: The will of Edward Christensen, a domiciliary ofthe Philippines, was admitted to probate, and a project of

partition was proposed. Edwards illegitimate child opposedthe project of partition on the ground that the distribution ofthe estate should be governed by Philippine law. The lowercourt found that Edward was a US citizen; hence thesuccessional rights and intrinsic validity of the will should begoverned by California.

HELD: Philippine law should apply. Art. 16 of the Phil.Civil Code provide that the national law of the decedentgoverns the validity of his testamentary dispositions. Suchnational law means the law on conflict of laws of theCalifornia code, which authorizes the reference or return ofthe question to the law of the testators domicile. The

conflict of laws rule in California precisely refers back thecase, when a decedent is not domiciled in California, to thelaw of his domicile (the Philippines in the CAB). The Phil.court must apply its own law as directed in the conflict oflaws rule of the state of the decedent.

3) by desistance or mutual disclaimer of JD thesame result as the acceptance of the renvoidoctrine but the process used by the forum courtis to desist applying the foreign law.

4) foreign court theory the forum court wouldassume the same position the foreign court would

take were it litigated in the foreign state

Disadvantage to renvoi: if both courts follow the sametheory, there would be no end to the case since the courts

would be referring it back to each other. It gives rise tosituations that have been invariably described as resemblingrevolving doors, a game of lawn tennis, a logical cabinet

of mirrors or a circulus inextricabilis.

Annesley, Davidson vs. Annesley

(1926)

FACTS: The testatrix, a British subject, was a domiciliary of

France according to British law, but not according to Frenchlaw. She made a will in English form. In the will she

disposed of all her property in favor of her daughter, andstipulated that she had no intention of abandoning herdomicile in England. If she was a domiciliary of France, shecould only dispose of 1/3 of her personal property.

HELD: The domicile of the testatrix at the time of her deathwas French. Applying English law, the fact of her residencein France coupled with animus manendi showed herintention to abandon her English domicile even if she hadnot complied with the formalities required under French law

to become a French domicile.

According to French municipal law, the law applicable in thecase of a foreigner not legally domiciled in France is the lawof that persons nationality, which is British. But British lawrefers the question back to French law, the law of thedomicile. And according to French law, the French courts,in administering the movable property of a deceasedforeigner who, according to the law of his country isdomiciled in France, and whose property must, according tothat law, be applied in accordance with the law of thecountry in which he was domiciled, will apply Frenchmunicipal law, even if he had not complied with the French

requirements for acquisition of domicile.

Options which the forum court may do:a) accept the renvoi (apply forum law)b) reject the renvoi (apply the internal law of the

foreign state)c) desistance/mutual disclaimerd) foreign court theory

- the difficulty with the foreign court theory is thatthe forum court will have to anticipate or guesshow the foreign court will act.

Renvoi is optional, based on the discretion of thecourt and the facts of the case.

_______________

C. Usefulness of Renvoi

Renvoi has been used to avoid unjust results.

University of Chicago vs. Dater

(1936)

FACTS: Mr. and Mrs. Price executed a trust deed andpromissory notes in favor of University of Chicago, for a

loan secured by Mr. Price and Mr. Dater. They wereresidents of Michigan; the mortgage and the notes were also

State A(RP)

State B

Art. 16CC

Internal law

Conflict-of-laws rule


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signed there and sent by mail to Chicago. In a suit filed bythe University in Michigan against the spouses Dater andMrs. Price (Mr. Price having died earlier), the court ruledthat there was no cause of action against Mrs. Price, becauseunder Michigan law a married woman has no capacity toenter into an obligation such as this, hence the note and trustdeed were void. The question is which law should beapplied, Michigan or Illinois law.

HELD: Under the law of Illinois, the capacity of Mrs. Price

is governed by Michigan law (as held in the similar case ofBurr vs. Beckler, where the court said that since the contract

was completed in Florida, that state governed her capacity tocontract). In this case, the contract was complete inMichigan, and it governs her capacity to contract. Since she

was not competent to contract under Michigan law, her noteand trust deed were void.

In the Dater decision, Michigan protected the interest of aMichigan wife especially since Illinois disclaimed any desirein applying its law. Also, uniformity of results was promotedin spite of discrepancies in the choice-of-law rules of the

involved states. With renvoi, the Dater decision was madedependent on substantive law and not on the incidental lawof the forum.

Objections to Renvoi

Critics:1) renvoiwould place the court in a perpetually-

enclosed circle form which it would never emergeand that it would never find a suitable body ofsubstantive rules to apply to a particular case.

The theoretical problem presented is that renvoiisworkable only if one of the states rejects it and that

it achieves harmony of decisions only if the statesconcerned do not agree on applying it the same

way.

Griswold: the objection is based on a false premise; as long

as remission is to the states internal law alone there will be a

stop to the endless chain of reference.

2) Courts may be unnecessarily burdened with thetask of identifying the choice-of-law rules ofanother state.

Pangalangan: from a practical perspective, the forum court

will not use renvoi if, in the first place, it cannot ascertainwhat the conflict-of-law rules of the foreign state are.

Inapplicability of Renvoi in a False Conflict

US Restatement (Second) of Conflict of Laws: renvoi to beused when there is a disinterested forum, to ensure that onlythe laws advancing the policies of the interested states will beapplied. If the choice-of-law rules of the state to whichreference is made refers the case back to the forum state, thecourt may use this situation to determine if both states have

an interest in having their laws applied or if there is merely afalse conflict.

Pfau vs. Trent Aluminum Co.

(1970)

FACTS: Trent (a New Jersey domiciliary) agreed to drivePfau (a Connecticut domiciliary) to Missouri. While in Iowa,they had a vehicular accident causing injuries to Pfau. Pfaufiled suit in New Jersey against Trent Aluminum Co.(registered owner of the car) for the damages he sustained

while a passenger in Trents car. The defense of Trent

Aluminum was that Iowa law is applicable, which provides

that the host-driver is not liable to his passenger-guest forordinary negligence.

HELD: Connecticut and New Jersey law both allowpassenger-guest recovery. It appears that Connecticutssubstantive law allowing a guest to recover form his hostsordinary negligence would give it a significant interest inhaving that law applied to this case. Since Iowa has nointerest in this litigation, and since the substantive laws ofConnecticut and New Jersey are the same, this case presentsa false conflictand the Connecticut plaintiff should have theright to maintain an action for ordinary negligence in New

Jersey.

Bellis vs. Bellis

(1968)

FACTS: The probate of the will of Texas citizen anddomiciliary Amos Bellis was opposed by his 3 illegitimatechildren in the Philippines for depriving them of theircompulsory legitime. However, the trial court ruled thatunder Art. 16 of the Phil. Civil Code, the national law of thedecedent is to be applied in testamentary succession. Thelaw of Texas did not provide for legitimes.

HELD: Texas law should apply. The decedent was both anational and a domiciliary of Texas, so that even assuming

Texas has a conflict of law rule providing that the law of thedomicile should govern, the rule would not result in a

reference back (renvoi) to Philippine law, but would stillrefer to Texas law.

VIII. Notice and Proof of Foreign Law

A.

Extent of Judicial Notice

It is the party whose cause of action or defense dependedupon the foreign law who has the burden of proving theforeign law.

Foreign law is treated as a question of fact that should beproperly pleaded and proved

In the Phils., judicial notice may be taken of a foreign lawwith which the court is evidently familiar. (Delgado vs.Republic) Such familiarity may be because the law isgenerally known such as American or Spanish Law from

which Phil law was derived or the judge had previously ruledupon it in other cases.

In US, courts are allowed to take judicial knowledge of thelaw of sister states.

B. Proof of Foreign Law

Foreign law may be proved by presenting either of the ff:

1. an official publication of the law2. a copy of the law attested by the officer having

legal custody of the record or by his deputy. If therecord is not kept in the Philippines, it must beaccompanied with a certificate that such officer hasthe custody (by the consular officer of the Phil

embassy in said state and authenticated by his sealof office)

Proof of documents executed abroad: any public documentexecuted abroad to be used in the Phils must be dulyauthenticated by the Phil. consul attaching his consular seal

Depositions of non-residents in a foreign country: they maybe taken

1) on notice before a secretary of embassy orlegation, consul general, consul, vice-consul, orconsular agent of the Phils.


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2) before such person or officer as may be appointedby commission or under letters rogatory.

3) before such person which the parties havestipulated in writing

PCIB vs. Escolin

(1974)

FACTS: Case bet. the administrators of the estates of

Hodges spouses. Ws administrator sought the application ofTexas law. Hs administrator also used the Texas law but

arrived at a different conclusion.

HELD: Case remanded for parties to present proof of theapplicable Texas law. The question of what are theapplicable laws of Texas is one of fact and not of law.Foreign laws may not be taken judicial notice of & have to beproven like any other fact in dispute between the parties inany proceeding with the rare exception in instances when thelaws are within the actual knowledge of the courts, such as

when:a. they are well and generally known

b. they have been actually ruled upon in othercases before it and none of the parties claimotherwise

In Re Estate of Johnson

(1918)

FACTS: In the hearing for the probate of the will of J,alleged to be made in accordance with the laws of Illinois,TC judge took judicial notice of the said foreign law.

HELD: Trial court judge erred in taking judicial notice.

The judge cannot take judicial notice of the acts of the

Legislative Department of US particularly the variouslaws of the American states.

Likewise, Phil. courts cannot take judicial notice of thesame under matters of public knowledge.

The proper rule is to require proof of the Statutewhenever it is determinative of the issue/s in Phil.courts.

Effects of Failure to Plead and Prove Foreign Law

Forum court may:1. dismiss the case for inability to establish cause of action

2. apply law of the forum (courts conclude that by failingto adduce proof, parties acquiesce to the application ofthe forum law since it is the basic law)

3. assume foreign law is the same as law of the forum(processual presumption)

First approach: Dismiss the case

Walton vs. Arabian Oil Co.

(1956)

FACTS: Walton, US citizen, was injured in Saudi Arabia.His complaint did not allege the Saudi Arabia law nor did heproved the same during the trial. TC ruled in favor ofdefendant as he did not take judicial notice of S. Arabianlaw.

HELD: Because of failure to prove the foreign law, plaintiffloses.Plaintiff has the burden of proving the law of Saudi Arabiafrom which he shall base his claim because under NewYorklaw, where action was instituted, lex loci delicti is the

substantive la applied in tort cases.A court abuses its discretion under the New York Civil

Practice Act if it takes judicial notice of the foreign law when

it is not pleaded esp. when the party who had the burden to

prove the same has not assisted the court in judicially

learning it.

The applicable tort principles necessary to establishplaintiffs claim are not rudimentary. In countries wherecommon law does not prevail, these principles may notexist or maybe vastly different.

Second approach: apply forum law, conclude that partiesacquiesce to its application.

Leary vs. Gledhill

(1951)

FACTS: Leary instituted this action in New Jersey to recoverthe loan contracted in France against G. G moved to dismisson the ground that Ls proof were insufficient as there is no

pleading or proof of the law of France where the transactionoccurred.

HELD: L can recover despite failure to prove French law.Altho the court recognizes the fact that France adopts civil

law rather than common law principles, the cause of action

of L may still be pursued, as there are 3 presumptions thatthe court may apply in the CAB. These are:

1, French law is the same as law of theforum

2. French law, like all civilized countries, recognizescertain fundamental principles (taking of a loancreates obligation to repay)

3. By failing to prove French law, parties acquiesce toapply forum law

The third presumption does not present any difficulties for

it to be universally applied regardless of the nature of thecontroversy. This is more favored by the authorities and hasbeen followed in Sturm v. Sturm.In CAB, Rights of the parties are to be determined by New

Jersey laws which permit recovery on the facts proven.

Zalamea vs. CA

(1993)

FACTS: Zalamea filed action for damages against TWA.RTC awarded actual and moral damages. CA denied awardof moral damages because there was no fining of bad faithand because overbooking was an allowed practice in US

airlines.

HELD: CA was wrong.

The US law or regulationauthorizing overbooking was not proved in accordance withour laws.

TWA relied solely on the statement of its agent that theCode of Fed. Regulations of Civil Aeronautics Boardallows overbooking.

No official publication of the said code was presentedas evidence.

Written law maybe evidenced by an official publicationthereof or by a copy attested by the officer having legalcustody of the record or by his deputy, accompanied by acertificate (made by a Phil. consular officer andauthenticated by his seal of office) that such officer has legalcustody.

Third approach: processual presumption

Miciano vs. Brimo

(1924)

FACTS: Action for partition of estate of Brimo, a Turkishcitizen. Oppositor claims that proposed partition is contraryto Turkish law but he failed to prove & present evidence on

the said Turkish law.


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HELD: In the absence of evidence on foreign law, they areto be presumed the same as those of the Phils. Oppositor,himself, acknowledges that the foreign law was not proven

when he asked for opportunity to present evidence. He wasgranted ample opportunity to present competent evidenceand there was no GAOD when the court refused to granthim another opportunity.

Suntay vs. Suntay

(1952)

FACTS: A will executed in Amoy by the deceased is soughtto be allowed in the Phils. The will was allegedly recordedand probated by a district court in Amoy.

HELD: Will cannot be allowed. Silvino was unable toadduce the necessary proof under Secs. 1-3 of Rule 78 inorder to probate the will in the Philippines, specifically:a. the fact that the municipal court of Amoy is a probate

courtb. the procedural law of China regarding probate of willsc. the legal requirements for the execution of a valid will

Although there were unverified answers of the ConsulGeneral of China, his answers are inadmissible because:a. he does not qualify as an expert on Chinese law on

probate procedure (usu. attend to trade matters), andb. if admitted, the adverse party will be deprived of their

right to cross-examine himThus, in the absence of proof, it may be presumed that theprobate laws of China are the same as ours and the will inquestion does not comply with our probate laws.

CIR vs. Fisher

(1961)

FACTS: Spouses Stevenson are British subjects. H dies

leaving W as sole heir. CIR assessed estate tax on the wholeproperties of the spouses because English law does notrecognize conjugal partnership.

HELD: English law cannot be applied. The pertinentEnglish law that allegedly vests in husband full ownership ofproperties acquired during the marriage was not proved byCIR (petitioner). In the absence of proof, the Court is

justified in indulging in processual presumption in

presuming that the law of England on the matter is the sameas our law.

Board of Commissioners vs. CID

(1991)

FACTS: Board sought the deportation of G who is allegedto be an alien. Marriages of Gs grandfather and of Gsfather all performed in China were not properly proven.

Only self-serving testimonies were allegedly presented. Also,marriages are claimed to be void according to Chinese law.

HELD: In the absence of evidence to the contrary, foreign

laws are presumed to be the same as those of the Phils. InCAB, there being no proof of Chinese law on marriage, thepresumption arises. The Phils. adhere to the presumption of

validity of marriage (A.220 FC) He who asserts the marriageis not valid under our laws bears the burden of proof topresent the foreign law.

In deciding whether to apply forum law or to dismiss the

case/rule against the party who failed to prove the foreign

law, court must consider the ff: factors

a. degree of public interest involvedb. accessibility of foreign law materials to the parties

c. possibility that plaintiff is merely forum shoppingd. similarities between forum law and foreign law on theissue involved

C. Exceptions to the Application of Foreign Law

1) The foreign law is contrary to an important publicpolicy of the forum

2) The foreign law is procedural in nature3) Issues are related to property (lex situs)4) The issue involved in the enforcement of foreign

claim is fiscal or administrative5) Foreign law or judgment is contrary to Good

Morals6) The application of Foreign law will work

Undeniable Injustice to the Citizens of the Forum7) The Foreign law is Penal in Character8) The application of the Foreign law might endanger

the Vital Interests of the State

These exceptions fall under 3 main categories:

1: when local law expressly so provides2: when there is failure to plead and prove the foreignlaw or judgment3: when the case falls under the exceptions to the rule

of comity

1. The foreign law is contrary to an

important public policy of the forum

public policy: no subject or citizen can lawfully commitany act which has a tendency to be injurious to the public oragainst the public good.

public policy technique: court declines to give due courseto a claim existing under a foreign law because it considers

the nature of the claim unconscionable or its enforcementwill violate a fundamental principle of justice, good moralsor some deep-rooted tradition.

dismissal on the ground of public policy is not dismissal onthe merits and plaintiff can go elsewhere to file his claim.

Pakistan Intl Airlines v. Ople

(1990)

FACTS: 2 Filipino stewardess-employees of PIA filed a casefor illegal dismissal against their employer in DOLE. PIAs

defense is that under the contract of employment, the parties

agreed that the EE-ER relationship shall be governed by thecontract (which provided that Pakistan law shall apply) andnot the Labor Code.

HELD: Public Interest standard was applied. Pakistan lawcannot be invoked to prevent the application of Phil laborlaws and regulations to the subject matter of the case. TheER-EE relationship is much affected with public interest,such that otherwise applicable Phil laws and regulationscannot be rendered illusory by the parties agreeing uponsome other law to govern their relationship.

Also, PIA did not undertake to plead and prove the contentsof the Pakistan law on the matter; it must therefore bepresumed to be the same as applicable provisions of Phil

law.

Criticisms:courts using public policy exception can disregardthe applicable law reached and replace it with forum law toarrive at its desired result without having to provide therigorous legal analysis required to explain the shift. Courtsengage in intolerable affectation of superiorvirtue.

2.

The foreign law is procedural in nature

Procedural or remedial laws are purely internal matterspeculiar only to the State. It would be impractical for the

court to adopt the procedural machinery of another statesuch as rules on venue, forms and pleadings. Any individual


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who submits himself to the jurisdiction of the law of the

forum must follow the forums rules of procedure.

Problem: courts are tasked to characterize the problem as towhether it is substantive or procedural law which can bedifficult at times, ex. If issue involves statute of limitations orstatute of frauds

3.

Issues are related to property (lex situs)

The universally-accepted rule is that as to immovableproperty, it is governed by the law of the place where it islocated.

Phil Civil Code also applies lex situsto personal property. Italso applies to cases of sale, exchange, barter, mortgage orany other form of alienation of property.

WHY? 3 reasons:a. land & its improvements are within the exclusive

control of the State & its officials are the ones whocan physically deal with them

b. following a policy-centered approach, immovablesare of greatest concern to the state in which theyare situated

c. demands of certainty & convenience

4. The issue involved in the enforcement

of foreign claim is fiscal or

administrative

State is not obliged to enforce the revenue law of another.

Revenue laws affect a state in matters as vital to its interestsas penal laws. No court ought to hear a case which it cannot

prosecute without determining whether these laws areconsonant with its own notions of what is proper.

Opposition to exception: person should not be permitted toescape his obligations in maintaining the government bycrossing state lines.

5.

Foreign law or judgment is contrary to

Good Morals

contra bonos mores - acts having mischievous orpernicious consequences or against true principles of

morality.

ex. Hiring for killing, bribery of public officials,marriage between ascendants and descendants

6. The application of Foreign law will work

Undeniable Injustice to the Citizens of

the Forum

7.

The Foreign law is Penal in Character

Statute is not penal not by what the statute is called by the

legislature but whether it appears, in its essential characterand effect, a punishment of an offense against the public.

Penal statutes are all statutes which command or prohibitcertain acts, and establish penalties for their violation andeven those which, without expressly prohibiting certain acts,impose a penalty upon their commission. Revenue laws arenot classed as penal laws although there are authorities to thecontrary.

This exception is partly remedied under the international

law of extradition on the basis of jurisdictional cooperationand assistance.

8. The application of the Foreign law

might endanger the Vital Interests of the

State

PART THREE: PERSONAL LAW

IX. Nationality

A. Importance of a Personal Law

The individuals nationality or domicile serves as permanent

connection b/w individual & state. Thus, what is assignedhim is a personal law allowing courts to exercise jd ordetermine the governing choice-of-law rule on a specificsituation or transaction involving him.

Personal law follows the individual. It governs transactionsaffecting him most (marriage, divorce, legitimacy, capacity

Documents

CONFLICT OF LAW DIGESTED BOOK.pdf