CONFLICT OF LAWS - Notes

Download as docx, pdf, or txt
Download as docx, pdf, or txt
You are on page 1of 33

BAM 2020

CONFLICT OF LAWS REVIEWER

not in that administrative agency or quasi-judicial body but in the


INTRODUCTION; BASIC PRINCIPLES court, which will determine what law is applicable in a conflict of law
problem
CONFLICT OF LAWS/PRIVATE INTERNATIONAL LAW;
DEFINED (3) There is a legal problem involving a foreign element

It is that part of the municipal law of a state which directs its courts  It is anything which is not domestic and has a foreign
and administrative agencies, when confronted with a legal problem component to it.
involving a foreign element, whether or not they should apply a  It can be a foreigner, a foreign corporation, an incident
foreign law or foreign laws. happening in a foreign country, or a foreign law chosen by
the parties.
It is the law which comes into play when the issue before the court
affects some fact or event, or transaction that is closely connected
with a foreign system of law, as to necessitate recourse to that Saudi Arabia Airlines vs CA
system.
Foreign Elements: (1) The defendant, SAUDIA, is a foreign
It is that part of the law of each state or nation which determines corporation doing business in the Philippines. (2) By virtue of
whether, in dealing with a legal situation, the law of some other state petitioner’s employment as stewardess, events transpired during
or nation will be recognized, given effect, or applied. travel across the national borders (Manila to Jeddah and vice
versa).
ELEMENTS IN THE DEFINITION
Where the factual antecedents satisfactorily establish the
existence of a foreign element, we agree with petitioner that the
1. Conflict of laws is part of the municipal laws of a state. problem herein
2. There is a directive to courts and administrative agencies. could present a "conflicts" case.
3. There is a legal problem involving a foreign element.
4. There is either an application or non-application of a A factual situation that cuts across territorial lines and is affected
foreign law or foreign laws. by the diverse laws of two or more states is said to contain a
"foreign element". The presence of a foreign element is
(1) Conflict of laws is part of the municipal laws of a state inevitable since social and economic affairs of individuals and
associations are rarely
BASIS CONFLICT OF LAW OF NATIONS confined to the geographic limits of their birth or conception.
LAWS
The forms in which this foreign element may appear are many.
Nature Municipal in International in
The foreign element may simply consist in the fact that one of
character character
the parties to a contract is an alien or has a foreign domicile, or
Persons involved Dealt with by Involves sovereign that a contract between nationals of one State involves
private individuals states and other properties situated in another State. In other cases, the foreign
entities possessing element may assume a complex form.
international
personality In the instant case, the foreign element consisted in the fact that
Transactions Private Generally affected private respondent Morada is a resident Philippine national, and
involved transactions by public interest; that
between private those in general petitioner SAUDIA is a resident foreign corporation. Also, by
individuals are of interest only virtue of the employment of Morada with the petitioner Saudia as
to sovereign states a flight stewardess, events did transpire during her many
Remedies and Resort to municipal May be peaceful or occasions of travel across national borders, particularly from
sanctions tribunals forcible Manila, Philippines to Jeddah, Saudi Arabia, and vice versa, that
caused a "conflicts" situation to arise.
Sanctions under public international law
 Peaceful – which includes diplomatic negotiation, tender We thus find private respondent's assertion that the case is
and exercise of good offices, mediation, inquiry and purely domestic, imprecise. A conflicts problem presents itself
conciliation, arbitration, judicial settlement by ICJ and here, and the question of jurisdiction confronts the court a quo.
reference to regional agencies
 Forcible – which includes severance of diplomatic
relations, retorsions, reprisals, embargo, boycott, non-
Hasegawa vs Kitamura
intercourse, pacific blockades, collective measures under
the UN Charter, and war
Foreign Elements: (1) Petitioner, Nippon, is a Japanese
consultancy firm (2) Respondent, Kitamura, is a Japanese
Conflict of Laws is not part of International Law national permanently residing in the Philippines (3) the
Independent Contractor Agreement (ICA) was perfected in
Although it is sometimes thought of as part of International law Japan
because of the presence of foreign element in a given problem, it is
not international in character but it is part of the municipal law of It should be noted that when a conflicts case, one involving a
each state. By municipal law in Conflict Laws is meant the internal or foreign element, is brought before a court or administrative
local law of each state (Sempio-Diy). agency, there are three alternatives open to the latter in
disposing of it: (1) dismiss the case, either because of lack of
(2) There is a directive to courts and administrative agencies jurisdiction or refusal to assume jurisdiction over the case; (2)
assume jurisdiction over the case and apply the internal law of
the forum; or (3) assume jurisdiction over the case and take into
Administrative agencies are sometimes called upon to decide or
account or apply the law of some other State or States. The
resolve conflicts problems such as the DFA, BID, and SEC. The
court’s power to hear cases and controversies is derived from
same may also be applied in quasi-judicial bodies like the NLRC. the Constitution and the laws. While it may choose to recognize
However, their determination of a conflict of law problem is only in a laws of foreign nations, the court is not limited by foreign
preliminary manner. It means that the ultimate recourse may be had
1
BAM 2020
CONFLICT OF LAWS REVIEWER

sovereign law short of treaties or other formal agreements, even determine the merits of the case is fair to both parties. The
in matters regarding rights provided by foreign sovereigns. power to exercise jurisdiction does not automatically give a state
constitutional authority to apply forum law. While jurisdiction and
the choice of the lex fori will often coincide, the "minimum
contacts" for one do not always provide the necessary
Continental Micronesia vs Basso "significant contacts" for the other. The question of whether the
law of a state can be applied to a transaction is different from the
Foreign elements: (1) Petitioner, CMI, is a foreign corporation, question of whether the courts of that state have jurisdiction to
licensed to do business in the Philippines (2) Basso is a US enter a judgment.
citizen who resided in the Philippines prior to his death.
In this case, only the first phase is at issue—jurisdiction.
We agree with CMI that there is a conflict-of-laws issue that Jurisdiction, however, has various aspects. For a court to validly
needs to be resolved first. Where the facts establish the exercise its power to adjudicate a controversy, it must have
existence of foreign jurisdiction over the plaintiff or the petitioner, over the defendant
elements, the case presents a conflict-of-laws issue. The foreign or the respondent, over the subject matter, over the issues of the
element in a case nay appear in different forms, such as in this case and, in cases involving property, over the res or the thing
case, which is the subject of the litigation. In assailing the trial court's
where one of the parties s an alien and the other is domiciled in jurisdiction herein, petitioners are actually referring to subject
another state. matter jurisdiction.

Jurisdiction over the subject matter in a judicial proceeding is


(4) Either an application or non-application of a foreign law/s conferred by the sovereign authority which establishes and
organizes the court. It is given only by law and in the manner
OBJECT AND FUNCTION OF CONFLICT OF LAWS prescribed by law. It is further determined by the allegations of
 Its object and function is to provide rational and valid rules the complaint irrespective of whether the plaintiff is entitled to all
or guidelines in deciding cases where either the parties, or some of the claims asserted therein. To succeed in its motion
for the dismissal of an action for lack of jurisdiction over the
events or transactions are linked to more than one
subject matter of the claim, the movant must show that the court
jurisdiction.
or tribunal cannot act on the matter submitted to it because no
 It aims to promote stability and uniformity of solutions law grants it the power to adjudicate the claims.
provided by the laws and courts of each state called upon
to decide conflicts cases.
3 PHASES IN CONFLICT RESOLUTION
SCOPE OF CONFLICT OF LAWS  Jurisdiction – Where can or should litigation be initiated?
It covers the entire range of laws  Choice of Law – Which law will the court apply?
 Recognition and Enforcement of Foreign Judgments –
SOURCES OF CONFLICT OF LAWS: Where can the resulting judgment be enforced?
 Codes and statutes
 Treaties and international conventions These three phases are separate from each other, and a defense in
 Treatises, commentaries, and studies of learned societies one is not a defense in other phases.
 Judicial decisions

Direct source – bilateral and multilateral treatises and Continental Micronesia VS Basso
international conventions, constitutions, condifications and
statutes, judicial decisions and international customs. In resolving the conflicts problem, courts should ask the following
questions:
Indirect sources – natural moral law, writings and treatises of
1. "Under the law, do I have jurisdiction over the subject matter
thinkers and famous writers and jurists on the subject.
and the parties to this case?

What is a Conflict of Laws case? 2. "If the answer is yes, is this a convenient forum to the parties,
in light of the facts?
It is any case which involves facts occurring in more than one state
or nation, so that in deciding the case, it is necessary to make a 3. "If the answer is yes, what is the conflicts rule for this
choice between the laws of different states or countries. particular problem?

PHASES IN CONFLICT RESOLUTION 4. "If the conflicts rule points to a foreign law, has said law been
properly pleaded and proved by the one invoking it?

Hasegawa VS Kitamura 5. "If so, is the application or enforcement of the foreign law in
the forum one of the basic exceptions to the application of
In the judicial resolution of conflicts problems, three consecutive foreign law? In short, is there any strong policy or vital interest of
phases are involved: jurisdiction, choice of law, and recognition the forum that is at stake in this case and which should preclude
and enforcement of judgments. Corresponding to these phases the application of foreign law?
are the following questions: (1) Where can or should litigation be
initiated? (2) Which law will the court apply? and (3) Where can
the resulting judgment be enforced? JURISDICTION

Analytically, jurisdiction and choice of law are two distinct How does one deal with a problem in Conflict of Laws?
concepts. Jurisdiction considers whether it is fair to cause a
defendant to travel to this state; choice of law asks the further
question whether the application of a substantive law which will The first step is to determine if the court has JURISDICTION.

2
BAM 2020
CONFLICT OF LAWS REVIEWER

 From the Latin “jus dicere” which means “the right to


speak”; the authority to hear and decide a case. plaintiff is entitled to recover all or some of the claims or reliefs
 The right of the state to exercise authority over persons sought therein. It cannot be acquired through a waiver or
and things within its boundary, subject to certain enlarged by the omission of the parties or conferred by the
acquiescence of the court. That the employment contract of
exceptions.
Basso was replete with references to US laws, and that it
 Who determines this? the court of the forum originated from and was returned to the US, do not automatically
 If it has NO JURISDICTION – the court has no preclude our labor tribunals from exercising jurisdiction to hear
alternative but to DISMISS the case and try this case.
 If it has JURISDICTION – the court may ASSUME or
REFUSE TO ASSUME JURISDICTION This case stemmed from an illegal dismissal complaint. The
Labor Code, under Article 217, clearly vests original and
JURISDICTION KINDS exclusive jurisdiction to hear and decide cases involving
 Subject matter termination disputes to the Labor Arbiter. Hence, the Labor
 Person Arbiter and the NLRC have jurisdiction over the subject matter of
 Res the case.

JURISDICTION OVER THE SUBJECT MATTER


JURISDICTION OVER THE PERSON
This is defined as the power of the court to hear and decide cases of
general class to which the proceedings in question belongs. This is defined as the power of the court to render judgment that will
be binding on the parties involved.
This is conferred by law and determined by the allegations in the
initiatory pleading. For the plaintiff, this is acquired upon the institution of the case/filing
of the complaint.

Saudi Airlines VS For the defendant, this is acquired by:


 Voluntary appearance; or
Based on the allegations in the Amended Complaint, read in the  Service of summons
light of the Rules of Court on jurisdiction we find that the
Regional Trial Court (RTC) of Quezon City possesses NOTE: Amendments to the 1997 rules of civil procedure as to
jurisdiction over the subject matter of the suit. Its authority to try
SUMMONS. (See Appendix 1)
and hear the case is provided for under Section 1 of Republic
Act No. 7691, and following Section 2 (b), Rule 4 of the Revised
Rules of Court.
Hahn vs CA

Private respondent need not apprehend that by responding to


Hasegawa VS Kitamura
the summons it would be waiving its objection to the trial court's
jurisdiction. It is now settled that, for purposes of having
Jurisdiction over the subject matter in a judicial proceeding is
summons served on a foreign corporation in accordance with
conferred by the sovereign authority which establishes and
Rule 14, S14, it is sufficient that it be alleged in the complaint
organizes the court. It is given only by law and in the manner
that the foreign corporation is doing business in the Philippines.
prescribed by law It is further determined by the allegations of
The court need not go beyond the allegations of the complaint in
the complaint irrespective of whether the plaintiff is entitled to all
order to determine whether it has Jurisdiction. A determination
or some of the claims asserted therein. To succeed in its motion
that the foreign corporation is doing business is only tentative
for the dismissal of an action for lack of jurisdiction over the
subject matter of the claim, the movant must show that the court and is made only for the purpose of enabling the local court to
acquire jurisdiction over the foreign corporation through service
or tribunal cannot act on the matter submitted to it because no
of summons pursuant to Rule 14, S14. Such determination does
law grants it the power to adjudicate the claims.
not foreclose a contrary finding should evidence later show that it
is not transacting business in the country.
In the instant case, petitioners, in their motion to dismiss, do not
claim that the trial court is not properly vested by law with
jurisdiction to hear the subject controversy for, indeed, Civil Case
No. 00-0264 for specific performance and damages is one not SAUDIA vs CA
capable of pecuniary estimation and is properly cognizable by
the RTC of Lipa City. What they rather raise as grounds to Similarly, the trial court also possesses jurisdiction over the
question subject matter jurisdiction are the principles of lex loci persons of the parties herein. By filing her Complaint and
celebrationis and lex contractus, and the "state of the most Amended Complaint with the trial court, private respondent has
significant relationship rule." voluntary submitted herself to the jurisdiction of the court.

Since these three principles in conflict of laws make reference to The records show that petitioner SAUDIA has filed several
the law applicable to a dispute, they are rules proper for the motions praying for the dismissal of Morada's Amended
second phase, the choice of law. Necessarily, as the only issue Complaint. What is very patent and explicit from the motions
in this case is that of jurisdiction, choice-of-law rules are not only filed, is that SAUDIA prayed for other reliefs under the premises.
inapplicable but also not yet called for. Undeniably, petitioner SAUDIA has effectively submitted to the
trial court's jurisdiction by praying for the dismissal of the
Amended Complaint on grounds other than lack of jurisdiction.

Continental Micronesia VS Basso

Jurisdiction is defined as the power and authority of the courts to Banco de Brasil vs CA
hear, try and decide cases. Jurisdiction over the subject matter is
conferred by the Constitution or by law and by the material Extrajudicial service of summons apply only where the action is
allegations in the complaint, regardless of whether or not the in rem, an action against the thing itself instead of against the

3
BAM 2020
CONFLICT OF LAWS REVIEWER

person, or in an action quasi in rem, where an individual is Insurance Commissioner in the case of a foreign insurance
named as defendant and the purpose of the proceeding is to company; (b) the Superintendent of Banks, in the case of a
subject his interest therein to the obligation or loan burdening the foreign banking corporation; and (c) the Securities and
property. This is so inasmuch as, in in rem and quasi in rem Exchange Commission, in the case of other foreign corporations
actions, jurisdiction over the person of the defendant is not a duly licensed to do business in the Philippines. Whenever
prerequisite to confer jurisdiction on the court provided that the service of process is so made, the government office or official
court acquires jurisdiction over the res. served shall transmit by mail a copy of the summons or other
legal process to the corporation at its home or principal office.
However, where the action is in personam, one brought against The sending of such copy is a necessary part of the service.
a person on the basis of his personal liability, jurisdiction over (AMENDED ROC)
the person of the defendant is necessary for the court to validly
try and decide the case. When the defendant is a non-resident, In as much as SHARP was admittedly doing business in Japan
personal service of summons within the state is essential to the through its four duly registered branches at the time the
acquisition of jurisdiction over the person. This cannot be done, collection suit against it was filed, then in the light of the
however, if the defendant is not physically present in the country, processual presumption, SHARP may be deemed a resident of
and thus, the court cannot acquire jurisdiction over his person Japan, and, as such, was amenable to the jurisdiction of the
and therefore cannot validly try and decide the case against him. courts therein and may be deemed to have assented to the said
courts' lawful methods of serving process.
It must be stressed that any relief granted in rem or quasi in rem
actions must be confined to the res, and the court cannot lawfully Accordingly, the extraterritorial service of summons on it by the
render a personal judgment against the defendant. Clearly, the Japanese Court was valid not only under the processual
publication of summons effected by private respondent is invalid presumption but also because of the presumption of regularity of
and ineffective for the trial court to acquire jurisdiction over the performance of official duty.
person of petitioner, since by seeking to recover damages from
petitioner for the alleged commission of an injury to his person or
property caused by petitioner's being a nuisance defendant,
private respondent's action became in personam. Bearing in Valmonte vs CA
mind the in personam nature of the action, personal or, if not
possible, substituted service of summons on petitioner, and not No walid service of summon.
extraterritorial service, is necessary to confer jurisdiction over the
person of petitioner and validly hold it liable to private Private respondent's action, which is for partition and accounting
respondent for damages. Thus, the trial court had no jurisdiction under Rule 69, is in the nature of an action quasi in rem. Such
to award damages. an action is essentially for the purpose of affecting the
defendant's interest in a specific property and not to render a
judgment against him.

Continental Micronesia vs Basso As petitioner Lourdes A. Valmonte is a nonresident who is not


found in the Philippines, service of summons on her must be in
As regards jurisdiction over the parties, we agree with the Court accordance with Rule 14, §17. Such service, to be effective
of Appeals that the Labor Arbiter acquired jurisdiction over the outside the Philippines, must be made either (1) by personal
person of Basso, notwithstanding his citizenship, when he filed service; (2) by publication in a newspaper of general circulation
his complaint against CMI. On the other hand, jurisdiction over in such places and for such time as the court may order, in which
the person of CMI was acquired through the coercive process of case a copy of the summons and order of the court should be
service of summons. We note that CMI never denied that it was sent by registered mail to the last known address of the
served with summons. CMI has, in fact, voluntarily appeared and defendant; or (3) in any other manner which the court may deem
participated in the proceedings before the courts. Though a sufficient.
foreign corporation, CMI is licensed to do business in the
Philippines and has a local business address here. The purpose Since in the case at bar, the service of summons upon petitioner
of the law in requiring that foreign corporations doing business in Lourdes A. Valmonte was not done by means of any of the first
the country be licensed to do so, is to subject the foreign two modes, the question is whether the service on her attorney,
corporations to the jurisdiction of our courts. petitioner Alfredo D. Valmonte, can be justified under the third
mode, namely, "in any . . . manner the court may deem
sufficient."

Northwest Orient Airlines vs CA We hold it cannot. This mode of service, like the first two, must
be made outside the Philippines, such as through the Philippine
Applying it (processual presumption, the Japanese law on the Embassy in the foreign country where the defendant resides.
matter is presumed to be similar with the Philippine law on Moreover, there are several reasons why the service of
service of summons on a private foreign corporation doing summons on Atty. Alfredo D. Valmonte cannot be considered a
business in the Philippines. valid service of summons on petitioner Lourdes A. Valmonte. In
the first place, service of summons on petitioner Alfredo D.
Section 14, Rule 14 of the Rules of Court provides that if the Valmonte was not made upon the order of the court as required
defendant is a foreign corporation doing business in the by Rule 14, §17 and certainly was not a mode deemed sufficient
Philippines, service may be made: (1) on its resident agent by the court which in fact refused to consider the service to be
designated in accordance with law for that purpose, or, (2) if valid and on that basis declare petitioner Lourdes A. Valmonte in
there is no such resident agent, on the government official default for her failure to file an answer.
designated by law to that effect; or (3) on any of its officers or
agents within the Philippines. In the second place, service in the attempted manner on
If the foreign corporation has designated an agent to receive petitioner was not made upon prior leave of the trial court as
summons, the designation is exclusive, and service of summons required also in Rule 14, §17. As provided in §19, such leave
is without force and gives the court no jurisdiction unless made must be applied for by motion in writing, supported by affidavit of
upon him. the plaintiff or some person on his behalf and setting forth the
grounds for the application.
Where the corporation has no such agent, service shall be made Finally, and most importantly, because there was no order
on the government official designated by law, to wit: (a) the granting such leave, petitioner Lourdes A. Valmonte was not

4
BAM 2020
CONFLICT OF LAWS REVIEWER

given ample time to file her Answer which, according to the


rules, shall be not less than sixty (60) days after notice. It must Domagas vs Jensen
be noted that the period to file an Answer in an action against a
resident defendant differs from the period given in an action filed From the provisions of the Rules of Court and by its very nature
against a nonresident defendant who is not found in the and purpose, an action for unlawful detainer or forcible entry is a
Philippines. In the former, the period is fifteen (15) days from real action and in personam because the plaintiff seeks to
service of summons, while in the latter, it is at least sixty (60) enforce a personal obligation or liability on the defendant under
days from notice. Article 539 of the New Civil Code, for the latter to vacate the
property subject of the action, restore physical possession
thereof to the plaintiff, and pay actual damages by way of
TAKE NOTE of the changes brought about by the amendments reasonable compensation for his use or occupation of the
to the ROC. property.

In an action in personam, jurisdiction over the person of the


Gomez vs CA defendant is necessary for the court to validly try and decide the
case. Jurisdiction over the person of a resident defendant who
Summons to: Resident Defendant does not voluntarily appear in court can be acquired by personal
Action in Personam service of summons as provided under Section 7, Rule 14 of the
Rules of Court. If he cannot be personally served with summons
In the present case, petitioners’ cause of action is anchored on within a reasonable time, substituted service may be made in
the claim that the spouses Jesus and Caridad Trocino reneged accordance with Section 8 of said Rule. If he is temporarily out of
on their obligation to convey ownership of the two parcels of land the country, any of the following modes of service may be
subject of their sale. Thus, petitioners pray in their complaint that resorted to: (a) substituted service set forth in Section 8; (2)
the spouses Trocino be ordered to execute the appropriate deed personal service outside the country, with leave of court; (3)
of sale and that the titles be delivered to them (petitioners); or in service by publication, also with leave of court; or (4) any other
the alternative, that the sale be revoked and rescinded; and manner the court may deem sufficient.
spouses Trocino ordered to return to petitioners their down
payment in the amount of P500,000.00 plus interests. The action In the present case, the records show that the respondent,
instituted by petitioners affect the parties alone, not the whole before and after his marriage to Jarl Jensen, remained a resident
world. Hence, it is an action in personam, i.e., any judgment of Barangay Buenlag, Calasiao, Pangasinan. Considering that
therein is binding only upon the parties properly impleaded. As the respondent was in Oslo, Norway, the summons and
such, personal service of summons upon the defendants is complaint may only be validly served on her through substituted
essential in order for the court to acquire of jurisdiction over their service under Section 7, Rule 14 of the Rules of Court, which
persons. reads:

A distinction, however, must be made with regard to service of SEC. 7. Substituted service. — If, for justifiable causes, the
summons on respondents Adolfo Trocino and Mariano Trocino. defendant cannot be served within a reasonable time as
Adolfo Trocino, as records show, is already a resident of Ohio, provided in the preceding section, service may be effected (a) by
U.S.A. for 25 years. Being a non-resident, the court cannot leaving copies of the summons at the defendant’s residence with
acquire jurisdiction over his person and validly try and decide the some person of suitable age and discretion then residing
case against him. therein, or (b) by leaving the copies at defendant’s office or
regular place of business with some competent person in charge
On the other hand, Mariano Trocino has been in Talibon, Bohol thereof.
since 1986. To validly acquire jurisdiction over his person,
summons must be served on him personally, or through Strict compliance with the mode of service is required in order
substituted service, upon showing of impossibility of personal that the court may acquire jurisdiction over the person of the
service. Such impossibility, and why efforts exerted towards defendant. The statutory requirement of substituted service must
personal service failed, should be explained in the proof of be followed faithfully and strictly and any substituted service
service. The pertinent facts and circumstances attendant to the other than that authorized by the statute is rendered ineffective.
service of summons must be stated in the proof of service or
Officer’s Return. Failure to do so would invalidate all subsequent As gleaned from the said return, there is no showing that as of
proceedings on jurisdictional grounds. April 5, 1999, the house where the Sheriff found Oscar Layno
was the latter’s residence or that of the respondent herein.
In the present case, the process server served the summons Neither is there any showing that the Sheriff tried to ascertain
and copies of the complaint on respondents Jacob, Jesus, Jr., where the residence of the respondent was on the said date. It
Adolfo, Mariano, Consolacion, Alice and Racheal, through their turned out that the occupant of the house was a lessor, Eduardo
mother, Caridad Trocino. The return did not contain any Gonzales, and that Oscar Layno was in the premises only to
particulars as to the impossibility of personal service on Mariano collect the rentals from him. The service of the summons on a
Trocino within a reasonable time. Such improper service renders person at a place where he was a visitor is not considered to
the same ineffective. have been left at the residence or place or abode, where he has
another place at which he ordinarily stays and to which he
Due process of law requires personal service to support a intends to return.
personal judgment, and, when the proceeding is strictly in
personam brought to determine the personal rights and In sum, then, the respondent was not validly served with
obligations of the parties, personal service within the state or a summons and the complaint by substituted service. Hence, the
voluntary appearance in the case is essential to the acquisition MTC failed to acquire jurisdiction over the person of the
of jurisdiction so as to constitute compliance with the respondent; as such, the decision of the MTC is null and void.
constitutional requirement of due process.

When the process server personally served the summons on


Caridad Trocino, the trial court validly acquired jurisdiction over Manotoc vs CA
her person alone. Hence, the trial court’s decision is valid and
binding with regard to her, but only in proportion to Caridad In the case at bar the narration of the efforts made to find the
Trocino’s share. defendant and the fact of failure written in broad and imprecise
words will not suffice. The facts and circumstances should be

5
BAM 2020
CONFLICT OF LAWS REVIEWER

stated with more particularity and detail on the number of petitioner, and this is not possible in the present case because
attempts made at personal service, dates and times of the the petitioner is a non-resident and is not found within the
attempts, inquiries to locate defendant, names of occupants of Philippines. Respondent’s allegation in its Amended Complaint
the alleged residence, and the reasons for failure should be that petitioner had personal property within the Philippines in the
included in the Return to satisfactorily show the efforts form of shares of stock in PEIP did not make the Civil Case fall
undertaken. That such efforts were made to personally serve under any of the four instances mentioned in Section 15, Rule 14
summons on defendant, and those resulted in failure, would of the Rules of Court, as to convert the action in personam to an
prove impossibility of prompt personal service. action in rem or quasi in rem and, subsequently, make the
extraterritorial service of summons upon the petitioner valid.
Where, by the local law, substituted or constructive service is in
certain situations authorized in the place of personal service Likewise, respondent’s prayer in its Amended Complaint for the
when the latter is inconvenient or impossible, a strict and literal issuance of a writ of attachment over petitioner’s purported
compliance with the provisions of the law must be shown in shares of stock in PEIP located within the Philippines was
order to support the judgment based on such substituted or denied by the court a quo. Respondent’s Motion for
constructive service. Jurisdiction is not to be assumed and Reconsideration of the said Order was likewise denied by the
exercised on the general ground that the subject matter of the RTC. Evidently, petitioner’s alleged personal property within the
suit is within the power of the court. The inquiry must be as to Philippines had not been attached; hence, the case for collection
whether the requisites of the statute have been complied with, of sum of money and damages, remains an action in personam.
and such compliance must appear on the record. The fact that As a result, the extraterritorial service of summons was not
the defendant had actual knowledge of attempted service does validly effected by the RTC against the petitioner, and the RTC
not render the service effectual if in fact the process was not thus failed to acquire jurisdiction over the person of the
served in accordance with the requirements of the statute. petitioner. The RTC is therefore bereft of any authority to act
upon the Complaint filed before it by the respondent insofar as
Due to non-compliance with the prerequisites for valid the petitioner is concerned.
substituted service, the proceedings held before the trial court
perforce must be annulled. As a rule, even if the service of summons upon the defendant or
respondent in a civil case is defective, the court can still acquire
jurisdiction over his person when he voluntary appears in court
or submits himself to its authority. Nonetheless, voluntary
Fong vs Velayo appearance, as a mode of acquiring jurisdiction over the person
of the defendant, is likewise inapplicable in this case. It is settled
Summons to Nonresident Defendant but subsequently that a party who makes a special appearance in court for the
found in the Philippines purpose of challenging the jurisdiction of said court, based on
Action in Personam the invalidity of the service of summons, cannot be considered to
have voluntarily submitted himself to the jurisdiction of the court.
Petitioner's bare allegation that the statement in the "Officer's In the present case, petitioner has been consistent in all its
Return that she was personally served summons is inaccurate" pleadings in assailing the service of summons upon it and the
is not sufficient. A process server's certificate of service is prima jurisdiction of the RTC over its person.
facie evidence of the facts as set out in the certificate. Between
the claim of non-receipt of summons by a party against the In sum, this Court finds that the petitioner did not submit itself
assertion of an official whose duty is to send notices, the latter voluntarily to the authority of the court a quo; and in the absence
assertion is fortified by the presumption that official duty has of valid service of summons, the RTC utterly failed to acquire
been regularly performed. To overcome the presumption of jurisdiction over the person of the petitioner.
regularity of performance of official functions in favor of such
Officer's Return, the evidence against it must be clear and
convincing. Petitioner having been unable to come forward with TAKE NOTE of the amendment to the ROC (Rule 14) as to
the requisite quantum of proof to the contrary, the presumption voluntary appearance!
of regularity of performance on the part of the process server
stands.
Pioneer vs Guadiz
In this case, petitioner failed to show that her failure to file an
answer was due to fraud, accident, mistake or excusable Summons to Foreign Juridical Entity doing business in the
neglect. Except for her bare unsupported allegation that the Philippines
summons were only thrown to her at the elevator, petitioner did
not present any competent evidence to justify the setting aside of When summons is served on a foreign juridical entity, there are
the order of default. three prescribed ways: (1) service on its resident agent
designated in accordance with law for that purpose, (2) service
on the government official designated by law to receive
summons if the corporation does not have a resident agent, and
Perkin vs Dakila (3) service on any of the corporation’s officers or agents within
the Philippines.
Summons to Non-resident
Action in Personam In the present case, service of summons on PIL failed to follow
any of the prescribed processes. PIL had no resident agent in
The objective sought in complaint was to establish a claim the Philippines. Summons was not served on the Securities and
against petitioner for its alleged unilateral termination of Exchange Commission (SEC), the designated government
Distribution Agreement. Hence it is an action in personam agency, since PIL is not registered with the SEC. Summons for
because it is an action against persons, namely, herein PIL was served on De Leon, Klepzig’s Executive Assistant.
petitioner, on the basis of its personal liability. As such, personal Klepzig is PIL’s "agent within the Philippines" because PIL
service of summons upon the [petitioner] is essential in order for authorized Klepzig to notify Todaro of the cessation of his
the court to acquire of jurisdiction over its person. consultancy (Annexes "H" and "I"). The authority given by PIL to
Klepzig to notify Todaro implies that Klepzig was likewise
Thus, being an action in personam, personal service of authorized to receive Todaro’s response to PIL’s notice. Todaro
summons within the Philippines is necessary in order for the responded to PIL’s notice by filing a complaint before the trial
RTC to validly acquire jurisdiction over the person of the

6
BAM 2020
CONFLICT OF LAWS REVIEWER

court. of the summons intended for the defendant that must be left with
the person of suitable age and discretion residing in the house of
However, summons was not served personally on Klepzig as the defendant. Compliance with the rules regarding the service
agent of PIL. Instead, summons was served on De Leon, of summons is as important as the issue of due process as that
Klepzig’s Executive Assistant. In this instance, De Leon was not of jurisdiction.
PIL’s agent but a mere employee of Klepzig. In effect, the sheriff
resorted to substituted service. For symmetry, we apply the rule In this case, the Sheriff's Return stated that private respondent
on substituted service of summons on a natural person and we was out of the country; thus, the service of summons was made
find that no reason was given to justify the service of PIL’s at her residence with her husband, Alfredo P. Agudo,
summons on De Leon. acknowledging receipt thereof. Alfredo was presumably of
suitable age and discretion, who was residing in that place and,
Thus, we rule that PIL transacted business in the Philippines and therefore, was competent to receive the summons on private
Klepzig was its agent within the Philippines. However, there was respondent's behalf.
improper service of summons on PIL since summons was not
served personally on Klepzig. Notably, private respondent makes no issue as to the fact that
the place where the summons was served was her residence,
though she was temporarily out of the country at that time, and
that Alfredo is her husband. Statements by Private Respondent’s
Palma vs Judge Galvez counsel establish the fact that private respondent had knowledge
of the case filed against her, and that her husband had told her
The RTC found that since private respondent was abroad at the about the case as Alfredo even engaged the services of her
time of the service of summons, she was a resident who was counsel.
temporarily out of the country; thus, service of summons may be
made only by publication. In addition, we agree with petitioner that the RTC had indeed
acquired jurisdiction over the person of private respondent when
We do not agree. the latter's counsel entered his appearance on private
respondent's behalf, without qualification and without
In Montefalcon v. Vasquez, we said that because Section 16 of questioning the propriety of the service of summons, and even
Rule 14 uses the words "may" and "also," it is not mandatory. filed two Motions for Extension of Time to File Answer. In effect,
Other methods of service of summons allowed under the Rules private respondent, through counsel, had already invoked the
may also be availed of by the serving officer on a defendant- RTC’s jurisdiction over her person by praying that the motions
resident who is temporarily out of the Philippines. Thus, if a for extension of time to file answer be granted. We have held
resident defendant is temporarily out of the country, any of the that the filing of motions seeking affirmative relief, such as, to
following modes of service may be resorted to: (1) substituted admit answer, for additional time to file answer, for
service set forth in section 7 ( formerly Section 8), Rule 14; (2) reconsideration of a default judgment, and to lift order of default
personal service outside the country, with leave of court; (3) with motion for reconsideration, are considered voluntary
service by publication, also with leave of court; or (4) in any other submission to the jurisdiction of the court. When private
manner the court may deem sufficient. respondent earlier invoked the jurisdiction of the RTC to secure
affirmative relief in her motions for additional time to file answer,
In Montalban v. Maximo, we held that substituted service of she voluntarily submitted to the jurisdiction of the RTC and is
summons under the present Section 7, Rule 14 of the Rules of thereby estopped from asserting otherwise.
Court in a suit in personam against residents of the Philippines
temporarily absent therefrom is the normal method of service of
summons that will confer jurisdiction on the court over such
defendant. In the same case, we expounded on the rationale in NM Rothschild & Sons vs Lepanto Consolidated Mining
providing for substituted service as the normal mode of service Company
for residents temporarily out of the Philippines.
Since the action involved in the case at bar is in personam and
x x x A man temporarily absent from this country leaves a since the defendant, petitioner Rothschild/Investec, does not
definite place of residence, a dwelling where he lives, a local reside and is not found in the Philippines, the Philippine courts
base, so to speak, to which any inquiry about him may be cannot try any case against it because of the impossibility of
directed and where he is bound to return. Where one temporarily acquiring jurisdiction over its person unless it voluntarily appears
absents himself, he leaves his affairs in the hands of one who in court.
may be reasonably expected to act in his place and stead; to do
all that is necessary to protect his interests; and to communicate In this regard, respondent vigorously argues that petitioner
with him from time to time any incident of importance that may should be held to have voluntarily appeared before the trial court
affect him or his business or his affairs. It is usual for such a man when it prayed for, and was actually afforded, specific reliefs
to leave at his home or with his business associates information from the trial court.
as to where he may be contacted in the event a question that
affects him crops up. If he does not do what is expected of him, Evidently, by seeking affirmative relief other than dismissal of the
and a case comes up in court against him, he cannot just raise case, respondents manifested their voluntary submission to the
his voice and say that he is not subject to the processes of our court's jurisdiction. It is well-settled that the active participation of
courts. He cannot stop a suit from being filed against him upon a a party in the proceedings is tantamount to an invocation of the
claim that he cannot be summoned at his dwelling house or court's jurisdiction and a willingness to abide by the resolution of
residence or his office or regular place of business. the case, and will bar said party from later on impugning the
court's jurisdiction.
Considering that private respondent was temporarily out of the
country, the summons and complaint may be validly served on
her through substituted service under Section 7, Rule 14 of the
Rules of Court. Express Padala (Italia) vs Ocampo

We have held that a dwelling, house or residence refers to the Substituted service is improper under the facts of this case.
place where the person named in the summons is living at the Substituted service presupposes that the place where the
time when the service is made, even though he may be summons is being served is the defendant's current residence or
temporarily out of the country at the time. It is, thus, the service office/regular place of business. Thus, where the defendant

7
BAM 2020
CONFLICT OF LAWS REVIEWER

neither resides nor holds office in the address stated in the JURISDICTION OVER THE RES
summons, substituted service cannot be resorted to.
This is jurisdiction over the particular subject matter in controversy,
Based on the sheriffs report, it is clear that Ocampo no longer
resides in San Bernardo Village, Darasa, Tanauan, Batangas. regardless of the persons who may be interested therein.

Not being a resident of the address where the summons was This may be acquired by:
served, the substituted service of summons is ineffective.  coercive seizure of the property through attachment
Accordingly, the RTC did not acquire jurisdiction over the person proceedings, or
of Ocampo.  through the institution of legal proceedings wherein the
court’s power over the property is recognized and made
BDO Remittance's reliance on Palma v. Galvez is misplaced for effective
the simple reason that the case involved service of summons to
a person who is temporarily out of the country. In this case,
however, Ocampo's sojourn in Italy cannot be classified as In Rem Quasi In Rem In Personam
temporary considering that she already resides there, albeit her When the action affects the personal The action is
precise address was not known. Modes of service of summons status of the person; against
must be strictly followed in order that the court may acquire the persons or
jurisdiction over the person of the defendant. The purpose of this When the action relates to or the subject affect
is to afford the defendant an opportunity to be heard on the claim of which is, property within the Phil., in the parties alone,
against him. BDO Remittance is not totally without recourse, as which the defendant has or claims a lien and not the whole
the rules allow summons by publication and extraterritorial or interest, actual or contingent; world
service. Unlike substituted service, however, these are
extraordinary modes which require leave of court. When the action relates to or the subject E.g.
of which is, property within the Philippines Support,
The service of summons is a vital and indispensable ingredient in which the relief demanded consists, Forcible entry,
of a defendant's constitutional right to due process. As a rule, if a wholly or in part, in excluding the unlawful detainer,
defendant has not been validly summoned, the court acquires no defendant from any interest therein; or specific
jurisdiction over his person, and a judgment rendered against performance,
him is void. Since the RTC never acquired jurisdiction over the When the property of the defendant has collection cases
person of Ocampo, the judgment rendered by the court could not been attached within the
be considered binding upon her. Philippines.

BASIS FOR REFUSAL TO ASSUME JURISDICTION


 LACK OF JURISDICTION
Carson Realty vs Red Robin Security  FORUM NON CONVENIENS

Given the circumstances in the case at bench, We find that FORUM NON CONVENIENS
resort to substituted service was warranted since the
impossibility of personal service is clearly apparent.  It simply means that the forum is not convenient.
 It is a concept originating in common law (Saudia case).
A perusal of the Officer's Return detailing the circumstances
 It emerged to deter the practice of “global forum shopping”
surrounding the service of the second alias Summons shows
that the requirements for a valid substituted service of summons (or parallel litigation), i.e. to prevent non-resident litigants
were substantially complied with. from choosing the forum or the place wherein to bring their
suit for malicious reasons (Bank of America/Saudia case).
Substituted service of summons was resorted to by leaving the  It is a deferential gesture to the tribunals of another
copy of the Alias Summons at the company's office through its sovereign (Saudia case).
employee, MS. LORIE FERNANDEZ, however, she refused to  It cannot be raised as a ground in a Motion to Dismiss. It is
acknowledge receipt of the process. more properly considered as a matter of defense. A court
should renounce jurisdiction only “after vital facts are
Based on the facts, there was a deliberate plan of Carson's for established”…
its officers not to receive the Summons. It is a legal maneuver  However, it must be raised at the earliest possible
that is in derogation of the rules on Summons. We cannot opportunity, otherwise, it shall be deemed waived (Saudia
tolerate that.
case).
 It does not go into the jurisdiction of the court to try the
The facts now show that the responsible officers did not intend to
receive the alias Summons through substituted service. The case. Thus, under this principle, even if jurisdiction is
Summons is considered validly served. authorized by law, courts may nonetheless refuse to
entertain the case for any of the established reasons.
In any event, even if We concede the invalidity of the substituted  It is different from choice of law (Saudia case).
service, such is of little significance in view of the fact that the
RTC had already acquired jurisdiction over Carson early on due When “convenient”?
to its voluntary submission to the jurisdiction of the court. 1. The Philippine court is one to which the parties may
conveniently resort to;
Carson voluntarily submitted to the jurisdiction of the RTC when 2. The Philippine court is in a position to make an intelligent
it filed, through Atty. Roxas, the Appearance and Motion decision as to the law and the facts;
acknowledging Carson's receipt of the Summons and seeking 3. The Philippine court has or likely to have power to enforce
additional time to file its responsive pleading. As noted by the
its decision.
CA, Carson failed to indicate therein that the Appearance and
Motion was being filed by way of a conditional appearance to
question the regularity of the service of summons. Thus, by When “inconvenient”?
securing the affirmative relief of additional time to file its  When the said conditions are unavailing. (Manila Hotel
responsive pleading, Carson effectively voluntarily submitted to case).
the jurisdiction of the RTC.  (a) When there is a belief that the matter can better be
tried and decided elsewhere, either because the main
8
BAM 2020
CONFLICT OF LAWS REVIEWER

aspects of the case transpired in a foreign jurisdiction or


the material witnesses have their residence there; dismissed the case even after finding that Ducat was not a party
(b) When there is a belief that the non-resident plaintiff in the U.S. case.
sough the forum merely to secure procedural advantages
or to convey or harass the defendant;
(c) When there is unwillingness to extend local judicial
Manila Hotel vs NLRC
facilities to non-residents or aliens when the docket may
already be overcrowded;
The NLRC was a seriously inconvenient forum.
(d) When there is inadequacy of the local judicial
machinery for effectuating the right sought to be We note that the main aspects of the case transpired in two
maintained; foreign jurisdictions and the case involves purely foreign
(e) When there is difficulty of ascertaining foreign law. elements. The only link that the Philippines has with the case is
(Puyat case). that respondent Santos is a Filipino citizen. The Palace Hotel
and MHICL are foreign corporations. Not all cases involving our
citizens can be tried here.

Communication Materials vs CA The employment contract. — Respondent Santos was hired


directly by the Palace Hotel, a foreign employer, through
Petitioner's insistence on the dismissal of this action due to the correspondence sent to the Sultanate of Oman, where
application, or non application, of the private international law respondent Santos was then employed. He was hired without
rule of forum non conveniens defies well-settled rules of fair play. the intervention of the POEA or any authorized recruitment
According to petitioner, the Philippine Court has no venue to agency of the government.
apply its discretion whether to give cognizance or not to the
present action, because it has not acquired jurisdiction over the Under the rule of forum non conveniens, a Philippine court or
person of the plaintiff in the case, the latter allegedly having no agency may assume jurisdiction over the case if it chooses to do
personality to sue before Philippine Courts. This argument is so provided:
misplaced because the court has already acquired jurisdiction 1. that the Philippine court is one to which the parties
over the plaintiff in the suit, by virtue of his filing the original may conveniently resort to;
complaint. And as we have already observed, petitioner is not at 2. that the Philippine court is in a position to make an
liberty to question plaintiff's standing to sue, having already intelligent decision as to the law and the facts; and
acceded to the same by virtue of its entry into the 3. that the Philippine court has or is likely to have power
Representative Agreement referred to earlier. to enforce its decision. The conditions are unavailing
in the case at bar.
Thus, having acquired jurisdiction, it is now for the Philippine
Court, based on the facts of the case, whether to give due Not Convenient. — We fail to see how the NLRC is a
course to the suit or dismiss it, on the principle of forum non convenient forum given that all the incidents of the case — from
convenience. Hence, the Philippine Court may refuse to assume the time of recruitment, to employment to dismissal occurred
jurisdiction in spite of its having acquired jurisdiction. Conversely, outside the Philippines. The inconvenience is compounded by
the court may assume jurisdiction over the case if it chooses to the fact that the proper defendants, the Palace Hotel and MHICL
do so; provided, that the following requisites are met: are not nationals of the Philippines. Neither .are they "doing
1. That the Philippine Court is one to which the parties business in the Philippines." Likewise, the main witnesses, Mr.
may conveniently resort to; Shmidt and Mr. Henk are non-residents of the Philippines.
2. That the Philippine Court is in a position to make an
intelligent decision as to the law and the facts; and, No power to determine applicable law. — Neither can an
3. That the Philippine Court has or is likely to have power intelligent decision be made as to the law governing the
to enforce its decision. employment contract as such was perfected in foreign soil. This
calls to fore the application of the principle of lex loci contractus
The aforesaid requirements having been met, and in view of the (the law of the place where the contract was made).
court's disposition to give due course to the questioned action,
the matter of the present forum not being the "most convenient" The employment contract was not perfected in the Philippines.
as a ground for the suit's dismissal, deserves scant Respondent Santos signified his acceptance by writing a letter
consideration. while he was in the Republic of Oman. This letter was sent to the
Palace Hotel in the People's Republic of China.

No power to determine the facts. — Neither can the NLRC


Philsec vs CA determine the facts surrounding the alleged illegal dismissal as
all acts complained of took place in Beijing, People's Republic of
Nor is the trial court's refusal to take cognizance of the case China. The NLRC was not in a position to determine whether the
justifiable under the principle of forum non conveniens. First, a Tiannamen Square incident truly adversely affected operations
motion to dismiss is limited to the grounds under Rule 16, S1, of the Palace Hotel as to justify respondent Santos'
which does not include forum non conveniens. The propriety of retrenchment.
dismissing a case based on this principle requires a factual
determination, hence, it is more properly considered a matter of Principle of effectiveness, no power to execute decision. —
defense. Second, while it is within the discretion of the trial court Even assuming that a proper decision could be reached by the
to abstain from assuming jurisdiction on this ground, it should do NLRC, such would not have any binding effect against the
so only after "vital facts are established, to determine whether employer, the Palace Hotel. The Palace Hotel is a corporation
special circumstances" require the court's desistance. In this incorporated under the laws of China and was not even served
case, the trial court abstained from taking jurisdiction solely on with summons. Jurisdiction over its person was not acquired.
the basis of the pleadings filed by private respondents in
connection with the motion to dismiss. It failed to consider that This is not to say that Philippine courts and agencies have no
one of the plaintiffs (PHILSEC) is a domestic corporation and power to solve controversies involving foreign employers.
one of the defendants (Ventura Ducat) is a Filipino, and that it Neither are we saying that we do not have power over an
was the extinguishment of the latter's debt which was the object employment contract executed in a foreign country. If Santos
of the transaction under litigation. The trial court arbitrarily were an "overseas contract worker", a Philippine forum,
specifically the POEA, not the NLRC, would protect him. He is

9
BAM 2020
CONFLICT OF LAWS REVIEWER

not an "overseas contract worker" a fact which he admits with


conviction. Whether a suit should be entertained or dismissed on the basis
of said doctrine depends largely upon the facts of the particular
case and is addressed to the sound discretion of the trial court.
In the case of Communication Materials and Design, Inc. vs.
Puyat vs Zabarte Court of Appeals, this Court held that "xxx [a Philippine Court
may assume jurisdiction over the case if it chooses to do so;
Under the principle of forum non conveniens, even if the provided, that the following requisites are met: (1) that the
exercise of jurisdiction is authorized by law, courts may Philippine Court is one to which the parties may conveniently
nonetheless refuse to entertain a case for any of the following resort to; (2) that the Philippine Court is in a position to make an
practical reasons: “1) The belief that the matter can be better intelligent decision as to the law and the facts; and, (3) that the
tried and decided elsewhere, either because the main aspects of Philippine Court has or is likely to have power to enforce its
the case transpired in a foreign jurisdiction or the material decision." Evidently, all these requisites are present in the instant
witnesses have their residence there; 2) The belief that the non- case.
resident plaintiff sought the forum[,] a practice known as forum
shopping[,] merely to secure procedural advantages or to convey Moreover, this Court enunciated in Philsec. Investment
or harass the defendant; 3) The unwillingness to extend local Corporation vs. Court of Appeals, that the doctrine of forum non
judicial facilities to non-residents or aliens when the docket may conveniens should not be used as a ground for a motion to
already be overcrowded; 4) The inadequacy of the local judicial dismiss because Sec. 1, Rule 16 of the Rules of Court does not
machinery for effectuating the right sought to be maintained; and include said doctrine as a ground. This Court further ruled that
The difficulty of ascertaining foreign law.” while it is within the discretion of the trial court to abstain from
assuming jurisdiction on this ground, it should do so only after
None of the aforementioned reasons barred the RTC from vital facts are established, to determine whether special
exercising its jurisdiction. In the present action, there was no circumstances require the court's desistance; and that the
more need for material witnesses, no forum shopping or propriety of dismissing a case based on this principle of forum
harassment of petitioner, no inadequacy in the local machinery non conveniens requires a factual determination, hence it is
to enforce the foreign judgment, and no question raised as to the more properly considered a matter of defense.
application of any foreign law. Authorities agree that the issue of
whether a suit should be entertained or dismissed on the basis
of the abovementioned principle depends largely upon the facts
of each case and on the sound discretion of the trial court. Since Pacific vs Schonfeld
the present action lodged in the RTC was for the enforcement of
a foreign judgment, there was no need to ascertain the rights Petitioners’ insistence on the application of the principle of forum
and the obligations of the parties based on foreign laws or non conveniens must be rejected. The bare fact that respondent
contracts. The parties needed only to perform their obligations is a Canadian citizen and was a repatriate does not warrant the
under the Compromise Agreement they had entered into. Under application of the principle for the following reasons: First. The
Section 48, Rule 39 of the 1997 Rules of Civil Procedure, a Labor Code of the Philippines does not include forum non
judgment in an action in personam rendered by a foreign tribunal conveniens as a ground for the dismissal of the complaint.
clothed with jurisdiction is presumptive evidence of a right as Second. The propriety of dismissing a case based on this
between the parties and their successors-in-interest by a principle requires a factual determination; hence, it is properly
subsequent title. Also, under Section 5(n) of Rule 131, a court -- considered as defense. Third. In Bank of America, NT&SA, Bank
whether in the Philippines or elsewhere -- enjoys the of America International, Ltd. v. Court of Appeals, this Court held
presumption that it is acting in the lawful exercise of its that: x x x [a] Philippine Court may assume jurisdiction over the
jurisdiction, and that it is regularly performing its official duty. Its case if it chooses to do so; provided, that the following requisites
judgment may, however, be assailed if there is evidence of want are met: (1) that the Philippine Court is one to which the parties
of jurisdiction, want of notice to the party, collusion, fraud or clear may conveniently resort to; (2) that the Philippine Court is in a
mistake of law or fact. But precisely, this possibility signals the position to make an intelligent decision as to the law and the
need for a local trial court to exercise jurisdiction. facts; and, (3) that the Philippine Court has or is likely to have
power to enforce its decision. x x x Admittedly, all the foregoing
Clearly, the application of forum non coveniens is not called for. requisites are present in this case.
The grounds relied upon by petitioner are contradictory. On the
one hand, he insists that the RTC take jurisdiction over the
enforcement case in order to invalidate the foreign judgment; Pioneer vs Guadiz
yet, he avers that the trial court should not exercise jurisdiction
over the same case on the basis of forum non conveniens. Not The doctrine of forum non-conveniens requires an examination
only do these defenses weaken each other, but they bolster the of the truthfulness of the allegations in the complaint. Section 1,
finding of the lower courts that he was merely maneuvering to Rule 16 of the 1997 Rules of Civil Procedure does not mention
avoid or delay payment of his obligation. forum non-conveniens as a ground for filing a motion to dismiss.
The propriety of dismissing a case based on forum non-
conveniens requires a factual determination; hence, it is more
properly considered a matter of defense. While it is within the
Bank of America vs CA discretion of the trial court to abstain from assuming jurisdiction
on this ground, the trial court should do so only after vital facts
The doctrine of forum non-conveniens, literally meaning 'the are established to determine whether special circumstances
forum is inconvenient', emerged in private international law to require the court’s desistance.
deter the practice of global forum shopping, that is to prevent
non-resident litigants from choosing the forum or place wherein
to bring their suit for malicious reasons, such as to secure
procedural advantages, to annoy and harass the defendant, to Raytheon Intl vs Rouzie
avoid overcrowded dockets, or to select a more friendly venue.
Under the doctrine of forum non conveniens, a court, in conflicts-
Under this doctrine, a court, in conflicts of law cases, may refuse of-laws cases, may refuse impositions on its jurisdiction where it
impositions on its jurisdiction where it is not the most is not the most "convenient" or available forum and the parties
"convenient" or available forum and the parties are not precluded are not precluded from seeking remedies elsewhere. Petitioner’s
from seeking remedies elsewhere.

10
BAM 2020
CONFLICT OF LAWS REVIEWER

averments of the foreign elements in the instant case are not Continental Micronesia vs Basso
sufficient to oust the trial court of its jurisdiction over Civil Case
No. No. 1192-BG and the parties involved. Moreover, the Under the doctrine of forum non conveniens, a Philippine court in
propriety of dismissing a case based on the principle of forum a conflict-of-laws case may assume jurisdiction if it chooses to
non conveniens requires a factual determination; hence, it is do so, provided, that the following requisites are met: (1) that the
more properly considered as a matter of defense. While it is Philippine Court is one to which the parties may conveniently
within the discretion of the trial court to abstain from assuming resort to; (2) that the Philippine Court is in a position to make an
jurisdiction on this ground, it should do so only after vital facts intelligent decision as to the law andthe facts; and (3) that the
are established, to determine whether special circumstances Philippine Court has or is likely to have power to enforce its
require the court’s desistance. decision. All these requisites are present here.

Basso may conveniently resort to our labor tribunals as he and


CMI had physical presence in the Philippines during the duration
Navida vs of the trial. CMI has a Philippine branch, while Basso, before his
death, was residing here.
Moreover, the injuries and illnesses, which NAVIDA, et al., and
ABELLA, et al., allegedly suffered resulted from their exposure to Thus, it could be reasonably expected that no extraordinary
DBCP while they were employed in the banana plantations measures were needed for the parties to make arrangements in
located in the Philippines or while they were residing within the advocating their respective cases. The labor tribunals can make
agricultural areas also located in the Philippines. The factual an intelligent decision as to the law and facts. The incident
allegations in the Amended Joint Complaints all point to their subject of this case (i.e. dismissal of Basso) happened in the
cause of action, which undeniably occurred in the Philippines. Philippines, the surrounding circumstances of which can be
The RTC of General Santos City and the RTC of Davao City ascertained without having to leave the Philippines. The acts that
obviously have reasonable basis to assume jurisdiction over the allegedly led to loss of trust and confidence and Basso’s
cases. eventual dismissal were committed in the Philippines. As to the
law, we hold that Philippine law is the proper law of the forum, as
It is, therefore, error on the part of the courts a quo when they we shall discuss shortly. Also, the labor tribunals have the power
dismissed the cases on the ground of lack of jurisdiction on the to enforce their judgments because they acquired jurisdiction
mistaken assumption that the cause of action narrated by over the persons of both parties.
NAVIDA, et al., and ABELLA, et al., took place abroad and had
occurred outside and beyond the territorial boundaries of the
Philippines, i.e., "the manufacture of the pesticides, their WHEN ASSUMED:
packaging in containers, their distribution through sale or other  Apply internal law (lex fori)
disposition, resulting in their becoming part of the stream of  Apply the proper foreign law (lex Causae)
commerce," and, hence, outside the jurisdiction of the RTCs.
CHOICE OF LAW
Certainly, the cases below are not criminal cases where
territoriality, or the situs of the act complained of, would be
determinative of jurisdiction and venue for trial of cases. In CHOICE OF LAW IS NOT THE SAME AS JURISDICTION:
personal civil actions, such as claims for payment of damages,
the Rules of Court allow the action to be commenced and tried in Jurisdiction Choice of Law
the appropriate court, where any of the plaintiffs or defendants Jurisdiction considers whether Choice of law considers
resides, or in the case of a non-resident defendant, where he it is fair to cause a defendant whether the application of a
may be found, at the election of the plaintiff. to travel to the forum. substantive law which will
determine the merits of the
In a very real sense, most of the evidence required to prove the case is fair to both parties.
claims of NAVIDA, et al., and ABELLA, et al., are available only Jurisdiction is determined The choice of law stipulation
in the Philippines. First, plaintiff claimants are all residents of the before trial on the merits. A will become relevant only
Philippines, either in General Santos City or in Davao City. conflict of laws case will only when the substantive issues of
Second, the specific areas where they were allegedly exposed to proceed to the determination the case develop, that is, after
the chemical DBCP are within the territorial jurisdiction of the of the choice of law after hearing on
courts a quo wherein NAVIDA, et al., and ABELLA, et al., initially jurisdiction is settled the merits by the trial court.
filed their claims for damages. Third, the testimonial and
documentary evidence from important witnesses, such as
CHOICE OF LAW
doctors, co-workers, family members and other members of the
community, would be easier to gather in the Philippines.
Considering the great number of plaintiff claimants involved in Hasegawa vs Kitamura
this case, it is not far-fetched to assume that voluminous records
are involved in the presentation of evidence to support the claim What the petitioner raise as grounds to question subject matter
of plaintiff claimants. Thus, these additional factors, coupled with jurisdiction are the principles of lex loci celebrationis and lex
the fact that the alleged cause of action of NAVIDA, et al., and contractus, and the "state of the most significant relationship
ABELLA, et al., against the defendant companies for damages rule."
occurred in the Philippines, demonstrate that, apart from the
RTC of General Santos City and the RTC of Davao City having Since these three principles in conflict of laws make reference to
jurisdiction over the subject matter in the instant civil cases, they the law applicable to a dispute, they are rules proper for the
are, indeed, the convenient fora for trying these cases second phase, the choice of law. They determine which state's
law is to be applied in resolving the substantive issues of a
conflicts problem. Necessarily, as the only issue in this case is
that of jurisdiction, choice-of-law rules are not only inapplicable
Saudia vs Rebesencio but also not yet called for.
***Lengthy but instructive read FULL TEXT
Jurisdiction and choice of law are two distinct concepts.

11
BAM 2020
CONFLICT OF LAWS REVIEWER

c. Relevant policies of other interested states and the


Raytheon vs Rouzie relative interest of those in the determination of the
particular issue;
That the subject contract included a stipulation that the same d. Protection of justified expectations;
shall be governed by the laws of the State of Connecticut does e. Basic policies underlying the particular field of law;
not suggest that the Philippine courts, or any other foreign f. Certainty, predictability and uniformity of result;
tribunal for that matter, are precluded from hearing the civil
g. Ease in the determination and the application of the
action. Jurisdiction and choice of law are two distinct concepts.
law to be applied.
Jurisdiction considers whether it is fair to cause a defendant to
travel to this state; choice of law asks the further question To determine which was the state of the most significant
whether the application of a substantive law which will determine relationship, the factual contacts of each case were
the merits of the case is fair to both parties. The choice of law considered in the light of the above principles.
stipulation will become relevant only when the substantive issues  Interest Analysis – factual contacts alone do not
of the instant case develop, that is, after hearing on the merits determine the outcome of the case unless they reflect a
proceeds before the trial court. state policy which would be advanced by application of the
substantive state law
 Comparative Impairment – the subordination of the state
objective which would be least impaired
Choice of law may refer to:  Functional Analysis – looked into the general policies of
1. A process, or the state beyond those reflected in its substantive laws
2. A contractual stipulation and to policies and values relating to effective and
harmonious intercourse between states (e.g. reciprocity,
1. AS A PROCESS : effectiveness, etc.)
 Choice-Influencing Considerations – (1) predictability of
It is a procedural stage in the litigation of a case involving a foreign results, (2) maintenance of interstate and international
element when it is necessary to reconcile the differences between order, (3) simplification of the judicial task, (4) application
the laws of different jurisdictions. of the better rule of law, (5) advancement of the forum’s
governmental interests.
2 Important Questions: (Saudia vs CA)
1. What legal system should control a given situation where SINGLE-ASPECT METHOD V. MULTI-ASPECT METHOD IN
some of the significant facts occurred in two or more CHOICE-OF-LAW
states?
2. To what extent should the chosen legal system regulate Single-Aspect Method
the situation? Choice of law theories have traditionally concentrated on one
element of a situation in order to connect the case to a particular
TRADITIONAL APPROACH legal community.
 Vested Rights Theory – an act done in a foreign
jurisdiction gives rise to the existence of a right if the laws Multi-Aspect Method
of that state provide so; this right vests in the plaintiff and All important factors of the case both territorial and non-territorial,
he carries it with him to be enforced in any forum he are analyzed and the applicable law is arrived at by “rationally
chooses to bring suit; the forum refers to the law of the elaborating and applying the policies and purposes underlying the
place of the “last act” necessary to complete the cause of particular legal rules that come in question as well as the needs of
action. the interstate or international intercourse”
 Local Law Theory – (1) the power of the state to regulate
within its territory has no limitation, except such as may be The Philippines follow the Traditional/Single Aspect Method.
imposed by its own positive law, (2) in conflict of laws Examples: Articles 15, 16, 17 of the Civil Code.
problems, the courts does not enforce a foreign right but a
right created by its own law by treating a case as a purely However, to avoid the inherent rigidity and unjust decisions that may
domestic case that does not involve a foreign element. result from this, our courts also resort to “characterization”, or to
 Principles of Preference – Choice-of-law decisions must “renvoi”.
be made with reference to principles pf preference which
are conceived to provide a fair accommodation of CHARACTERIZATION
conflicting state policies and afford fair treatment to the
parties. Thus, when a court is faced with a question Definition: It is the process of determining under what category a
whether to reject as inapplicable, the law of the forum, and certain set of facts or rules fall, and then deciding whether or not the
to admit in evidence as determinative of an issue in a case facts relate
before it, a rule of law of a foreign jurisdiction, it should (1) to the kind of question specified in a conflicts rule.
scrutinize the event or transaction giving rise to the issue;
(2) compare carefully the proffered rule of law and the Purpose: This is to enable the forum to select the proper law.
result which its application might work in the case at bar
with the rule of the forum and its effect therein; (3) Characterization: Steps
appraise these results from the standpoint of justice 1. The determination of the facts involved
between the litigants of those broader considerations of 2. The characterization of the factual situation
social policy which conflicting laws may evoke. 3. The determination of the conflicts rule which is to be
applied
MODERN APPROACH 4. The characterization of the point of contact or the
 Place of the Most Significant Relationship – Section 6 connecting factor
of the US Restatement (Second) of Laws: 5. The characterization of the problem as procedural or
a. The needs of the interstate and international system; substantive
b. Relevant policies of the concerned states; 6. The pleading and proving of the proper foreign law
7. The application of the proper foreign law to the problem

12
BAM 2020
CONFLICT OF LAWS REVIEWER

Characterization: Connecting Factors or Point of


Contact (saudia case) Prescinding from this premise that the Philippines is the situs of
1. The nationality of a person, his domicile, his residence, his the tort complained of and the place "having the most interest in
place of sojourn, or his origin; the problem", we find, by way of recapitulation, that the
2. The seat of a legal or juridical person, such as a Philippine law on tort liability should have paramount application
corporation; to and control in the resolution of the legal issues arising out of
this case. Further, we hold that the respondent Regional Trial
3. The situs of the thing (lex situs);
Court has jurisdiction over the parties and the subject matter of
4. The place where the act has been done or the locus actus;
the complaint; the appropriate venue is in Quezon City, which
5. The place where an act is intended to come into effect; could properly apply Philippine law. Moreover, we find untenable
6. The intention of the contracting parties as to the governing petitioner's insistence that "[s]ince private respondent instituted
law (lex loci intentionis); this suit, she has the burden of pleading and proving the
7. The place where judicial or administrative proceedings are applicable Saudi law on the matter." As aptly said by private
instituted or done (lex fori); respondent, she has "no obligation to plead and prove the law of
8. The flag of a ship. the Kingdom of Saudi Arabia since her cause of action is based
on Articles 19 and 21" of the Civil Code of the Philippines. In her
Amended Complaint and subsequent pleadings, she never
SAUDIA vs CA alleged that Saudi law should govern this case. 65 And as
correctly held by the respondent appellate court, "considering
Considering that the complaint in the court a quo is one involving that it was the petitioner who was invoking the applicability of the
torts, the "connecting factor" or "point of contact" could be the law of Saudi Arabia, then the burden was on it [petitioner] to
place or places where the tortious conduct or lex loci actus plead and to establish what the law of Saudi Arabia is".
occurred. And applying the torts principle in a conflicts case, we
find that the Philippines could be said as a situs of the tort (the
place where the alleged tortious conduct took place). This is SUBJECT-MATTER CHARACTERIZATION
because it is in the Philippines where petitioner allegedly - factual situation ↔ legal category (Gibbs case; Saudia
deceived private respondent, a Filipina residing and working case)
here. According to her, she had honestly believed that petitioner - Calls for classification by a court of a factual situation into
would, in the exercise of its rights and in the performance of its a legal category
duties, "act with justice, give her due and observe honesty and - The legal category to which the issue is assigned
good faith." Instead, petitioner failed to protect her, she claimed. determines the governing law
That certain acts or parts of the injury allegedly occurred in
another country is of no moment. For in our view what is
important here is the place where the over-all harm or the totality
Gibbs vs Govt of the Philippine Islands
of the alleged injury to the person, reputation, social standing
and human rights of complainant, had lodged, according to the
plaintiff below (herein private respondent). It seems clear that the second paragraph of article 10 applies
only when a legal or testamentary succession has taken place in
All told, it is not without basis to identify the Philippines as the the Philippines and in accordance with the law of the Philippine
situs of the alleged tort. Islands; and the foreign law is consulted only in regard to the
order of succession or the extent of the successional rights; in
Application of State of the most significant relationship other words, the second paragraph of article 10 can be invoked
only when the deceased was vested with a descendible interest
Moreover, with the widespread criticism of the traditional rule of in property within the jurisdiction of the Philippine Islands.
lex loci delicti commissi, modern theories and rules on tort
liability have been advanced to offer fresh judicial approaches to
In the case of Clarke vs. Clarke (178 U. S., 186, 191; 44 Law
arrive at just results. In keeping abreast with the modern theories
ed., 1028, 1031), the court said:
on tort liability, we find here an occasion to apply the "State of
the most significant relationship" rule, which in our view should
be appropriate to apply now, given the factual context of this It is principle firmly established that to the law of the
case. state in which the land is situated we must look for the
rules which govern its descent, alienation, and
In applying said principle to determine the State which has the transfer, and for the effect and construction of wills
most significant relationship, the following contacts are to be and other conveyances. (United States vs. Crosby, 7
taken into account and evaluated according to their relative Cranch, 115; 3 L. ed., 287; Clark vs. Graham, 6
importance with respect to the particular issue: (a) the place Wheat., 577; 5 L. ed., 334; McGoon vs. Scales, 9
where the injury occurred; (b) the place where the conduct Wall., 23; 19 L. ed., 545; Brine vs. Hartford F. Ins. Co.,
causing the injury occurred; (c) the domicile, residence, 96 U. S., 627; 24 L. ed., 858.)" (See also Estate of
nationality, place of incorporation and place of business of the Lloyd, 175 Cal., 704, 705.) This fundamental principle
parties, and (d) the place where the relationship, if any, between is stated in the first paragraph of article 10 of our Civil
the parties is centered. Code as follows: "Personal property is subject to the
laws of the nation of the owner thereof; real property to
As already discussed, there is basis for the claim that over-all the laws of the country in which it is situated.
injury occurred and lodged in the Philippines. There is likewise
no question that private respondent is a resident Filipina
national, working with petitioner, a resident foreign corporation It is stated in 5 Cal. Jur., 478:
engaged here in the business of international air carriage. Thus,
the "relationship" between the parties was centered here, In accord with the rule that real property is subject to
although it should be stressed that this suit is not based on mere the lex rei sitae, the respective rights of husband and
labor law violations. From the record, the claim that the wife in such property, in the absence of an antenuptial
Philippines has the most significant contact with the matter in contract, are determined by the law of the place where
this dispute, raised by private respondent as plaintiff below the property is situated, irrespective of the domicile of
against defendant (herein petitioner), in our view, has been the parties or to the place where the marriage was
properly established. celebrated. (See also Saul vs. His Creditors, 5 Martin
[N. S.], 569; 16 Am. Dec., 212 [La.]; Heidenheimer vs.

13
BAM 2020
CONFLICT OF LAWS REVIEWER

Loring, 26 S. W., 99 [Texas].) title here involved.

Under this broad principle, the nature and extent of the title
In the matter of characterization, the court in the case of Gibbs was
which vested in Mrs. Gibbs at the time of the acquisition of the
community lands here in question must be determined in faced with the task of categorizing the issue as one involving real
accordance with the lex rei sitae. property to be governed by the lex situs, or one involved in
succession, to be governed by the national law of the decedent, a
citizen of California USA.
It is admitted that the Philippine lands here in question were
acquired as community property of the conjugal partnership of
SUBSTANCE-PROCEDURE CHARACTERIZATION
the appellee and his wife. Under the law of the Philippine
- substantive ↔ foreign law;
Islands, she was vested of a title equal to that of her husband.
Article 1407 of the Civil Code provides: - procedural ↔ law of the forum (Cadalin case)
- Directs the court to the extent it will apply foreign law; if
the issue is substantive the court may apply foreign law
All the property of the spouses shall be deemed but if it is procedural, it is supposed to follow the law of the
partnership property in the absence of proof that it forum
belongs exclusively to the husband or to the wife.
Article 1395 provides:
Cadalin vs POEA Administrator
"The conjugal partnership shall be governed by the rules of law
applicable to the contract of partnership in all matters in which First to be determined is whether it is the Bahrain law on
such rules do not conflict with the express provisions of this prescription of action based on the Amiri Decree No. 23 of 1976
chapter." Article 1414 provides that "the husband may dispose or a Philippine law on prescription that shall be the governing
by will of his half only of the property of the conjugal law.
partnership." Article 1426 provides that upon dissolution of the
conjugal partnership and after inventory and liquidation, "the net Article 156 of the Amiri Decree No. 23 of 1976 provides:
remainder of the partnership property shall be divided share and
share alike between the husband and wife, or their respective A claim arising out of a contract of employment shall not be
heirs." Under the provisions of the Civil Code and the actionable after the lapse of one year from the date of the expiry
jurisprudence prevailing here, the wife, upon the acquisition of of the contract. (G.R. Nos. 105029-31, Rollo, p. 226).
any conjugal property, becomes immediately vested with an
interest and title therein equal to that of her husband, subject to As a general rule, a foreign procedural law will not be applied in
the power of management and disposition which the law vests in the forum. Procedural matters, such as service of process,
the husband. Immediately upon her death, if there are no joinder of actions, period and requisites for appeal, and so forth,
obligations of the decedent, as is true in the present case, her are governed by the laws of the forum. This is true even if the
share in the conjugal property is transmitted to her heirs by action is based upon a foreign substantive law (Restatement of
succession. (Articles 657, 659, 661, Civil Code; the Conflict of Laws, Sec. 685; Salonga, Private International
cf. also Coronel vs. Ona, 33 Phil., 456, 469.) Law, 131 [1979]).

A law on prescription of actions is sui generis in Conflict of Laws


It results that the wife of the appellee was, by the law of the
in the sense that it may be viewed either as procedural or
Philippine Islands, vested of a descendible interest, equal to that
substantive, depending on the characterization given such a law.
of her husband, in the Philippine lands covered by certificates of
title Nos. 20880, 28336 and 28331, from the date of their
Thus in Bournias v. Atlantic Maritime Company, supra, the
acquisition to the date of her death. That appellee himself
American court applied the statute of limitations of New York,
believed that his wife was vested of such a title and interest in
instead of the Panamanian law, after finding that there was no
manifest from the second of said certificates, No. 28336, dated
showing that the Panamanian law on prescription was intended
May 14, 1927, introduced by him in evidence, in which it is
to be substantive. Being considered merely a procedural law
certified that "the spouses Allison D. Gibbs and Eva Johnson
even in Panama, it has to give way to the law of the forum on
Gibbs are the owners in fee simple of the conjugal lands therein
prescription of actions.
described."
However, the characterization of a statute into a procedural or
The descendible interest of Eva Johnson Gibbs in the lands substantive law becomes irrelevant when the country of the
aforesaid was transmitted to her heirs by virtue of inheritance forum has a "borrowing statute." Said statute has the practical
and this transmission plainly falls within the language of section effect of treating the foreign statute of limitation as one of
1536 of Article XI of Chapter 40 of the Administrative Code substance (Goodrich, Conflict of Laws 152-153 [1938]). A
which levies a tax on inheritances. (Cf. Re Estate of Majot, 199 "borrowing statute" directs the state of the forum to apply the
N. Y., 29; 92 N. E., 402; 29 L. R. A. [N. S.], 780.) It is foreign statute of limitations to the pending claims based on a
unnecessary in this proceeding to determine the "order of foreign law (Siegel, Conflicts, 183 [1975]). While there are
succession" or the "extent of the successional rights" (article 10, several kinds of "borrowing statutes," one form provides that an
Civil Code, supra) which would be regulated by section 1386 of action barred by the laws of the place where it accrued, will not
the Civil Code of California which was in effect at the time of the be enforced in the forum even though the local statute has not
death of Mrs. Gibbs. run against it (Goodrich and Scoles, Conflict of Laws, 152-153
[1938]). Section 48 of our Code of Civil Procedure is of this kind.
Said Section provides:
The record does not show what the proper amount of the
inheritance tax in this case would be nor that the appellee
If by the laws of the state or country where the cause of action
(petitioner below) in any way challenged the power of the
arose, the action is barred, it is also barred in the Philippines
Government to levy an inheritance tax or the validity of the
Islands.
statute under which the register of deeds refused to issue a
certificate of transfer reciting that the appellee is the exclusive
Section 48 has not been repealed or amended by the Civil Code
owner of the Philippine lands included in the three certificates of
of the Philippines. Article 2270 of said Code repealed only those

14
BAM 2020
CONFLICT OF LAWS REVIEWER

provisions of the Code of Civil Procedures as to which were


inconsistent with it. There is no provision in the Civil Code of the Additionally, prohibitive laws concerning persons, their acts or
Philippines, which is inconsistent with or contradictory to Section property, and those which have for their object public order,
48 of the Code of Civil Procedure (Paras, Philippine Conflict of public policy and good customs shall not be rendered ineffective
Laws 104 [7th ed.]). by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
In the light of the 1987 Constitution, however, Section 48 cannot
be enforced ex proprio vigore insofar as it ordains the application The public policy sought to be protected in the instant case is the
in this jurisdiction of Section 156 of the Amiri Decree No. 23 of principle imbedded in our jurisdiction proscribing the splitting up
1976. of a single cause of action.

The courts of the forum will not enforce any foreign claim Section 4, Rule 2 of the 1997 Rules of Civil Procedure is
obnoxious to the forum's public policy (Canadian Northern pertinent — If two or more suits are instituted on the basis of the
Railway Co. v. Eggen, 252 U.S. 553, 40 S. Ct. 402, 64 L. ed. 713 same cause of action, the filing of one or a judgment upon the
[1920]). To enforce the one-year prescriptive period of the Amiri merits in any one is available as a ground for the dismissal of the
Decree No. 23 of 1976 as regards the claims in question would others.
contravene the public policy on the protection to labor.
Moreover, foreign law should not be applied when its application
would work undeniable injustice to the citizens or residents of the
NOTE: The ruling in the case of Cadalin is similar to LWV forum. To give justice is the most important function of law;
Construction Case. hence, a law, or judgment or contract that is obviously unjust
negates the fundamental principles of Conflict of Laws.
Instances when the law of the forum is applied
 When the forum law decrees application of internal law; Clearly then, English Law is not applicable.
 When the foreign law was not properly pleaded and
proved; This case is an example of when foreign law was not applicable
 When the foreign law is contrary to an important public because it was contrary to public policy of the forum.
policy of the forum;
 When the foreign law is penal in nature; Instances when the foreign law is applied
 When the foreign law involves procedural matters;  When the law of the forum expressly so provides in its
 When the foreign law is purely fiscal or administrative in conflict rules (as when there is a borrowing statute);
nature;  When agreed upon by the parties (as when there is a
 When the application of the foreign law will work choice-of-law clause, choice-of-forum clause, or a
undeniable injustice to the citizens of the forum; cognovit clause);
 When the case involves real or personal property situated  When no instances justifying the application of internal law
in the forum; of the forum to the conflict case may be validly invoked.
 When the application of the foreign law might endanger
the vital interest of the state; 2. AS A CONTRACTUAL
 When the foreign law is contrary to good morals.
STIPULATION
US Restatement of Law, Second. SECTION 187. Law of the state
Bank of America, NT ans SA vs CA chosen by the parties

Incidentally, BANTSA alleges that under English Law, which 1. The law of the state chosen by the parties to govern their
according to petitioner is the governing law with regard to the contractual rights and duties will be applied if the particular
principal agreements, the mortgagee does not lose its security issue is one which the parties could have resolved by an
interest by simply filing civil actions for sums of money. explicit provision in their agreement directed to that issue.
2. The law of the state chosen by the parties to govern their
We rule in the negative. contractual rights and duties will be applied, even if the
particular issue is one which the parties could not have
This argument shows desperation on the part of petitioner to resolved by an explicit provision in their agreement
rivet its crumbling cause. In the case at bench, Philippine law directed to that issue, unless either:
shall apply notwithstanding the evidence presented by petitioner
a. the chosen state has no substantial relationship
to prove the English law on the matter.
to the parties or the transaction and there is no
In a long line of decisions, this Court adopted the well-imbedded other reasonable basis for the parties' choice; or
principle in our jurisdiction that there is no judicial notice of any b. application of the law of the chosen state would
foreign law. A foreign law must be properly pleaded and proved be contrary to a fundamental policy of a state
as a fact. Thus, if the foreign law involved is not properly pleaded which has a materially greater interest than the
and proved, our courts will presume that the foreign law is the chosen state in the determination of the
same as our local or domestic or internal law. This is what we particular issue and which, under the rule of
refer to as the doctrine of processual presumption. Section 188, would be the state of the
applicable law in the absence of an effective
In the instant case, assuming arguendo that the English Law on choice of law by the parties.
the matter were properly pleaded and proved in accordance with 3. In the absence of a contrary indication of intention, the
Section 24, Rule 132 of the Rules of Court and the jurisprudence reference is to the local law of the state of the chosen law.
laid down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law
would still not find applicability.
The principle of autonomy of contracts allows parties to stipulate the
Thus, when the foreign law, judgment or contract is contrary to a law that shall govern their contractual relations.
sound and established public policy of the forum, the said foreign
law, judgment or order shall not be applied. If not specified, the chosen law will normally apply to the following:
1. Interpretation;

15
BAM 2020
CONFLICT OF LAWS REVIEWER

2. Rights and obligations arising from the contract;  If the case is much affected with public interest… the
3. Performance and the consequences of non-performance, otherwise applicable Philippine laws and regulations
including the assessment of damages; cannot be rendered illusory by the parties agreeing upon
4. The various ways of extinguishing obligations, and the some other law to govern their relationship
prescription and limitation of periods;
5. Validity and the consequences of invalidity of the contract; ADHESION
6. Burden of proof and legal presumptions;  It is one that is not negotiated by the parties, having been
7. Pre-contractual obligations drafted by the dominant party and usually embodied in a
standardized form.
 The only participation of the other party is in affixing
Saudia vs Rebesencio his/her signature or adhering thereto.
 A “take it or leave it” contract.
Contractual choice of law provisions factor into transnational  When there is an undue advantage made by a dominant
litigation and dispute resolution in one of or in a combination of party, the principle of autonomy does not apply and the
four ways: court may not recognize the law stipulated in the contract
(1) procedures for settling disputes, e.g., arbitration;
and instead invoke public interest or public policy.
(2) forum, i.e., venue;
 Any ambiguity therein will be resolved in favor of the party
(3) governing law; and
(4) basis for interpretation. impugning it.

Forum non conveniens relates to, but is not subsumed by, the What is the applicable law in the absence of effective choice of
second of these. Likewise, contractual choice of law is not law?
determinative of jurisdiction. Stipulating on the laws of a given Section 188. Law governing in absence of effective choice by the
jurisdiction as the governing law of a contract does not preclude parties.
the exercise of jurisdiction by tribunals elsewhere. The reverse is
equally true: The assumption of jurisdiction by tribunals does not (1) The rights and duties of the parties with respect to an issue in
ipso facto mean that it cannot apply and rule on the basis of the contract are determined by the local law of the state which, with
parties' stipulation. respect to that issue, has the most significant relationship to the
transaction and the parties under the principles stated in Section 6.
Our law on contracts recognizes the validity of contractual choice
of law provisions. Where such provisions exist, Philippine (2) In the absence of an effective choice of law by the parties (see
tribunals, acting as the forum court, generally defer to the Section 187), the contacts to be taken into account in applying the
parties' articulated choice. principles of Section 6 to determine the law applicable to an issue
include:
This is consistent with the fundamental principle of autonomy of
contracts. Article 1306 of the Civil Code expressly provides that (a) the place of contracting,
"the contracting parties may establish 'such stipulations, clauses,
terms and conditions as they may deem convenient." (b) the place of negotiation of the contract,
Nevertheless, while a Philippine tribunal (acting as the forum
court) is called upon to respect the parties' choice of governing (c) the place of performance,
law, such respect must not be so permissive as to lose sight of
considerations of law, morals, good customs, public order, or (d) the location of the subject matter of the contract, and
public policy that underlie the contract central to the controversy.
(e) the domicile, residence, nationality, place of incorporation and
Petitioner PIA cannot take refuge in paragraph 10 of its place of business of the parties.
employment agreement which specifies, firstly, the law of
Pakistan as the applicable law of the agreement, and, secondly, These contacts are to be evaluated according to their relative
lays the venue for settlement of any dispute arising out of or in importance with respect to the particular issue.
connection with the agreement "only [in] courts of Karachi,
Pakistan". The first clause of paragraph 10 cannot be invoked to Xxx
prevent the application of Philippine labor laws and'regulations to
the subject matter of this case, i.e., the employer-employee “Under the state of the most significant relationship rule, to ascertain
relationship between petitioner PIA and private respondents. We what state law to apply to a dispute, the court should determine
have already pointed out that the relationship is much affected which state has the most substantial connection to the occurrence
with public interest and that the otherwise applicable Philippine
and the parties. In a case involving a contract, the court should
laws and regulations cannot be rendered illusory by the parties
agreeing upon some other law to govern their relationship. . . consider where the contract was made, was negotiated, was to be
Under these circumstances, paragraph 10 of the employment performed, and the domicile, place of business, or place of
agreement cannot be given effect so as to oust Philippine incorporation of the parties. This rule takes into account several
agencies and courts of the jurisdiction vested upon them by contacts and evaluates them according
Philippine law. to their relative importance with respect to the particular issue to be
resolved.” (Hasegawa v. Kutamura)

CHOICE OF LAW AS A CONTRACTUAL STIPULATION: RECOGNITION AND ENFORCEMENT OF JUDGMENT


LIMITATIONS
 The parties may not select a law to govern their contract if SECTION 48, RULE 39, RULES OF COURT
said law selected has no connection at all with the
transaction of the parties SEC. 48. Effect of foreign judgments. – The effect of a judgment
 If the law selected should change, the law as changed will or final order of a tribunal of a foreign country, having jurisdiction to
govern, unless so revolutionary that it was never render the judgment or final order is as follows:
contemplated by the parties. a. In case of a judgment or final order upon a specific thing,
 It should not be interpreted to oust jurisdiction which the the judgment or final order is conclusive upon the title to
court has already acquired over the parties and the the thing; and
subject matter. b. In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right
16
BAM 2020
CONFLICT OF LAWS REVIEWER

as between the parties and their successors in interest by


a subsequent title; counsel for herein respondents, testified that as an active
In either case, the judgment or final order may be repelled by member of the California Bar since 1931, he is familiar with the
evidence of a want of jurisdiction, want of notice to the party, revenue and taxation laws of the State of California. When asked
collusion, fraud, or clear mistake of law or fact. by the lower court to state the pertinent California law as regards
exemption of intangible personal properties, the witness cited
article 4, section 13851 (a) and (b) of the California Internal and
How? By the filing of a civil action (Complaint/Petition) in court
Revenue Code as published in Derring's California Code, a
publication of the Bancroft-Whitney Company inc. And as part of
REQUISITES his testimony, a full quotation of the cited section was offered in
 The foreign judgment was rendered by a judicial or a evidence as Exhibits "V-2" by the respondents.
quasi-judicial tribunal which had jurisdiction over the
parties and the case in the proper judicial proceedings; It is well-settled that foreign laws do not prove themselves in our
 The judgment must be valid under the laws of the court jurisdiction and our courts are not authorized to take judicial
that rendered it; notice of them.5 Like any other fact, they must be alleged and
 The judgment must be final and executory to constitute res proved.
judicata in another action;
Section 41, Rule 123 of our Rules of Court prescribes the
 The foreign judgment must not be contrary to public policy
manner of proving foreign laws before our tribunals. However,
or good morals of the country where it is to be enforced; although we believe it desirable that these laws be proved in
 The judgment must not have been obtained by fraud, accordance with said rule, we held in the case of Willamette Iron
collusion, mistake of fact or mistake of law. and Steel Works v. Muzzal, 61 Phil. 471, that "a reading of
sections 300 and 301 of our Code of Civil Procedure (now
PROOF OF FOREIGN LAW AND EXCEPTIONS; section 41, Rule 123) will convince one that these sections do
not exclude the presentation of other competent evidence to
PROCESSUAL PRESUMPTION prove the existence of a foreign law." In that case, we
considered the testimony of an attorney-at-law of San Francisco,
California who quoted verbatim a section of California Civil Code
Willamette Iron vs Muzzai and who stated that the same was in force at the time the
obligations were contracted, as sufficient evidence to establish
Mr. Arthur W. Bolton, an attorney-at-law of San Francisco, the existence of said law. In line with this view, we find no error,
California, since the year 1918, under oath, quoted verbatim therefore, on the part of the Tax Court in considering the
section 322 of the California Civil Code and stated that said pertinent California law as proved by respondents' witness.
section was in force at the time the obligations of the defendant
to the plaintiff were incurred, i. e., on November 5, 1928 and
December 22, 1928. This evidence sufficiently established the
fact that the section in question was the law of the State of Asiavest vs CA
California on the above dates. A reading of sections 300 and 301
of our Code of Civil Procedure will convince one that these We note that there was no objection on the part of ASIAVEST on
sections do not exclude the presentation of other competent the qualification of Mr. Lousich as an expert on the Hong Kong
evidence to prove the existence of a foreign law. law. Under Sections 24 and 25, Rule 132 of the New Rules of
Evidence, the record of public documents of a sovereign
"The foreign law is a matter of fact ... You ask the witness what authority, tribunal, official body, or public officer may be proved
the law is; he may from his recollection, or on producing and by (1) an official publication thereof or (2) a copy attested by the
referring to books, say what it is." (Lord Campbell concurring in officer having the legal custody thereof, which must be
an opinion of Lord Chief Justice Denman in a well known English accompanied, if the record is not kept in the Philippines, with a
case where a witness was called upon to prove the Roman laws certificate that such officer has the custody. The certificate may
of marriage and was permitted to testify, though he referred to a be issued by a secretary of the embassy or legation, consul
book containing the decrees of the Council of Trent as general, consul, vice consul, or consular agent, or any officer in
controlling, Jones on Evidence, Second Edition, Volume 4, the foreign service of the Philippines stationed in the foreign
pages 3148-3152.) Aside from the testimony of Attorney Bolton country in which the record is kept, and authenticated by the seal
Ragland's Annotated Civil Code of California was presented as of his office. The attestation must state, in substance, that the
evidence. This book contains that State's Civil Code as adopted copy is a correct copy of the original, or a specific part thereof,
March 21, 1872, with the subsequent official statute as the case may be, and must be under the official seal of the
amendments to and including the year 1929. attesting officer.
The herein defendant is chargeable with notice of the law of Nevertheless, the testimony of an expert witness may be allowed
California as to the liability of stockholders for debt of a to prove a foreign law.
corporation proportionate to their stock holdings, in view of the
fact that he was one of the incorporators of the Meyer-Muzzal (Cited the case of Willamette and CIR vs Fisher)
Company in the year 1924 and was still a stockholder in that
company in the year 1928. Exhibit 10 of the plaintiff is a certified There is, however, nothing in the testimony of Mr. Lousich that
company of the articles of incorporation of Meyer-Muzzal touched on the specific law of Hong Kong in respect of service of
Company in which it appears that that company was summons either in actions in rem or in personam, and where the
incorporated on August 22, 1924, and that the incorporators defendant is either a resident or nonresident of Hong Kong. In
were A.H. Muzzal, Leo W. Meyer and James Rolph, Jr., "all of view of the absence of proof of the Hong Kong law on this
whom are residents and citizens of the State of California." The particular issue, the presumption of identity or similarity or the
defendant cannot now escape liability by alleging that the so-called processual presumption shall come into play. It will
California law is unjust and different from the inconsistent with thus be presumed that the Hong Kong law on the matter is
the Philippine Corporation Law. similar to the Philippine law.

“It is well-settled that foreign laws do not prove themselves in our


CIR vs Fisher jurisdiction and our courts are not authorized to take judicial notice of
them. Like any other fact, they must be alleged and proved.”
To prove the pertinent California law, Attorney Allison Gibbs,

17
BAM 2020
CONFLICT OF LAWS REVIEWER

A distinction is to be made as to the manner of proving a


written and an unwritten law: (Cited Willamette)
 Written Law – falls under Section 24, Rule 132 of the
Rules of Court, as amended, the entire provision of which We do not dispute the competency of Capt. Oscar Leon Monzon,
is quoted hereunder. the Assistant Harbor Master and Chief of Pilots at Puerto Ordaz,
 Unwritten Law – the oral testimony of expert witnesses is Venezuela, to testify on the existence of the Reglamento
General de la Ley de Pilotaje (pilotage law of Venezuela) and
admissible, as are printed and published books of reports
the Reglamento Para la Zona de Pilotaje No 1 del Orinoco (rules
of decisions of the courts of the country concerned if
governing the navigation of the Orinoco River). Captain Monzon
proved to be commonly admitted in such courts has held the aforementioned posts for eight years. As such he is
in charge of designating the pilots for maneuvering and
SECTIONS 24 AND 25, RULE 132, RULES OF COURT navigating the Orinoco River. He is also in charge of the
documents that come into the office of the harbour masters.
SEC. 24. Proof of official record. — The record of public
documents referred to in paragraph (a) of Section 19, when Nevertheless, we take note that these written laws were not
admissible for any purpose, may be evidenced by an official proven in the manner provided by Section 24 of Rule 132 of the
publication thereof or by a copy attested by the officer having the Rules of Court.
legal custody of the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a certificate that such The Reglamento General de la Ley de Pilotaje was published in
officer has the custody. the Gaceta Oficial of the Republic of Venezuela. A photocopy of
the Gaceta Oficial was presented in evidence as an official
publication of the Republic of Venezuela.
If the office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of the embassy or legation, The Reglamento Para la Zona de Pilotaje No 1 del Orinoco is
consul general, consul, vice consul, or consular agent or by any published in a book issued by the Ministerio de Comunicaciones
officer in the foreign service of the Philippines stationed in the of Venezuela. Only a photocopy of the said rules was likewise
foreign country in which the record is kept, and authenticated by the presented as evidence.
seal of his office.
Both of these documents are considered in Philippine
SEC. 25. What attestation of copy must state. — Whenever a jurisprudence to be public documents for they are the written
copy of a document or record is attested for the purpose of the official acts, or records of the official acts of the sovereign
evidence, the attestation must state, in substance, that the copy is a authority, official bodies and tribunals, and public officers of
correct copy of the original, or a specific part thereof, as the case Venezuela.
may be. The attestation must be under the official seal of the
For a copy of a foreign public document to be admissible, the
attesting officer, if there be any, or if he be the clerk of a court having
following requisites are mandatory: (1) It must be attested by the
a seal, under the seal of such court.
officer having legal custody of the records or by his deputy; and
(2) It must be accompanied by a certificate by a secretary of the
embassy or legation, consul general, consul, vice consular or
Wildvalley vs POEA’s Administrator consular agent or foreign service officer, and with the seal of his
office. The latter requirement is not a mere technicality but is
It is well-settled that foreign laws do not prove themselves in our intended to justify the giving of full faith and credit to the
jurisdiction and our courts are not authorized to take judicial genuineness of a document in a foreign country.
notice of them. Like any other fact, they must be alleged and
proved. It is not enough that the Gaceta Oficial, or a book published by
the Ministerio de Comunicaciones of Venezuela, was presented
A distinction is to be made as to the manner of proving a written as evidence with Captain Monzon attesting it. It is also required
and an unwritten law. The former falls under Section 24, Rule by Section 24 of Rule 132 of the Rules of Court that a certificate
132 of the Rules of Court, as amended, the entire provision of that Captain Monzon, who attested the documents, is the officer
which is quoted hereunder. Where the foreign law sought to be who had legal custody of those records made by a secretary of
proved is "unwritten," the oral testimony of expert witnesses is the embassy or legation, consul general, consul, vice consul or
admissible, as are printed and published books of reports of consular agent or by any officer in the foreign service of the
decisions of the courts of the country concerned if proved to be Philippines stationed in Venezuela, and authenticated by the
commonly admitted in such courts.25 seal of his office accompanying the copy of the public document.
No such certificate could be found in the records of the case.
Section 24 of Rule 132 of the Rules of Court, as amended,
provides: With respect to proof of written laws, parol proof is objectionable,
for the written law itself is the best evidence. According to the
"Sec. 24. Proof of official record. -- The record of public weight of authority, when a foreign statute is involved, the best
documents referred to in paragraph (a) of Section 19, when evidence rule requires that it be proved by a duly authenticated
admissible for any purpose, may be evidenced by an official copy of the statute.
publication thereof or by a copy attested by the officer having the
legal custody of the record, or by his deputy, and accompanied, At this juncture, we have to point out that the Venezuelan law
if the record is not kept in the Philippines, with a certificate that was not pleaded before the lower court.
such officer has the custody. If the office in which the record is
kept is in a foreign country, the certificate may be made by a A foreign law is considered to be pleaded if there is an allegation
secretary of the embassy or legation, consul general, consul, in the pleading about the existence of the foreign law, its import
vice consul, or consular agent or by any officer in the foreign and legal consequence on the event or transaction in issue.
service of the Philippines stationed in the foreign country in
which the record is kept, and authenticated by the seal of his A review of the Complaint revealed that it was never alleged or
office." invoked despite the fact that the grounding of the M/V Philippine
Roxas occurred within the territorial jurisdiction of Venezuela.
The court has interpreted Section 25 (now Section 24) to include
competent evidence like the testimony of a witness to prove the We reiterate that under the rules of private international law, a
existence of a written foreign law. foreign law must be properly pleaded and proved as a fact. In
the absence of pleading and proof, the laws of a foreign country,

18
BAM 2020
CONFLICT OF LAWS REVIEWER

or state, will be presumed to be the same as our own local or that the National Seamen Board has original and exclusive
domestic law and this is known as processual presumption. jurisdiction over all matters or cases including money claims,
involving employer-employee relations, arising out of or by virtue
of any law or contracts involving Filipino seamen for overseas
employment. Thus, it is safe to assume that the Board is familiar
Edi-Staff Builders vs NLRC with pertinent Singapore maritime laws relative to workmen's
compensation. Moreover, the Board may apply the rule on
In cases involving OFWs, the rights and obligations among and judicial notice and, "in administrative proceedings, the technical
between the OFW, the local recruiter/agent, and the foreign rules of procedure — particularly of evidence — applied in
employer/principal are governed by the employment contract. A judicial trials, do not strictly apply."
contract freely entered into is considered law between the
parties; and hence, should be respected. In formulating the
contract, the parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided HSBC vs Sherman
they are not contrary to law, morals, good customs, public order,
or public policy. While it is true that "the transaction took place in Singaporean
setting" and that the Joint and Several Guarantee contains a
In the present case, the employment contract signed by Gran choice-of-forum clause, the very essence of due process
specifically states that Saudi Labor Laws will govern matters not dictates that the stipulation that "[t]his guarantee and all rights,
provided for in the contract (e.g. specific causes for termination, obligations and liabilities arising hereunder shall be construed
termination procedures, etc.). Being the law intended by the and determined under and may be enforced in accordance with
parties (lex loci intentiones) to apply to the contract, Saudi Labor the laws of the Republic of Singapore. We hereby agree that the
Laws should govern all matters relating to the termination of the Courts in Singapore shall have jurisdiction over all disputes
employment of Gran. In international law, the party who wants to arising under this guarantee" be liberally construed. One basic
have a foreign law applied to a dispute or case has the burden of principle underlies all rules of jurisdiction in International Law: a
proving the foreign law. The foreign law is treated as a question State does not have jurisdiction in the absence of some
of fact to be properly pleaded and proved as the judge or labor reasonable basis for exercising it, whether the proceedings are
arbiter cannot take judicial notice of a foreign law. He is in rem quasi in rem or in personam. To be reasonable, the
presumed to know only domestic or forum law. jurisdiction must be based on some minimum contacts that will
not offend traditional notions of fair play and substantial justice
Unfortunately for petitioner, it did not prove the pertinent Saudi (J. Salonga, Private International Law, 1981, p. 46). Indeed, as
laws on the matter; thus, the International Law doctrine of pointed-out by petitioner BANK at the outset, the instant case
presumed-identity approach or processual presumption comes presents a very odd situation. In the ordinary habits of life,
into play.Where a foreign law is not pleaded or, even if pleaded, anyone would be disinclined to litigate before a foreign tribunal,
is not proved, the presumption is that foreign law is the same as with more reason as a defendant. However, in this case, private
ours. Thus, we apply Philippine labor laws in determining the respondents are Philippine residents (a fact which was not
issues presented before us. disputed by them) who would rather face a complaint against
them before a foreign court and in the process incur
As to the quitclaim considerable expenses, not to mention inconvenience, than to
have a Philippine court try and resolve the case. Private
The court a quo is correct in its finding that the Declaration is a respondents' stance is hardly comprehensible, unless their
contract of adhesion which should be construed against the ultimate intent is to evade, or at least delay, the payment of a
employer, OAB. An adhesion contract is contrary to public policy just obligation.
as it leaves the weaker party—the employee—in a "take-it-or-
leave-it" situation. Certainly, the employer is being unjust to the The defense of private respondents that the complaint should
employee as there is no meaningful choice on the part of the have been filed in Singapore is based merely on technicality.
employee while the terms are unreasonably favorable to the They did not even claim, much less prove, that the filing of the
employer. action here will cause them any unnecessary trouble, damage,
or expense. On the other hand, there is no showing that
Thus, the Declaration purporting to be a quitclaim and waiver is petitioner BANK filed the action here just to harass private
unenforceable under Philippine laws in the absence of proof of respondents.
the applicable law of Saudi Arabia.

It is made clear that the foregoing rules on quitclaim or waiver


shall apply only to labor contracts of OFWs in the absence of Recio vs Recio
proof of the laws of the foreign country agreed upon to govern
said contracts. Otherwise, the foreign laws shall apply. Proving the Divorce Between Respondent and Editha
Samson

Norse Management vs National Seamen Board Philippine law does not provide for absolute divorce; hence, our
courts cannot grant it. A marriage between two Filipinos cannot
In the aforementioned "Employment Agreement" between be dissolved even by a divorce obtained abroad, because of
petitioners and the late Napoleon B. Abordo, it is clear that Articles 15 and 17 of the Civil Code. In mixed marriages
compensation shall be paid under Philippine Law or the law of involving a Filipino and a foreigner, Article 26 of the Family Code
registry of petitioners' vessel, whichever is greater. Since private allows the former to contract a subsequent marriage in case the
respondent Restituta C. Abordo was offered P30,000.00 only by divorce is "validly obtained abroad by the alien spouse
the petitioners, Singapore law was properly applied in this case. capacitating him or her to remarry." A divorce obtained abroad
by a couple, who are both aliens, may be recognized in the
The "Employment Agreement" is attached to the Supplemental Philippines, provided it is consistent with their respective national
Complaint of Restituta C. Abordo and, therefore, it forms part laws.
thereof. As it is familiar with Singapore Law, the National
Seamen Board is justified in taking judicial notice of and in A comparison between marriage and divorce, as far as pleading
applying that law. and proof are concerned, can be made. Van Dorn v. Romillo Jr.
decrees that "aliens may obtain divorces abroad, which may be
Furthermore, Article 20, Labor Code of the Philippines, provides recognized in the Philippines, provided they are valid according

19
BAM 2020
CONFLICT OF LAWS REVIEWER

to their national law." Therefore, before a foreign divorce decree The resolution of whether a foreign law allows only the recovery
can be recognized by our courts, the party pleading it must prove of actual damages is a question of fact as far as the trial court is
the divorce as a fact and demonstrate its conformity to the concerned since foreign laws do not prove themselves in our
foreign law allowing it. Presentation solely of the divorce decree courts. Foreign laws are not a matter of judicial notice. Like any
is insufficient. other fact, they must be alleged and proven. Certainly, the
conflicting allegations as to whether New York law or Philippine
Divorce as a Question of Fact law applies to Guerrero’s claims present a clear dispute on
material allegations which can be resolved only by a trial on the
Before a foreign judgment is given presumptive evidentiary merits.
value, the document must first be presented and admitted in
evidence. A divorce obtained abroad is proven by the divorce Under Section 24 of Rule 132, the record of public documents of
decree itself. Indeed the best evidence of a judgment is the a sovereign authority or tribunal may be proved by (1) an official
judgment itself. The decree purports to be a written act or record publication thereof or (2) a copy attested by the officer having
of an act of an officially body or tribunal of a foreign country. the legal custody thereof. Such official publication or copy must
be accompanied, if the record is not kept in the Philippines, with
Under Sections 24 and 25 of Rule 132, on the other hand, a a certificate that the attesting officer has the legal custody
writing or document may be proven as a public or official record thereof. The certificate may be issued by any of the authorized
of a foreign country by either (1) an official publication or (2) a Philippine embassy or consular officials stationed in the foreign
copy thereof attested by the officer having legal custody of the country in which the record is kept, and authenticated by the seal
document. If the record is not kept in the Philippines, such copy of his office. The attestation must state, in substance, that the
must be (a) accompanied by a certificate issued by the proper copy is a correct copy of the original, or a specific part thereof,
diplomatic or consular officer in the Philippine foreign service as the case may be, and must be under the official seal of the
stationed in the foreign country in which the record is kept and attesting officer.
(b) authenticated by the seal of his office.
Certain exceptions to this rule were recognized in Asiavest
The divorce decree between respondent and Editha Samson Limited v. Court of Appeals.
appears to be an authentic one issued by an Australian family
court. However, appearance is not sufficient; compliance with The Bank, however, cannot rely on Willamette Iron and Steel
the aforemetioned rules on evidence must be demonstrated. Works v. Muzzal or Collector of Internal Revenue v. Fisher to
support its cause. These cases involved attorneys testifying in
Fortunately for respondent's cause, when the divorce decree of open court during the trial in the Philippines and quoting the
May 18, 1989 was submitted in evidence, counsel for petitioner particular foreign laws sought to be established. On the other
objected, not to its admissibility, but only to the fact that it had hand, the Walden affidavit was taken abroad ex parte and the
not been registered in the Local Civil Registry of Cabanatuan affiant never testified in open court. The Walden affidavit cannot
City. The trial court ruled that it was admissible, subject to be considered as proof of New York law on damages not only
petitioner's qualification. Hence, it was admitted in evidence and because it is self-serving but also because it does not state the
accorded weight by the judge. Indeed, petitioner's failure to specific New York law on damages.
object properly rendered the divorce decree admissible as a
written act of the Family Court of Sydney, Australia. The Walden affidavit states conclusions from the affiant’s
personal interpretation and opinion of the facts of the case vis a
Compliance with the quoted articles (11, 13 and 52) of the vis the alleged laws and jurisprudence without citing any law in
Family Code is not necessary; respondent was no longer bound particular. The citations in the Walden affidavit of various U.S.
by Philippine personal laws after he acquired Australian court decisions do not constitute proof of the official records or
citizenship in 1992. Naturalization is the legal act of adopting an decisions of the U.S. courts. While the Bank attached copies of
alien and clothing him with the political and civil rights belonging some of the U.S. court decisions cited in the Walden affidavit,
to a citizen. Naturalized citizens, freed from the protective cloak these copies do not comply with Section 24 of Rule 132 on proof
of their former states, don the attires of their adoptive countries. of official records or decisions of foreign courts.
By becoming an Australian, respondent severed his allegiance to
the Philippines and the vinculum juris that had tied him to The Bank’s intention in presenting the Walden affidavit is to
Philippine personal laws. prove New York law and jurisprudence. However, because of the
failure to comply with Section 24 of Rule 132 on how to prove a
Burden of Proving Australian Law foreign law and decisions of foreign courts, the Walden affidavit
did not prove the current state of New York law and
The burden of proof lies with "the party who alleges the jurisprudence. Thus, the Bank has only alleged, but has not
existence of a fact or thing necessary in the prosecution or proved, what New York law and jurisprudence are on the matters
defense of an action." In civil cases, plaintiffs have the burden of at issue.
proving the material allegations of the complaint when those are
denied by the answer; and defendants have the burden of
proving the material allegations in their answer when they
introduce new matters. Since the divorce was a defense raised ATCI vs Echin
by respondent, the burden of proving the pertinent Australian law
validating it falls squarely upon him. As to petitioners’ contentions that Philippine labor laws on
probationary employment are not applicable since it was
It is well-settled in our jurisdiction that our courts cannot take expressly provided in respondent’s employment contract, which
judicial notice of foreign laws. Like any other facts, they must be she voluntarily entered into, that the terms of her engagement
alleged and proved. Australian marital laws are not among those shall be governed by prevailing Kuwaiti Civil Service Laws and
matters that judges are supposed to know by reason of their Regulations as in fact POEA Rules accord respect to such rules,
judicial function. The power of judicial notice must be exercised customs and practices of the host country, the same was not
with caution, and every reasonable doubt upon the subject substantiated.
should be resolved in the negative.
Indeed, a contract freely entered into is considered the law
between the parties who can establish stipulations, clauses,
terms and conditions as they may deem convenient, including
Manufacturers Hanover vs Guerrero the laws which they wish to govern their respective obligations,
as long as they are not contrary to law, morals, good customs,

20
BAM 2020
CONFLICT OF LAWS REVIEWER

public order or public policy. another country." This means that the foreign judgment and its
authenticity must beproven as facts under our rules on evidence,
It is hornbook principle, however, that the party invoking the together with the alien’s applicable national law to show the
application of a foreign law has the burden of proving the law, effect of the judgment on the alien himself or herself. The
under the doctrine of processual presumption which, in this case, recognition may be made in an action instituted specifically for
petitioners failed to discharge. (This case cited EDI-Staffbuilders the purpose or in another action where a party invokes the
Int’l., v. NLRC) foreign decree as an integral aspect of his claim or defense.

Instead of submitting a copy of the pertinent Kuwaiti labor laws The requirements of presenting the foreign divorce decree and
duly authenticated and translated by Embassy officials thereat, the national law of the foreigner must comply with our Rules of
as required under the Rules, what petitioners submitted were Evidence. Specifically, for Philippine courts to recognize a
mere certifications attesting only to the correctness of the foreign judgment relating to the status of a marriage, a copy of
translations of the MOA and the termination letter which does not the foreign judgment may be admitted in evidence and proven as
prove at all that Kuwaiti civil service laws differ from Philippine a fact under Rule 132, Sections 24 and 25, in relation to Rule 39,
laws and that under such Kuwaiti laws, respondent was validly Section 48(b) of the Rules of Court.
terminated.
Under Section 24 of Rule 132, the record of public documents of
a sovereign authority or tribunal may be proved by: (1) an official
publication thereof or (2) a copy attested by the officer having
Catalan vs Catalan-Lee the legal custody thereof. Such official publication or copy must
beaccompanied, if the record is not kept in the Philippines, with a
In Van Dorn v. Romillo, Jr. we held that owing to the nationality certificate that the attesting officer has the legal custody thereof.
principle embodied in Article 15 of the Civil Code, only Philippine The certificate may be issued by any of the authorized Philippine
nationals are covered by the policy against absolute divorces, embassy or consular officials stationed in the foreign country in
the same being considered contrary to our concept of public which the record is kept, and authenticated by the seal of his
policy and morality. In the same case, the Court ruled that aliens office. The attestation must state, in substance, that the copy is a
may obtain divorces abroad, provided they are valid according to correct copy of the original, or a specific part thereof, asthe case
their national law. may be, and must be under the official seal of the attesting
officer.
Citing this landmark case, the Court held in Quita v. Court of
Appeals, that once proven that respondent was no longer a Section 25 of the same Rule states that whenever a copy of a
Filipino citizen when he obtained the divorce from petitioner, the document or record is attested for the purpose of evidence, the
ruling in Van Dorn would become applicable and petitioner could attestation must state, in substance, that the copy is a correct
"very well lose her right to inherit" from him. copy of the original, or a specific part thereof, as the case may
be. The attestation must be under the official seal of the attesting
In Pilapil v. Ibay-Somera, we recognized the divorce obtained by officer, if there be any, or if hebe the clerk of a court having a
the respondent in his country, the Federal Republic of Germany. seal, under the seal of such court.
There, we stated that divorce and its legal effects may be
recognized in the Philippines insofar as respondent is concerned Based on the records, only the divorce decree was presented in
in view of the nationality principle in our civil law on the status of evidence. The required certificates to prove its authenticity, as
persons. well as the pertinent California law on divorce were not
presented.
For failing to apply these doctrines, the decision of the Court of
Appeals must be reversed. We hold that the divorce obtained by It may be noted that in Bayot v. Court of Appeals, we relaxed the
Lorenzo H. Llorente from his first wife Paula was valid and requirement on certification where we held that "[petitioner
recognized in this jurisdiction as a matter of comity. xxx therein] was clearly an American citizenwhen she secured the
divorce and that divorce is recognized and allowed in any of the
Nonetheless, the fact of divorce must still first be proven as we States of the Union, the presentation of a copy of foreign divorce
have enunciated in Garcia v. Recio decree duly authenticatedby the foreign court issuing said
decree is, as here, sufficient." In this case however, it appears
It appears that the trial court no longer required petitioner to that there is no seal from the office where the divorce decree
prove the validity of Orlando’s divorce under the laws of the was obtained.
United States and the marriage between petitioner and the
deceased. Thus, there is a need to remand the proceedings to Even if we apply the doctrine of processual presumption as the
the trial court for further reception of evidence to establish the lower courts did with respect to the property regime of the
fact of divorce. parties, the recognition of divorce is entirely a different matter
because, to begin with, divorce is not recognized between
Should petitioner prove the validity of the divorce and the Filipino citizens in the Philippines. Absent a valid recognition of
subsequent marriage, she has the preferential right to be issued the divorce decree, it follows that the parties are still legally
the letters of administration over the estate. Otherwise, letters of married in the Philippines. The trial court thus erred in
administration may be issued to respondent, who is undisputedly proceeding directly to liquidation.
the daughter or next of kin of the deceased, in accordance with
Sec. 6 of Rule 78 of the Revised Rules of Court.
For a copy of a foreign public document to be admissible, the
following requisites are mandatory:
1. it must be attested by the officer having legal custody of
Noveras vs Noveras the records or by his deputy; and
2. it must be accompanied by a certificate by a secretary of
In Corpuz v. Sto. Tomas,13 we stated that: the embassy or legation, consul general, consul, vice-
consular or consular agent or foreign service officer, and
The starting point in any recognition of a foreign divorce
with the seal of his office.
judgment is the acknowledgment that our courts do not take
judicial notice of foreign judgments and laws. Justice Herrera
explained that, as a rule, "no sovereign is bound to give effect Such official publication or copy must be accompanied, if the record
within its dominion to a judgment rendered by a tribunal of is not kept in the Philippines, with a certificate that the attesting
officer has the legal custody thereof. The certificate may be issued
21
BAM 2020
CONFLICT OF LAWS REVIEWER

by any of the authorized Philippine embassy or consular officials


stationed in the foreign country in which the record is kept, and specific rules cannot be recognized.
authenticated by the seal of his office. The attestation must state, in
substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be, and must be under the
official seal of the attesting officer. (Nedlloyd vs Glow Laks) Makati Shangri-la vs Harper

Petitioner’s challenge against respondents’ documentary


evidence on marriage and heirship is not well-taken. (Cited
Nedlloyd vs Glow Laks Enterprise
Section 24 and Section 25 of Rule 132)
It is well settled that foreign laws do not prove themselves in our
Although Exhibit Q, Exhibit Q-1, Exhibit R and Exhibit R-1 were
jurisdiction and our courts are not authorized to take judicial
not attested by the officer having the legal custody of the record
notice of them. Like any other fact, they must be alleged and
or by his deputy in the manner required in Section 25 of Rule
proved.13 To prove a foreign law, the party invoking it must
132, and said documents did not comply with the requirement
present a copy thereof and comply with Sections 24 and 25 of
under Section 24 of Rule 132 to the effect that if the record was
Rule 132 of the Revised Rules of Court.
not kept in the Philippines a certificate of the person having
custody must accompany the copy of the document that was
Contrary to the contention of the petitioners, the Panamanian
duly attested stating that such person had custody of the
laws, particularly Law 42 and its Implementing Order No. 7, were
documents, the deviation was not enough reason to reject the
not duly proven in accordance with Rules of Evidence and as
utility of the documents for the purposes they were intended to
such, it cannot govern the rights and obligations of the parties in
serve.
the case at bar. While a photocopy of the Gaceta Official of the
Republica de Panama No. 17.596, the Spanish text of Law 42
Exhibit Q and Exhibit R were extracts from the registry of births
which is theforeign statute relied upon by the court a quoto
of Oslo, Norway issued on March 23, 2004 and signed by Y.
relieve the common carrier from liability, was presented as
Ayse B. Nordal, Registrar, and corresponded to respondent
evidence during the trial of the case below, the same however
Jonathan Christopher Harper and victim Christian Fredrik
was not accompanied by the required attestation and
Harper, respectively. Exhibit Q explicitly stated that Jonathan
certification.
was the son of Christian Fredrik Harper and Ellen Johanne
Harper, while Exhibit R attested to the birth of Christian Fredrik
It is explicitly required by Section 24, Rule 132 of the Revised
Harper on December 4, 1968. Exhibit Q and Exhibit R were
Rules of Court that a copy of the statute must be accompanied
authenticated on March 29, 2004 by the signatures of Tanja
by a certificate of the officer who has legal custody of the records
Sorlie of the Royal Ministry of Foreign Affairs of Norway as well
and a certificate made by the secretary of the embassy or
as by the official seal of that office. In turn, Consul Marian
legation, consul general, consul, vice-consular or by any officer
Jocelyn R. Tirol of the Philippine Consulate in Stockholm,
in the foreign service of the Philippines stationed in the foreign
Sweden authenticated the signatures of Tanja Sorlie and the
country, and authenticated by the seal of his office. The latter
official seal of the Royal Ministry of Foreign Affairs of Norway on
requirement is not merely a technicality but is intended to justify
Exhibit Q and Exhibit R, explicitly certifying to the authority of
the giving of full faith and credit to the genuineness of the
Tanja Sorlie "to legalize official documents for the Royal Ministry
document in a foreign country.19 Certainly, the deposition of Mr.
of Foreign Affairs of Norway."
Enrique Cajigas, a maritime law practitioner in the Republic of
Panama, before the Philippine Consulate in Panama, is not the
Exhibit Q-1, the Marriage Certificate of Ellen Johanne Clausen
certificate contemplated by law. At best, the deposition can be
Harper and Christian Fredrik Harper, contained the following
considered as an opinion of an expert witness who possess the
data, namely: (a) the parties were married on June 29, 1996 in
required special knowledge on the Panamanian laws but could
Ullern Church; and (b) the certificate was issued by the Office of
not be recognized as proof of a foreign law, the deponent not
the Vicar of Ullern on June 29, 1996.
being the custodian of the statute who can guarantee the
genuineness of the document from a foreign country. To admit
Exhibit Q-1 was similarly authenticated by the signature of Tanja
the deposition as proof of a foreign law is, likewise, a disavowal
Sorlie of the Royal Ministry of Foreign Affairs of Norway, with the
of the rationaleof Section 24, Rule 132 of the Revised Rules of
official seal of that office. Philippine Consul Tirol again expressly
Court, which isto ensure authenticity of a foreign law and its
certified to the capacity of Sorlie "to legalize official documents
existence so as to justify its import and legal consequence on
for the Royal Ministry of Foreign Affairs of Norway," and further
the event or transaction in issue. The above rule, however,
certified that the document was a true translation into English of
admits exceptions, and the Court in certain cases recognized
a transcript of a Marriage Certificate issued to Christian Frederik
that Section 25, Rule132 of the Revised Rules of Court does not
Harper and Ellen Johanne Clausen by the Vicar of the Parish of
exclude the presentation of other competent evidence to prove
Ullern on June 29, 1996.
the existence of foreign law. In Willamete Iron and Steel Works
v. Muzzal20 for instance, we allowed the foreign law tobe
Exhibit R-1, a Probate Court certificate issued by the Oslo
established on the basis of the testimony in open court during
Probate Court on February 18, 2000 through Morten Bolstad, its
the trial in the Philippines of an attorney-atlaw in San Francisco,
Senior Executive Officer, was also authenticated by the
California, who quoted the particular foreign law sought to be
signature of Tanja Sorlie and with the official seal of the Royal
established.21 The ruling is peculiar to the facts. Petitioners
Ministry of Foreign Affairs of Norway. As with the other
cannot invoke the Willamete ruling to secure affirmative relief
documents, Philippine Consul Tirol explicitly certified to the
since their so called expert witness never appeared during the
capacity of Sorlie "to legalize official documents for the Royal
trial below and his deposition, that was supposed to establish the
Ministry of Foreign Affairs of Norway," and further certified that
existence of the foreign law, was obtained ex-parte.
the document was a true translation into English of the Oslo
Probate Court certificate issued on February 18, 2000 to the
It is worth reiterating at this point that under the rules of private
effect that Christian Fredrik Harper, born on December 4, 1968,
international law, a foreign law must be properly pleaded and
had reportedly died on November 6, 1999.
proved as a fact. In the absence of pleading and proof, the laws
of the foreign country or state will be presumed to be the same
The Oslo Probate Court certificate recited that both Ellen
as our local or domestic law. This is known as processual
Johanne Harper and Christopher S. Harper were Harper’s heirs,
presumption.22 While the foreign law was properly pleaded in
to wit:
the case at bar, it was,however, proven not in the manner
provided by Section 24, Rule 132 of the Revised Rules of Court.
The above names surviving spouse has accepted responsibility
The decision of the RTC, which proceeds from a disregard of
for the commitments of the deceased in accordance with the

22
BAM 2020
CONFLICT OF LAWS REVIEWER

provisions of Section 78 of the Probate Court Act (Norway), and absurdity and in manifest injustice, or where the merits of a
the above substitute guardian has agreed to the private division party’s cause are apparent and outweigh considerations of non-
of the estate. compliance with certain formal requirements. It is more in accord
with justice that a party-litigant is given the fullest opportunity to
The following heir and substitute guardian will undertake the establish the merits of his claim or defense than for him to lose
private division of the estate: his life, liberty, honor or property on mere technicalities. Truly,
Ellen Johanne Harper Christopher S. Harper the rules of procedure are intended to promote substantial
This probate court certificate relates to the entire estate. justice, not to defeat it, and should not be applied in a very rigid
Oslo Probate Court, 18 February 2000. and technical sense.

The official participation in the authentication process of Tanja


Sorlie of the Royal Ministry of Foreign Affairs of Norway and the
attachment of the official seal of that office on each Koike vs Koike
authentication indicated that Exhibit Q, Exhibit R, Exhibit Q-1
and Exhibit R-1 were documents of a public nature in Norway, At the outset, it bears stressing that Philippine law does not
not merely private documents. It cannot be denied that based on provide for absolute divorce; hence, our courts cannot grant it.
Philippine Consul Tirol’s official authentication, Tanja Sorlie was However, Article 26 of the Family Code - which addresses
"on the date of signing, duly authorized to legalize official foreign marriages or mixed marriages involving a Filipino and a
documents for the Royal Ministry of Foreign Affairs of Norway." foreigner - allows a Filipino spouse to contract a subsequent
Without a showing to the contrary by petitioner, Exhibit Q, Exhibit marriage in case the divorce is validly obtained abroad by an
R, Exhibit Q-1 and Exhibit R-1 should be presumed to be alien spouse capacitating him or her to remarry. The provision
themselves official documents under Norwegian law, and reads:
admissible as prima facie evidence of the truth of their contents
under Philippine law. Art. 26. All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they were
At the minimum, Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-1 solemnized, and valid there as such, shall also be valid in this
substantially met the requirements of Section 24 and Section 25 country, except those prohibited under Articles 35(1), (4), (5)
of Rule 132 as a condition for their admission as evidence in and (6), 36, 37 and 38.
default of a showing by petitioner that the authentication process
was tainted with bad faith. Consequently, the objective of Where a marriage between a Filipino citizen and a foreigner is
ensuring the authenticity of the documents prior to their validly celebrated and a divorce is thereafter validly obtained
admission as evidence was substantially achieved. In abroad by the alien spouse capacitating him or her to remarry,
Constantino-David v. Pangandaman-Gania, the Court has said the Filipino spouse shall likewise have capacity to remarry under
that substantial compliance, by its very nature, is actually Philippine law.
inadequate observance of the requirements of a rule or
regulation that are waived under equitable circumstances in Under the above-highlighted paragraph, the law confers
order to facilitate the administration of justice, there being no jurisdiction on Philippine courts to extend the effect of a foreign
damage or injury caused by such flawed compliance. divorce decree to a Filipino spouse without undergoing trial to
determine the validity of the dissolution of the marriage.
The Court has further said in Constantino-David v.
Pangandaman-Gania that the focus in every inquiry on whether (This case cited Copruz case and Garcia-Recio vs Recio)
or not to accept substantial compliance is always on the
presence of equitable conditions to administer justice effectively Considering that the validity of the divorce decree between
and efficiently without damage or injury to the spirit of the legal Doreen and Michiyuki, as well as the existence of pertinent laws
obligation. There are, indeed, such equitable conditions of Japan on the matter are essentially factual that calls for a re-
attendant here, the foremost of which is that respondents had evaluation of the evidence presented before the RTC, the issue
gone to great lengths to submit the documents. As the CA raised in the instant appeal is obviously a question of fact that is
observed, respondents’ compliance with the requirements on beyond the ambit of a Rule 45 petition for review.
attestation and authentication of the documents had not been
easy; they had to contend with many difficulties (such as the
distance of Oslo, their place of residence, from Stockholm,
Sweden, where the Philippine Consulate had its office; the Govt of Hongkong vs Munoz
volume of transactions in the offices concerned; and the safe
transmission of the documents to the Philippines). Their In the last paragraph of the motion for reconsideration, the
submission of the documents should be presumed to be in good petitioner cites the ruling supposedly handed down by the Court
faith because they did so in due course. It would be inequitable if of Final Appeal of the HKSAR in the case of B v. The
the sincerity of respondents in obtaining and submitting the Commissioner of the Independent Commission Against
documents despite the difficulties was ignored. Corruption to the effect that the term agent in Section 9 of the
HK.SAR' s Prevention of Bribery Ordinance (POBO) also
The principle of substantial compliance recognizes that covered public servants in another jurisdiction.4 On the basis of
exigencies and situations do occasionally demand some such supposed ruling, the petitioner prays that the exclusion of
flexibility in the rigid application of the rules of procedure and the the crime of accepting an advantage as an agent be reversed;
laws. That rules of procedure may be mandatory in form and and that the Court should hold Muñoz to be extraditable also for
application does not forbid a showing of substantial compliance such crime.
under justifiable circumstances, because substantial compliance
does not equate to a disregard of basic rules. For sure, The petitioner's prayer cannot be granted. To grant it would be to
substantial compliance and strict adherence are not always take judicial notice of the ruling in B v. The Commissioner of the
incompatible and do not always clash in discord. The power of Independent Commission Against Corruption. Like all other
the Court to suspend its own rules or to except any particular courts in this jurisdiction, however, the Court is not at liberty to
case from the operation of the rules whenever the purposes of take judicial notice of the ruling without contravening our own
justice require the suspension cannot be challenged. In the rules on evidence under which foreign judgments and laws are
interest of substantial justice, even procedural rules of the most not considered as matters of a public or notorious nature that
mandatory character in terms of compliance are frequently proved themselves.
relaxed. Similarly, the procedural rules should definitely be
liberally construed if strict adherence to their letter will result in Verily, foreign judgments and laws, if relevant, have to be duly

23
BAM 2020
CONFLICT OF LAWS REVIEWER

alleged and competently proved like any other disputed fact. Puyat vs Zabarte
(Cited the case of Noveras v. Noveras)
Petitioner alleges that jurisdiction over Case No. C21-00265,
which involved partnership interest, was vested in the Securities
RECOGNITION AND ENFORCEMENT OF FOREIGN and Exchange Commission, not in the Superior Court of
California, County of Contra Costa.
JUDGMENT
We disagree. In the absence of proof of California law on the
jurisdiction of courts, we presume that such law, if any, is similar
Philippine Aluminum vs FASGI to Philippine law. We base this conclusion on the presumption of
identity or similarity, also known as processual presumption.
Generally, in the absence of a special compact, no sovereign is The Complaint, which respondent filed with the trial court, was
bound to give effect within its dominion to a judgment rendered for the enforcement of a foreign judgment. He alleged therein
by a tribunal of another country; however, the rules of comity, that the action of the foreign court was for the collection of a sum
utility and convenience of nations have established a usage of money, breach of promissory notes, and damages.
among civilized states by which final judgments of foreign courts
of competent jurisdiction are reciprocally respected and rendered In our jurisdiction, such a case falls under the jurisdiction of civil
efficacious under certain conditions that may vary in different courts, not of the Securities and Exchange Commission (SEC).
countries. The jurisdiction of the latter is exclusively over matters
enumerated in Section 5, PD 902-A, prior to its latest
In this jurisdiction, a valid judgment rendered by a foreign amendment. If the foreign court did not really have jurisdiction
tribunal may be recognized insofar as the immediate parties and over the case, as petitioner claims, it would have been very easy
the underlying cause of action are concerned so long as it is for him to show this. Since jurisdiction is determined by the
convincingly shown that there has been an opportunity for a full allegations in a complaint, he only had to submit a copy of the
and fair hearing before a court of competent jurisdiction; that trial complaint filed with the foreign court. Clearly, this issue did not
upon regular proceedings has been conducted, following due warrant trial.
citation or voluntary appearance of the defendant and under a
system of jurisprudence likely to secure an impartial
administration of justice; and that there is nothing to indicate
either a prejudice in court and in the system of laws under which St Aviation Services vs Grand Intl Airways
it is sitting or fraud in procuring the judgment. A foreign judgment
is presumed to be valid and binding in the country from which it Generally, in the absence of a special contract, no sovereign is
comes, until a contrary showing, on the basis of a presumption bound to give effect within its dominion to a judgment rendered
of regularity of proceedings and the giving of due notice in the by a tribunal of another country; however, under the rules of
foreign forum. Rule 39, section 48 of the Rules of Court of the comity, utility and convenience, nations have established a
Philippines provides: usage among civilized states by which final judgments of foreign
courts of competent jurisdiction are reciprocally respected and
Sec. 48. Effect of foreign judgments or final orders - The effect of rendered efficacious under certain conditions that may vary in
a judgment or final order of a tribunal of a foreign country, having different countries.1 Certainly, the Philippine legal system has
jurisdiction to render the judgment or final order is as follows: long ago accepted into its jurisprudence and procedural rules the
viability of an action for enforcement of foreign judgment, as well
xxxx as the requisites for such valid enforcement, as derived from
internationally accepted doctrines.
(b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as The conditions for the recognition and enforcement of a foreign
between the parties and their successors-in-interest by a judgment in our legal system are contained in Section 48, Rule
subsequent title. 39 of the 1997 Rules of Civil Procedure, as amended, thus:

In either case, the judgment or final order may be repelled by SEC. 48. Effect of foreign judgments. – The effect of a judgment
evidence a want of jurisdiction, want of notice to the party, or final order of a tribunal of a foreign country, having jurisdiction
collusion, fraud, or clear mistake of law or fact. to render the judgment or final order is as follows:

If PAWI were indeed hoodwinked by Mr. Ready who purportedly (a) In case of a judgment or final order upon a specific thing, the
acted in collusion with FASGI, it should have aptly raised the judgment or final order is conclusive upon the title to the thing;
issue before the forum which issued the judgment in line with the and
principle of international comity that a court of another
jurisdiction should refrain, as a matter of propriety and fairness, (b) In case of a judgment or final order against a person, the
from so assuming the power of passing judgment on the judgment or final order is presumptive evidence of a right as
correctness of the application of law and the evaluation of the between the parties and their successors in interest by a
facts of the judgment issued by another tribunal. subsequent title;

Fraud, to hinder the enforcement within this jurisdiction of a In either case, the judgment or final order may be repelled by
foreign judgment, must be extrinsic, i.e., fraud based on facts not evidence of a want of jurisdiction, want of notice to the party,
controverted or resolved in the case where judgment is collusion, fraud, or clear mistake of law or fact.
rendered, or that which would go to the jurisdiction of the court or
would deprive the party against whom judgment is rendered a Under the above Rule, a foreign judgment or order against a
chance to defend the action to which he has a meritorious case person is merely presumptive evidence of a right as between the
or defense. In fine, intrinsic fraud, that is, fraud which goes to the parties. It may be repelled, among others, by want of jurisdiction
very existence of the cause of action - such as fraud in obtaining of the issuing authority or by want of notice to the party against
the consent to a contract - is deemed already adjudged, and it, whom it is enforced. The party attacking a foreign judgment has
therefore, cannot militate against the recognition or enforcement the burden of overcoming the presumption of its validity.
of the foreign judgment.
Respondent, in assailing the validity of the judgment sought to
be enforced, contends that the service of summons is void and
that the Singapore court did not acquire jurisdiction over it.

24
BAM 2020
CONFLICT OF LAWS REVIEWER

Generally, matters of remedy and procedure such as those recognized in the Philippines, provided the divorce is valid
relating to the service of process upon a defendant are governed according to his or her national law.27
by the lex fori or the internal law of the forum, which in this case
is the law of Singapore. Here, petitioner moved for leave of court The starting point in any recognition of a foreign divorce
to serve a copy of the Writ of Summons outside Singapore. In an judgment is the acknowledgment that our courts do not take
Order dated December 24, 1997, the Singapore High Court judicial notice of foreign judgments and laws. Justice Herrera
granted "leave to serve a copy of the Writ of Summons on the explained that, as a rule, "no sovereign is bound to give effect
Defendant by a method of service authorized by the law of the within its dominion to a judgment rendered by a tribunal of
Philippines for service of any originating process issued by the another country."28 This means that the foreign judgment and its
Philippines at ground floor, APMC Building, 136 Amorsolo corner authenticity must be proven as facts under our rules on
Gamboa Street, 1229 Makati City, or elsewhere in the evidence, together with the alien’s applicable national law to
Philippines." This service of summons outside Singapore is in show the effect of the judgment on the alien himself or herself.29
accordance with Order 11, r. 4(2) of the Rules of Court 19966 of The recognition may be made in an action instituted specifically
Singapore. for the purpose or in another action where a party invokes the
foreign decree as an integral aspect of his claim or defense.
In the Philippines, jurisdiction over a party is acquired by service
of summons by the sheriff, his deputy or other proper court In Gerbert’s case, since both the foreign divorce decree and the
officer either personally by handing a copy thereof to the national law of the alien, recognizing his or her capacity to obtain
defendant or by substituted service. In this case, the Writ of a divorce, purport to be official acts of a sovereign authority,
Summons issued by the Singapore High Court was served upon Section 24, Rule 132 of the Rules of Court comes into play. This
respondent at its office located at Mercure Hotel (formerly Village Section requires proof, either by (1) official publications or (2)
Hotel), MIA Road, Pasay City. The Sheriff's Return shows that it copies attested by the officer having legal custody of the
was received on May 2, 1998 by Joyce T. Austria, Secretary of documents. If the copies of official records are not kept in the
the General Manager of respondent company. But respondent Philippines, these must be (a) accompanied by a certificate
completely ignored the summons, hence, it was declared in issued by the proper diplomatic or consular officer in the
default. Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of his
Considering that the Writ of Summons was served upon office.
respondent in accordance with our Rules, jurisdiction was
acquired by the Singapore High Court over its person. Clearly, The records show that Gerbert attached to his petition a copy of
the judgment of default rendered by that court against the divorce decree, as well as the required certificates proving its
respondent is valid. authenticity,30 but failed to include a copy of the Canadian law
on divorce.31 Under this situation, we can, at this point, simply
dismiss the petition for insufficiency of supporting evidence,
ATCI vs ETCHIN unless we deem it more appropriate to remand the case to the
RTC to determine whether the divorce decree is consistent with
-citing EDI-Staffbuilders Case the Canadian divorce law.

A judgment of divorce is a judicial decree, although a foreign


one, affecting a person’s legal capacity and status that must be
Corpuz vs Sto Tomas recorded. In fact, Act No. 3753 or the Law on Registry of Civil
Status specifically requires the registration of divorce decrees in
The unavailability of the second paragraph of Article 26 of the the civil registry.
Family Code to aliens does not necessarily strip Gerbert of legal
interest to petition the RTC for the recognition of his foreign But while the law requires the entry of the divorce decree in the
divorce decree. The foreign divorce decree itself, after its civil registry, the law and the submission of the decree by
authenticity and conformity with the alien’s national law have themselves do not ipso facto authorize the decree’s registration.
been duly proven according to our rules of evidence, serves as a The law should be read in relation with the requirement of a
presumptive evidence of right in favor of Gerbert, pursuant to judicial recognition of the foreign judgment before it can be given
Section 48, Rule 39 of the Rules of Court which provides for the res judicata effect. In the context of the present case, no judicial
effect of foreign judgments. This Section states: order as yet exists recognizing the foreign divorce decree. Thus,
the Pasig City Civil Registry Office acted totally out of turn and
SEC. 48. Effect of foreign judgments or final orders.—The effect without authority of law when it annotated the Canadian divorce
of a judgment or final order of a tribunal of a foreign country, decree on Gerbert and Daisylyn’s marriage certificate, on the
having jurisdiction to render the judgment or final order is as strength alone of the foreign decree presented by Gerbert.
follows:
For being contrary to law, the registration of the foreign divorce
(a) In case of a judgment or final order upon a specific thing, the decree without the requisite judicial recognition is patently void
judgment or final order is conclusive upon the title of the thing; and cannot produce any legal effect.
and
Rule 108 of the Rules of Court sets in detail the jurisdictional and
(b) In case of a judgment or final order against a person, the procedural requirements that must be complied with before a
judgment or final order is presumptive evidence of a right as judgment, authorizing the cancellation or correction, may be
between the parties and their successors in interest by a annotated in the civil registry. It also requires, among others, that
subsequent title. the verified petition must be filed with the RTC of the province
where the corresponding civil registry is located; that the civil
In either case, the judgment or final order may be repelled by registrar and all persons who have or claim any interest must be
evidence of a want of jurisdiction, want of notice to the party, made parties to the proceedings; and that the time and place for
collusion, fraud, or clear mistake of law or fact. hearing must be published in a newspaper of general circulation.
As these basic jurisdictional requirements have not been met in
To our mind, direct involvement or being the subject of the the present case, we cannot consider the petition Gerbert filed
foreign judgment is sufficient to clothe a party with the requisite with the RTC as one filed under Rule 108 of the Rules of Court.
interest to institute an action before our courts for the recognition
of the foreign judgment. In a divorce situation, we have declared, The recognition of the foreign divorce decree may be made in a
no less, that the divorce obtained by an alien abroad may be Rule 108 proceeding itself, as the object of special proceedings

25
BAM 2020
CONFLICT OF LAWS REVIEWER

(such as that in Rule 108 of the Rules of Court) is precisely to


establish the status or right of a party or a particular fact. For this purpose, Philippine courts will only determine (1)
Moreover, Rule 108 of the Rules of Court can serve as the whether the foreign judgment is inconsistent with an overriding
appropriate adversarial proceeding41 by which the applicability public policy in the Philippines; and (2) whether any alleging
of the foreign judgment can be measured and tested in terms of party is able to prove an extrinsic ground to repel the foreign
jurisdictional infirmities, want of notice to the party, collusion, judgment, i.e. want of jurisdiction, want of notice to the party,
fraud, or clear mistake of law or fact. collusion, fraud, or clear mistake of law or fact. If there is neither
inconsistency with public policy nor adequate proof to repel the
judgment, Philippine courts should, by default, recognize the
foreign judgment as part of the comity of nations. Section 48(b),
Fujiki vs Marinay Rule 39 of the Rules of Court states that the foreign judgment is
already "presumptive evidence of a right between the parties."
To be sure, a petition for correction or cancellation of an entry in Upon recognition of the foreign judgment, this right becomes
the civil registry cannot substitute for an action to invalidate a conclusive and the judgment serves as the basis for the
marriage. A direct action is necessary to prevent circumvention correction or cancellation of entry in the civil registry. The
of the substantive and procedural safeguards of marriage under recognition of the foreign judgment nullifying a bigamous
the Family Code, A.M. No. 02-11-10-SC and other related laws. marriage is a subsequent event that establishes a new status,
Among these safeguards are the requirement of proving the right and fact92 that needs to be reflected in the civil registry.
limited grounds for the dissolution of marriage,83 support Otherwise, there will be an inconsistency between the
pendente lite of the spouses and children,84 the liquidation, recognition of the effectivity of the foreign judgment and the
partition and distribution of the properties of the spouses,85 and public records in the Philippines.1âwphi1
the investigation of the public prosecutor to determine
collusion.86 A direct action for declaration of nullity or annulment However, the recognition of a foreign judgment nullifying a
of marriage is also necessary to prevent circumvention of the bigamous marriage is without prejudice to prosecution for
jurisdiction of the Family Courts under the Family Courts Act of bigamy under Article 349 of the Revised Penal Code.93 The
1997 (Republic Act No. 8369), as a petition for cancellation or recognition of a foreign judgment nullifying a bigamous marriage
correction of entries in the civil registry may be filed in the is not a ground for extinction of criminal liability under Articles 89
Regional Trial Court "where the corresponding civil registry is and 94 of the Revised Penal Code. Moreover, under Article 91 of
located."87 In other words, a Filipino citizen cannot dissolve his the Revised Penal Code, "[t]he term of prescription [of the crime
marriage by the mere expedient of changing his entry of of bigamy] shall not run when the offender is absent from the
marriage in the civil registry. Philippine archipelago."

However, this does not apply in a petition for correction or


cancellation of a civil registry entry based on the recognition of a
foreign judgment annulling a marriage where one of the parties BPI vs Guevarra
is a citizen of the foreign country. There is neither circumvention
of the substantive and procedural safeguards of marriage under It is an established international legal principle that final
Philippine law, nor of the jurisdiction of Family Courts under R.A. judgments of foreign courts of competent jurisdiction are
No. 8369. A recognition of a foreign judgment is not an action to reciprocally respected and rendered efficacious subject to
nullify a marriage. It is an action for Philippine courts to certain conditions that vary in different countries.34 In the
recognize the effectivity of a foreign judgment, which Philippines, a judgment or final order of a foreign tribunal cannot
presupposes a case which was already tried and decided under be enforced simply by execution. Such judgment or order merely
foreign law. The procedure in A.M. No. 02-11-10-SC does not creates a right of action, and its non-satisfaction is the cause of
apply in a petition to recognize a foreign judgment annulling a action by which a suit can be brought upon for its
bigamous marriage where one of the parties is a citizen of the enforcement.35 An action for the enforcement of a foreign
foreign country. Neither can R.A. No. 8369 define the jurisdiction judgment or final order in this jurisdiction is governed by Rule 39,
of the foreign court. Section 48 of the Rules of Court, which provides:

Moreover, notwithstanding Article 26 of the Family Code, SEC. 48. Effect of foreign judgments or final orders. - The effect
Philippine courts already have jurisdiction to extend the effect of of a judgment or final order of a tribunal of a foreign country,
a foreign judgment in the Philippines to the extent that the having jurisdiction to render the judgment or final order is as
foreign judgment does not contravene domestic public policy. A follows:
critical difference between the case of a foreign divorce decree
and a foreign judgment nullifying a bigamous marriage is that (a) In case of a judgment or final order upon a specific thing, the
bigamy, as a ground for the nullity of marriage, is fully consistent judgment or final order is conclusive upon the title to the thing;
with Philippine public policy as expressed in Article 35(4) of the and
Family Code and Article 349 of the Revised Penal Code. The
Filipino spouse has the option to undergo full trial by filing a (b) In case of a judgment or final order against a person, the
petition for declaration of nullity of marriage under A.M. No. 02- judgment or final order is presumptive evidence of a right as
11-10-SC, but this is not the only remedy available to him or her. between the parties and their successors in interest by a
Philippine courts have jurisdiction to recognize a foreign subsequent title.
judgment nullifying a bigamous marriage, without prejudice to a
criminal prosecution for bigamy. In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
In the recognition of foreign judgments, Philippine courts are collusion, fraud, or clear mistake of law or fact.
incompetent to substitute their judgment on how a case was
decided under foreign law. They cannot decide on the "family As the foregoing jurisprudence had established, recognition and
rights and duties, or on the status, condition and legal capacity" enforcement of a foreign judgment or final order requires only
of the foreign citizen who is a party to the foreign judgment. proof of fact of the said judgment or final order. In an action in
Thus, Philippine courts are limited to the question of whether to personam, as in the case at bar, the foreign judgment or final
extend the effect of a foreign judgment in the Philippines. In a order enjoys the disputable presumption of validity. It is the party
foreign judgment relating to the status of a marriage involving a attacking the foreign judgment or final order that is tasked with
citizen of a foreign country, Philippine courts only decide whether the burden of overcoming its presumptive validity.38 A foreign
to extend its effect to the Filipino party, under the rule of lex judgment or final order may only be repelled on grounds external
nationalii expressed in Article 15 of the Civil Code. to its merits, particularly, want of jurisdiction, want of notice to

26
BAM 2020
CONFLICT OF LAWS REVIEWER

allowed to rebut these factual allegations or prove extenuating


the party, collusion, fraud, or clear mistake of law or fact. circumstances. Extensive litigation is thus conducted on the facts,
and from there the right to and amount of damages are assessed.
The fact of a foreign final order in this case is not disputed. It On the other hand, in an action to enforce a foreign judgment, the
was duly established by evidence submitted to the RTC that the matter left for proof is the foreign judgment itself, and not the facts
U.S. District Court issued an Order on March 13, 1990 in Civil from which it prescinds.
Action No. H-86-440 ordering petitioner, AIFL, and ATHONA, to
pay respondent the sum of US$49,450.00 as sanction for filing a
As stated in Section 48, Rule 39, the actionable issues are generally
frivolous suit against respondent, in violation of Rule 11 of the
U.S. Federal Rules of Civil Procedure. The said Order became restricted to a review of jurisdiction of the foreign court, the service of
final when its reinstatement in the Order dated December 31, personal notice, collusion, fraud, or mistake of fact or law. The
1991 of the U.S. District Court was no longer appealed by limitations on review [are] in consonance with a strong and pervasive
petitioner, AIFL, and/or ATHONA. policy in all legal systems to limit repetitive litigation on claims and
issues. Otherwise known as the policy of preclusion, it seeks to
The Order dated March 13, 1990 of the U.S. District Court in protect party expectations resulting from previous litigation, to
Civil Action No. H-86-440 is presumptive evidence of the right of safeguard against the harassment of defendants, to insure that the
respondent to demand from petitioner the payment of task of courts not be increased by never-ending litigation of the
US$49,450.00 even in this jurisdiction. same disputes, and - in a larger sense - to promote what Lord Coke
in the Ferrer's Case of 1599 stated to be the goal of all law: "rest and
quietness." If every judgment of a foreign court were reviewable on
The Court cited the case of Mijares in the case of BPI vs Guevarra the merits, the plaintiff would be forced back on his/her original
as follows: cause of action, rendering immaterial the previously concluded
litigation.
There is an evident distinction between a foreign judgment in an
action in rem and one in personam. For an action in rem, the foreign
judgment is deemed conclusive upon the title to the thing, while in an
THE PROBLEM OF RENVOI
action in personam, the foreign judgment is presumptive, and not
conclusive, of a right as between the parties and their successors in RENVOI
interest by a subsequent title. However, in both cases, the foreign It is a procedure whereby a jural matter presented is referred by the
judgment is susceptible to impeachment in our local courts on the conflict of laws rules of the forum to a foreign state, which, in turn,
grounds of want of jurisdiction or notice to the party, collusion, fraud, refers the matter to the law of the forum, or the third state.
or clear mistake of law or fact. Thus, the party aggrieved by the
foreign judgment is entitled to defend against the enforcement of Remission – when reference is made back to the law of the forum.
such decision in the local forum. It is essential that there should be
an opportunity to challenge the foreign judgment, in order for the Transmission – when reference is made to a third state
court in this jurisdiction to properly determine its efficacy.
VARIOUS WAYS TO DEAL WITH IT
It is clear then that it is usually necessary for an action to be filed in 1. If the conflict rules of the forum court refers the matter to
order to enforce a foreign judgment, even if such judgment has the law of another state, it is deemed to mean only the
conclusive effect as in the case of in rem actions, if only for the “internal” law of the state. The “internal” law is that which
purpose of allowing the losing party an opportunity to challenge the should be applied to a domestic case that has no conflict-
foreign judgment, and in order for the court to properly determine its oflaw complications. The forum court in effect rejects the
efficacy. Consequently, the party attacking a foreign judgment has renvoi.
the burden of overcoming the presumption of its validity. 2. The forum court may accept the renvoi and refer not only
to another state’s “internal” law but to the “whole” law,
The rules are silent as to what initiatory procedure must be which includes choice-of-law rules.
undertaken in order to enforce a foreign judgment in the Philippines. 3. By desistance or mutual disclaimer of jurisdiction, in that
But there is no question that the filing of a civil complaint is an the renvoi is accepted but the forum court desists from
appropriate measure for such purpose. A civil action is one by which applying the foreign law.
a party sues another for the enforcement or protection of a right, and 4. The “foreign court” theory, whereby the forum court would
clearly an action to enforce a foreign judgment is in essence a assume the same position the foreign court would take
vindication of a right prescinding either from a "conclusive judgment were the case was litigated there.
upon title" or the "presumptive evidence of a right." Absent perhaps
a statutory grant of jurisdiction to a quasi-judicial body, the claim for
Aznar vs Garcia
enforcement of judgment must be brought before the regular courts.
There is no single American law governing the validity of
There are distinctions, nuanced but discernible, between the cause testamentary provisions in the United States, each state of the
of action arising from the enforcement of a foreign judgment, and Union having its own private law applicable to its citizens only
that arising from the facts or allegations that occasioned the foreign and in force only within the state. The "national law" indicated in
judgment. They may pertain to the same set of facts, but there is an Article 16 of the Civil Code above quoted can not, therefore,
essential difference in the right-duty correlatives that are sought to possibly mean or apply to any general American law. So it can
be vindicated. For example, in a complaint for damages against a refer to no other than the private law of the State of California.
tortfeasor, the cause of action emanates from the violation of the
right of the complainant through the act or omission of the But appellant invokes the provisions of Article 946 of the Civil
respondent. On the other hand, in a complaint for the enforcement of Code of California, which is as follows:
a foreign judgment awarding damages from the same tortfeasor, for
the violation of the same right through the same manner of action, If there is no law to the contrary, in the place where personal
property is situated, it is deemed to follow the person of its
the cause of action derives not from the tortious act but from the
owner, and is governed by the law of his domicile.
foreign judgment itself.
The existence of this provision is alleged in appellant's
More importantly, the matters for proof are different. Using the above opposition and is not denied. We have checked it in the
example, the complainant will have to establish before the court the
tortious act or omission committed by the tortfeasor, who in turn is
27
BAM 2020
CONFLICT OF LAWS REVIEWER

The theory of doctrine of renvoi has been defined by various


California Civil Code and it is there. Appellee, on the other hand, authors, thus:
relies on the case cited in the decision and testified to by a
witness. (Only the case of Kaufman is correctly cited.) It is The problem has been stated in this way: "When the Conflict of Laws
argued on executor's behalf that as the deceased Christensen rule of the forum refers a jural matter to a foreign law for decision, is
was a citizen of the State of California, the internal law thereof, the reference to the purely internal rules of law of the foreign system;
which is that given in the abovecited case, should govern the
i.e., to the totality of the foreign law minus its Conflict of Laws rules?"
determination of the validity of the testamentary provisions of
Christensen's will, such law being in force in the State of
California of which Christensen was a citizen. Appellant, on the On logic, the solution is not an easy one. The Michigan court chose
other hand, insists that Article 946 should be applicable, and in to accept the renvoi, that is, applied the Conflict of Laws rule of
accordance therewith and following the doctrine of the renvoi, Illinois which referred the matter back to Michigan law. But once
the question of the validity of the testamentary provision in having determined the the Conflict of Laws principle is the rule
question should be referred back to the law of the decedent's looked to, it is difficult to see why the reference back should not have
domicile, which is the Philippines. been to Michigan Conflict of Laws. This would have resulted in the
"endless chain of references" which has so often been criticized be
We note that Article 946 of the California Civil Code is its conflict legal writers. The opponents of the renvoi would have looked merely
of laws rule, while the rule applied in In re Kaufman, Supra, its to the internal law of Illinois, thus rejecting the renvoi or the
internal law. If the law on succession and the conflict of laws reference back. Yet there seems no compelling logical reason why
rules of California are to be enforced jointly, each in its own the original reference should be the internal law rather than to the
intended and appropriate sphere, the principle cited In re
Conflict of Laws rule. It is true that such a solution avoids going on a
Kaufman should apply to citizens living in the State, but Article
merry-go-round, but those who have accepted the renvoi theory
946 should apply to such of its citizens as are not domiciled in
California but in other jurisdictions. The rule laid down of avoid this inextricabilis circulas by getting off at the second reference
resorting to the law of the domicile in the determination of and at that point applying internal law. Perhaps the opponents of the
matters with foreign element involved is in accord with the renvoi are a bit more consistent for they look always to internal law
general principle of American law that the domiciliary law should as the rule of reference.
govern in most matters or rights which follow the person of the
owner. Strangely enough, both the advocates for and the objectors to the
renvoi plead that greater uniformity will result from adoption of their
Appellees argue that what Article 16 of the Civil Code of the respective views. And still more strange is the fact that the only way
Philippines pointed out as the national law is the internal law of to achieve uniformity in this choice-of-law problem is if in the dispute
California. But as above explained the laws of California have the two states whose laws form the legal basis of the litigation
prescribed two sets of laws for its citizens, one for residents disagree as to whether the renvoi should be accepted. If both reject,
therein and another for those domiciled in other jurisdictions.
or both accept the doctrine, the result of the litigation will vary with
Reason demands that We should enforce the California internal
the choice of the forum. In the case stated above, had the Michigan
law prescribed for its citizens residing therein, and enforce the
conflict of laws rules for the citizens domiciled abroad. If we must court rejected the renvoi, judgment would have been against the
enforce the law of California as in comity we are bound to go, as woman; if the suit had been brought in the Illinois courts, and they
so declared in Article 16 of our Civil Code, then we must enforce too rejected the renvoi, judgment would be for the woman. The same
the law of California in accordance with the express mandate result would happen, though the courts would switch with respect to
thereof and as above explained, i.e., apply the internal law for which would hold liability, if both courts accepted the renvoi.
residents therein, and its conflict-of-laws rule for those domiciled
abroad. The Restatement accepts the renvoi theory in two instances: where
the title to land is in question, and where the validity of a decree of
The national law mentioned in Article 16 of our Civil Code is the divorce is challenged. In these cases the Conflict of Laws rule of the
law on conflict of laws in the California Civil Code, i.e., Article situs of the land, or the domicile of the parties in the divorce case, is
946, which authorizes the reference or return of the question to applied by the forum, but any further reference goes only to the
the law of the testator's domicile. The conflict of laws rule in
internal law. Thus, a person's title to land, recognized by the situs,
California, Article 946, Civil Code, precisely refers back the case,
will be recognized by every court; and every divorce, valid by the
when a decedent is not domiciled in California, to the law of his
domicile, the Philippines in the case at bar. The court of the domicile of the parties, will be valid everywhere. (Goodrich, Conflict
domicile can not and should not refer the case back to California; of Laws, Sec. 7, pp. 13-14.)
such action would leave the issue incapable of determination
because the case will then be like a football, tossed back and X, a citizen of Massachusetts, dies intestate, domiciled in France,
forth between the two states, between the country of which the leaving movable property in Massachusetts, England, and France.
decedent was a citizen and the country of his domicile. The The question arises as to how this property is to be distributed
Philippine court must apply its own law as directed in the conflict among X's next of kin.
of laws rule of the state of the decedent, if the question has to be
decided, especially as the application of the internal law of Assume (1) that this question arises in a Massachusetts court. There
California provides no legitime for children while the Philippine the rule of the conflict of laws as to intestate succession to movables
law, Arts. 887(4) and 894, Civil Code of the Philippines, makes calls for an application of the law of the deceased's last domicile.
natural children legally acknowledged forced heirs of the parent Since by hypothesis X's last domicile was France, the natural thing
recognizing them.
for the Massachusetts court to do would be to turn to French statute
We therefore find that as the domicile of the deceased of distributions, or whatever corresponds thereto in French law, and
Christensen, a citizen of California, is the Philippines, the validity decree a distribution accordingly. An examination of French law,
of the provisions of his will depriving his acknowledged natural however, would show that if a French court were called upon to
child, the appellant, should be governed by the Philippine Law, determine how this property should be distributed, it would refer the
the domicile, pursuant to Art. 946 of the Civil Code of California, distribution to the national law of the deceased, thus applying the
not by the internal law of California. Massachusetts statute of distributions. So on the surface of things
the Massachusetts court has open to it alternative course of action:
(a) either to apply the French law is to intestate succession, or (b) to
Discussion on Doctrine of Renvoi in the case of Aznar resolve itself into a French court and apply the Massachusetts
statute of distributions, on the assumption that this is what a French

28
BAM 2020
CONFLICT OF LAWS REVIEWER

court would do. If it accepts the so-called renvoi doctrine, it will follow
the latter course, thus applying its own law. the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed.
This is one type of renvoi. A jural matter is presented which the
conflict-of-laws rule of the forum refers to a foreign law, the conflict- Appellants would however counter that Art. 17, paragraph three,
of-laws rule of which, in turn, refers the matter back again to the law of the Civil Code, stating that —
of the forum. This is renvoi in the narrower sense. The German term
Prohibitive laws concerning persons, their acts or property, and
for this judicial process is 'Ruckverweisung.'" (Harvard Law Review,
those which have for their object public order, public policy and
Vol. 31, pp. 523-571.) good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
After a decision has been arrived at that a foreign law is to be agreed upon in a foreign country.
resorted to as governing a particular case, the further question may
arise: Are the rules as to the conflict of laws contained in such prevails as the exception to Art. 16, par. 2 of the Civil Code
foreign law also to be resorted to? This is a question which, while it afore-quoted. This is not correct. Precisely, Congress deleted
has been considered by the courts in but a few instances, has been the phrase, "notwithstanding the provisions of this and the next
the subject of frequent discussion by textwriters and essayists; and preceding article" when they incorporated Art. 11 of the old Civil
the doctrine involved has been descriptively designated by them as Code as Art. 17 of the new Civil Code, while reproducing without
the "Renvoyer" to send back, or the "Ruchversweisung", or the substantial change the second paragraph of Art. 10 of the old
"Weiterverweisung", since an affirmative answer to the question Civil Code as Art. 16 in the new. It must have been their purpose
to make the second paragraph of Art. 16 a specific provision in
postulated and the operation of the adoption of the foreign law in toto
itself which must be applied in testate and intestate succession.
would in many cases result in returning the main controversy to be
As further indication of this legislative intent, Congress added a
decided according to the law of the forum. ... (16 C.J.S. 872.) new provision, under Art. 1039, which decrees that capacity to
succeed is to be governed by the national law of the decedent.
Another theory, known as the "doctrine of renvoi", has been
advanced. The theory of the doctrine of renvoi is that the court of the It is therefore evident that whatever public policy or good
forum, in determining the question before it, must take into account customs may be involved in our System of legitimes, Congress
the whole law of the other jurisdiction, but also its rules as to conflict has not intended to extend the same to the succession of foreign
of laws, and then apply the law to the actual question which the rules nationals. For it has specifically chosen to leave, inter alia, the
of the other jurisdiction prescribe. This may be the law of the forum. amount of successional rights, to the decedent's national law.
The doctrine of the renvoi has generally been repudiated by the Specific provisions must prevail over general ones.
American authorities.
The parties admit that the decedent, Amos G. Bellis, was a
citizen of the State of Texas, U.S.A., and that under the laws of
The scope of the theory of renvoi has also been defined and the
Texas, there are no forced heirs or legitimes. Accordingly, since
reasons for its application in a country explained by Prof. Lorenzen
the intrinsic validity of the provision of the will and the amount of
in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529- successional rights are to be determined under Texas law, the
531. The pertinent parts of the article are quoted herein below: Philippine law on legitimes cannot be applied to the testacy of
Amos G. Bellis.
The recognition of the renvoi theory implies that the rules of the
conflict of laws are to be understood as incorporating not only the
ordinary or internal law of the foreign state or country, but its rules of
the conflict of laws as well. According to this theory 'the law of a Gibbs vs Govt of Philippine Islands
country' means the whole of its law.
The trial court found that under the law of California, upon the
death of the wife, the entire community property without
Bellis vs Bellis administration belongs to the surviving husband; that he is the
absolute owner of all the community property from the moment
In this regard, the parties do not submit the case on, nor even of the death of his wife, not by virtue of succession or by virtue of
discuss, the doctrine of renvoi, applied by this Court in Aznar v. her death, but by virtue of the fact that when the death of the
Christensen Garcia, L-16749, January 31, 1963. Said doctrine is wife precedes that of the husband he acquires the community
usually pertinent where the decedent is a national of one property, not as an heir or as the beneficiary of his deceased
country, and a domicile of another. In the present case, it is not wife, but because she never had more than an inchoate interest
disputed that the decedent was both a national of Texas and a or expentancy which is extinguished upon her death. Quoting the
domicile thereof at the time of his death.2 So that even assuming case of Estate of Klumpke (167 Cal., 415, 419), the court said:
Texas has a conflict of law rule providing that the domiciliary "The decisions under this section (1401 Civil Code of California)
system (law of the domicile) should govern, the same would not are uniform to the effect that the husband does not take the
result in a reference back (renvoi) to Philippine law, but would community property upon the death of the wife by succession,
still refer to Texas law. Nonetheless, if Texas has a conflicts rule but that he holds it all from the moment of her death as though
adopting the situs theory (lex rei sitae) calling for the application required by himself. ... It never belonged to the estate of the
of the law of the place where the properties are situated, renvoi deceased wife."
would arise, since the properties here involved are found in the
Philippines. In the absence, however, of proof as to the conflict The argument of the appellee apparently leads to this dilemma:
of law rule of Texas, it should not be presumed different from If he takes nothing by succession from his deceased wife, how
ours.3 Appellants' position is therefore not rested on the doctrine can the second paragraph of article 10 be invoked? Can the
of renvoi. As stated, they never invoked nor even mentioned it in appellee be heard to say that there is a legal succession under
their arguments. Rather, they argue that their case falls under the law of the Philippine Islands and no legal succession under
the circumstances mentioned in the third paragraph of Article 17 the law of California? It seems clear that the second paragraph
in relation to Article 16 of the Civil Code. of article 10 applies only when a legal or testamentary
succession has taken place in the Philippines and in accordance
Article 16, par. 2, and Art. 1039 of the Civil Code, render with the law of the Philippine Islands; and the foreign law is
applicable the national law of the decedent, in intestate or consulted only in regard to the order of succession or the extent
testamentary successions, with regard to four items: (a) the of the successional rights; in other words, the second paragraph
order of succession; (b) the amount of successional rights; (e) of article 10 can be invoked only when the deceased was vested
with a descendible interest in property within the jurisdiction of

29
BAM 2020
CONFLICT OF LAWS REVIEWER

the Philippine Islands. would be regulated by section 1386 of the Civil Code of
California which was in effect at the time of the death of Mrs.
In the case of Clarke vs. Clarke, the court said: Gibbs.

It is principle firmly established that to the law of the state in The record does not show what the proper amount of the
which the land is situated we must look for the rules which inheritance tax in this case would be nor that the appellee
govern its descent, alienation, and transfer, and for the effect (petitioner below) in any way challenged the power of the
and construction of wills and other conveyances. This Government to levy an inheritance tax or the validity of the
fundamental principle is stated in the first paragraph of article 10 statute under which the register of deeds refused to issue a
of our Civil Code as follows: "Personal property is subject to the certificate of transfer reciting that the appellee is the exclusive
laws of the nation of the owner thereof; real property to the laws owner of the Philippine lands included in the three certificates of
of the country in which it is situated.’ title here involved.

It is stated in 5 Cal. Jur., 478:

In accord with the rule that real property is subject to the lex rei Miciano vs Brimo
sitae, the respective rights of husband and wife in such property,
in the absence of an antenuptial contract, are determined by the But the fact is that the oppositor did not prove that said
law of the place where the property is situated, irrespective of testimentary dispositions are not in accordance with the Turkish
the domicile of the parties or to the place where the marriage laws, inasmuch as he did not present any evidence showing
was celebrated. what the Turkish laws are on the matter, and in the absence of
evidence on such laws, they are presumed to be the same as
Under this broad principle, the nature and extent of the title those of the Philippines. (Lim and Lim vs. Collector of Customs,
which vested in Mrs. Gibbs at the time of the acquisition of the 36 Phil., 472.)
community lands here in question must be determined in
accordance with the lex rei sitae. It has not been proved in these proceedings what the Turkish
laws are. He, himself, acknowledges it when he desires to be
It is admitted that the Philippine lands here in question were given an opportunity to present evidence on this point; so much
acquired as community property of the conjugal partnership of so that he assigns as an error of the court in not having deferred
the appellee and his wife. Under the law of the Philippine the approval of the scheme of partition until the receipt of certain
Islands, she was vested of a title equal to that of her husband. testimony requested regarding the Turkish laws on the matter.
Article 1407 of the Civil Code provides:
The refusal to give the oppositor another opportunity to prove
All the property of the spouses shall be deemed partnership such laws does not constitute an error. It is discretionary with the
property in the absence of proof that it belongs exclusively to the trial court, and, taking into consideration that the oppositor was
husband or to the wife. Article 1395 provides: granted ample opportunity to introduce competent evidence, we
find no abuse of discretion on the part of the court in this
"The conjugal partnership shall be governed by the rules of law particular. There is, therefore, no evidence in the record that the
applicable to the contract of partnership in all matters in which national law of the testator Joseph G. Brimo was violated in the
such rules do not conflict with the express provisions of this testamentary dispositions in question which, not being contrary
chapter." Article 1414 provides that "the husband may dispose to our laws in force, must be complied with and executed.
by will of his half only of the property of the conjugal
partnership." Article 1426 provides that upon dissolution of the
conjugal partnership and after inventory and liquidation, "the net
remainder of the partnership property shall be divided share and
share alike between the husband and wife, or their respective
heirs." Under the provisions of the Civil Code and the
jurisprudence prevailing here, the wife, upon the acquisition of
any conjugal property, becomes immediately vested with an
interest and title therein equal to that of her husband, subject to
the power of management and disposition which the law vests in
the husband. Immediately upon her death, if there are no
obligations of the decedent, as is true in the present case, her
share in the conjugal property is transmitted to her heirs by
succession.

It results that the wife of the appellee was, by the law of the
Philippine Islands, vested of a descendible interest, equal to that
of her husband, in the Philippine lands covered by certificates of
title Nos. 20880, 28336 and 28331, from the date of their
acquisition to the date of her death. That appellee himself
believed that his wife was vested of such a title and interest in
manifest from the second of said certificates, No. 28336, dated
May 14, 1927, introduced by him in evidence, in which it is
certified that "the spouses Allison D. Gibbs and Eva Johnson
Gibbs are the owners in fee simple of the conjugal lands therein
described."

The descendible interest of Eva Johnson Gibbs in the lands


aforesaid was transmitted to her heirs by virtue of inheritance
and this transmission plainly falls within the language of section
1536 of Article XI of Chapter 40 of the Administrative Code
which levies a tax on inheritances. It is unnecessary in this
proceeding to determine the "order of succession" or the "extent
of the successional rights" (article 10, Civil Code, supra) which

30
BAM 2020
CONFLICT OF LAWS REVIEWER

31
BAM 2020
CONFLICT OF LAWS REVIEWER

32
BAM 2020
CONFLICT OF LAWS REVIEWER

APPENDIX 1

AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE


RULE 14
SUMMONS

OLD NEW
Section 1. Clerk to issue summons – Upon the filing of the complaint and Section 1. Clerk to issue summons. — Unless the complaint is on its
the payment of the requisite legal fees, the clerk of court shall forthwith face dismissible under Section 1, Rule 9, the court shall, within five
issue the corresponding summons to the defendants. (5) calendar days from receipt of the initiatory pleading and proof of
payment of the requisite legal fees, direct the clerk of court to issue
the corresponding summons to the defendants. (1a)
Section 2. Contents – The summons shall be directed to the defendant, Section 2. Contents. — The summons shall be directed to the defendant,
signed by the clerk of court under seal, and contain: (a) the name of the signed by the clerk of court under seal, and contain:
court and the names of the parties to the action; (b) a direction that the (a) The name of the court and the names of the parties to the action;
defendant answer within the time fixed by these Rules; (c) a notice that (b) When authorized by the court upon ex parte motion, an
unless the defendant so answers, plaintiff will take judgment by default authorization for the plaintiff to serve summons to the defendant;
and may be granted the relief applied for. (c) A direction that the defendant answer within the time fixed by these
Rules; and
A copy of the complaint and order for appointment of guardian ad litem, if (d) A notice that unless the defendant so answers, plaintiff will take
any, shall be attached to the original and each copy of the summons. judgment by default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem, if
any, shall be attached to the original and each copy of the summons.
(2a)
Section 3. By whom served. – The summons may be served by the Section 3. By whom served. — The summons may be served by the
Sheriff, his deputy, or other proper court officer, or for justifiable reasons sheriff, his or her deputy, or other proper court officer, and in case of
by any suitable person authorized by the court issuing the summons. failure of service of summons by them, the court may authorize the
plaintiff - to serve the summons - together with the sheriff.
In cases where summons is to be served outside the judicial region
of the court where the case is pending, the plaintiff shall be
authorized to cause the service of summons.
If the plaintiff is a juridical entity, it shall notify the court, in writing,
and name its authorized representative therein, attaching a board
resolution or secretary’s certificate thereto, as the case may be,
stating that such representative is duly authorized to serve the
summons on behalf of the plaintiff.
If the plaintiff misrepresents that the defendant was served
summons, and it is later proved that no summons was served, the
case shall be dismissed with prejudice, the proceedings shall be
nullified, and the plaintiff shall be meted appropriate sanctions.
If summons is returned without being served on any or all the
defendants, the court shall order the plaintiff to cause the service of
summons by other means available under the Rules.
Failure to comply with the order shall cause the dismissal of the
initiatory pleading without prejudice. (3a)

33

You might also like