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Conflicts Sempio Diy Book Reviewer

Conflicts Sempio Diy Book Reviewer

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Published by Lawrence Villamar
Conflicts Sempio Diy Book Reviewer
Conflicts Sempio Diy Book Reviewer

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Published by: Lawrence Villamar on Mar 01, 2013
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Conflict of Laws Comprehensive reviewer of Sempio-Diy book 
Chapter 1In GeneralConflict of Laws
That part of the municipal law of a state which directs itscourts and administrative agencies, when confronted with alegal problem involving a foreign element, whether or notthey should apply a foreign law or foreign laws
Conflict of laws case
Any case which involves facts occurring in more than onestate or nation, so that in deciding the case, it is necessaryto make a choice between the laws of different states orcountries
Note
: Conflict of laws is NOT part of international law.Although it is sometimes thought of as part of internationallaw because of the presence of a foreign element in a givenproblem, it is not international law in character but is part of the municipal law of each state. By municipal law in Conflictof Laws is meant the internal or local law of each state.
Conflict of laws vs. public international lawPublicInternationalLawConflict of lawsAs to personsinvolved
Governssovereign statesand entities thatare internationallyrecognized orpossessed of internationalpersonalityGoverns privateindividuals orcorporations
As to nature
International incharacterMunicipal incharacter
As totransactionsinvolved
Applies only totransactions inwhich onlysovereign statesor entities withinternationalpersonality areconcerned andwhich generallyaffect publicinterestDeals withtransactionsstrictly private innature in whichthe country assuch hasgenerally nointerest
As to remediesapplied
The concernedstates may firstresort to peacefulremedies. If theseremedies fail, thestates concernedmay resort toforcible remediesRecourse is had to judicial oradministrativetribunals inaccordance withthe rules of procedure of thecountry wherethey sit
Sources of Conflict of Laws
1.
Direct sources
Treaties
International conventions
Constitutions
Codifications and statutes
Judicial decisions
International customs
2.
Indirect sources
Natural moral law
Writings and treaties of thinkers andfamous writers
Chapter 2Jurisdiction and choice of lawHow one deals with a problem in Conflict of Laws
1.
First, determine whether the court has jurisdictionover the case.
If it has no jurisdiction, the case should bedismissed
If it has jurisdiction, the court willdetermine whether it should assume jurisdiction over the case or dismiss it onthe ground of forum non conveniens
It is the law of the forum that determineswhether the court has jurisdiction over thecase
2.
It will next determine whether to apply the internallaw of the forum or the proper foreign law
Three kinds of jurisdiction
1.Jurisdiction over the subject matter2.Jurisdiction over the person3.Jurisdiction over the res
Jurisdiction over the subject matter
Conferred by law
Defined as the power to hear anddetermine cases of the general class to which theproceedings in question belong
Cannot be conferred by consent of theparties or by their voluntary submission
Must be invoked by filing the propercomplaint or petition with the court.
Note
: In the realm of Conflict of Laws, however, thereis another element which the court must consider indetermining the matter of jurisdiction
the possibleenforceability of its decision in foreign states, subject tothe rights of said states.
Jurisdiction over the person
The competence or power of a court to render a judgment that will bind the parties involved
Jurisdiction over the plaintiff 
: Acquired themoment he invokes the power of the court byinstituting the action by the proper pleading
Jurisdiction over the defendant
: Acquired whenhe enters his appearance or by the coercive powerof legal process exerted by the court over him
personal or substituted service of summons
o
EX
: If appearance is for the sole purposeof questioning the jurisdiction of the court.
Note
: Question of erroneous service of summons mustbe raised before judgment is rendered, or this would bea case of waiver. Defective service may be cured byactual receipt of summons or if in any other manner,knowledge of the existence of the caseLesley Claudio (A 2012)Page 1 of 22
 
Conflict of Laws Comprehensive reviewer of Sempio-Diy book 
Jurisdiction over the Res
Jurisdiction over the particular subject matter incontroversy, regardless of the persons who may beinterested therein
The basis of the exercise of this jurisdiction is thepresence of the property within the territorial jurisdiction of the forum even though the courtmay not have personal jurisdiction over thepersons whose interests in the property areaffected
The purpose of the suit is not to impose a personaliability on anyone but it is to affect the interests of all persons in a thing.
Jurisdiction in personamJurisdiction over the res
Binds only the parties andtheir successors in interestBinds the whole world
Actions quasi in rem
The purpose is neither to impose a personal liabilityin a thing nor to affect the interests of all personsin a thing, but to affect the interests of particularpersons in a thing.
An action affecting the personal status of theplaintiff is also classified as an action quasi in rem
Service of summons, how effected
1.In actions in personam(1)Personal service(2)Substituted service
Note
: Service by publication would NOT besufficient2.Service by publication(1)Action in rem(2)Action quasi in rem(3)Action involves the personal status of plaintiff 3.Extraterritorial service of summons(1)When the defendant does not reside andis not found in the Philippines, and theaction affects the personal status of theplaintiff (2)When the defendant does not reside andis not found in the Philippines, and theaction relates to or the subject of which is,property within the Philippines (real orpersonal), in which the defendant has aclaim, a lien or interest, actual orcontingent(3)When the defendant is a non-resident butthe subject of the action is propertylocated in the Philippines in which therelief demanded consists in excluding thedefendant from any interest therein(4)When the property of a non-residentdefendant has been attached in thePhilippines
While a writ of attachment maybe issued by the court, saidwrit cannot be implementeduntil the court has acquired jurisdiction over the non-resident defendant
Extraterritorial service, how effected
By leave of court:1.By personal service2.By publication, but copy of the summons and theorder of the court must be sent by registered mailto the defendant’s last known address3.In any other manner that the court may deemsufficient, e.g., by registered mail
Instances when court may refuse to exercise jurisdiction over a case on the basis of forum nonconveniens
1.The evidence and the witnesses may not be readilyavailable in the forum2.The court dockets of the forum may already beclogged so that to permit additional cases wouldhamper the speedy administration of justice3.The belief that the matter can be better tried anddecided in another jurisdiction, either because themain aspects of the case transpired there or thematerial witnesses have their residence there
4.
To curb the evils of “forum shopping” 
the non-resident plaintiff might have filed the case in theforum merely to secure procedural advantages orto annoy or harass the defendant
5.
The forum has no particular interest in the case
the parties not being citizens of the forum or areresidents elsewhere, or the subject matter of thecase evolved somewhere else6.Other courts are open and the case may be bettertried in said courts7.The inadequacy of the local judicial machinery foreffectuating the right sought to be enforced by theplaintiff 8.The difficulty of ascertaining the foreign lawapplicable
Note
: The doctrine should generally apply only if thedefendant is a corporation. For if the defendant is anindividual, the proper forum may not be able to acquire jurisdiction over him, thus leaving the plaintiff withoutany remedy.
Three instances when the forum has to apply theinternal or domestic law (lex fori) in deciding a casein conflicts of law
1.When the law of the forum expressly so provides inits conflicts rules2.When the proper foreign law has not been properlypleaded and proved3.When the case involves any of the exceptions tothe application of the proper foreign law (i.e.exceptions to comity)
Why foreign law cannot be applied if it has not beenpleaded and proved
Our courts cannot take judicial notice of foreign laws
How a foreign law is proved under our Rules of Court1.Written law
(1)An official publication thereof (2)A copy of the law attested by the officerhaving legal custody of the record or byhis deputy, accompanied by a certificateof any Philippine embassy, consular, orforeign service officer in the foreignLesley Claudio (A 2012)Page 2 of 22
 
Conflict of Laws Comprehensive reviewer of Sempio-Diy book country where the record is kept, andauthenticated by the seal of his office
2.Unwritten law
(1)The oral testimony of expert witnesses(2)By printed and published books of reportsof decisions of the country involved if proved to be commonly admitted in itscourts
Processual presumption of law
This rule means that when the proper foreign law has notbeen properly proved, the court of the forum may presumethat said foreign law is the same as its local or domesticlaw, which it can now apply
Exceptions to the applications of a foreign law
1.When the application of the foreign law would runcounter to a sound and established public policy of the forum2.When the foreign law is contrary to the almostuniversally conceded principles of morality (contrabonos mores)3.When the foreign law involves procedural matters
EX
: When the law is both procedural andsubstantive4.When the foreign law is penal in character
EX
: A penal clause in a contract mayhowever be enforced here because suchclause is not criminal in nature butprovides only for liquidated damages5.When the law is purely fiscal (i.e., revenueproducing) or administrative in nature6.When the foreign law might work undeniableinjustice to the citizens or residents of the forum7.When the application of the foreign law wouldendanger the vital interests of the State8.When the case involves real or personal propertylocated in our country
Chapter 3Theories that justify the application of the foreignlawTheories that justify the application of the foreign lawinstead of domestic or internal law
1.Theory of comity2.Vested right theory3.Theory of local law4.Theory of harmony of laws5.Theory of justice
Theory of comity
According to this theory, no foreign law would be allowed tooperate in another state except by the comity of nations
Comity
The recognition which one state allows within itsterritory, to the legislative, executive, or judicial acts of another nation
Two principles upon which the theory of comityrests
1.The comity based on reciprocity2.The comity based on the persuasiveness of aforeign judgment
Our Civil Procedure still follows theprinciple of reciprocity because inSec. 48, Rule 39, a foreign final judgment or order “is presumptiveevidence of a right as between theparties and their successors ininterest
The vested-rights theory
Under this theory, our courts enforce not the foreign law orforeign judgment but the right or rights that have beenvested under such law or judgment.
Rights once acquired should be enforced regardlessof where the suit for its enforcement was filed.
Theory of local law
Under this theory, we apply a foreign law not because it isforeign, but because our own law by applying a similar rulerequires us to do so, hence it is as if the foreign law hasbecome part of our own internal or domestic law.
Theory of harmony of laws
Under this theory, identical or similar problems should begiven identical or similar solutions thus resulting in harmonyof laws
Theory of justice
Since the purpose of all laws, including Conflict of Laws, isthe dispensation of justice, the proper foreign law should beapplied in order to attain this objective
The defect of this theory, however, is that differentpersons may have different ideas of what is justNote: No single theory contains the whole truth; no oneapproach is completely valid. All of the theories havevalidity. This suggests that they are not entirely exclusive.
Chapter 4Nature and composition of conflicts rulesPurely internal provision of law vs. conflicts rulePurely internal provisionof lawConflicts rule/ Aprovision in conflict of laws
Governs a domesticproblem, i.e., one without aforeign elementA provision found in our ownlaw which governs a factualsituation possessed of aforeign elementExample: Art. 796
Allpersons who are notexpressly prohibited by lawmay make a willExample: Art. 16
Realproperty as well as personalproperty is subject to thelaw of the country where itis situated
Two kinds of conflicts rules1.One-sided rule
Indicates when Philippine law will apply
Example : Article 15 of the CC
Lawsrelating to family rights and duties, or tothe status, condition, and legal capacity of persons, are binding upon citizens of thePhilippines even though living abroad
2.All-sided or multilateral rule
Indicates whether to apply the local law orthe proper foreign lawLesley Claudio (A 2012)Page 3 of 22

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