CONFLICT OF LAWS (29-01-19) D.

Sources of Private International Law

Direct sources:

 bilateral and multilateral treaties

I. NATURE, DEFINITION AND SCOPE
 international conventions
 codifications and statutes
 judicial decisions
A. Definition: Conflicts of law is that part of municipal  international customs
law which comes into play when: I FETFR
Indirect sources:
 the issue before a court affects some fact,
event or transaction  natural law and moral law
 so connected with a foreign system of law  writings and treatises of famous writers and
 as to necessitate recourse to that system jurists on the subject

B. Nature: It is municipal in nature; although there is

the presence of a foreign element in conflict of laws
cases, it still remains to be part of the internal or local
laws of each state.

Fucntion: to aid in deciding cases which involve

facts occurring in more than one state, through
making a choice between applying the laws of one
state or the other’s.

C. Private v Public International Law

Public IL Private IL
Persons Governs sovereign Governs private
involved states and entities individuals or
internationally corporations
recognized or
possessed of
international
personality
Nature International in Municipal in
character character
Transactions Transactions Transactions
involved concerning states strictly private; not
and internationally of general interest
recognized
entities; generally
affect public
interest
Remedies Diplomatic Judicial or
applied negotiations, administrative
mediation, tribunals in
arbitration or accordance to
judicial settlement the rules of
by international procedure of the
tribunals; country where
severance of they sit.
diplomatic
relations, reprisals,
embargo, boycott
or war.
II. JURISDICTION REVISED PENAL CODE

ART 2. GR: Provisions of the RPC shall be enforced

only within the PH archipelago, including its
Jurisdiction is the power and authority of the court to atmosphere, interior waters and maritime zone.
hear, try and decide a case; it includes the power to
execute decisions. EXC: May be enforced outside PH jurisdiction against
those who:
In Conflict of Laws: Jurisdiction is the power of the
court to render a decision that will create legal rights  commit an offense on PH ship or airship
and interests which other states will recognize and  forge or counterfeit
enforce. o coin or currency note of PH islands
o obligations and securities issued by
the government of PH islands
 are liable for acts connected with the
NEW CIVIL CODE
introduction into these islands of the
ART 14. Penal laws and laws on public security and obligations and securities mentioned
safety: obligatory upon all who live or sojourn in PH  are public officers or employees, and
territory. LIMITATION: principles of PIL and treaty commit and offense in the exercise of their
stipulations. functions
 commit any crime against national security
ART 15. Laws relating to the ff are binding upon PH and the law of nations
citizens, even though living abroad:

 family rights and duties

 status, condition and legal capacity RULES OF COURT

ART 17. GR: Forms and solemnities of contracts, wills RULE 14. Defendant whose identity or whereabouts
and other public instruments: governed by laws of are unknown – service may, BY LEAVE OF COURT, be
country of execution. effected by publication in a newspaper of general
circulation.
EXC: when the same are executed before the
consular or diplomatic officials of the RP, PH laws RULE 15. Extraterritorial service, when allowed:
apply.
 defendant does not reside and is not found
The ff shall not be rendered ineffective by laws or in PH, and action affects personal status of
judgments promulgated, or determination or the plaintiff
conventions agreed upon in a foreign country.  defendant does not reside and is not found
in PH, and action relates to property (real or
 prohibitive laws concerning persons, their
personal) within PH, in which defendant has
acts or properties
a claim or interest, actual or contingent
 laws which have for their object:
 defendant is non-PH resident but the subject
o public order
of the action is property located in the PH,
o public policy
the relief for which demands exclusion of
o good customs
defendant from any interest therein
 property of the non-resident defendant has
been attached in the PH

How extraterritorial service is effected: BY LEAVE OF

COURT;

 personal service
 publication, and copy of the summons and
order of the court must be sent by mail to the
defendant’s last known address
 any other manner deemed sufficient by the
court
Any order granting leave of court shall specify a Jurisdiction over the SUBJECT MATTER
reasonable time for defendant to answer, which
It is the power conferred by law to hear and
shall not be less than 60 days after notice.
determine a case of the general class to which the
RULE 17. Leave of court, how made: proceeding in question belongs.

 in writing  cannot be conferred by consent or voluntary

 supported by affidavit of the plaintiff or some submission
person in his behalf, setting forth the grounds  jurisdiction over the subject matter may be
for application found in the Constitution and the Judiciary
Reorganization Act, as amended
 invoked by filing the proper complaint;
allegations in the complaint or petition read
in light of jurisdictional law confer jurisdiction
 additional element in Conflict: possible
enforceability of the court’s decision in
foreign states.

Jurisdiction over the PERSON

Competence or power of the court to render a

judgment that will bind the parties involved.

 over plaintiff: acquired the moment he

invokes the power of the court by instituting
the action. Consent to jurisdiction includes
original cause of action and all
counterclaims that may arise therefrom.
 over defendant: the moment he enters his
appearance or by the coercive power of
legal process exerted over him by the court.
EXC: if the sole purpose for his appearance is
to question jurisdiction over his person.
o coercive power refers to personal or
substituted service of summons under
the RoC.
o substituted service is allowed in case
the defendant cannot be served
within a reasonable time, with
justifiable reason. How done:
 Leaving copy of summons at
the defendant’s residence
with some person of suitable
age and discretion residing
therein
 Leaving copy at the
defendant’s office or regular
place of business, with some
competent person in charge
thereof
o strict compliance over these rules is
required.
Jurisdiction over the RES NOTES:

Jurisdiction over the particular subject-matter in In actions in personam, service of summons by

controversy, regardless of the persons interested publication is never allowed; only personal or
therein. substituted service is allowed.

 basis: presence of the property within the Service by publication is allowed only in:
territorial jurisdiction of the forum
 actions in rem
Actions in rem Actions quasi in rem  actions quasi in rem
Purpose: not to impose Purpose: not to impose  actions involving the personal status of the
personal liability but to personal liability nor affect plaintiff
affect interests of all interests of all persons in a
persons in a thing. thing, but to affect the Extraterritorial service, when allowed:
interests of particular
persons in a thing.  defendant does not reside and is not found
No need for jurisdiction Jurisdiction over particular
in PH, and action affects personal status of
over persons. persons whose interests
are affected is needed. the plaintiff
 defendant does not reside and is not found
in PH, and action relates to property (real or
personal) within PH, in which defendant has
a claim or interest, actual or contingent
 defendant is non-PH resident but the subject
REFUSAL TO ASSUME JURISDICTION: The principle of of the action is property located in the PH,
forum non conveniens the relief for which demands exclusion of
defendant from any interest therein
The court, by invoking the principle of FNC, refuse to  property of the non-resident defendant has
assume jurisdiction in view of the ff reasons: been attached in the PH
 unavailability of the witnesses and evidence How extraterritorial service is effected: by leave of
 court dockets already too clogged; speedy court;
administration of justice will be hampered
 matter can be better tried and decided in  personal service
another jurisdiction because:  publication, and copy of the summons and
o main aspects of the case transpired order of the court must be sent by mail to the
there defendant’s last known address
o material witnesses reside there  any other manner deemed sufficient by the
 curb the evils of forum shopping (case filed court
to merely harass or annoy defendant)
 lack of interest in the case by the forum
o parties involved are non-residents
o subject matter involved is elsewhere
 other courts are open and can try the case
better
 inadequacy of the local judicial machinery
 difficulty in ascertaining the foreign law
applicable