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CONFLICTS Salonga Book Digest
CONFLICTS Salonga Book Digest
JO SABIO
NATURE, DEFINITION, AND SCOPE C/O: VICTOR RAMOS (Salonga, CHAPTER I, 1995) Problems in Conflicts of Laws Arise Due to the Concurrence of 2 Factors: the division of the world into different states or territorial units, each state or unit having different systems of laws the presence of a situation containing a foreign element, that is to say, an event or transaction affected by the diverse laws of two or more states or territorial units Definition Salonga: Private International Law or Conflict of Laws is that part of the law of each state which determines whether in dealing with a factual situation involving a foreign element, the law or judgment of some other state will be recognized or applied in the forum Private international law is merely a part of the municipal law of each state Subject is any factual situation containing any foreign element The primary function of this department of law is to determine whether the rules of law or the judgments of some other state or states, and if so, to what extent, should be recognized or applied in the forum Other definitions of Conflict of Laws: Scoles has defined Conflict of Laws as: the body of law that aspires to provide solutions to international or interstate legal disputes between persons or entities other than countries and states as such.1 Leflar asserts: 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 choice between the laws of the different states or countries, is a conflict of laws case2 Cheshire and North state: that part of law which comes into play when the issue before the court affects some fact, event or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system [It is] the rules voluntarily chosen by a State for the decision of cases which have a foreign complexion.3 Leflar, unlike the other authors, defined Conflict of Laws as a kind of controversy and not as a body of law. Regarding Conflict of Laws as a body of laws: (a) Scoles states that such laws provide a solution; (b) Cheshire and North state that such laws affect the fact, event or transaction closely connected to a foreign system of laws; and (c) Salonga first recognizes such conflict rules as being part of municipal law, and such will aid in determining whether a foreign law or judgment is to be recognized and applied. Finally, it is only Salonga who expands the scope of Conflict of Laws from foreign laws to foreign judgments. STORY, SAVIGNY AND MANCINI: Story emphasizes the exclusive sovereignty and jurisdiction of one state over its own territory; thus, the laws or judgments of one state should in no way directly affect nor bind residents and/or property in another state. This territorial system yields to two factions: (a) vested rights acquired from a foreign law, not the foreign law itself, may be recognized by the forum; and, (b) such vested rights are recognized in the forum.4 Savigny adheres to the idea that a decision ought to be the same irrespective of the forum. Such idea is premised on the concept of an international community or comity having a single body of rules to resolve conflict of laws problems. Though there is agreement to have such single body of rules, there is divergence on the law to govern each and every legal relation.5 Mancini revokes the domiciliary rule but proposes one of nationality. He asserts that if ones nationality is recognized, personality is easily assumed and allows such person to have legal standing in the forum. This school of thought abides to two rules: (a) legal rules are binding to all nationals irrespective of territory; and (b) legal rules are binding to all nationals within a given territory.6 Function and Object of Conflict of Laws Salonga: The Function of Private International Law is: 3 fold To prescribe the conditions under which a court or agency is competent to entertain a suit or proceeding involving facts containing a foreign element To specify the circumstances in which foreign judgment will be recognized as valid and binding in the forum To determine for each class of cases the particular system of law by reference to which the rights of the parties must be ascertained this is the fundamental problem of choice of law 4 important points: 1. Rules of Private International Law, like all other rules of law, apply only to certain given facts not characterized as creating some legal relationship 2. The selection of legal systems open to the court is limited to those that are simultaneously valid 3. The legal effects of a certain set of facts are not always determined by one single legal system. 4. It is sometimes necessary to apply several systems, either cumulatively or alternatively Cumulative application: (1) a given set of facts may produce legal effects each of which is governed by a different legal system, (2) or a given set of facts may produce legal effects only if certain conditions common to two legal systems are fulfilled Alternative application: under the Philippine law, if an alien executes a will in the Philippines, the formal validity of the will may be judged alternatively by the requirement of internal Philippine law or of his own national law. If either law considers it formally valid, it may be admitted to probate ALSO: Promoting the peaceable intercourse of private persons, made imperative by the economic and social demands of an interdependent world, through rules that are eminently just and workable, may well be the ultimate objective of Private International Law protection of the justified and rational expectations of parties to a transaction, the application of the law of the state having a dominant interest in a given set of facts, the
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Scoles, Hay, Brochers and Symeionides, Conflict of Laws, 1 (3rd Ed.) Robert Leflar, The Law on Conflicts of Laws, 1 (1959 Ed.) Peter North and J.J. Fawcett, Cheshire and Norths Private International Law, 5 (2005 Ed.).
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Others
NB: Monists do not recognize the distinction between PIL and CoL. In their view, individuals alone are and can be the subjects of international law, public or private HISTORY AND IMPORTANCE C/O: VICTOR RAMOS (Salonga, CHAPTER II, 1995) HISTORY OF THE SUBJECT Earliest Period Theory of Statutes to solve conflicts Bartolus (from the Italian city-states) Father of Private International Law Determined CoL rules by differentiating 3 types of statutes real statutes personal statutes mixed statutes The French Jurists of the 16th century: 2 thinkers Charles Dumoulin Doctrine: Parties to the contract could choose the law that was to govern their agreement Bertrand DArgentre Doctrines Whenever there was any doubt as to whether a statutory rule was personal or real, presumed it is real
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Joseph Story American judge, Commentaries on the Conflict of Laws (1834) Approach was more positive than theoretical Maxims: Every nation possesses an exclusive sovereignty and jurisdiction within its own territory that directly binds all properties within its territory, and all persons who are residents within it (territorial sovereignty) No state or nation can by its law directly affect or bind property out of its own territory, or bind persons not resident therein, whether they are natural born subjects or others Friedrich Carl von Savigny Great German jurist, System of Modern Roman Law (1849)
C/O: VICTOR RAMOS (Salonga, CHAPTER III, 1995) SOURCES Codifications Old Civil Code of the Philippines First 4 articles of Chapter I follow Mancini, with the exception that personal property under the New Code is subject to the law of the country where it is situated instead of the national law of the owner Code of Commerce and Insurance Code likewise have similar provisions Special legislation Foreign Investments Act of 1991 Corporation Code General Banking Act Trade Marks and Trade Names Law Patent Law Carriage of Goods by Sea Act Investment Incentives Export Incentives Act Multilateral Treaties and International Conventions 2 methods of avoiding or minimizing conflicts 1. To secure by international conventions or treaties the unification of the internal rules or laws of the various countries or territorial units upon as many legal subjects as possible These are not sources of Private International Law This would eliminate the differences which would give rise to problems of Private International Law 2. To unify the rules of Private International Law so that a case involving a foreign element may be decided in the same way, irrespective of the forum or place of litigation Conventions and treaties with this goal are primary sources of Private International Law Bipartite Treaties Case Law: Philippines: 3 categories 1. Those which are based on the assumption, though not expressed in clear language, that only Philippine internal rules govern any problem; this is noticeable in cases involving contracts and personal status 2. Those which adopt Anglo-American doctrines and precedents without regard to the provisions contained in the Civil Code; this is true in cases of validity of foreign divorces 3. Those cases which attempted to introduce Anglo-American rules and doctrines, which a view not only to filling up the gaps by the Civil Code, but also to merge and harmonize them with established Civil law principles International Customs: Law of Nations Immovable property is governed by the law of the situs] Formalities of a legal act are governed by the law of the place where it is executed Tort is governed by the law of the place where the tortuous act was committed The Constitution Indirect Sources
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03-23-2006 | THROUGH THE JOINT EFFORTS OF STUDENTS OF ATENEO LAW III- C 2006 | Edited by J.C. de Veyra
it is doubtful whether the process described by cook (that the forum enforces not a foreign right but a right created by its own law) results in the creation of a new right Usual Method in Disposing of CoL Cases: The court characterizes/identifies the legal category into which the case before it falls (property, domestic relations, tort, succession) Apply the proper connecting factor for that category of case in order to choose the State/territorial jurisdiction whose legal system will determine the parties respective rights, duties and other legal relations Revolution in US Conflicts Law The emergence of two themes concerning choice of law Jurisdiction-selection (e.g. lex loci contractus) Requires the court to apply the law of the country/jurisdiction chosen by the conflicts rule, irrespective of the content of the particular rule of law selected Rule-selection (Method of solving/approaching a solution to the choice of which of competing norms should govern) Emphasizes a choice between different substantive rules of law in light of the policies at issue The Second Restatement and the Law of the Most Significant Relationship Theory Principles for guidance for judges Choice of law rules should be designed to make the international and interstate systems work well The court should apply its own local law unless there is good reason for not doing so like using its own internal law to matters that are not likely to affect the ultimate outcome of the case The court should consider the purpose of its relevant local law rule in determining whether to apply its own law or the law of another State Choice of law rules should seek to achieve certainty, predictability, and uniformity of result. They should be easy to apply The court should seek to protect the justified expectations of the parties The court should seek to apply the law of the State of the dominant interest The court should seek to further the fundamental policy underlying the particular field of law State Interest Theory Currie led the drive to focus attention on a neglected key to intelligent analysis of conflicts problems. Rejected the rules of choice of law of the traditional type and suggested the ff: When a court is asked to apply the law of a foreign State, different from the law of the forum, it should inquire into the policies expressed in the respective laws, and into the circumstances in which it is reasonable for the respective States to assert an interest in the application of those policies thru construction and interpretation If the court finds that one state has an interest in the application of its policy in the circumstances of the case and the other has none, it should apply the law of the only interested State (e.g. lex situs rule) If the court finds an apparent conflict between the interests of States, it should reconsider If the forum is disinterested, but an unavoidable conflict exists between the interest of two other States, and the court cannot with justice decline to adjudicate the case, it should apply the law of the forum at least if the law corresponds with the law of one of the other states
The legal effect of those facts after they have been established
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Concerned jurisdiction means one that has expressed an interest in regulating an aspect of the multi-state transaction in question
Procedure Methods of presenting to a court, the operative facts upon which legal relations depend Refers to available judicial machinery and its mode of operation Regulates venue form of action, sufficiency of pleadings
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EFFECT OF FAILURE TO PLEAD/PROVE FOREIGN LAW Dismiss the case with judgment for the defendant That the plaintiff relying on foreign law had failed to prove an essential part of his case Not to dismiss the case, but to hold that where foreign law is not properly pleaded or proved, the presumption of identity or similarity arises namely that foreign law is the same as domestic law not to dismiss the case, but to assume that by failing to plead or prove foreign law, the parties acquiesced in having their controversy determined by the law of the forum Exception: RP court can take judicial notice evidently through its own actual knowledge and research whenever it has reason to believe it is familiar with some foreign law that is generally known or has actually been ruled upon in cases before it EXCEPTIONS TO APPLICATION OF FOREIGN LAW C/O: MIKE MATE, JANG MORENO, TRINA GARCIA, TRINA ILLARDE (Salonga, CHAPTER VII, 1995; CHAPTER VI, 1979) NATURE AND BASIS OF EXCEPTIONS Under the traditional view, foreign law is not applied in the forum in the following cases: Where its enforcement would run counter to some important public policy of the forum Its application would lead to an infringement of good morality in the wider sense of the term as understood in the forum 1. When foreign law is penal in nature 2. When the foreign law is procedural in nature 3. When the question relates to immovable property in the forum 4. When the foreign law is fiscal or administrative in nature 5. When the application of foreign law would involve injustice or injury to the nationals or residents of the forum 6. When the application of foreign law would endanger the foreign relations or vital interests of the state 7. These exceptions are not mutually exclusive as most overlap each other What are the Exceptions Recognized by RP law? RP laws which restrain or prohibit the doing of certain acts within the country and other local laws designed to uphold public order etc cannot be displaced by foreign laws or judgments or by determination or conventions agreed upon The general rule is that our penal laws are territorial and due to territorial sovereignty should apply to all persons and things within our territory. Exceptions are in the limits on territorial jurisdiction, under Law of Nations, treaties, heads of State, diplomats, foreign public vessels, merchant vessels exercising innocent passage and foreign state property Examine Art 17 and Article 14 as these impose a duty on our courts to examine the purposes of our laws in order to determine whether in a conflicts case, a domestic rule of the forum or a rule of another State should be applied in the decision of a particular issue Savigny: Imperative Rules are of 2 Kinds Enacted merely for the sake of persons who are the possessor of rights
Unwritten law The oral testimony of an expert witness is admissible as evidence Printed and published books of reports of decisions of the court of the country concerned
Where application of foreign law would be against good morality in the wider sense of the term as understood in the forum Good morality or bonos mores. Includes contracts which though valid under their proper law would be illegal or immoral if they were governed by the lex fori Doctrine of disparitas cultas, consider local concepts of morality as universally established and applicable in all situations (Article 71 and article 26) Foreign Penal Law When a foreign law sought to be applied is penal, the forum may refuse its application because no society takes concern in any crime but what is hurtful to itself. That in the enforcement of the rules of public order of a State, other states are not concerned and should not as a general rule interfere Implies that courts will refuse foreign judgments which are penal in nature But how do you determine if law is penal? When it imposes punishment for an offense committed against the state which the executive has power to pardon The US supreme court said that a statute is penal if it imposes a duty on the defendant to pay the plaintiff anything more than is necessary to compensate him for out of the pocket losses caused by the defendant The view That one State has no concern in the enforcement if penal laws of another state has been criticized due to the rise of extradition treaties Foreign Procedural Law Generally not enforced in the forum because it is the forums procedural law that is enforced for practicalitys sake It is impractical for one court to wholesale adopt the trial machinery of another state including rules on service of process venue etc The forum is charged with the task of making a distinction between the rules that are procedural and those that are substantive Questions relating to immovable property in the forum Practically all legal systems are in accord on the principle that ownership of an immovable and other rights in immovables are subject to the lex situs (developed in the Italian doctrine of the Middle ages)LEX REI SITAE (the law of the place where the immovable is situated) The rationale is found in the nature of real property immobility. Immovables are part of the country and so closely connected with it that all rights over them have their natural center of gravity there. (Swank vs. Hufnagle) Foreign Fiscal or administrative law Where the foreign law is fiscal or administrative in nature, the forum may refuse its enforcement (foreign revenue law, tax law, local rates) The reason is that A sovereign has no legal duty to assist foreign governments in the financing of their activities Lord Mansfield: no country takes notice of the revenue laws of another However it does not mean that a foreign revenue law is to be totally ignored Cheshire and North: circumstances may require that the existence of a foreign fiscal law be recognized. Court may give particular importance to the policy of the forum in maintaining harmonious relations with another State and may not countenance any transaction, such as a fraudulent tax evasion scheme
PARTS OF A CONFLICTS RULE Defines its object factual event or operative facts Legal consequence of the operative facts prescribes the municipal law to which the question should be referred or connected; essential element: o Test or connecting factor; or o Point of contact Points of Contact May take any of the following forms: Nationality of a person, his domicile, his residence, his place of sojourn or his origin
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Jorge Coquia, Conflict of Laws (2000) at 154. Jovito Salonga (1979), Private International Law at 96. Ibid.
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4.
Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; Those who are naturalized in accordance with law11
The Supreme Court held Article 17 of the Civil Code is insufficient to show that the first paragraph affirms and recognizes jus soli. 12 Citing American jurisprudence, the Court found that the decided weight of authority was to the effect that the marriage of an American woman with an alien conferred his nationality upon her during coverture; that upon dissolution of the marriage by death of the husband, the wife reverted, ipso facto, to her former status, unless her conduct or acts showed that she elected to retain the nationality of her husband and that where the widowed mother herself thus reacquired her former nationality, her children she being their natural guardian, should follow her nationality with the proviso that they may elect for themselves upon reaching majority. The Roa decision, promulgated on October 30, 1912, set a precedent that was uniformly followed in numerous cases. The long line of decisions applied the principle of jus soli up to September 16, 1947, when the principle was renounced in the cases of Tan Chong vs Secretary of Labor and Swee Sang vs The Commonwealth of the Philippines13 cited in the appealed decision. Naturalized Citizens Naturalization confers to an alien a nationality after birth by any of the means provided by law. 14 The process of Naturalization in the Philippines is by judicial method under Commonwealth Act No. 473 as amended by RA 530. QUALIFICATIONS FOR NATURALIZATION 1. The petitioner must not be less than 21 years of age on the date of the hearing of the petition; 2. He must have, as a rule, resided in the Philippines for a continuous period of not less than ten years; 3. He must be of good moral character, and believes in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relations with the constituted government as well as with the community in which he is living xxx. 4. He must own real estate in the Philippines worth not less than P5000, Philippine currency, or must have some lucrative trade, profession, or lawful occupation. However, the minimum ten year period in paragraph (b) may be reduced to five years in any of the following cases: If the applicant has honorable held office under the Government of the Philippines or under any of the provinces, cities, municipalities, or political subdivisions thereof; If he has established a new industry or introduced a useful invention in the Philippines; If he is married to a Filipino woman;
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Edgardo Paras, Philippine Conflict of Laws (1996) at 158. 92 PHIL. 52 (1952) ROA VS. COLLECTOR OF CUSTOMS 23 PHIL. 321. 14 Dean Honorato Aquino, Conflict of Laws (2000) at 135..
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After the publication in the Official Gazette or newspaper of general publication, the petition will be heard (sec 9) If the petition is approved, there will be a rehearing two years after the promulgation of the judgment awarding naturalization (Sec. 1, Rep. Act No. 530) The taking of the oath of allegiance to support and defend the Constitution and the laws of the Philippines (Sec 11, Com Act 473, as amended)18 Declaration of Intention One year prior to the filing of his petition for the admission to Philippine citizenship, the applicant for Philippine citizenship shall file with the Office of the Solicitor General a declaration under oath that it is his bona fide intention to become a citizen of the Philippine (Section 5, Naturalization Law). The period of one year is intended to give the state a reasonable time to screen and study the qualifications of the applicant. However, even if the same is filed one year prior to the filing of the petition for naturalization, if the filing fee was paid six months prior to the petition for naturalization, the declaration produces no effect. Effects on naturalization on wife and children Legal Background Section 15, CA 473 Any woman is now or may hereafter be married to a citizen of the Philippines, and who might be lawfully naturalized shall be deemed a citizen of the Philippines. Minor children of persons naturalized under this law who have been born in the Philippines shall be considered citizens thereof. A foreign-born minor child, if in the Philippines at the time of the naturalization of the parent, shall automatically become a Philippine citizen, and a foreignborn minor child, who is not in the Philippines at the time the parent is naturalized, shall be deemed a Philippine citizen only during his minority, unless he begins to reside permanently in the Philippines when still a minor, in which case, he will continue to be a Philippine citizen even after becoming of age. A child born outside of the Philippines after the naturalization of his parent shall be considered a Philippine citizen, unless within one year after reaching the age of majority, he fails to register himself as a Philippine citizen at the American Consulate of the country where he resides, and to take the necessary oath of allegiance. Jurisprudential Development Vivo vs. Cloribel As to foreign born minor children, they are extended citizenship if dwelling in the Philippines at the time of the naturalization of the parent. Dwelling means lawful residence. Since prior to the time the father of respondent visitor was supposed to have taken his oath of citizenship x x x their lawful period of stay had already expired and they had already been required to leave, they were no longer lawfully residing here. Therefore: An alien woman married to a Filipino who desires to be a citizen of his country must apply therefore by filing a petition for citizenship reciting that she possesses all the qualifications and none of the disqualifications under Section 4, both of Revised Naturalization Law, Said petition must be filed in the Court of First Instance where petitioner has resided at least one year immediately preceding the filing of the petition; and
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18 SCRA 228 (1966). Jorge Coquia, Conflict of Laws (2000) at 210. Commonwealth Act 473 providing for the Revised Naturalization Law.
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Section 18 of the Naturalization Law (CA 473 as amended) provides that upon motion made in the proper proceedings by the Solicitor General, the Judge may cancel that naturalization certificate issued and its registration in the Civil Registry for any of the following reasons: If it is shown that the said naturalization certificate was obtained fraudulently or illegally; If the person naturalized shall, within the five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence therein; Provided, that the fact of the person naturalized remaining for more than one year in his native country or the country of his former nationality, or two years in any country, shall be considered as prima facie evidence of his intention of taking up his permanent residence in the same; If the petition was made on an invalid declaration of intention; If it is shown that the minor children of the person naturalized failed to graduate from public or private schools, where Philippine history, government and civics are taught or prescribed as part of the school curriculum, through the fault of their parents either by neglecting to support them or by transferring them to another school or schools. A certified copy of the decree canceling the naturalization certificate shall be forwarded by the Clerk of Court to the Office of the President and the Office of Solicitor General; If it is shown that the naturalized citizen has allowed himself to be used as a dummy in violation of the Constitution or legal provisions requiring Philippine citizenship as a requisite for exercise, use or enjoyment of a right, franchise, or privilege. A judgment directing the issuance of certificate of naturalization is a mere grant of political privilege, and that neither estoppel nor res judicata may be invoked to bar the state from initiating an action for the cancellation or nullification of the certificate of naturalization thus issued. If it is shown that the naturalization certificate was obtained fraudulently or illegally, the certificate may be cancelled. The decision in a naturalization case does not become res judicata. Problems in Applying the Nationality Principle Dual or multiple citizenship In view of the rule set in the Hague Convention on Conflict of National Laws, each state determines who its own nationals are. Any question as to whether or not a person possesses the nationality of a particular state shall be determined in accordance with the states internal law. Hence it is possible that an individual can be claimed as a national of two or more states. Application of the jus soli and jus sanguinis A child born of parents who are nationals of a country applying the principle of jus sanguinis, in a country applying the jus soli principle has dual nationality. Thus: A Filipino citizen who marries an alien may acquire the citizenship of his or her spouse if the spouses national law so allows. A Filipino citizen however, who marries an alien shall retain Philippine citizenship, unless by his or her act or omission, he is deemed under the law, to have renounced it by
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It fixes the jurisdiction of the taxing authorities. It also determines where a person may exercise the privilege of voting and other legal rights and privileges. Article 50 of the Civil Code provides that for the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. Under the domiciliary theory, a persons private rights, conditions, and status, and capacity are determined by his physical location. 25 In jurisdictions adhering to domiciliary rule of determining the personal law of a person, domicile is an important point of contact. Domicile is one of the test factors in determining the applicable law in actions involving conflict of laws26. While the Philippines follows the nationality rule with respect to citizens status, family rights, and duties, order of succession and amount of successional rights, there are certain matters in which our courts apply the domiciliary rule. They are provided in the following provisions of law and authorities. Article 816 of the Civil Code provides that the will of an alien who is abroad produces the effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which the Civil Code prescribes.27 Article 828 of the Civil Code provides that the revocation of a will done outside the country, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place in which the testator had his domicile at the time.28 The validity of divorce secured by a foreign spouse under Article 26 of the Family Code also depends upon his domicile acquired in good faith.29 Classification of Domicile There are 3 kinds of domicile: namely: domicile of origin, domicile of choice, and constructive domicile. Domicile of origin is received by a person at birth.30 It is the domicile of the persons parents at the time of his birth, which is not easily lost, and it continues until, upon reaching the age of majority, he abandons it and acquires a new domicile. This new domicile is the domicile of choice.31 Domicile of choice is also called voluntary domicile.32 It is the place freely chosen by a person sui juris. To acquire a domicile of choice, there must be of the fact of physical presence in the new locality and the unqualified intention to make that place the home of that person.33 Constructive domicile is also known as domicile by operation of law.34 It is that which the law attributes to a person because of his disability to make a choice, such as when he is a minor
25 26 27
Ibid. Jovito Salonga, Private International Law (1976) at 109 Blacks Law Dictionary 24 Aquino v. Comelec, 248 SCRA 400 [1995]
Jorge Coquia, Conflict of Laws [1995] at 176. Ruben Agpalo, Conflict of Laws [2004] at 108, cng Saudi Arabian Airlines v. Court of Appeals, 247 SCRA 469, 490 [1998]. Agpalo at 108. 28 Agpalo at 109. 29 Agpalo at 109. 30 Coquia, p 198. 31 Jovito Salonga, Private International Law [1979] at 163. 32 Coquia at 198. 33 Salonga at 173. 34 Agpalo at 110.
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domicile is changed, the childs domicile necessarily follows. A minor, as a rule, cannot acquire his own domicile.39 The rule in many jurisdictions is that the minors take the domicile of their mother upon the death of their father. This rule applies to our jurisdiction by force of our rules on parental authority. Article 212 of the Family Code provides that the remarriage of the surviving parents shall not affect their parental authority over their children.40 Persons mentally disordered Together with infants and married women, person mentally disordered are deemed, by law, dependent persons. Their domicile is fixed to one which they have previously acquired, if there is any. In the absence of a previously acquired domicile of choice, the domicile of mentally deficient persons follows that of their parents with whom they live. This is justified because of the persons perceived incompetence to make a free choice on where they want to establish a permanent abode.41 Married women Based on the concept of unity of the spouses and reinforced by gender-based presumptions that this identity is determined by the husband, the wife was presumed to take the domicile of her husband.42 Article 69 of the Family Code provides that the husband and wife shall fix the family domicile and in case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. Although it is unusual for Filipino couples to fix their domicile by agreement, if they so desire and could not agree to a common domicile, they can submit the matter to court for relief. The court may then decide to allow the wife to maintain a separate domicile to that of her husband.43 In the case of Romualdez-Marcos v. Comelec, the Court elaborated the legal repercussions of this rule. When there is no agreement as to a common domicile between the husband and the wife, the rule is that the wife follows that of the husband during the existence of the marriage or until the death of the husband. When a woman marries and follows the domicile of her husband, she keeps her domicile of origin and merely gains a new home. The implication of this ruling is that the termination of the marriage or the death of her husband operates to revert her domicile to her domicile of origin. But this reversion does not apply when, by her overt acts, she has chosen the domicile of her husband as her domicile of choice.44 RULES ON DOMICILE No person shall be without domicile. Hence, a persons domicile of origin prevails until he acquires a new domicile.45 A person cannot have two simultaneous domiciles. Domicile establishes a connection between a person and a particular territorial unit. That person is bound by the legal system
39 40 41
Coquia at 205. Salonga at 163, 164 Coquia at 198, 199. 38 Agpalo at 117.
Coquia at 205. Coquia at 205. Agpalo at 117. 42 Coquia at 208. 43 Agpalo at 116. 44 248 SCRA 300 [1995] 45 Salonga at 160.
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46 47 48
Coquia at 190. Salonga at 162, 163. Coquia at 190. Blacks Law Dictionary 48 Aquino v. Comelec, 248 SCRA 400 [1995] 48 Jorge Coquia, Conflict of Laws [1995] at 176. 48 Ruben Agpalo, Conflict of Laws [2004] at 108, cng Saudi Arabian Airlines v. Court of Appeals, 247 SCRA 469, 490 [1998]. 48 Coquia, p 198, citing Goodrich (3rd ed), supra note 2, at 824. 49 Blacks Law Dictionary 50 Coquia at 122. 51 Salonga at 187. 52 Coquia at 123.
53 54 55
Salonga at 185. Salonga at 185. 117 Phil 106 [1963]. 56 Salonga at 185, 186.
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False Conflicts If the choice-of law rules of the state to which reference is made refers the case back to the forum state, the court may use this situation to determine whether or not there is merely a false conflict. In the case of Pfau v. Trent Aluminum,60 the New Jersey Supreme Court stated that since Connecticut and New Jersey have identical substantive laws and the third concerned state, Iowa, had no interest in ensuring that its law applied, there was a false conflict. Thus, the renvoi was inappropriate.61 PERSONAL STATUS & CAPACITY C/O: JULIET AZARRAGA, DINDIN CRUZ, AND ROBERT TEJERO (Salonga, CHAPTER XIII, 1995) DEFINITION Beale defined status as a personal quality or relationship, not temporary in its nature nor terminable at the mere will of the parties, with which third persons and the state are concerned.62 He further points out that it is a real institution of law, and in spite of its incorporeal and conceptual character is an item in the development of law and in its application by the courts. It is a creature of the law, and in that sense unreal and artificial, but it rests upon a factual basis of character or relation. It was created out of necessity to deal with and attach rights to certain facts of social importance.63 People vs. Bellamas64 the general term that includes both condition and capacity, and more specifically that which embraces such matters as the beginning and end of human personality, capacity to have rights in general, capacity to engage in legal transactions, protection of legal interests, and family relations. The states concern in a status as defined is based upon its social interest in the personality of its domiciliaries, and its interest in such of their domestic relations as have to do with the procreation and nurture of citizens. Its concern is demonstrated by
OBJECTIONS TO RENVOI Opponents of the doctrine of renvoi advocate that the universal application of the doctrine would place the court in a perpetually enclosed circle from which it would never emerge and that it would never find a suitable body of substantive rules to apply to a particular case. Proponents of the doctrine point out that the objection is based on a false premise because for as long as remission is to the states internal law alone, there will be a stop to the endless chain of reference which inn fact, is an extremely rare apparition. Moreover, opponents of the doctrine also observed that it cannot achieve uniformity of results if both the forum and the foreign state it refers to applies it the same way. The doctrine is workable only if one of the states rejects it and that it achieves harmony of decisions only if the states concerned do not agree on applying it the same way.
59 60 61
57 58
Coquia at 137. 55 NJ 511 [1970] Coquia at 137, 138. Blacks Law Dictionary 61 Aquino v. Comelec, 248 SCRA 400 [1995] 61 Jorge Coquia, Conflict of Laws [1995] at 176. 61 Ruben Agpalo, Conflict of Laws [2004] at 108, cng Saudi Arabian Airlines v. Court of Appeals, 247 SCRA 469, 490 [1998]. 61 Coquia at 198, citing Goodrich (3rd ed), supra note 2, at 824. Blacks Law Dictionary 61 Aquino v. Comelec, 248 SCRA 400 [1995] 61 Jorge Coquia, Conflict of Laws [1995] at 176. 61 Ruben Agpalo, Conflict of Laws [2004] at 108, cng Saudi Arabian Airlines v. Court of Appeals, 247 SCRA 469, 490 [1998]. 61 Coquia at 198, citing Goodrich (3rd ed), supra note 2, at 824. 62 Joseph S. Beale, A Treatise on the Conflic of Laws, Vol. 2. (1935) at 649. 63 Ibid. 64 73 O.G. 1977.
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2 Kinds of Legal Status Beale: absolute and relative status; but also divided into domestic and non-domestic. 1. Absolute status is the personal condition of an individual or a group of individuals which has legal characteristics and status.67 Examples68 are the following: Personality. Name. Rank, Title, and Office. Absence. Civil Death. Infamy. Prodigality. Slavery. Capacity. (not considered as status at common law) Majority. 2. Relative status is defined as a relation between two persons having such legal sanction as to make it a relation falling within the term status. Under the category of domestic relations, examples are marriage, relationship of father and child (i.e. legitimation, custodianship, and adoption), and the relationship of guardian and ward (i.e. guardianship). Non-domestic relations, on the other hand, include the relationship between jailer and prisoner, among many others.69 STATUS APPLIED IN THE PHILIPPINE SETTING Article 15 of the Civil Code provides that in determining the status and capacity of a person, the nationality principle applies, i.e. the person follows his national law wherever he goes, but only to Filipino Nationals. For aliens, Philippine courts may refer to the national law if the country they belong to follows the nationality principle or the law of their domicile if they follow the domiciliary principle. Recto vs. Harden70 inasmuch as Mr. and Mrs. Harden are admittedly citizens of the United States, their status and dissolution thereof as governed by Article 9 of the Civil Code of Spain (which was in force in the Philippines at the time of the execution of the contract in question) and Article 15 of the Civil Code of the Philippines by the
65 66 67
Joseph S. Beale, A Treatise on the Conflic of Laws, Vol. 2. Baker, Voorhis & Co. (1935) at 651. Ibid. Ibid at 649. 68 Ibid at 652 to 663. 69 Beale, Joseph S. A Treatise on the Conflic of Laws, Vol. 2. Baker, Voorhis & Co. (1935) at 663. 70 100 Phil. 427 (1959).
71 72
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MARRIAGE C/O: FRANCO SARMIENTO, KRISTINE TRINIDAD, FRITZZIE ESPANOL, AND MIMI LAMA (Salonga, CHAPTER XIV, 1995) MARRIAGE AS INCIDENTAL QUESTION Marriage, as a subject matter in the field of private international law, is the incidental question. Incidental in this sense does not mean minor or supplementary. Marriage is an incidental question in the resolution of legal issues because its effect substantially influences the verdict. In deciding whether or not one may lawfully exercise particular acts (e.g. purchase or dispose of property), the fact that said person is married is a matter which needs to be resolved before deciding the principal issue. In this sense, the validity or lack thereof, of a marriage is an incidental question that is necessary question that requires an answer before resolving the bigger case. Definition of Terms Lex Domicili - Latin for law of the domicile in the Conflicts of Law; In conflicts, the law of ones domicile is applied in choice of law questions Lex Locii Celebrationis- the law of the place where the act was done; In conflicts, the law where the place where the act was done is applied in choice of law questions Lex Patriae - National Law; In conflicts, the national law of one person is applied in choice of law questions Marriage - a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life85 Recognition of Marriage - that act of a State which affirms the validity of marriage in its particular jurisdiction
DEFINITION OF CAPACITY Capacity, more commonly referred to as juridical capacity, is defined as the fitness of a person to be subject of legal relations. The other component of capacity, called capacity to act, is defined as the power to do acts with juridical effects. The union of these two components produces complete civil capacity. The distinction between the two elements is that the former is inherent in every natural persona and is lost through death,81 while the latter is acquired and may be lost.82 A persons ability to act with legal effects is governed by his personal law. Ones personal law is viewed as best qualified to decide what restrictions should be imposed
73 74 75
Jorge Coquia, Conflict of Laws (1995) at 243. Jorge Coquia, Conflict of Laws (1995) at 247. Ibid. 76 R.A. 9048 was later on enacted allowing change of first name or nickname in a summary proceeding by filing the necessary application with the local civil registrar. 77 Jorge Coquia, Conflict of Laws (1995) at 245. 78 Ibid. 79 FAMILY CODE, Art. 236. 80 Approved December 13, 1989. 81 NEW CIVIL CODE OF THE PHILIPPINES, Article 37. 82 Ibid.
The Jurisdiction and Choice of Law Framework Salonga 86 there are 3 ways by which conflicts cases are disposed. The following will be representations of the said means.
83 84 85
Jorge Coquia, Conflict of Laws (1995) at 243. Insular vs. Frank Article 1, Family Code of the Philippines.
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Figure 2
Assume jurisdiction Apply Lex Fori Case is disposed the Philippines
the family and of society- without which there would be neither civilization nor progress87. It is the characteristic of permanence therefore that distinguishes marriage from a purely consensual transaction. Marriage is also a civil contract, such that no ecclesiastical elements are involved. The law does not look upon marriage as a sacrament. In the eyes of the law, marriage is a secular matter. When the requirements of law are complied with, what has been entered, is by law, a contract of marriage, whatever else a church or a religious organization may demand from its members. Marriage can be argued to be the very groundwork for other domestic relations. The state has an interest in this special contract. Marriage is the foundation of the family, and around the family, many of our present day social institutions are built. Extrinsic Validity In the Philippines, the determination of the extrinsic validity of marriage is referred to the lex loci celebrationis, or, law of the place of celebration. This is a consequence of the maxim locus regit actum, or the place governs the act. By extrinsic validity, we mean the legal sufficiency insofar as the formal requisites of a valid marriage are concerned. Story the general principle is that between persons, sui juris, the validity of a marriage is to be decided by the law of the place where it is celebrated. If the marriage is valid in the place of celebration, it is valid everywhere. In the same line of thought, if the marriage is invalid in the place of celebration, it is invalid everywhere.88 The Hague Convention on Celebration and Recognition of the Validity of Marriages89, states that the formal requirements for marriage are governed by the law of the state of celebration, a reiteration of a recognized principle of conflict of laws. Hence, the general rule is that all states recognize as valid marriages celebrated in foreign countries if they complied with the formalities prescribed there.90 Ernst Rabel made a comparative survey of various legal systems revealing that there are three ways of applying the maxim locus regit actum: The imperative or compulsory rule. In one group of countries, including the United States, England, Denmark, Japan and the Philippines, the law of the place where the marriage is celebrated governs the matter of formal validity, irrespective of whether the marriage is concluded within or outside the forum. In short, the maxim locus regit actum or the principle that the act is governed by the law of the place where it is done is applied compulsorily; the law of the place of celebration, the lex loci celebrationis, is solely decisive. The optional rule. Many countries follow the optional ruleparties celebrating a marriage within the forum must comply with domestic formalities; parties marrying abroad must observe either the formalities prescribed at the place of celebration or those of the personal law of the parties. Article 7 of the Hague Convention on marriage adopts the optional rule by providing that
87 88 89
Figure 3
Consider law of other state Assume jurisdiction Apply law of the other state Case is disposed the Philippines
The diagrams under this framework stresses that the operative act by which cases are disposed is the choosing of what law would govern a particular issue. This framework assumes that the State has the freedom to choose the manner it takes to dispose a case. This framework is used in this paper to stress on the assumption that issues in marriage with a foreign element are primarily disposed of by a States choice of law which is more often than not, an institutionalized method of determining its choice. MARRIAGE AS A SPECIAL CONTRACT Article 1 of the Executive Order No. 209, otherwise known as the Family Code defines marriage as a special contract of permanent union entered into in accordance with law for the establishment of conjugal and family life. It is a special contract because it is more than a mere contract accompanied by duties and obligations unique to a married life. The consent of the parties is essential to its existence like any other contract. However, when the contract to marry is executed by a man and a wife, a relation between the parties is created which they cannot change except for special circumstances as will be discussed later. Other contracts may be modified, restricted or enlarged or entirely released from upon the will of the parties. Not so with marriage. The relation, once formed, calls for the law to step in and hold the parties to various obligations and liabilities. Marriage is a special contract also because it is vested with public interest. Marriage is an institution in the maintenance of which in its purity the public is deeply interested for it is the foundation of
86
Maynard vs. Hill, 125 US 190, 8 S. Ct. 723, 31 L. Ed. 654 (1888). HERBERT F. GOODRICH, HANDBOOK OF THE CONFLICT OF LAWS(West Publishing, Minnesota, 1949). Hague Convention on Recognition of Validity of Marriages (March 14, 1978). 90 Caguioa page 255
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to the spouses and the marriage at the time of the marriage. Thus, marriages that are contracted by parties forbidden to marry, or forbidden to enter the particular marriage in question, of those which are polygamous or incestuous are denied validity. Sources of Law Marriages between Filipino Citizens, no matter where celebrated, are valid if it complies with the requirements of Article 2 of the Family Code, which states that: No marriage shall be valid, unless these essential requisites are present: Legal capacity of the contracting parties who must be a male and a female; and Consent freely given in the presence of the solemnizing officer. JURISDICTION AND CHOICE OF LAW Philippine law on substantive validity does not exclusively adhere to the lex loci celebrationis rule. There is a distinction as to marriages celebrated abroad, and in respect to marriages in the Philippines. As to the former, what applies is a combination of the lex loci celebrationis rule and the personal law (national law) rule. This is clearly the meaning of Article 26 of the Family Code. This general rule should therefore be qualified by two exceptions. First, marriage between Filipino nationals who marry abroad before the Philippine consular or diplomatic officials, in which case whatever the law of the place of the celebration prescribes, the substantive validity is to be determined by Philippine laws. Secondly, the saving clause of Article 26, declaring as invalid marriages prohibited under Philippine laws by reason of public policy, including polygamous, incestuous marriages and those contracted through mistake. As to marriages entered into in the Philippines, the national law of the party concerned insofar as his capacity to contract marriage is concerned is decisive. Corollary to this, Article 21 of the Family Code requires that aliens must submit a certificate of legal capacity to contract marriage issued by their respective diplomatic or consular officials, before they can be issued a marriage license. DIAGRAM REPRESENTATIONS FACTUAL SITUATION POINT OF CONTACT
If celebrated abroad Lex Loci Celebrationis, without prejudice to Arts. 26, (1) (4) (5) 36, 37 and 38 of the Family Code.
Between Filipinos
Between Foreigners
Lex Loci Celebrationis, except if the marriage is Highly immoral (i.e., bigamous, polygamous marriages) Universally Considered Incestuous (i.e., between brothers and sisters, whether whole or half blood, legitimate or illegitimate, between
21
Lex Loci Celebrationis, except if the marriage is Highly immoral (i.e., bigamous, polygamous marriages) Mixed (Between Filipino and Foreigner) Universally Considered Incestuous (i.e., between brothers and sisters, whether whole or half blood, legitimate or illegitimate, between ascendants and descendants). If celebrated in the Philippines National Law (Art. 21, FC) provided not highly immoral or universally considered incestuous.
Between Foreigners
Mixed
National law of the Filipino, (otherwise, public policy maybe militated against).
Marriage by Proxy A marriage by proxy is one where one of the parties is merely represented at the ceremony by a friend or delegate. The following are the rules governing such a marriage: If celebrated in the Philippines the marriage is void. Article 6 of the Family Code requires the presence of both parties. It is said however that the rule holds true only in cases where the marriage is between Filipinos or between a Filipino and a foreigner. In case the contracting parties are both foreigners, then it would be a valid marriage provided their national law considers is such. It should be noted also that the place where the proxy appears is considered where the marriage is celebrated. If celebrated abroad the rule is lex loci celebrationis, whether the marriage is between Filipinos, foreigners or mixed. This is of course subject to the usual exceptions (highly immoral etc.) and subject to special provisions as may be found in special laws (e.g., immigration laws for purpose of immigration). CRITIQUE OF THE CURRENT RULE Authors are unanimous in saying that the lex loci celebrationis rule is immediately susceptible to abuse. Parties are inclined to shop for the forum that will allow them to marry, when the laws of their own country provides an impediment to their union. An alternative suggested in found in the Hague Convention, the Treaty of Montevideo, and the Codigo Bustamante. Marriage impediments or disabilities are divided into two categories: one of international and the other of merely national applicability. Only the gravest objections are considered sufficient to prevent or nullify a marriage contracted abroad, such as marriages between ascendant and descendants, between brothers and sisters
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Beale, Conflict of Laws, 1935. MEL STA. MARIA PERSONS AND FAMILY RELATIONS LAW, pg.100 ( Freemans Appeal, 68 Conn 533, 37 ALL 4200, 57 ASR 112.
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ANNULMENT AND DIVORCE C/O: FRANCO SARMIENTO, KRISTINE TRINIDAD, FRITZZIE ESPANOL, AND MIMI LAMA (Salonga, CHAPTER XV, 1995) THE RECOGNITION OF THE TERMINATION OF MARRIAGE, LEGAL SEPARATION AND OTHER RELATED-ISSUES DIVORCE Overview of divorce/ kinds of divorce Divorce is the legal dissolution of the marriage bond rendered by a competent court for causes defined by law which arose after marriage. It presupposes that marriage is valid.96 Generally, there are two kinds of divorce: (1) absolute (divorce a vinculo matrimoniee) where marital ties are dissolved and (2) relative (divorce a mensaet thoro) where parties remain married although they are allowed to live separately from each other.97 Upon the enactment of the Civil Code, absolute divorce was no longer recognized except under Article 26 of the Family code wherein a divorce validly obtained by foreign spouse against the Filipino spouse is recognized and given effect and the latter is free to re-marry as an exception to the general rule and when obtained by alien spouses. However, relative divorce or more known as legal separation is allowed as provided for under Article 55 of the Family Code. The importance in determining whether a decree of divorce is valid or not is to ascertain the status of the parties and to fix and make certain the property rights and interest of the parties such as custody, care and support of the children. Philippine Conflicts Rule on Divorce With the abolition of the absolute divorce under the Civil Code, the rule with reference to Filipino couples became rigid and simple: as long as they are Filipino citizens, they cannot obtain a divorce decree abroad which would be recognized in the Philippines. Likewise,
96 97
94 95
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where he/she secured the divorce, the divorce obtained therein from his/her Filipino spouse may be regarded as valid in the country, under Section 26 of the Family Code, and will entitle the former Filipino spouse to remarry. Philippine courts have no jurisdiction over a petition for divorce, it being outlawed in the country.102 The Hague Convention Relating to Divorce and Separation of 1902 provides that the granting of divorce or separation must comply with the national law of the spouses and the law of the place where the application for divorce is made.103 LEGAL SEPARATION Relative divorce or otherwise known as legal separation under the Family Code was developed by the ecclesiastical courts at a time when, following the downfall of Rome, the supremacy of the Church was recognized and the marriage tie regarded as indissoluble. The Siete Partidas, the governing Law here during the Spanish regime, allowed relative divorce only.104 Article 55 of the Family Code provides the grounds by which the innocent spouse may file an action for legal separation. An action for legal separation must be filed within five (5) years from the time of the occurrence105 but such action shall in no case be tried before six months shall have elapsed since the filing of the petition to give the spouse the chance to reconcile. The laws governing absolute divorce are applicable to legal separation as provided for in the Hague Convention Relating to Divorce and Legal Separation of 1902. LEGAL CONSEQUENCES OF MARRIAGE C/O: FRANCO SARMIENTO, KRISTINE TRINIDAD, FRITZZIE ESPANOL, AND MIMI LAMA (Salonga, CHAPTER XVI, 1995) PROPERTY RELATIONS AND MARRIAGE Marital Property Relations in the Philippines The pertinent provision regarding the property relations that govern between husband and wife in the Philippines can be found in Title IV of the Family Code, particularly in the General Provisions found in Chapter 1 of the same Title. Art. 74. The property relationship between husband and wife shall be governed in the following order: (1) By marriage settlements executed before the marriage; (2) By the provisions of this Code; and (3) By the local custom. (118)"106 The law recognizes that the property relation between spouses may be set by express agreement through a proper and valid marriage settlement. Article 77 prescribes the conditions for the validity of a marriage settlement that it must be in writing, signed by the parties, and made prior to the celebration of marriage.107 Generally the parties may stipulate
102 103
Salonga p. 289 Tenchavez vs. Escano, 15 SCRA 355. Agpalo p. 329 101 Agpalo
100
Agpalo Coquia p. 275 Salonga p. 300 105 Article 57 of the FC 106 Article 74 of the Family Code 107 Article 77 of the Family Code
104
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Scoles 91 N.M. 339, 573 P.2d 1194 (1978) Scoles 114 Coquia
112 113
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MARITAL PROPERTY AS CONFLICT OF LAWS ISSUE When we speak of Marriage as a conflict of laws issue, it inevitably touches upon property relations since in every legal system, marriage has an important impact on the property rights of the husband and wife. 116 From the time of the celebration of the marriage the law recognizes property regimes that begins to govern their property relation.
Scoles 479 116 Scoles
ibid ibid 479 Hague Convention on the Law Applicable to Matrimonial Property Regimes, Arts 4,6, 7 (1976), 25 Am J Comp. L. 394, 395-96 (1977) 120 ibid.
119
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persons who may contest the legitimacy of a child, prescribing the rights of legitimate children, and providing for proof of filiation, are properly applicable. Presumptions of legitimacy governed by the national law of the male parent Light may be shed by the law that provides that presumptions of legitimacy are not mere rules of evidence, they are rules of substantive law; presumptions are the very substance of legitimacy cases Art. 10 of the NCC, by virtue of which the national law of the persons whose succession is in question governs all questions in respect to the order of succession, the amount of successional rights, and the intrinsic validity, of testamentary provisions, whatever may be the nature of the property and the country in which it is found was seemingly overlooked. DETERMINATION OF LEGITIMACY OF A CHILD133 As per Philippine Law Article 163 to 165 of the Family Code on Paternity & Filiation. The personal law of the illegitimate child is governed by the national law of the mother. If later legitimated, personal law of the child follows that of the father. Under Common Law, the rule that children born within lawful wedlock are legitimate had been modified in many states by statute which may provide that the offspring of certain invalid marriages shall be legitimate. Those born illegitimate can be legitimated by events occurring after their birth such as marriage of their parents or some form of recognition on the part of one or both. The difference in states raises the choice of law problems for it may be possible that the child is legitimate to a parent yet illegitimate to the other. Second Restatement on legitimacy of the American Law Institute provides: Section 287. Laws governing legitimacy (1) the child will usually be held legitimate if this would be his status under the local law of the state where either (a) the parent was domiciled when the childs status of legitimacy is claimed to have been created or (b) the child was domiciled when the parent acknowledged the child as his own Section 288. Incidents of Legitimacy Created by Foreign Law a state usually gives the same incidents to a status of legitimacy created by foreign law under the principles stated in Sec 287 that it gives to the status when created by its own local law. / Persons legitimated under the principles stated in Sec 287 will usually be permitted to inherit land in the state of the forum to the extent, and under the same circumstances, as those legitimated under the forums local law LEGITIMATION DEFINITION - The subsequent marriage of the childs parents otherwise called legitimation per subsequens matrimonium, recognition of the child by the father or legitimation per rescriptum principis, or by such conduct of public repute on the part of the parent which may be considered sufficient to elevate a child to the status of legitimacy134 relates back to the birth of the child. Other laws, only from the time of legitimation. Blacks 135 provides that legitimation is the making legitimate or lawful that which was not ordinarily so; especially the statutory procedure of legalizing (legitimating) the status of an illegitimate child. Such is usually necessary to assure inheritance rights to the child. THEORIES As provided by Padilla, 136 Theories concerning legitimation are:
133 134 135
Salonga, 329. Blacks Law Dictionary (6th ed.) p.901 JOSEPH H. BEALE, A TREATISE ON THE CONFLICT OF LAWS (1995) 124 Id. 125 Adams v. Adams, 154 Mass. 290, 28 N.E. 260, 13 L. R.A. 275 (1891) 126 Olmsted v. Olmsted, 190 N.Y. 458, 83 N.E. 569, 123 A.S.R. 585 (1908) 127 Adams v. Adamss, 154 Mass. 290, 28 N.E. 260, 13 L.R.A. 275 (1891) 128 JORGE COQUIA AND ELIZABETH AGUILING-PANGALANGAN, CONFLICT OF LAWS: CASES, MATERIALS AND COMMENTS (1995 edition) 129 Salonga, 329. 130 Coquia and Elizabeth Aguiling-Pangalangan. 131 NCC Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (9a) 132 JORGE COQUIA AND ELIZABETH AGUILING-PANGALANGAN, CONFLICT OF LAWS: CASES, MATERIALS AND COMMENTS (1995 edition)
Coquia and Elizabeth Aguiling-Pangalangan. Salonga, 329. Blacks Law Dictionary (6th ed.) p. 901
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Legitimate or Legitimated Child and Parents143 The personal law of the father refers to the national law of the domiciliary law depending on the theory followed by the particular legal system. Except for immovable properties of the child which may be regulated by lex situs, the personal law of the father governs. According to some civil law writers: personal law of the child should prevail, the argument being that it is the welfare of the child that should be considered of prime importance. This is not an argument for the outright application of the childs national law since it may even be less favorable to the child than the fathers national law. A posed Symmetrical solution is the Greek Civil Code providing for the relation between legitimate parents and their children dependent as follows: The national law that was last common to the father and the child In the absence of such, upon the law of the father at the birth of the child If the father is dead, upon the last law common to the mother and the child In the absence of such, upon the law of the mother at the death of the father Legitimacy once created under the personal law of the parent, either by the birth of the child or by legitimation is a permanent status. The nature and extent of the rights and duties, may be modified by a change of the personal law deemed to be decisive for the childs status. The childs legitimacy is immutable; but the incidents of his status are mutable. COMPARATIVE ANALYSIS OF LEGITIMACY AND LEGITIMATION144 Status Legitimation may occur pursuant to several acts of the parent after birth. The subsequent marriage of parents is recognized as such an act in all of the states in the United States;145 however, in many states, acknowledgment of paternity is also required. Acknowledgment without marriage is sufficient in some states although the necessary form of acknowledgment varies greatly. From such variations it becomes relevant to determine what states law is significant in determining whether a child is to be treated as having the character of legitimacy. Domicile has a significant interest in the resolution of legitimacy cases. Where neither parent nor child is domiciled in the sate by the law of which legitimation is claimed to have occurred, the child usually would be treated as illegitimate.146 Where the parent and the child have been domiciled in a state from the time of the childs birth, legitimation of the child according to the law of the state147 will be recognized everywhere.148 If the acts relied upon for legitimation are insufficient by the law of both parties at all times, legitimacy will not result.149 However, the child may still claim the right of inheritance without legitimation. An act sufficient for legitimation by the law of the fathers domicile legitimates the offspring.150 Conversely, the law of the childs domicile should suffice to legitimate the child, particularly when the parent has acknowledged the child in a manner or form sufficient under the laws. The underlying reason is that the status of legitimacy is to be preferred to that of
143
Padilla, 187. 137 Salonga, 329. 138 Beale. 139 Id. 140 Id. 141 Id. 142 Beale.
Salonga, 329. EUGENE F. SCOLES AND PETER HAY, CONFLICT OF LAWS (1992 Second Ed.) p. 553 Krause, Illegitimacy, p. 14 to 17 146 Smith v. Kellys Heirs, 23 miss. 167, 55 Am.Dec. 87 (1851); Eddie v. Eddie, 8 N.D. 376, 79 N.W. 856 (1899) 147 Estate of Baker, 105 Misc.2d 365, 432 N.W.S.2d 78 (1980) 148 Peirce v. Peirce, 379 Ill. 185, 39 N.E.2d 990 (1942); Scott v. Key, 11 La.Ann. 232 (1956) 149 In re: Bassis Estate, 234 Cal.App.2d 529, 44 Cal.Rptr. 541 (1965) 150 Restatement, Second, Conflict of Laws. Sec. 287; Pfeifer v. Wright, 41 F.2d 464 (10th Cir. 1930)
144 145
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At common law, an illegitimate child inherited from no one; by statute, however, most states granted inheritance rights to such a child with respect to its mother, but rarely as against the father.162 A number of decisions by the United States Supreme Court have now substantially equalized the rights of the illegitimate and legitimated children. According to Levy163 and Glona164, the court permitted children born out of wedlock to sue in wrongful death for the loss of their mother and , likewise, for a mother to bring such an action for the loss of her child. Lower court decisions interpreted Levy and Glona to require equality between marital and nonmarital children in their legal relationship with their fathers,165 as well as mothers including inheritance rights. A different question arises in the case of testate succession. Since the testator was free to provide or not to provide for any of his children, the testators use of the words children or issue must therefore be construed to include or to exclude children born out of wedlock. At least tin the case in which the testators paternity was established in his lifetime, the principles of Lalli v. Lalli166 would seem to require an inclusive construction.167 The same result should obtain when state law grants children: a statutory share or support allowance. ADOPTION DEFINITION Adoption has been defined as the process which creates the relation of parent and child between persons who are strangers in blood.168 The Second Restatement defines adoption as: the process whereby the adoptive parent is substituted for the natural parents.169 However, as pointed out by Salonga, such definitions do not encompass adoptions by parents of their own children. Pursuant to this, he gives a more accurate definition: an act which renders a child legitimate in relation to the adopting parents, to whom the child may or may not be related.170 1. To effect an adoption, there must be a formal legal act or process, and not simply by contract or compromise. Authors further emphasize this when they state that since adoption is unknown in common law, it can only be effected by strict compliance to the terms of some statute.171 2. The relationship created makes the adoptee a legitimate child of the adopter(s); and, such relationship is strictly bound between such parties only by legal fiction. 3. Adoption is seen as to affect the status of the said parties; hence, governed by lex domicilii.172 These inferences make one to conclude that a conflict of laws issue would arise when the prospective adopters and adoptee are domiciled in different states. In such a case, there is an issue with respect to (1) choice of law, (2) the courts jurisdiction to grant an adoption, and (3) effects of adoption. CHOICE OF LAW
Krause, Equal Protection for the Illegitimate, 65 Mich. L. rev. 477, 487 (1967) Levy v. Leouisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) Glona v. American Guarantee & Liability ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968) 165 Krause, Child Support in America: The Legal Perspective 124 and 119 et seq. (1981) 166 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978) 167 Restatement, Second, Conflict of Law Sec. 288 168 Eugene F. Scoles and Peter Hay, Conflict of Laws 559 (1992 Second Ed.); Herbert F. Goodrich and Eugene F. Scoles, Conflict of Laws Hornbook Series 288 1964. 169 Introductory Note, Second Restatement, Section 298 170 Salonga, 329. 171 Beale, 713. 172 Coquia and Elizabeth Aguiling-Pangalangan, 292.
163 164 162
Restatement, Second, Conflict of Laws. Sec. 287; In re Spanos Estate, 49 N.J. 263 152 216 U.S. 386, 30 S.Ct. 292, 54 L.Ed. 530 (1910) 153 Restatement, Second, Conflict of Laws, Sec. 288, the rule applies equally to succession to land and to personality. 154 26 Cal.2d 472, 159 P.2d 643 (1945) 155 234 Cal.App.2d 529, 44 Cal.Rptr. 541 (1965) 156 234 Cal.App.2d at 553, 44 Cal.Rptr. at 555 (1965) 157 234 Cal.App.2d at 55o, 44 Cal.Rptr. at 553 (1965) 158 Blacks Law Dictionary (6th ed.). p. 747 159 Home of Holy Infancy v. Kaska, Tex., 397 S.W.2d 208. 160 Salonga, 329. 161 EUGENE F. SCOLES AND PETER HAY, CONFLICT OF LAWS (1992 Second Ed.)
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In support for the concurrent jurisdiction, some writers assert that the best interest of the child cannot be prejudiced by parties the inability to find a court with proper jurisdiction. As asserted by Scoles:179 Adoptions at the domicile of the child, through voluntary acts of the adopting parents performed there, has been held valid both in the state of adoption180 and elsewhere,181 even where the adoptive parents had no domicile within the state. Decisions denying jurisdiction to adopt upon these facts182 seem to be based upon interpretation of a particular statute, rather than upon any general principle of jurisdiction. Beale, on another perspective on the matter of jurisdiction, asserts that the action must be with the domicile shared by both potential adopters and adoptee. This is founded on the effect of adoption, the change of status between the parties. It is only the court with jurisdiction over both parties that may alter their respective statutes.183 However, based on the discussion on jurisdiction, Beale seems to center more on the change of status rather than the would-be adoptees best interest. EFFECT OF ADOPTION Governing Law The effect of an adoption depends on two orders depending on which law governed the creation of adoption: (1) if the adopters personal law effected the adoption, the same law governs the effects of adoption; (2) if the adoptees personal law effected the adoption, such law shall cease to govern the adopter-adoptee relationship, yielding to the adopters personal law to govern the effects of adoption.184 The question of the decrees effect arises most often in the context of succession and is governed by the law applicable to the succession, i.e., in most cases the law of the decedents domicile at death. In most cases, the decree will have the same effect as a local decree.185 In Succession In some jurisdictions, a decree of adoption extinguishes all successional rights prior to the said decree and vests it with the adopter. This is present in English law and many United States state laws. Other jurisdictions limit the said effects of adoption. This is present in the Philippines where the Family Code and Adoption Statutes provide the effects of an adoption decree. Despite the varying difference between states, practically all legal systems makes the child legitimate in relation to the adopting parents.186 The effects adoption is separate and distinct if made into a substantial issue in a given controversy. Succession is one such case whether or not an adoptee may inherit from his biological parents. The effect of an adoption is also in issue when the adopted child claims inheritance rights from its natural parents. Again, the issue will be decided by the applicable local succession law.187 With respect to the substantive issue, the courts are split: some view the adoption
179 180 181
Eugene F. Scoles and Peter Hay, Conflict of Laws 560 (1992 Second Ed.); Goodrich and Scoles, 289. Scoles citing Appeal of Wolf, 13 A. 760, 10 Sad. 139 (Pa. 1888). See Martinez v. Reed, 490 So.2d 303 (La.App. 1986) Scoles citing Van Matre v. Sankey, 148 Ill. 536, 36 N.E. 638 (1893) 182 Scoles citing Foster v. Waterman, 124 mass. 592 (1878) 183 Beale, 714. 184 Coquia and Elizabeth Aguiling-Pangalangan, 292. 185 Scoles citing Matter of Estate of Chase, 127 A.D.2d 415, 515 N.Y.S.2d 348 (1987) 186 Salonga, 329. 187 Scoles citing Pazzi v. Taylor, 342 N.W.2d 481 (Iowa 1984) (law of decedents domicile at death governs issue whether natural son, adopted by stepfather out-of-state, inherits)
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remedies to maintain the adoptee with the natural parents or guardian, if known; thus, requiring the latter to undergo counseling and to provide consent for the proposed adoption. Finally the paramount consideration is emphasized by requiring the would-be adopters to submit documents, such as certifications: (a) to allow the adoptee to enter the country of the adopter; (b) to show the adopters capacity to adopt in his own country; and, (c) by the government or appropriate office or agency that the adopter is able to discharge emotional, financial and psychological parental authority over the adoptee.197 It would appear that the Philippines adheres to both the personal laws of the would-be adopter and adoptee, while applying the forums procedural law. As mentioned by Scoles, there is diversity in requisites for adoption. In the PhilippinesAs held in Armstrong v. Manzo,198 failure to notify or obtain the consent of the natural parents of the adoptee is a serious defect to the proceeding. Capacity of Aliens to Adopt The current adoption law has reverted to the former policy, favoring alien capacity, to wit: Section 4(2). Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided, further, That the requirements on residency and certification of the aliens qualification to adopt in his country may be waived for the following: a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or one who seeks to adopt the legitimate child of his Filipino spouse; or one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.199 In the event the foreigner would be adopter, formerly a Filipino citizen, would want to adopt a Filipino relative by consanguinity, it has been held that the courts are justified in applying Philippine laws with respect to procedural and substantial issues.200
safeguard the biological parents from making hasty decisions in relinquishing their parental authority over their child; prevent the child from unnecessary separation from his biological parents; conduct public information and educational campaigns to promote a positive environment for adoption; ensure that government and private sector agencies have the capacity to handle adoption inquiries, process domestic adoption applications and offer adoption-related services including, but not limited to, parent preparation and postadoption education and counseling; vi. encourage domestic adoption so as to preserve the childs identity and culture in his native land, and only when this is not available shall inter-country adoption be considered as a last resort; and vii. protect adoptive parents from attempts to disturb their parental authority and custody over their adopted child. Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared so as to establish the status of the child as legally available for adoption and his custody transferred to the Department of Social Welfare and Development or to any duly licensed and accredited child-placing or child-caring agency, which entity shall be authorized to take steps for the permanent placement of the child. 197 Republic Act No. 8552; AM No. 02-06-02-SC dated July 31, 2002 198 Armstrong v Manzo, 380 US 545, S. Ct. 1187 (1965). 199 Republic Act No. 8552; AM No. 02-06-02-SC dated July 31, 2002 200 People v Toledano, G.R. No. 94147, June 8, 1994.
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With regard to Citizenship Philippine courts have declared that adoption relates to a civil right and does not affect changes in the political rights of the adopted child including the childs eligibility to acquire the citizenship of the adopter. 210 Adoption is not a means to acquire or dispense ones Filipino citizenship.211 With regard to Succession and Inheritance Philippine law follows the national law of the decedent for succession purposes: intestate and testamentary succession, both with respect to the order of succession and to the amount of succesional rights shall be regulated by the national law of the person whose succession is under consideration, regardless of the nature of the property and regardless of the country wherein said property may be found212 The succession of the adopted child to the estate of the adopters depends on where the forum is situated. If presented to Philippine courts, Article 16 of the New Civil Code shall be made applicable. The same rule applies when the adopted claims an inheritance from his natural parents. On this point, there is a divergence of opinions: On one hand, it is stated that the adopted is an intestate heir to his biological parents by express provision of law. Section 16 of the Domestic Adoption Law merely ceases the natural parents parental authority and vests it to the adopters. Such provision cannot be considered as an implied repeal of Articles 189-190 of the Family Code;213 On the other hand, it is also stated that the reciprocal rights and obligations to the biological parents have ceased and is established with regard to the adopters.214 Thus, the only manner in which the adoptee and his biological parents may inherit from one another is through testamentary disposition. As Salonga points out, the effect of harmonizing these two provisions yield to a dual gain for the adopted. He may inherit both from his adoptive and natural parents.215 SUCCESSION In Philippine jurisdiction the term succession has been defined as the mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. 216 A conflict of laws situation arises where there is a foreign element involved in a succession problem, as illustrated by this situation: Eulogio Lopez, a Filipino businessman, dies domiciled in California. He leaves real and personal properties in various places: a house and lot in California, big parcels of land in Metro Manila and suburbs, substantial shares of stock in a number of multinational corporations, and considerable bank deposits in Manila and New York. 217
Coquia and Elizabeth Aguiling-Pangalangan, 297. Ching Leng v Galang, G.R. No. L-11931, October 7, 1958 New Civil Code, Article 16. 213 Ibid. 214 Republic Act No. 8552, Domestic Adoption Law of 1998 Sec. 18. Succession. In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. 215 Salonga, 334-335. 216 New Civil Code, Article 774. 217 Salonga, 503.
211 212 210
Republic Act No. 8552; AM No. 02-06-02-SC dated July 31, 2002 AM No. 02-06-02-SC, Section 26. Agpalo notes that temporary absences for professional, business, health or emergency reasons not exceeding 60 days in one year does not break the continuity requirement. He notes further that the law states residence thus the foreign would-be adopter need not be domiciled in the Philippines. Ruben E. Agpalo, Conflict of Laws (Private International Law) 292 (2004 ed.). 204 Republic Act No. 8552; AM No. 02-06-02-SC dated July 31, 2002: Section 4(2) (2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided, further, That the requirements on residency and certification of the aliens qualification to adopt in his country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate child of his Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse. 205 G.R. No. L-16922, April 30, 1963. This case law has been superseded by the Child and Youth Welfare Code or PD 603. 206 G.R. No. L-15472, June 30, 1962 207 Salonga, 333-334. 208 Mercida v Aglubay, 12 SCRA 1033 (1962) 209 Ruben E. Agpalo, Conflict of Laws (Private International Law) 278 (2004 ed.).
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Applying the split system to Eulogios problem, the land in California will be regulated by California law while the land in the Philippines will be regulated by Philippine law. The personalty will be regulated by law of his last domicile, that is, California law.
SUCCESSIONAL RIGHTS AND CAPACITY TO SUCCEED Philippine Conflicts Rules In intestate and testamentary successions, the national law of the decedent governs the order of succession, amount of successional rights and intrinsic validity of testamentary provisions, whatever may be the nature of the property and regardless of the country wherein said property may be found228, as well as capacity to succeed.229 The rights to the succession of a person are deemed transmitted from the moment of death. The Philippine view that the entire property of the deceased passes directly to the heirs, testate or intestate, has its origin in Roman Law and is observed in civil countries in Europe 230 Civil law and common law conflicts rules Under the common law system, in so far as personalty is concerned, distribution of the decedents property is governed by the law of the last domicile of the decedent at the time of death.231 As regards immovable property, the proper law is the lex situs.232 Moreover, in English law, no such transmission of successional rights upon death occurs. The only person entitled to deal with the property is he who has been granted the right of administration by public authority i.e., either the executor or administrators.233 CAPACITY TO SUCCEED Philippine Conflicts Rules Article 1039 of the Civil Code provides that capacity to succeed is governed by the national law of the decedent. Persons not incapacitated by law may succeed, be it by will or by intestacy.234 In order to be capacitated to inherit, paragraph 1 of Article 1025 of the Civil Code provides that the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. However, a child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in Article 41.235 The national law of the decedent governs such questions as to whether a given person is unworthy to succeed on the ground of certain crimes committed by him against the deceased, whether a corporation or an unborn child can acquire property by succession, and whether an heir can validly renounce his rights to succession by a solemn agreement of renunciation executed between the heir and the deceased during the latters lifetime. 236
New Civil Code, Art. 16 (2). Id, Art. 1039. Salonga, 518. 231 Minor, 328 as cited in AMBROSIO PADILLA, CONFLICT OF LAWS (PRIVATE INTERNATIONAL LAW) OF THE PHILIPPINES 263 (1976 edition). 232 Padilla, 264. 233 Salonga, 518. 234 New Civil Code, Art. 1024 (1). 235 Article 41 of the Civil Code provides: Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a) 236 Bellis v. Bellis 20 SCRA 358.
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7 SCRA 1957. Restatement of Law, p. 329 as cited in Padilla, 265. Goodrich, 377 as cited in Padilla, 279. 240 Beale, 1036. 241 Agpalo, 167.
New Civil Code, Arts. 804-809. Id, Art. 810. Salonga, 518. 245 New Civil Code, Art. 795. 246 Article 15 of the Civil Code provides: Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (9a) 247 New Civil Code, Art. 796 . 248 Id, Art. 797. 249 Id, Art. 798. 250 Art. 17 par. 1 of the Civil Code provides: Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. 251 Salonga, 519. 252 Padilla, 281. 253 New Civil Code, Art. 815. 254 Art. 17 Civil Code provides: Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a) 255 New Civil Code, Art. 816. 256 Id, Art. 817.
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Minor, 344 as cited by Padilla, 280. Minor, 136-137 as cited in Padilla. Beale, 171 Padilla, 280. 260 129 SCRA 522 (1984). 261 20 SCRA 358 (1967).
Miciano v. Brimo 50 Phil 867. New Civil Code, Art. 818. A joint will is one document which constitutes the wills of two or more individuals and is prohibited for several reasons: limitation on the modes of revocation, diminution of testamentary secrecy, danger of undue influence (RUBEN F. BALANE, JOTTINGS AND JURISPRUDENCE IN CIVIL LAW (SUCCESSION) 141 (Revised Edition 2000). 265 New Civil Code, Art. 819. 266 Coquia and Elizabeth Aguiling-Pangalangan. 267 Balane, 41. 268 Art. 2263. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. (Rule 12a) 269 Minor, 335 as cited in Padilla, 291; Beale, 1034. 270 Goodrich and Scoles, 332.
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Civil law and common law conflicts rules In the US, the will of a decedent will customarily be admitted to probate and an executor or administrator appointed in a state where the decedent was domiciled at the time of his death; or where there are assets of estate at the time of the decedents death or at the time of the appointment of the executor or administrator. 286 The principal place of probate and administration of the will of a testator is normally at his domicile where the family and property interests center and usually those most concerned with the decedents estate are located.287 Furthermore, a will admitted to probate at the domicile of the decedent will be recognized as valid elsewhere as to disposition of movables. Probate of a will in a state other than the domicile of the decedent may be conclusive elsewhere as to the disposition of property in that state.288 The denial of probate elsewhere than at the domicile of the testator will govern as to its effect upon property in the state denying probate, but will not, in absence of litigation, affect the question of the validity of the
Padilla, 291; Goodrich and Scoles, 326. Agpalo, 168. 273 New Civil Code, Art. 830. 274 Coquia. 275 Goodrich and Scoles, 337. 276 Restatement of Law, Sec. 250, p. 334 as cited by Padilla, 293. 277 Coquia. 278 Id. 279 Goodrich and Scoles, 340.
Salonga, 523. Id 524. Id 525. 283 Rule 77 Sec. 1. Will proved outside Philippines may be allowed here. - Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines. 284 Sec. 3 Rule 77 of the Rules of Court. 285 Agpalo, 172. 286 314 US Restatement of the Law, Second, Conflict of Laws 2d, as cited in Agpalo. 287 Goodrich and Scoles, 340. 288 Id.
281 282
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Interpretation of Wills Philippine conflicts rules Under all legal systems, interpretation of wills is a process of ascertaining the meaning which the testator intended his words to convey. However, it is the means employed in order to achieve this objective where the differences arise. 291 Interpretation is governed by the rules of interpretation of the decedents national law. If the terms are clear and unambiguous, the lex intentionis of the party should be followed . In case of ambiguity, the intention of the party or the exact meaning he may have ascribed to them can be inferred by referring to the context of the instrument itself or the testators contemporaneous and subsequent acts in keeping with the nature and object of the document.292 If there is still no absolute assurance as to the intention, settled presumptions of law may be resorted to.293 If a testamentary provision admits of different interpretations, in case of doubt, that interpretation by which the disposition is to operative shall be preferred.294 The will is to be interpreted as a whole so that every expression may be given effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy.295 Civil law and common law conflicts rules In interpreting wills, the intention of the person using the language must be ascertained and followed.296 However, there are authorities that with respect to real property, the lex situs governs the interpretation.297 In the US, if a will of a person domiciled in an English-speaking country is written in a foreign language, the technical meaning of the foreign words must be taken into consideration, though the domiciliary usage prevails after the actual meaning of the foreign language has been fixed. 298 Where the domicile of the testator was in one state when the will was
289
Id at 342. 290 Coquia, 491. 291 Id. 292 Coquia, 486. 293 Id at 487. 294 New Civil Code, Art. 788. 295 Id, Art. 791. 296 Minor, 338, as cited by Padilla, 292; Goodrich and Scoles, 329. 297 Minor, 338-341, Id. 298 Beale, 1039; Goodrich and Scoles, 335.
Goodrich and Scoles, 335. Goodrich and Scoles, 331. Balane, 23. 302 New Civil Code, Art. 960. 303 Id, Art. 961. 304 Id, Art. 962. 305 Goodrich and Scoles, 323. 306 Id.
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Revocation
personalty law of last domicile of the decedent at the time of his death
Capacity to succeed
law in force at the time it is made (Art. 795CC) testamentary capacity national law of the decedent (Art. 15 CC) General rule: where executed (Art. 1 par. 1 CC) Exceptions: by Filipino in foreign country - country in which he may be (lex celebrationis) (Art. 815CC) by alien abroad (Art. 816CC) lex domicilii (resides) lex national Civil Code of the Philippines by alien, made in the Philippines (Art. 817CC) national law lex domicilii Civil law proper law: national law Common law proper law: domicile law personalty law of last domicile of the decedent at the time of his death immovable lex situs Probate
US: principal place domicile at the time of the decedents death ALSO: where his assets may be found will may be probated outside the Philippines (Rule 77 Sec. 1 Rules of Court) will may be reprobated in the Philippines personalty immovable will admitted to lex situs probate at the last domicile is valid everywhere with respect to the movable property US: foreign words must be taken into consideration domiciliary usage prevails if the testator changed his domicile after the execution of the will: former domiciles interpretation (where will was executed) prevails personalty law of last domicile of the decedent at the time of his death US: personalty law of last domicile of the immovable lex situs
if clear and unambiguous: no more need for interpretation otherwise: ascertain the testators intention through the context of the instrument, contemporaneous acts, settled presumptions e.g. interpret the will as a whole to prevent intestacy national law of the decedent
Interpretation
English and American rule: national law of the decedent (Art. 16 par. 2 CC) Intrinsic validity of wills Miciano v. Brimo Bellis v. Bellis Cayetano v. Leonidas personalty law of last domicile of the decedent at the time of his death immovable lex situs Intestate
unitary system
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The national law of the decedent mentioned in Art. 16 par. 2 CC is Section 946. This provision contains the conflicts rules of California which authorizes reference to the law of the testators domicile. The Philippine court, therefore, must apply its own law, especially since there is no legitime for children under California law. Miciano v. Brimo FACTS: Joseph Brimo is a Turkish citizen, residing in the Philippines, with properties in the Philippines. He executed a will in accordance with Philippine law. In his will, he imposed a condition to respect his wish to distribute his estate using Philippine law; otherwise, legatees will be prevented from receiving their legacies. The judicial administrator filed a scheme of partition. Brimos brother, Andre, opposed it but did not prove that the testamentary provisions are not in accordance with Turkish law. He argued that the will is not in accordance with Turkish law, the law of the nationality of the testator Joseph Brimo. ISSUE: WON the Philippine law applies according to the testators intent notwithstanding the Civil Code provision that the national law of the decedent applies. HELD: The Philippine law does not apply. The national law of the decedent, Turkish law, governs. The national law of the decedent, Turkish law, governs. Under then Article 10 of the old Civil Code (now Art. 16 CC), the national law of the decedent governs the intrinsic validity of the will. Here, the national law of Brimo, Turkish law, governs. However, Andre did not prove that the testamentary provisions are not in accordance with Turkish laws. Therefore, it is assumed that Turkish law is the same as Philippine law. The condition that the will shall be implemented following Philippine law) is contrary to law i.e., Article 10 of the old Civil Code. Hence, it is considered as not written. Bellis v. Bellis FACTS: Amos G. Bellis was born in Texas, a citizen of Texas and US, and a resident of Texas when he died. His first wife was Mary (whom he divorced), with whom he had 5 legitimate children. His second wife is Violet, with whom he had 3 illegitimate children and 3 legitimate children. He executed 2 wills: one that involves his Texas estate, the other involves his Philippine estate. Under Texas law, there are no legitimes. His will contained the following dispositions: (a) $240K to his first wife Mary; (b) P120K to his 3 illegitimate children by his second wife Violet (P40K each); (c) remainder of his estate to his 7 surviving children in equal shares. Amos will was admitted to probate in CFI Manila. The executor, Peoples Bank & Trust Co. paid all bequests, submitted and filed its Executors Final Account, Report of Administration and Project of Partition. Two illegitimate children opposed, arguing that the will deprived them of their legitimes. The lower court approved the project of partition. The two illegitimate children further argued that Article 17 par. 3 CC prevails as an exception to Art. 16 par. 2 CC. Art. 17 par. 3 provides: Prohibitive laws concerning persons, their acts or property, and those which have for their
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307
Thomas v Morristown State Bank, 53 S.D. 499, 221 N.W. 257 (1928)
Salonga, 527 Fowle v Code, 63 Me. 245 (1871) Johannes v. Harvey 43 Phil 175 (1922) 311 Salonga, 528 312 Beale, 1445 313 Salonga, 527 314 Id 315 Philippine Rules of Court, Rule 78 Sections 1 and 4
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Connors v Cunard S.S Co., 204 Mass 310, 90 N.E. 601 (1910) Finnerty v Shad, 210 Ia. 1338, 228 N.W. 886 (1930) Salonga, 527 319 Tayag v Benguet Consolidated, GR No. 1-23145, November 29, 1968 320 Fletcher v Sanders, 7 Dana 345, 249 (Ky 1838) 321 Stevens v Gaylord, 11 Mass 256 (1814)
Salonga, 528 Crescent C.I. Co. v Stafford, 3 Woods, 94, 6 Fed. Cas No. 3387 (1877) Goodrich and Scoles, 350 325 Crescent C.I. Co. v Stafford, 3 Woods, 94, 6 Fed. Cas. No. 3387 (1877) 326 Goodrich and Scoles, 351
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Suit By and Against the Administrator In the Philippines, the law governing suits by and against the administrator is found in Rule 87 of the Philippine Rules of Court. In the Unites States, an administrator may sue in the state of his appointment to get in any claim due the estate. In the same way an administrator, even an ancillary administrator may be sued in his own state by a creditor from any other state. There is usually no need for a suit against an administrator in his state, since a claim against the deceased is to be proved in the probate court; only if it is disallowed by the probate court or referred by that court to another court does the creditor of an estate sue the administrator. But, the probate court cannot entertain a claim created after the death of the decedent, such as a claim on a contract made with the administrator, it must be brought against the administrator personally, and as it is not against him in his representative capacity it may be brought in any state in which he may be found.335 The general rule is that executors and administrators are not liable to actions as such in a state where they have obtained no letters of administration. Minor provided for some exceptions336 to this general rule, to wit: suit involves the assertion of his own right, rather one of the deceaseds e.g. when the executor has already obtained a judgment in the state of his appointment right of action accrues to the executor directly through his contract or transaction, and was not originally an asset of the estate in his charge if the executor appointed in one state removes with the assets to another state and misapplies the funds of the estate in a latter place in cases where executor and administrator qualifies in State where he sues or is sued The exceptions provided by the courts and statutes as summarized by Goodrich and Scoles337 are the following: on obligations incurred by the representative after the death of the decedent when he has assets of the estate there which he is wasting or converting to his own use when he has assets of the estate there which he is wasting or converting to his own use where he or the decedent has consented to the courts jurisdiction the trend is to further extend the liability to suit Suit by Foreign Administrator At common law a foreign administrator could not bring suit. This is often called an incapacity and that unless the incapacity is called to the attention of the court in due time and in the proper way the suit will be allowed to go on.338 However, there are some statutes in States in the United States that have given power to a foreign administrator to sue. Suit against Foreign Administrator No action will lie against a foreign executor or administrator. The reason usually given is the impossibility of enforcing a judgment. The judgment is by its terms payable out of the estate
335 336 337
Beale, 1497 Beale, 1463 Thomas v Sprague, 259 F. 338 (1919) 330 Matter of Rubens, 128 A.D. 628, 112 NYS 941, affd. 195 NY 527, 88 N.E. 1130 (1909) 331 Estate of Clark, 148 Cal. 108, 82 P. 760 (1905) 332 Thomas v Morrisett, 76 Ga. 384 (1885) 333 Philippine Rules of Court Article 77 Section 1 334 Salonga, 530
Beale, 1529 Minor, 235-236 Goodrich and Scoles, 365 338 Champlin v Tilley, 3 Day, 303, 5 Fed. Cas. No. 2568 (Conn 1809)
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surplus to the domiciliary administration.347 If debts remain in the ancillary state there can be no remission348 However, in several cases there has seemed sufficient reason on the facts for distributing a balance in the ancillary state. The most common reason is the presence of all legatees in the court, or their residence in the ancillary state.349 If to send the estate to the domicile will subject it to a heavy inheritance tax or death duty it will not be done. The administrator of another state, even the state of the domicile, has no right to demand the payment of a balance to him; until the court has ordered payment to him, has no standing. 350 But after the balance has been ordered paid to domiciliary administrator the ancillary state has no longer any claim to the assets, and the domiciliary administrator if necessary may maintain an action for it. A legatee has no right until the court orders distribution and until the will has been probated in the state. In case of overpayment to legatee or other party, there is a duty to pay the amount back to the estate in accordance with the law of the state where it occurred. Repayment may be enforced in any other state where there is an administrator.351 Receiver A receiver is an officer appointed by a court of equity primarily to preserve property or to sequester it for creditors. The receiver in order to preserve the property must be ordered to carry on the business. Receivers for the property of an individual or corporation may be appointed in several states. But it must be obvious that if business is to be carried on to preserve value, it must be done by one receiver, under the direction of a single court. There must then be one receiver at the head of the business, he is called the principal receiver. The appointment of the principal receiver would depend on the entity whose property it is to preserve. If it the entity is a corporation, the principal receiver is the one appointed in the state of incorporation though there is no property of the corporation in that state. If the entity is an unincorporated association, the principal receiver is the one appointed at the principal place of business. As for an individual, the principal receiver is the first one appointed. Nevertheless, the ancillary administrator may deal with the problems that arise in his own state without sending the question for decision to the principal state.352 The receiver may not exceed the powers granted to him by the court. While traditionally there is no privity between receivers of the same estate, even if the same person acts as both principal and ancillary receiver, more recent authority indicates that suits by or against one receiver are res judicata with respect to another receiver. Payment to a particular receiver will prevent other receivers from asserting claims against the debtor.353 The Philippine law on receivership is found in Rule 59 of the Rules of Court. Guardianship The general approach taken in conflict of laws problems in administration of estates of deceased persons are also applicable to estates under the control of guardians. A guardian occupies a fiduciary position and handles matters committed to his charge for the benefit of another. His function is to manage and conserve the property for the benefit of the ward
347 348 349
Beale, 1553 Id In re Cowhans estate, 220 Mich 560, 190 N.W. 680 (1922) 342 Lawrence v Nelson, 143 U.S. 215, 222, 36 L. ed. 130, 12 Sup. 440 (1891) 343 Beale, 1556 344 Morill v Morill, 1 All 132 (Mass. 1861). 345 Boston v Boylston, 2 Mass. 384 (1807) 346 Beale, 1561 - 1562
Thomas Kay W.M. Co. v Sprague, 259 F. 328 (1919) Hensley v Rich, 191 Ind 294, 132 N.E. 632 (1921) Harvey v Richards, 1 Mass 381 (1818) 350 Banta v Moore, 15 N.J. Eq. 97 (1862) 351 Beale, 1565 352 Beaver Boards Co. v Imbrie & Co., 282 F. 654 (1922) 353 Goodrich and Scoles, 385
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This is further emphasized in the context of citizenship. 2. Why the Filipino Fathers Personal Law Recognition of the Philippine Constitution Article IV of the 1987 Philippine Constitution recognizes that the following are citizens: Section 1. The following are citizens of the Philippines: [1] Those who are citizens of the Philippines at the time of the adoption of this Constitution; [2] Those whose fathers or mothers are citizens of the Philippines; [3] Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and [4] Those who are naturalized in accordance with law. Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced it. Firstly, the Constitution establishes that a child of either a Filipino father or mother are considered citizens. In this context, proving filiation to a Filipino father, thus allows such child a dual-citizenship status under Philippine law. Secondly, the Constitution likewise recognizes situations where in a Filipino woman may lose her status as a citizen due to her marriage to a foreigner. This is shown in section 4, Art. 4. Effect of Proving Filiation It has been held that the State has the right to decipher who are and arent its citizens. 358 This is manifested in Article IV of the 1987 Philippine Constitution. Corollary, the State has the privilege of deciphering how such citizenship may be acquired or lost, such as establishing naturalization procedures, and the recognition that adoption is not a means of acquiring citizenship. In the case of proving filiation: if successful, the child has the option of choosing his/her fathers citizenship. Depending on the fathers personal law, the child may automatically be a states citizen or hold dual citizenship until a certain age, usually the age of majority. In the Philippine context, proving filiation is an accepted means of acquiring Filipino citizenship as proven in par two of the 1987 Constitution, implemented by the Family Code above quoted. Corollary to the effects of such citizenship is (1) the acquisition of all rights, duties, abilities and privileges that are incidental to the acquired citizenship; and, (2) the determination of the childs personal law in other conflict issues relating to such him. To emphasize the latters importance: conflict issues decided by the personal law of the parties would be affected if the child, a party to the conflict issue, has acquired his fathers citizenship. Salonga points out that there will be difficulty when the father is a naturalized Filipino citizen:
358
According to Salonga, such privilege of the state is not absolute. It must be consistent with international treaties, international customs, and principles of law generally recognized with regard to nationality p 164
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CONTRACTS C/O: CHRIS GERONA, MACE WONG, INXS SINGSON, DINGDONG POQUIZ, ERIC BACSAL, PAUL IMPERIAL (Salonga, CHAPTER XVIII, 1995) CONTRACTS The fundamental policy in the broad local law of contracts is to give effect to the justified expectations of the parties. This is reflected in the strength of the view which attempts to carry out their intention. Underlying the conflict of laws policy in contracts is this same policy of the local law.360 When ambiguity exists with regard to what law parties intended, their intent normally can be given effect by a reference to the law that will sustain their agreement.361 Article 1159 of the Civil Code provides: Obligations arising from contracts have the force of law between the contracting parties and must be complied with in good faith. This provision, which was lifted from the Spanish Code, embodies the importance of upholding agreements entered into in good faith by the various parties. The traditional method in cases involving contracts with Conflict of Laws situation is for the forum either (1) to refuse to entertain the case on the ground of forum non conveniens, thus leaving the parties free to litigate elsewhere; or (2) deny enforcement of the contract and the foreign law that upholds it for being against its notions of public policy and morality.362 Law Governing Formalities State law may require a contract to be executed with certain formalities to be enforceable. The statuists led by Bartolus, maintained that the formalities of an act of transaction, such as a contract, should be governed by the law of the loci contractus and is derived from the broad proposition that the place governs the act, locus regit actum. There are two theories in support of loci contractus. The first is premised on the theory of sovereignty, whereas the
Salonga, pp 178-179. Scoles Scoles, citing Pritchard v. Norton, 106 U.S. 124, 1 S.Ct. 102 (1882) 362 Salonga, p. 274, Chapter 12
Salonga, p. 274, Chapter 12 Coquia, citing Goodrich, p 243, 244 Coquia 366 Stolenberg, 367 Stolenberg, citing Scudder v. Union National Bank, 91 U.S. 406, 23 L.Ed. 245 (1875) and Hall v. Cordell, 142 U.S. 116, 12 S.Ct 154, 35 L.Ed. 956 (1891) 368 Salonga, p. 274, Chapter 12 369 Salonga, p. 275, Chapter 12 370 Salonga, p. 274, Chapter 12, citing the Second American Restatement, Section 199; Sections 187, 188. 371 Scoles, citing Dicey Conflict of Laws 774 (7th ed. 1958); Cheshire, Private International Law 234 (6th ed. 1961)
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Philippine Law on Capacity to Contract In the Philippines ones capacity to enter into a contract is regulated by Article 15 of the Civil Code which states to wit: Laws relating to family rights and duties or to status, condition and legal capacity of persons are binding upon citizens of the Philippines even though living abroad. The common scenario dwelt into in Conflicts of Laws is: can a person otherwise disqualified to enter into a contract based on his status laws in his home country later repudiate a contract he entered into with a foreigner by simply raising such disqualification which the latter in good faith did not know of? One prevailing rule in the Philippines is that the doctrine of estoppel will prevent a minor from repudiating a contract by later alleging that he was not of age in contracting with a party that dealt with him in good faith. As to married women however, Article 39 of the Civil Code provides to wit: A married woman, 21 years of age or over, is qualified for all acts of civil life, except in cases specified by law. Furthermore, Article 165 of the Civil Code provides that the wife is incapacitated to bind the conjugal partnership without the husbands consent. It is therefore apparent that in cases wherein the wife enters into a contract wherein she is disqualified to enter into by Philippine law but otherwise capacitated in another country where she contracts with would arise a dilemma as to whether or not such a contract is valid. It is therefore the opinion of Salonga that Article 15 of the Civil Code has to be recast or the courts may limit its liability so as to arrive at a better result. A good model to follow may be found in the Geneva Conflicts Rules on Bills of Exchange and Promissory Notes of 1930. Under the said rules, the capacity of a person to bind himself by a bill of exchange is initially determined by his national law; but a person who lacks capacity under his national law is nevertheless bound, if his signature is given in any territory in which according to the law in force there, he would have the requisite capacity. The Swiss Code provides that an alien who enters into a transaction in Switzerland cannot plead his lack of capacity if he has the capacity under Swiss Law. As a way of reconciling the different viewpoints with respect to status and ones capacity to contract, Article 15 of the Civil Code would be best if limited by the courts by applying it only to agreements involving family rights and domestic relations and not to commercial transactions. The wording of the law supports such a proposition because again as worded, laws relating to family rights and duties or to status, condition and legal capacity of persons are binding upon citizens of the Philippines even though living abroad. Thus, the capacity of a person to enter into a contract commercial in nature should not be regulated by his personal law but rather by the law which governs the entire contract. Essential or Intrinsic Validity Essential or intrinsic validity refers to the nature, content, and effects of the contract. Furthermore, it refers to the essence and substance of the obligation. Article 1318 of the Civil Code states that the following requisites must concur for there to be a contract: (1) Consent of the contracting parties; (2) Object certain which is the subject matter of the contract; and (3) Cause of the obligation which is established.
Salonga, page 277, Chapter 12, citing Ehrenzweig, secs 174, 175, 176 373 Salonga, page 277, Chapter 12, citing Corbin, Contracts, sec. 293 374 Salonga, page 277, Chapter 12, citing Ehrenzweig, 471 375 Scoles 376 Salonga, page 279, Chapter 12 377 Scoles, p. 208 378 Scoles, citing Bank of Augusta v. Earle, 38 U.S.(13 Pet.) 519, 10 L.Ed. 274 (1839) 379 Scoles, citing Illinois Fuel Co. v. Mobile & Ohio R. Co., 319 Mo. 899, 8 S.W.2d 834 (1928)
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Coquia Salonga, page 287, Chapter 12, citing II Rabel, 370-371 Coquia, citing Grand v. Livingston, 4 App. Div. 589, 38 NYS 490 (1896) 383 Salonga, page 277, Chapter 12, citing Cheshire, 214
Scoles, citing Vanston Committee v. Green, 329 U.S.156, 67 S.Ct. 237 (1946) Scoles, citing the Second Restatement, 3326 Scoles, citing, Emery v. Burbank, 163 Mass. 326, 39 N.E. 1026 (1895)
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387 388
Jovito R. Salonga, Private International Law (1995) Ernst Rabel, The Conflict of Laws: A Comparative Study, 2nd edition (1958) Ruben Martinez vs. Court of Appeals, G.R. No. 131673, September 10, 2004 390 Companie de Commerce vs. Hamburg-Amerika, G.R. No. L-10986, March 31, 1917
389
Art. 2042 The same persons who may enter into a compromise may submit their controversies to one or more arbitrators for decision. Art. 2043. The provisions of the preceding Chapter upon compromises shall also be applicable to arbitrations. Art. 2044. Any stipulation that the arbitrators' award or decision shall be final, is valid, without prejudice to Articles 2038, 2039, and 2040. Art. 2045. Any clause giving one of the parties power to choose more arbitrators than the other is void and of no effect. Art. 2046. The appointment of arbitrators and the procedure for arbitration shall be governed by the provisions of such rules of court as the Supreme Court shall promulgate. 392 LM Power Engineering Corp. vs. Capitol Industrial Construction, G.R. No. 141833, March 26, 2003 393 Salonga 394 Javad Heydary, Anatomy of an IT Contract -- Choice of Law, Forum, Venue (2005) 395 Rafael S. Molina vs. Antonio de la Riva, G.R. No. L-2521, March 22, 1906
391
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Since 1934, the international air transportation of passengers has been governed primarily by the Warsaw Convention, a multilateral treaty governing international aviation, adhered to by the Philippines and by most other countries whose airlines have international routes. It is an international convention which regulates liability for international carriage of persons, luggage or goods performed by aircraft for reward. The Convention was originally signed in 1929 in Warsaw, was amended in 1955 at The Hague, and in 1975 in Montreal. The Convention was concurred in by the Philippine Senate, per Resolution No. 19, on May 16, 1950. The instrument of accession was signed by President Quirino on October 13, 1950 and became applicable to the Philippines on February 9, 1951. On September 23, 1955, President Magsaysay issued Proclamation No. 201, declaring the Philippines formal adherence to the Convention.400 Thus, by the principle of pacta sunt servanda, 401 the Warsaw Convention became binding to all the parties to the treaty including the Philippines.
Applicability of the Warsaw Convention The Warsaw Convention was designed to protect the then infant air industry and to alleviate the complexity of potential litigation in various States with conflicting choice-oflaw rules differing limits on damages that may be recovered. The Convention limits the available places of instituting suits and applies to all international carriage of persons, baggage, or goods performed by aircraft for hire, as that term is defined. It does not, however, apply to carriage of mail and postal packages.402 In order for the Warsaw Convention to apply, the passenger must be informed of this fact. Article III requires airlines to deliver to the passenger a ticket containing a "statement that the transportation is subject to the rules relating to liability established by this convention". Further, the ticket must be delivered in time to allow the passenger to take out insurance if he so desires. The Convention does not cover all possible questions or definitions. Among those not expressly defined are the definition of injury as including or excluding mental anguish caused by hijacking or flight delay, the definition of embarkation or disembarkation as extending to waiting room areas, the definition of willful misconduct which removes the limitation on damages, the contributory negligence defense, and the tolling of statutes of limitations. On these and other questions, the lex fori403 may provide the answer, which may lead to the applicability of a number of divergent laws.404 Where the passengers are residents and nationals of the forum and the ticket is issued in such State by the defendant airline, the court may justifiably apply the law of the forum in a suit covered by the provisions of the Warsaw Convention. In cases where the Convention does not apply, the validity of the contract of carriage as well as the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the State from which the passenger departs or
400 401
Salonga Scherk v. Alberto-Culver Co., 417 U.S. 506, 1974 Pakistan International Airlines vs. Hon. Blas Ople, GR No. 61594 September 28, 1990 399 K.K. Shell Sekiyu Osaka Hatsubaisho, et al. vs. Court of Appeals, G.R. Nos. 90306-07, July 30, 1990
Salonga Pacta sunt servanda, the Fundamental principle of the law of treaties, is the notion that every treaty in force is binding upon the parties to it and must be performed by them in good faith. 402 Article 1 and 2, Warsaw Convention 403 Law of the forum - law of the court in which proceedings are being conducted. In other words, it refers to the jurisdiction where the lawsuit in question has been instituted. 404 Salonga
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Liabilities Under the Convention Chapter III of the Warsaw Convention, as amended, regulates the liability of the carrier. Article 17 makes the carrier liable in the event of death or wounding of any passenger or any other bodily injury suffered by the passenger if the accident which caused the damage took place on board the aircraft or in the course of the operation of embarking or disembarking. Likewise, the carrier is liable for damage sustained in the event of loss of, or damage to, any checked baggage if the occurrence which caused the damage took place during the transportation by air a term which comprises the period during which the baggage or goods are in the charge of the carrier, whether in an airport or on board an aircraft or, in the case of landing outside of an airport, in any place whatsoever.406 The carrier is liable for damage occasioned by delay in the transportation by air of passenger, baggage or goods. 407 The Convention only applies to the air carrier and does not apply to the airplane manufacturer or component part manufacturer which may bear responsibility for the loss. Article 22 of the original Warsaw Convention limited the maximum compensation for the death of a passenger to approximately $8300 US. At the same time, it provided for unlimited liability if the damage was caused by the willful misconduct of the carrier or any of its employees. The amended Convention now limits the maximum compensation for injury or death to passengers on a journey to or from the United States to $75,000 US per passenger inclusive of legal fees and costs; if exclusive of legal fees and costs, the limit is $58,000 US. Liability up to such limit does not depend on the negligence on the part of the carrier. Where the journey is not to, from, or has no agreed stopping place in the United States, the liability of the carrier for death of or personal injury to passengers is limited in most cases to approximately $10,000 $20,000 US. Article 25, as amended, provides that the limits of liability specified in Article 22 will not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to case damage or recklessly and with knowledge that damage would probably result, provided that in such a case, it is proved that the servant or agent was acting within the scope of his authority. Alitalia vs. Intermediate Appelate Court 408 the Supreme Court held that the Warsaw Convention does not operate as an absolute limit of the extent of an airlines liability; it
The Montreal Convention The Montreal Convention is a treaty adopted by a meeting of ICAO409 member states in 1999. It replaced the Warsaw Convention's regulations concerning compensation for the victims of air disasters. Under the Montreal Convention, air carriers are liable for up to $135,000 per passenger in case of an accident, with unlimited liability if the carrier itself is at fault. The Convention also allows victims' families to sue foreign carriers in their own country of citizenship, and requires all air carriers to carry liability insurance. The Montreal Convention, will replace the Warsaw Convention system, once Montreal has been ratified by all States. Until then, however, there will be a patchwork of rules governing international carriage by air, as different States will be parties to different agreements (or no agreement at all). As additional countries ratify the Montreal Convention, it will ultimately replace the Warsaw Convention of 1929. Santos III vs. Northwest Airlines Facts: On October 21, 1986, Santos, a minor and a resident of the Philippines, purchased from Northwest Orient Airlines (NOA) a round-trip ticket in San Francisco, U.S. for his flight from San Francisco to Manila via Tokyo and back. The scheduled departure date from Tokyo was December 20, 1986. No date was specified for his return to San Francisco. On December 19, 1986, Santos checked in at the NOA counter in the San Francisco airport for his scheduled departure to Manila. Despite a previous confirmation and reconfirmation, he was informed that he had no reservation for his flight from Tokyo to Manila. He therefore had to be waitlisted. On March 12, 1987, Santos, through his father and legal guardian, sued NOA for damages in the RTC of Makati. NOA moved to dismiss the complaint on the ground of lack of jurisdiction, citing Article 28(1) of the Warsaw Convention, which provides that at the option of the plaintiff, an action for damages must be brought in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination. In February 1988, the lower court granted the motion and dismissed the case. Santos appealed to the Court of Appeals, which affirmed the decision of the lower court. A motion for reconsideration was denied. Hence, this appeal, which raises several questions, including the proper interpretation of Article 28(1) of the Warsaw Convention. Held: The Supreme Court, through Mr. Justice Cruz, held, among other things, that Article 28(1) is a jurisdiction and not a venue provision. Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be conferred by consent or waiver upon a court which
409
Salonga Article 18, Warsaw Convention Article 19, Warsaw Convention 408 Alitalia Airways vs. Court of Appeals, G.R. No. 77011, July 24, 1990
International Civil Aviation Organization (ICAO), an agency of the United Nations, develops the principles and techniques of international air navigation and fosters the planning and development of international air transport to ensure safe and orderly growth.
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were cancelled indefinitely because NAIA was closed. JAL rebooked them on flights due to depart on June 16. JAL paid for their unexpected overnight stay. Unfortunately, the June 16 flight was also cancelled. JAL informed the stranded passengers that it would no longer shoulder their expenses. The passengers stayed in Japan until the 22nd and were forced to pay meals and accommodations from their personal funds. The passengers filed an action for damages against JAL, claiming that JAL failed to live up to its duty to provide care and comfort to its stranded passengers when it refused to pay for their hotel and accommodation expenses from June 16 to 21. the unexpected eruption of Mt. Pinatubo. Held: JAL is cannot be faulted for a fortuitous event. However, JAL is liable for nominal damages. JAL is not liable for the expenses incurred by the passengers, since the reason why JAL was prevented from resuming its flight to Manila was due to the effects of the Mt. Pinatubo eruption, which was a fortuitous event. However, JAL is not completely absolved from liability. It must be noted that the passengers bought tickets from the US with Manila as their final destination. While JAL was no longer required to defray the passengers living expenses during their stay in Japan on account of the fortuitous event, JAL had the duty to make the necessary arrangements to transport the passenger on the first available connecting flight to Manila. JAL reneged on its obligation to look after the comfort and convenience of its passengers when it declassified them from transit passengers to new passengers, as a result of which they were obliged to make the necessary arrangements themselves for the next flight to Manila. Because of JALs failure to make the necessary arrangements to transport the passengers on its first available flight to Manila, an award of P100,000 as nominal damages, in favor of each passenger, is proper. Singapore Airlines Limited vs. Court of Appeals Facts: Sancho Rayos was an overseas contract worker who had a contract with Arabian American Oil Company (ARAMCO). As part of ARAMCOs policy, its employees returning to Saudi from Manila were allowed to claim reimbursement for amounts paid for excess baggage up to 50Kg as long as supported by receipt. Rayos took a Singapore Airlines (SLA) flight to Saudi with a 50Kg excess baggage for which he paid about 4K. ARAMCO reimbursed the amount upon presentation of the excess baggage ticket. Later, Rayos learned that he was being investigated by ARAMCO for fraudulent claims. He asked his wife in Manila to obtain a written confirmation from SLA the he paid an excess baggage of 50Kg. SLAs manager notified the wife of its inability to issue the certification because the records showed that only 3Kg were entered and charged as excess baggage. SLA issued the certification four months later, after the wife threatened it with a lawsuit. When the year ended, Rayos contract with ARAMCO was not renewed. Convinced that SLA was responsible for the non-renewal of the contract, the spouses Rayos filed an action for damages against SLA. SLA filed a third-party complaint against its handling agent PAL, claiming that the tampering was committed not by SLA but by PAL. PAL denied any participation in the tampering and attributed it to the SLA personnel. The lower court held SLA liable to the spouses for damages and ordered PAL as third party defendant to pay SLA whatever it will pay the Rayos spouses. Held: SLA is entitled to reimbursement from PAL, but only to the extent of one-half () of the amount that it paid to the Rayos spouses. PAL cannot be held solely liable for the satisfaction of the entire judgment. While the proximate cause of the nonrenewal of Rayos employment contract was the tampering of his excess baggage ticket by PALs personnel, the
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o o
o o o
For the purpose hereof If the originator or the addressee has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction or, where there is no underlying transaction, the principal place of business. If the originator of the addressee does not have a place of business, reference is to be made to its habitual residence; or The usual place of residence. in relation to a body corporate, means the place where it is incorporated or otherwise legally constituted. The Rules on Electronic Evidence thus give a presumption on the place where the transaction occurred. This is important in resolving conflict of laws because it determines the real seat of the transaction. Such determination may be the basis for Philippine courts to assume jurisdiction. It must be noted, however, that the determination is merely a presumption that is not conclusive and may give way to proof showing the contrary.
Enforcement of Foreign Contract Claims The enforcement of a foreign contract claim involves a process where a local court recognizes and enforces a foreign contract claim. To avoid possible confusion and to simplify litigation, the parties to such contracts usually include arbitration or choice-offorum clauses which would subject any litigation or controversy between the parties to a specified court or forum. In the absence of an effective choice, the state with which the contract has its most significant relationship could assume jurisdiction. Under Philippine rules of procedure, as long as the court can assume jurisdiction over the person of the defendant in what is essentially a personal action, then it has competence to hear and adjudicate the case. The Supreme Court demonstrated such assumption of jurisdiction in King Mau Wu v. Sycip,415 which involved a contract of agency executed in New York between plaintiff, a non-resident, and defendant, a resident of the Philippines. It was contended by the latter that as the contract was executed abroad, the Court had no jurisdiction over the case. The Supreme Court held that the contention was without merit because a nonresident may sue a resident in the courts of this country where the defendant may be summoned and his property leviable upon execution in case of a favorable, final and executory judgment. It is a personal action for the collection of a sum of money which Courts of First Instance have jurisdiction to try and decide. Whether jurisdiction is based on the presence or residence of the defendant in the forum or the existence of defendants property or business within the territory, or on the fact that the forum has some connection with the transaction or event in question, it seems clear that the forum has the freedom to refuse to assume jurisdiction for such reason as it may consider justifiable. Thus, courts have occasionally refused to hear cases on the ground of either forum non conveniens or because of some purported adverse public policy.416 Where, for example, a non-resident plaintiff is merely engaged in forum-shopping or where the main facts of the case occurred, let us say, in New York, and the witnesses
King Mau Wu vs. Francisco Sycip, G.R. No. L-5897, April 23, 1954 Scoles, citing Klein vs. Keller, 42 Okl. 592, 594, 141 P. 1117, 1118 (1914)
David Johnson & David R Post, Law and Borders - The Rise of Law in Cyberspace, 48 Stan. L. Rev. 137, 1370-71, 1996 R.A. 8792 E-Commerce Law, Sec. 6 and 7. 413 Rule 3, Section 1. 414 Sec. 16.
415 416
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BUSINESS ASSOCIATIONS AND MULTINATIONAL ENTERPRISES C/O: CHRIS GERONA, MACE WONG, INXS SINGSON, DINGDONG POQUIZ, ERIC BACSAL, PAUL IMPERIAL (Salonga, CHAPTER XXX, 1995)
417
Forum non conveniens a doctrine upon which a local court may find a foreign court to be more appropriate than the local court to deal with the issue in question 418 Salonga 419 Goodrich, Herbert F. and Scoles, Eugene F. Conflict of Laws. West Publishing Company, St. Paul, Minnesota. 1976 198-199
420
Marshall, C.J., in Dartmouth College v. Woodward, 4 Wheat. 518, 636, 4 L. ed. 629 (1819).
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421 422
control of the enterprise, may be found in the business seat, which is the principal place of business. Through the passage of time, jurisprudential and statutory laws have given us several tests to determine a corporations nationality. o The Place of Incorporation Test means that a corporation is a national of the country under whose laws it has been organized and registered. This is specifically embodied in Sec. 123 of the Corporation Code which provides: o A foreign corporation is one formed, organized or existing under any laws other than those of the Philippines and whose laws allow Filipino citizens and corporation to do business in its own country or state. o Under the Place of Principal Business Test, the corporation is a national or subject to the jurisdiction of the place where its principal office or center of management (siege social) is located. o The Grandfather Test is the method by which the percentage of Filipino equity in a corporation engaged in nationalized and/or partly nationalized areas of activities, provided for under the Constitution and other nationalization laws, is computed, in cases where corporation shareholders are present in the situation, by attributing the nationality of the second or even subsequent tier of ownership to determine the nationality of the corporate shareholder. o In recognizing and applying the grandfather rule, the SEC has adopted the formula of the Secretary of Justice in DOJ Opinion No. 18 saying: Shares belonging to corporations or partnerships at least 60% of the capital of which is owned by Filipino citizens shall be considered as Philippine nationality, but if the percentage of Filipino ownership in the corporation or partnership is less than 60%, only the number of shares corresponding to such percentage shall be counted as of Philippine nationality. It must be remembered that the SEC Rule applies only with the objective of determining the issues on investments. As added by the SEC: However, while a corporation with sixty (60%) percent Filipino and forty (40%) foreign equity ownership is considered a Philippine national for purposes of investment, it is not qualified to invest in or enter into a joint venture agreement with corporations or partnerships, the capital or ownership of which under the constitution or other special laws are limited to Filipino citizens only.421 o Under the War-Time Test, the nationality of a private corporation during times of war in such country is determined by the character or citizenship of its controlling stockholders. A corporation which was organized and created under the laws of the Philippines may be regarded as an enemy alien during times of war, where the shares are controlled by foreigners whose country is at war with the Philippines. For the objective of determining the nationality of the corporation, the corporate personality is ignored and the nationality of the human structure who directly dominates the corporation is taken into consideration. Such test was first enunciated in the English case of Daimler Co. vs. Continental Tire and Rubber Company.422 Filipinas Compania de Seguros vs. Christern
Ibid, at pp 46-57. I K.B. 893: 2 A.C. 307.
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state is usually allowed to transact business in other states and to sue in the courts of the forum. The legal standing of foreign corporations in the host state therefore is founded on international law on the basis of consent, and the extent by which a hosting state can enforce its laws and jurisdiction over corporations created by other states has been the subject of jurisprudential rules and municipal legislations, especially in the fields of taxation, foreign investments, and capacity to obtain relief in local courts and administrative bodies.424 Bank of August vs. Earle425 Chief Justice Taney reiterated that It is very true that a corporation can have no legal existence out of the boundaries of the sovereignty by which it is created It must dwell in the place of its creation and cannot migrate to another sovereignty. Evidently, this doctrine had to be discarded soon after it was promulgated, to cope with the demands of an expanding capitalistic economy. As stated in the Second Restatement: A State has power to exercise judicial jurisdiction over a foreign corporation which has consented to the exercise of such jurisdiction.426 In the Philippines, consent is the method on acquiring jurisdiction over foreign corporations, as can be found in Sec. 128 of the Corporation Code: Section 128. Resident agent; service of process. o The Securities and Exchange Commission shall require as a condition precedent to the issuance of the license to transact business in the Philippines by any foreign corporation that such corporation file with the Securities and Exchange Commission a written power of attorney designating some person who must be a resident of the Philippines, on whom any summons and other legal processes may be served in all actions or other legal proceedings against such corporation, and consenting that service upon such resident agent shall be admitted and held as valid as if served upon the duly authorized officers of the foreign corporation at its home office. Any such foreign corporation shall likewise execute and file with the Securities and Exchange Commission an agreement or stipulation, executed by the proper authorities of said corporation, in form and substance as follows: o "The (name of foreign corporation) does hereby stipulate and agree, in consideration of its being granted by the Securities and Exchange Commission a license to transact business in the Philippines, that if at any time said corporation shall cease to transact business in the Philippines, or shall be without any resident agent in the Philippines on whom any summons or other legal processes may be served, then in any action or proceeding arising out of any business or transaction which occurred in the Philippines, service of any summons or other legal process may be made upon the Securities and Exchange Commission and that such service shall have the same force and effect as if made upon the dulyauthorized officers of the corporation at its home office."
Ibid at p. 124.
426
Ibid at p. 781. 38 U.S. 13 Pet. 519, 588, 10 L. Ed. 274, 308 (1939). Ibid at p.440.
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obligations to the extent necessary to control the disposition of that property. If he has no property in the State, there is nothing upon which her tribunals can adjudicate. Substituted service by publication, or in any other authorized form, is sufficient to inform a nonresident of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act, but where the suit is brought to determine his personal rights and obligations, that is, where it is merely in personam, such service upon him is ineffectual for any purpose. Process from the tribunals of one State cannot run into another State and summon a party there domiciled to respond to proceedings against him, and publication of process or of notice within the State in which the tribunal sits cannot create any greater obligation upon him to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability. Except in cases affecting the personal status of the plaintiff, and in those wherein that mode of service may be considered to have been assented to in advance, the substituted service of process by publication allowed by the law of Oregon and by similar laws in other States where actions are brought against nonresidents is effectual only where, in connection with process against the person for commencing the action, property in the State is brought under the control of the court and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem.. While the courts of the United States are not foreign tribunals in their relations to the State courts, they are tribunals of a different sovereignty, and are bound to give a judgment of a State court only the same faith and credit to which it is entitled in the courts of another State. The term "due process of law," when applied to judicial proceedings, means a course of legal proceedings according to those rules and principles which have been established by our jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a competent tribunal to pass upon their subject matter, and if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or by his voluntary appearance. According to Salonga, in the present time, most significantly in the United States, jurisdiction over foreign corporations does not necessarily depend on whether it has been licensed to do business in the forum. Jurisdiction over corporations and individuals rests on the following basis: reasonableness in relation to the suit and the activities or contacts with the forum. International Shoe Co. vs. State of Washington Facts: International Shoe is a Delaware Corporation headquartered in St Louis, Missouri that makes shoes and footwear. It has places of business in several states, but not the State of Washington, where the corporation manufactures and distributes its products. The corporation does not: (1) have a physical office, (2) contract for the sale of its products, (3) maintain an inventory of footwear and (4) make intrastate deliveries, in the State of Washington. However, between 1937 and 1940, the appellant employed 3 salesmen who resided in the State of Washington. The statute requires employers located in Washington to fund the program by making annual contributions based on percentages of employee salaries. The statute authorizes the Commissioner of the program to issue and order and notice of assessment of delinquent contributions by personal service if the employer is found in the State or by registered mail if the employer is outside the State. The statute also gives the employer the right to a hearing and administrative and judicial review of any order. The State
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with the regulation of corporations, partnership or associations or with those dealing with the internal affairs of such entities.427 2 theories on what law determines the personal law of a business corporation. The first theory believes that the personal law of a business corporation is the law under which it has been created or incorporated. This theory is supported in all commonlaw countries and in legal systems influenced by Anglo-American Law.428 Philippine law follows the incorporation principle. Under Section 129 of the Corporation Code: Any foreign corporation lawfully doing business in the Philippines shall be bound by all laws, rules and regulations applicable to domestic corporations of the same class, except such only as provide for the creation, formation, organization or dissolution of corporations or those which fix the relations, liabilities, responsibilities, or duties of stockholders, members, or officers of corporations to each other or to the corporation. The second theory on the other hand states that the personal law of a corporation is the law prevailing in the State in which the business has its center of control or administration. What is stated in the by-laws can only considered prima facie evidence of the fact of central administration. When there is evidence of fraud, the by-laws will be disregarded and the place where central control actually resides will prevail.429
M.E. Gray vs. Insular Lumber Company Facts: Insular Lumber Co, is a corporation organized and exiting under the laws of New York and licensed to engage in business in the Philippines. M.E. Gray is the owner of 57 shares of capital stock of such corporation. Gray wishes to examine the books and records of the business of Insular Lumber but was not allowed to do so. Insular Lumber says that under New York law, the right of stockholder to examine is limited by Sec. 77 of the Stock Corporation Law, which provides that only stockholders owning 3% of the shares of a corporation may make a written request for a statement of its affairs. Gray does not own 3% of the total capital stock of the corporation, nor does he represent stockholders who own 3% of its capital. Gray filed a complaint in the Court of First Instance in the Philippines to allow him to inspect the books and records of business of Insular Lumber because under our Corporation Law, under which Insular lumber was registered to do business in the Philippines, he is entitled as a stockholder, to inspect the corporate books and records of the corporation. Held: The New York Statute is controlling. Under the law of New York, to examine the books and records of a corporation organized under the laws of said State are only those provided in Section 77 of the Stock Corporation Law of New York. Philippine Law on Foreign Corporations There are 5 lawful ways or modes of entry of foreign corporations in the Philippines430. 1. The first mode is by establishing a branch or agency in the Philippines. Under Section 125 of the Corporation Code, a foreign corporation shall have the right to transact business in the Philippines after it shall have obtained a license to transact business in this country
427 428 429
Dee v. Sec, 199 SCRA 278 [1991] Salonga, Private International Law, p. 445 Ibid. p. 446 430 Salonga, Private International Law, p. 448
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Salonga, Private International Law, p. 450 Goodrich, Herbert F. and Scoles, Eugene F. Conflict of Laws. West Publishing Company, St. Paul, Minnesota. 1976 p. 885 Goodrich, Herbert F. and Scoles, Eugene F. Conflict of Laws. West Publishing Company, St. Paul, Minnesota. 1976. p. 901
Ruben E. Agpalo. Conflict of Laws. Private International Law. (Manila. Rex Book Store. 2004), p. 475 Salonga, Private International Law, p. 456 George Stumberg. Conflict of Laws, 3rd Edition (Brooklyn, The Foundation Press, Inc. 1951), p. 369 437 Salonga, Private International Law, 457 438 Coquia, Conflict of Laws, p. 476 439 Corporation Code, Sec. 133. 440 Stumberg, Conflict of Laws (1951) p. 826.
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Meaning of Doing Business A cursory look at Section 123 of the Corporation Code reveals that the right given to a foreign corporation is the right to transact business in the Philippines. The Supreme Court has occasion to note that there is no exact rule or governing principle as to what constitutes "doing" or "engaging" or "transacting" business. 443 Consequently, each case must be judged in the light of its peculiar environmental circumstances.444 To add to the uncertainty, the term doing business is used in two distinct situations under Philippine jurisdiction.445 The first situation refers to Section 28 of the National Internal Revenue Code which provides for the tax imposed on foreign corporation. Section 28 (A) (1) provides that a resident foreign corporation is a foreign corporation that is engaged in trade or business within the Philippines and is subject to an income tax of thirty-two (32%) percent of its net or taxable income from sources within the Philippines.446 In contrast, a resident foreign corporation is a foreign corporation not engaged in trade or business in the Philippines and is subject to an income tax of thirtytwo (32%) percent of its gross income from sources within the Philippines.447 The law provides that a foreign corporation is taxed on income derived from sources in the Philippines whether it may be engaged in trade or business or not. The difference lies in the application of deductions wherein the foreign corporation that is engaged in trade or business may apply personal and additional exemptions to arrive at the taxable income.
Eriks Pre. Ltd. Vs. Court of Appeals, 267 SCRA 567 (1997). 442 Marshall-Wells Co. vs. Henry W. Elser & Co., 46 Phil. 70 (1924). 443 Communication Materials and Design, Inc. vs. CA, G.R. No. 102223 (1996). 444 The Mentholatum Co., Inc. et al. vs. Mangaliman et al, G.R. No. 47701 (1941). 445 Salonga, 458. The author said perceived three distinct situations in the United States. I believe that the first and third situation is the same in the Philippine scenario. 446 Sec 28 (A) (1) In General. - Except as otherwise provided in this Code, a corporation organized, authorized, or existing under the laws of any foreign country, engaged in trade or business within the Philippines, shall be subject to an income tax equivalent to thirty-five percent (35%) of the taxable income derived in the preceding taxable year from all sources within the Philippines: provided, That effective January 1, 1998, the rate of income tax shall be thirty-four percent (34%); effective January 1, 1999, the rate shall be thirty-three percent (33%), and effective January 1, 2000 and thereafter, the rate shall be thirty-two percent (32%). 447 Sec 28 (B) (1) In General. - Except as otherwise provided in this Code, a foreign corporation not engaged in trade or business in the Philippines shall pay a tax equal to thirty-five percent (35%) of the gross income received during each taxable year from all sources within the Philippines, such as interests, dividends, rents, royalties, salaries, premiums (except reinsurance premiums), annuities, emoluments or other fixed or determinable annual, periodic or casual gains, profits and income, and capital gains, except capital gains subject to tax under subparagraphs (C) and (d): Provided, That effective 1, 1998, the rate of income tax shall be thirty-four percent (34%); effective January 1, 1999, the rate shall be thirty-three percent (33%); and, effective January 1, 2000 and thereafter, the rate shall be thirty-two percent (32%).
450
Corporation Code, Sec. 123. Corporation Code, Sec. 133. Sec. 3 (d). The phrase "doing business" shall include soliciting orders, service contracts, opening offices, whether called "liaison" offices or branches; appointing representatives or distributors domiciled in the Philippines or who in any calendar year stay in the country for a period or periods totalling one hundred eighty [180] days or more; participating in the management, supervision or control of any domestic business, firm, entity or corporation in the Philippines; and any other act or acts that imply a continuity of commercial dealings or arrangements and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of commercial gain or of the purpose and object of the business organization: Provided, however, That the phrase "doing business" shall not be deemed to include mere investment as a shareholder by a foreign entity in domestic corporations duly registered to do business, and/or the exercise of rights as such investor; nor having a nominee director or officer to represent its interests in such corporation; nor appointing a representative or distributor domiciled in the Philippines which transacts business in its own name and for its own account. 451 Art. 44 As used in this Book, the term "investment" shall mean equity participation in any enterprise formed, organized or existing under the laws of the Philippines; and the phrase "doing business" shall include soliciting orders, purchases, service contracts, opening offices, whether called "liaison" offices or branches; appointing representatives or distributors who are domiciled in the Philippines for a period or periods totalling one hundred eighty (180) days or more; participating in the management, supervision or control of any domestic business firm, entity or corporation in the Philippines, and any other act or acts that imply a continuity of commercial dealings or arrangements and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose and object of the business organization.
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Allegation in a Complaint A foreign corporation, in maintaining a suit must allege in the complaint the fact that it has legal personality to sue. The allegations must conform to its status in the Philippines. Thus, a foreign corporation doing business in the Philippines must allege that it is duly licensed to do business. On the other hand, a foreign corporation not doing business in the Philippines must allege that it is suing on an isolated transaction or to protect its trademark or trade name.455 A foreign corporations capacity to maintain a suit must therefore be established by appropriate allegations in the complaint. Disabilities Attendant to an Unlicensed Foreign Corporation Sec. 133 of the Corporation Code provides: Doing business without a license. - No foreign corporation transacting business in the Philippines without a license, or its successors or assigns, shall be permitted to maintain or intervene in any action, suit or proceeding in any court or administrative agency of the Philippines; but such corporation may be sued or proceeded against before Philippine courts or administrative tribunals on any valid cause of action recognized under Philippine laws. The Corporation Code specifically denies to a foreign corporation doing business in the Philippines without a license the right to recourse to local remedies. The denial of such right is comprehensive in two ways. First, the refection pertains not only to the foreign corporation but also to its successors, assigns, or agents. Second, the denial concerns not only actions or suits in judicial courts but also in administrative tribunals. The purpose of securing a license is to allow the local authorities to exercise jurisdiction over the foreign corporation. This is to enable the local authorities to regulate the activities of such foreign corporations. The Supreme Court has said that a foreign corporation must submit to the jurisdiction of the local authorities for it to
454 455
452 453
G.R. No. 118843 (1997). Ruben E. Agpalo. Conflict of Laws. Private International Law. (Manila. Rex Book Store. 2004), p. 483.
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business within the state to submit itself to the jurisdiction of the courts of this state. The statute was not intended to exclude foreign corporations from the state. It does not, in terms, render invalid contracts made in this state by non-complying corporations. The better reason, the wiser and fairer policy, and the greater weight lie with those decisions which hold that where, as here, there is a prohibition with a penalty, with no express or implied declarations respecting the validity of enforceability of contracts made by qualified foreign corporations, the contracts . . . are enforceable . . . upon compliance with the law. It is, therefore, not necessary to declare the contract null and void even as against the erring foreign corporation. The penal sanction for the violation and the denial of access to our courts and administrative bodies are sufficient from the viewpoint of legislative policy. Subsequent Acquisition of License The Home Insurance Co. vs. Hon. Melencio Herrera et al. 464 Eastern Shipping Lines transported coils of Black Hot Rolled Copper Wire Rods to Manila. The shipment was insured by Home Insurance, a foreign insurance company. The consignee received some of the cargo in bad order. Home Insurance paid the consignee under the insurance policy, by virtue of which plaintiff became subrogated to the rights and actions of the consignee. Home Insurance thereafter made demands to CARRIER and subsequently brought a suit against the latter. CARRIER argued that Home Insurance has no capacity to sue since when the insurance contracts were executed, Home Insurance has not yet secured a license. The Court held in favor of Home Insurance. It made a finding that when Home Insurance filed its complaint, it had already secured the necessary license to conduct its insurance business in the Philippines. It could already file suits. Exceptions It is not the absence of the prescribed license but "doing business" in the Philippines without such license which bars the foreign corporation from access to our courts. In other words, although a foreign corporation is without license to transact business in the Philippines, it does not follow that it has no capacity to bring an action. Such license is not necessary if it is not engaged in business in the Philippines.465 An isolated act of business is not doing business within the purview of the law. It is considered to be unreasonable and incongruous to require a foreign corporation to acquire a license as a prerequisite of doing a single act of business or executing a single contract.466 General Corp. of the Phil. vs. Union Insurance467 Union Insurance is a foreign insurance corporation, without a license, acting as settling agent of and settling insurance claims against the Firemans Fund, also a foreign corporation without a license. General Corp. and Mayon Investment sued both Union Insurance and Firemans Fund for payment of insurance claims. Firemens Fund argued that Union Insurance has no authority to receive summons in behalf of the former. The Supreme Court held that summons was properly served. The Court noted that the Rules of Court did not qualify the term doing business. Thus, whether the act of doing business was done legally or not is
464 465 466
Granger Associates vs. Microwave Systems, Inc., G.R. No. 79986 (1990). Gen. Corp. of the Philippines vs. Union Ins., G.R. No. L-2684 (1950). G.R. No. 61950 (1990). 459 Rumpert, p. 855-856. 460 p. 467. 461 Rumpert, p. 855. 462 p. 467. 463 G.R. No. L-34382 (1983) citing Peter & Burghard Stone Co. v. Carper, 172 N.E. 319 (1930).
457 458
G.R. No. L-34382 (1983). La Chemise Lacoste. S.A. vs. Fernandez, etc., et al., G.R. Nos. 63795-97 (1984). Rumpert, p. 830. 467 G.R. No. L-2684 (1950).
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Action to Protect Trademark, Trade Name, Goodwill, Patent or for Unfair Competition A foreign corporation ordinarily may not successfully protect its corporate name in another jurisdiction. The view is that a foreign corporation does not come to the local jurisdiction as a matter of right, but only by comity, and cannot be permitted to come for the purpose of asserting rights in contravention of law or public policy.470 The local
Estoppel Another exception is estoppel on the part of the local firm or entity which entered into the transaction with a foreign corporation. The local resident knowing the absence of a license of its counterpart and receiving the benefits of the contract, it is now estopped from raising lack of capacity of the foreign corporation. The reasoning being that the local resident is taking advantage of the foreign corporation by raising its noncompliance and at the same time receiving the benefits.473 Subic Bay Metropolitan Authority v. Universal International Group of Taiwan 474 UIG is a foreign corporation without a license to do business in the Philippines. UIG leased from SBMA the Binictican Golf Course to be transformed into a world class 18-hole golf course. UIG sued SBMA for pre-termination of the contract due to default of UIG. SBMA attacked the capacity of UIG to sue. The Supreme Court ruled in favor of UIG. It stressed that the licensing requirement was never intended to favor domestic corporations who enter into solitary transactions with unwary foreign firms and then repudiate their obligations simply because the latter are not licensed to do business in this country. It noted that the scheme is a common ploy of defaulting local companies which are sued by unlicensed foreign companies not engaged in business in the Philippines to invoke lack of capacity to sue. The Court then concluded that SBMA effectively recognized the personality and capacity to institute suit of UIG. Agpalo rejects estoppel as an exception to the requirement of getting a license. Agpalo argues that estoppel may not invalidate that which is against the law. He further argues that estoppel is grounded on equity. A foreign corporation cannot be in good faith
471
468
Rumpert., p. 831. 469 G.R. No. L-13525, (1962). 470 Rumpert, p. 803.
Ibid., p. 802-803. G.R. No. L-63796-97, (1984) Salonga citing Communication Materials and Design, Inc. v. CA, 260 SCRA 673 (1996), p. 464. 474 G.R. No. 131680, (2000).
472 473
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the capacity to purchase and hold real estate and personal property for its church. This capacity exists even if the chief archbishop, bishop, priest, minister, or other presiding elder who is the corporation sole is in fact a foreign citizen and personally cannot own and hold real property. Roman Catholic Apostolic Administrator of Davao v. Land Registration Commissioner483 In the case the corporation sole is the Roman Catholic Administrator of Davao who is a Canadian citizen. The Supreme Court allowed the registration of the donated parcel of land. The Court held that a corporation sole is a special form of corporation usually associated with the clergy. Conceived and introduced into the common law by sheer necessity, this legal creation was designed to facilitate the exercise of the functions of ownership carried on by the clerics for and on behalf of the church which was regarded as the property owner. The bishops or archbishops, as the case may be, as corporation's sole are merely administrators of the church properties that come to their possession, and which they hold in trust for the church. Since the real owners of the property are the lay Filipino people, the citizenship of the administrator or bishop is of no concern.
Multinational Corporations A multinational corporation is a single enterprise composed of several corporations, each with a separate entity and different nationalities. According to Coquia, the problem lies in the ability or disability of a host country to affect or hold liable parent corporation or the entire multinational corporation and not merely the subsidiary or branch within its jurisdiction. He opined that local courts may exercise jurisdiction over the parent corporation if the parent has such control and domination over its subsidiary that would indicate that the subsidiary has no separate corporate existence. This relationship between the parent and the subsidiary would then be more like an agency relationship that would enable local courts to go after the parent/principal. This can also used in the converse situation, jurisdiction over the parent corporation may give rise to an exercise of jurisdiction over the subsidiary if the separate corporate existence has not been adequately maintained.484
p. 465-466. Art. 1737, Republic Act 386 or The Civil Code of the Philippines (hereinafter Civil Code). Art. 1768, id. 478 Art. 1818, id. 479 Salonga, p. 470. 480 Ibid., pp. 470-471. 481 G.R. No. L-6776. (1955). 482 Jorge Coquia and Elizabeth Aguiling-Pangalangan. Conflicts of Laws. Casses, Materials & Comments. (Quezon City, Phoenix Press. 2000), p. 522. (hereinafter Coquia)
483 484
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In fact it can lead to incongruous judgments, to wit: a) The place where the injury was sustained may be entirely fortuitous, say an airplane accident. b) Where the conduct of the actor is required or permitted by the law of the state of execution, it would be unfair to subject him to liability under the law of the State of the alleged injury. Conversely, where the act is actionable by the law of the State of injury, the latter may have no interest in shielding the actor from liability, whereas the place of execution may have a more significant relationship to the parties and to the occurrence. Rabels Theory The locus delicti is the place which has the most substantial or essential connection with the act. Criticism. Whether or not a particular contact with a State is significant for conflicts purposes cannot be known until one first knows exactly what domestic tort rules are in conflict and what policies underlying those are in issue. Modern Theories in Tort Liability 1. Doctrine of Elective Concurrence In this theory, it is held that both the state where the actor engaged in his conduct and the place of injury has jurisdiction over the case as it can be said that the said tort was committed in both places. 2. State of the Most Significant Relationship To apply this rule, the state with the most significant relationship to the case at hand must be determined. Factors to be considered a) the place where the injury occurred b) the place where the conduct causing the injury occurred c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and d) the place where the relationship, or any, between the parties centered. 3. State-Interest Analysis All relevant and governmental concerns of a state in an issue, not only as a sovereign in a set of facts or an entity but as a repository of justice, must be considered by a court of law in determining which law to apply . Carvers Principle of Preference More of a guideline to be followed by states in applying rules on tort acts. Such principles must guide contending states in determining which or what law to apply in particular cases. Apply only when there is no statutory rule applicable st 1 Guideline Where the liability of the State of injury set a higher standard of conduct or of financial protection against injury than do the laws of the State where the person causing the injury
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Residency Place of Business Place of injury or instigation of the tortuous action Citizenship Place where a relationship is centered
INTEREST OF THE STATE WHERE THE INJURY TAKES PLACE Compensation will prevent the victim from becoming a public burden or charge of the State INTEREST OF THE STATE WHERE THE TORTUOUS ACT WAS INITIATED Interest in regulating the conduct of persons found in its territory. Persons within a State have the right to shape their conduct in accordance to its law. THE PLACE WHERE tortuous ACT IS CARRIED OUT MAY BE GIVEN DECISIVE WEIGHT When the injury occurs in two (2) or more different States When the place of injury is not easily ascertainable or is fortuitous and bears little relation to the occurrence and the parties NOT A HARD AND FAST RULE Example: Libel Plaintiff: A (Filipino national) Defendant: B (Magazine printed in HK enjoying worldwide circulation) Forum should be the Philippines since it is there that A stands to suffer the greatest injury since it is there that people are familiar with his reputation (assuming B does business in the Philippines). LEX LOCI DELICTI RULE The law of the place where the action causing injury, wrong or death took place should govern Most authorities consider this as the traditional rule on the determination of the applicable law involving tort or damages in the Philippines 2 REASONS FOR THE RULE 1. First, the state where social disturbance occurred has the primary duty to redress the wrong, and to determine the effects of injury 2. Second, the law of the state must be presumed to have been foremost in the mid of the parties concerned, thus they acted with knowledge of the resultant consequences under the said law DIFFERENT DEFINITIONS OF LEX LOCI DELICTI Civil law countries: the place where the act began Common law countries: the place where the act first became effective. 3 THEORIES ON WHERE THE LOCUS IS Civil Theory: where the action began Rules on tort are intended to regulate human conduct, hence a person who acts contrary to social norms must be held liable Common Law Theory: where the tortuous act first became effective.
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STATE OF THE MOST SIGNIFICANT CONTRACTS RULE The rule arose because of the opinion of some that the rule on lex loci delicti has become inadequate to meet the modern complexities of life today Applies where the tortuous acts occurred in two (2) or more states and ripens into a cause of action in another State. Also applies when the attendant facts occurred in two or more States, not one of which constitutes an actionable wrong by itself Also known as: State of the Most Significant Relationship Rule Center of Gravity Rule Grouping of Contracts Rule THE FOLLOWING CONTRACTS ARE TO BE CONSIDERED AND EVALUATED ACCORDING TO THEIR RELATIVE IMPORTANCE WITH RESPECT TO THE PARTICULAR FACTS IN ISSUE: Place where the injury occurred Place where the act causing the injury occurred The domicile, place of incorporation and place of business of the parties Place where the relationship of the parties is centered STATE OF THE MOST SIGNIFICANT CONTRACT RULE (continued) An action may be maintained wherever the wrongdoer can be found provided that: The law of the nationality of the wrongdoer and the law of the forum (Philippines) make the wrongful act actionable The two countries have similar statutes on the matter AGREEMENT OF THE PARTIES Parties to an agreement may stipulate as to the law which will govern in case of dispute arising therefrom and such stipulation shall be respected except in so far as prohibitive law or public policy prohibits its application CARRIAGE OF GOODS BY SEA ACT C.O.G.S.A. is a suppletory law applicable in cases involving the carriage of goods to the Philippine ports in foreign trade. The rights and obligations of common carriers in all contracts of carriage of goods by sea to Philippine ports from foreign ports shall be governed by the Civil Code, in default of such provisions, by that of the Code of Commerce and other special laws, and in the absence of both, by the C.O.G.S.A. Article 1753 of the New Civil Code states that the law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or deterioration
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Proposed choice of law: The majority of the States adopted the Single Publication Rule whereby plaintiff may only bring one suit for the particular publication. But what law should apply? Recent decisions opt for the law more favorable to the plaintiff which is usually the law of his domicile, following the Most Significant Relationship Principle. For natural persons, this place will usually be the place where the person was domiciled at the time, while for Corporation it will be the principal place of business at the time. (Eliah v. Ucaton Corp., 433 F.Supp.309 W.D.N.Y. 1977) 3. Products Liability Conflicts of law issue: Products liability suits are a hybrid of tort and contract claims, usually involving claims of negligence and strict liability or breach of warranty. Mass torts, which may or may not include product liability, involve injury to many victims as a result of a single act (explosion) or of continuous acts (toxic or polluting emissions). To which law shall the defendant be subjected to? The courts have struggled to apply choice-of-law rules in such a way that the plaintiff is favorably compensated for the injury and yet the defendant is not unfairly surprised by the law governing his liability. What now is the generally accepted choice-of-law rule? Proposed choice of law: The Second Restatement applies its Most-significant Relationship test to products liability, which allows the court to take account of the legal, social, and economic consequences of the total contract-tort situation. This considerations will often place primary emphasis on the interests of the injured plaintiff and give rise to the suggestion that the law most favorable to the plaintiff ought to be applied The Hague Convention on the law applicable to Products Liability takes a similar approach. Article 4 of the Convention provides that the applicable law shall be the internal law of the State of the place of the injury, if that State is also: a) the place of the habitual residence of the person directly suffering damage b) the principal place of business of the person claimed to be liable c) the place where the product was acquired by the person directly suffering damage. Article 5 of the Convention goes on to provide that the applicable law shall be the law of the State of the habitual residence of the injured person, if the State is also the principal place of business or the place where the product is acquired. In essence therefore, the plaintiff has the option to choose between the law of his habitual residence or the law of the principal place of business of the defendant in case the 2 coincide. 4. Statutory Liability Conflicts of law issue: Choice-of-law problems also exist when statutes provide for no-fault liability. Choice-of-law problems may arise in a variety of situations: when tort-state parties are injured in a no-fault state and a no-fault liability is imposed on the tort-state driver, when the reverse is the case, when the cars each occupied by the parties from both types of States collide, or when different no-fault statutes are in issue. Proposed choice-of-law: There are 2 basic no-fault statutes: 1.Territorial Legislation: provides benefits for every person injured in the state regardless of the domicile. Criticism: What if the non-resident driver comes from a tort state? Tort driver may incur liability beyond his expectation that may lead to his economic ruin. To resolve criticism: Threshold Test
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Principles of Criminal Liability (1) Territoriality Principle Criminal Jurisdiction is determined by reference to the place where the offense is committed. (2) Nationality theory it is the recognized rule that a State has the power to enact criminal laws which apply even to violations thereof committed by its citizens in other states. (3) Protective Principle is the determination of jurisdiction by reference to the national interest injured by the offense. (4) Universality Principle the determination of the jurisdiction is referenced to the study of the person committing the offense. (5) Passive Personality Principle The determination of jurisdiction is made by the reference to the nationality or national character of the person injured by the offense. What is the governing principle in the Philippines? The prevailing principle in Criminal law is the Territoriality Principle, with a mixture of the protective principle. Examples: Article of the Revised Penal Code of the Philippines, Article 14 of the Civil Code, and special penal laws such as Anti Hi-Jacking Law R.A. 6235. PROPERTY C/O: AVELINO BOY-BASTOS TOLENTINO, CLIFTON CLIFORIS SAWIT, FELIX RICKY CABRAL AND JC de VEYRA (Salonga, CHAPTER XXI, 1995) THE LEX SITUS RULE Choice of law issues relating to property have been subjected to different choice of law rules depending on whether the property interest is attached to either a movable or an immovable. Therefore, it is imperative that before any issue relating to the abovestated is discussed, the character of the interest involved, as well as the nature of the property, has already been determined. At any rate, whether an interest in a tangible
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transferred, are determined by the law, which would be applied by the courts of the situs, and those courts would usually apply their own law, thus upholding the traditional view. 486 This view is supported by statutes in many states when such provide alternative references to validate a conveyance of local land as to form if the instrument complies with either the law of the state where the land is located, or the law of the place where the deed is executed.487 Therefore, it is appropriate to say that a foreign court will apply whatever law would be applied by the situs to resolve the controversy relating to formal validity. Contract and Conveyance Distinctions Policy Analysis-Capacity The law of the situs of the land, as a general rule, dictates the capacity of the parties to convey an interest on land. However, multi-faceted transactions in land do not fall squarely into the categorization that is assumed by the situs rule. The courts, having observed such trend, have refused to apply the situs rule outright in every case arising from land transactions. In such instances, the courts have relied on the distinction between contracts and conveyances. Particular Issues Conveyances: Effect and Construction The relevancy of the situs rule to the determination of the effects of an instrument of conveyance involving land had already been discussed in the previous chapters. These discussions centered on the protection of state interests and convenience during transactions. However, a thorough analysis of the rule would require a discussion on the construction of the instruments of conveyance containing the same. Obviously, the goal is to promote the security of land titles, that the precise interest conveyed by an instrument be ascertainable, as much as possible, from the face of the instrument. Therefore, it would seem beneficial if a single rule were adhered to in the
485 486 487
Restatement, Second, Conflict of Laws, Intro., Chap 9 Top 2 (1971); DICEY AND MORRIS, CONFLICT OF LAWS 899 (11th ed. 1987). Nebraska v. Iowa, 406 U.S. 117, 92 S Ct. 1379, 31 L. Ed. 2d 733 (1972); Restatement, Second, Conflict of Laws. Lorenzen, The Validity of Wills, Deeds and Contracts as Regards Form in the Conflict of Laws, 20 YALE L.J. 427, 433 (1911)
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Covenants Blacks dictionary defines covenants as involving the laying down of conditions. Or as Scoles puts it, in relation to land transactions, covenants are those rights not technically expressed in the operative words of a grant, however, the same cannot be separated from the land, and transferred without it, but goes with the land as being annexed to the estate. Simply put, covenants are solemn conditions that are innate to the estate and must be observed unconditionally. Such being the case, it would be highly convenient if a certain rule be applied regardless of the domicile of the parties involved in the property being transacted, or the place of execution of the same. As Scoles observed, Documents are recorded at the situs of the land, the rules of that jurisdiction form the basis of the opinions on the title. Deeds need to follow a form prescribed by the law of the situs to transfer title. Hence, it would be extremely inconvenient to have a covenant contained in the same instrument governed by a different rule. 489 The said observation clearly explains why the situs rule is being applied in cases involving covenants. Some quarters, however, argue that covenant must be appreciated in two senses. They argue that a distinction should be made between those covenants for title that run with the land and those, which are called purely personal. They insist that when the covenant involved is of the latter sense, the law of the contract must be applied instead. However, such distinction is very technical, and courts have refused to apply the same. In the end, it still seems preferable to refer all questions pertaining to covenants, personal or otherwise, to the law of the situs of the land. Equitable Interests Generally The general rule observed in equitable interests in immovables follow the same rule as the creation of interests in lands, both adhere to the land situs rule. This stems from the same considerations of convenience and control discussed in the immediately preceding subheading. The law of the situs, for example, determines whether, as a result of certain transactions, a trust in land is created, even though under such
HERBERT GOODRICH & EUGENE SCOLES, CONFLICT OF LAWS (hereinafter SCOLES) 751 citing Restatement, Second, Conflict of Laws 224, comment (b) (1971). 489 Id. at 752.
Id. at 754, citing Acker v. Priest, 92 Iowa 610, 61 N.W. 235 (1984). Id. at 754. Reno, The Enforcement of Equitable Servitudes in Land: Part II, 28 VA. I. REV 1067 (1942). 493 Graham v. Hamilton County, 224 Tenn. 82, 450 S.W. 2d 571 (1969). 494 10 U.S. (6 Cranch) 148, 3 L.Ed. 181 (1810).
492
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Encumbrances Encumbrances in land transactions often involve the foreclosure of land or other security interest in land. According to Scoles 498 , in cases involving such acts or interests, the law that would be applied is that of the situs. This approach has obtained even though the validity and the effect of the obligation, which the encumbrance secures, may be determined by the appropriate laws relating to the contract. Such is the case because, the situs rule holds in most aspects of land transactions. The formal
495 496 497
EXCEPTIONS TO THE LEX SITUS RULE 4 notable exceptions. 1. Firstly, the lex situs rule does not apply when it is the rights and liabilities of the parties to a contract where the subject matter of the contract is an immovable that is at issue, and not the effect of the transaction upon the title to the land. Instead, it is the law that regulates the contract itself that will govern, though the land itself is in another state.503 o Lijedahl v. Glasgow 504 The plaintiff held a mortgage on a piece of land located in Colorado as a security for an obligation payable in Iowa. The mortgagor made a deed out to the land, leaving the space for the grantees name blank. The deed contained a clause stating that it was made subject to the mortgage, which the grantee agreed to pay. This deed was delivered for consideration to A, who in turn transferred it, for consideration, to B, who then filled his name as grantee in the blank space. Since the debt was not paid, the holder of the mortgage sought to hold A for the claim. According to Colorado law, the blank deed to the grantee passed no interest to the purchaser until his name was written therein, which A never did. On the other hand, Iowa law held that interest was passed to A. The question was whether the contracts
499 500
111 R.I. 551, 305 A. 2d 112 (1973). 83 f. 2d 168 (2d Cir.1936). 83 F.2d at 172 Cf. Widmer v. Wood, 243 Ark. 457, 420 S. W. 2d 828 (1967). 498 SCOLES, supra note 5, at 759.
Catchpole v. Narramore, 102 Ariz. 248, 428 P. 2d 105 (1967); Colodny v. Krause, 141 Ga. App134, 232 S.E. 2d 597 (1977). Belmont v. Cornen, 48 Conn. 338 (1880); Provident Savigs Bank & Trust Co. v. Steinmetz, 270 N.Y. 129, 200 N.E. 669 (1936); Bullington v. Mize, 25 Utah 2d 173 478 P. 2d 500 (1970). 501 101 App.Div. 383, 91 N.Y.S. 1062 (1905). 502 6 Hawaii App. 597, 735 P 2d 499 (1987). 503 JOVITO SALONGA, PRIVATE INTERNATIONAL LAW, 383 (1979). (hereinafter SALONGA) 504 100 Iowa 827, 180 NW 870, 1921
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4.
Id at 467. SCOLES, supra note 5, at 760. GOODRICH, supra note 22, at 468, citing McGirl v. Brewer, 132 Or. 422, 280 P. 508, 285 P. 208, 1929 508 Id., citing Belmont v. Cornen, 48 Conn. 338, 1880; Provident Savings Bank & Trust Co. v. Stelametz, 270 NY 129, 200 NW 669, 1936 (land in Florida, place of execution of bond not indicated). 509 GOODRICH, supra note 22, at 468-469 510 101 App. Div 383, 91 NYS 1062, 1905, affirmed 185 NY 550, 77 NE 1196, 1906. 511 GOODRICH, supra note 22, at 469, citing Cf. Harris v. Metropolitan Casualty Ins. Co. of New York, 156 Misc. 692, 282 NYS 449, 1935; 36 Col. L. Rev. 487, 1936. 512 Id. 513 Hall v. Hoff, 295 Pa. 276, 145 A. 301, 1929.
THE LEX SITUS RULE: MOVEABLES In the Middle Ages, the rule of mobilia personam sequuntur, the rule that movables follow the person of the owner, was initiated by Italian statutists. This was because
514 515 516
GOODRICH, supra note 22, at 469, citing Cf. Battle v. Battjes, 274 Mich. 267, 264 NW 367, 1936. SCOLES, supra note 5, at 384. 167 Mass. 211, 45 NE 737, 36 LRA 771, 57 Am. St. Rep. 452, 1897. 517 SCOLES, supra note 5, at 385.
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Id. SCOLES, supra note 5, at 386. Wolff, 520 521 SCOLES, supra note 5, at 387.
Cheshire (North), 525. Cheshire, 523. SCOLES, supra note 5, at 388. 525 Id, 389 526 Goodrich, Section 153, at 304 527 SCOLES, supra note 5, at 389. 528 3 H & N 617; on appeal (1860) 5 H & N 728.
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CHOSES IN ACTION Choses in action are equivalent to intangible movables. They are roughly divided into three classes: debts, negotiable instruments, and corporate stocks or shares. Debts The law on voluntary transfer of debts is still unsettled. Early theories hold that a voluntary transfer or assignment of debt should be governed by the law of the domicile of the owner, although modern doctrine has abandoned this theory. A second theory is that the assignment of a debt is governed by the law of the place where the assignment is executed. However, the place of assignment may be the least important of all points of contact and may be entirely fortuitous. Also, there may be several leges actus in the case of multiple assignments where several assignees contend for priority.
2 categories of movables where the lex situs rule cannot be easily applied: 1. goods in transitu and
529 530 531
266 F 2nd 400 (1st Cir. 1959). Section 244, Second Restatement. Section 246, Second Restatement.
532 533
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determined by the law of the place where the instrument is at the time of the transfer. Lorenzen has suggested on the other hand that the respective party should be bound if the holder of the negotiable instrument has acquired title either in accordance with lex loci contractus or the law of the place of the transfer. 540 Corporate Stock What laws govern the transfer of shares of stock? Where the transfer or assignment has the consequence of changing the relations of the parties with the corporation, the law of the place of incorporation governs, because the interest of the stockholder can be effected only though the corporation itself, by a transfer of ownership on the books, as embodied in the Corporation Code. As between the assignor and assignee, however, the effect of a transfer or assignment of the share certificate will be governed by the law most closely connected to the transaction. 541 INTELLECTUAL PROPERTY Conceptual Basis The concept of intellectual property, as a chose in action, must first be determined before an analysis on its impact on Conflict of Laws rules may be appreciated. The challenge however is that it is more than difficult to arrive at a basic concept of what is and is not intellectual property. Legalists, authors, and regulatory bodies, over the years, have endeavored to provide as many parameters as possible to what may be classified intellectual property. What can be appreciated from these examples is that though such property itself is necessarily ofthe-mind, the effects and usage thereof is capable of pecuniary estimation and regulation. One author writes: In the Philippines The Intellectual Property Code of the Philippines (Republic Act 8293) which was signed into law by then President Fidel Ramos on June 16, 1997 and took effect on January 1, 1998, defines intellectual property as consisting of patents, industrial designs, trade marks and service marks, copyrights and related rights, geographical indications, layout designs of integrated circuits, and undisclosed information. Moreover, the Code provides protection for utility models and new plant varieties under Republic Act 9168, which was signed into law and took effect on July 20, 2002.542 Patent Patent refers to titles granted to inventions only. In the Philippines, patent had been used in its generic sense, to include titles to inventions, utility models, and industrial designs.543 Utility Model A utility model is any technical solution of a problem in any field of human activity which is new and industrially applicable. A utility model may be, or may relate to, a useful machine, an implement or tool, product or composition, or an improvement of any of the foregoing.544 Industrial Design, Trademark, and Trade Name
Second Restatement, 348-350. Cheshire, 495-496; Wolff, 552. Swiss Bank Corp. v. Boehmische Industrial Bank, KB 673, 678 (1923). 537 Wolff, 548; Cheshire (North) 541; Foote, 296. 538 SCOLES, supra note 5, at 395. 539 Goodrich (Scoles) Sec. 163.
Lorenzen, Conflict of Laws Relating to Bills and Nots (1919), p. 140. Beale, Foreign Corporations, s. 376. THE LAW ON INTELLECTUAL PROPERTY (A PRIMER), Office of the Press Secretary, Bureau of Communication Services, Manila, p. 1. 543 Id. 544 Id., at 2.
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WIPO was established in 1967 and charged with promoting the protection of intellectual property throughout the world and ensuring administrative cooperation among the various agreements dealing with intellectual property (Art. 3). WIPO is part of the UN system, and has been the sponsoring entity for many of the important conventions in this area. The texts of treaties administered by WIPO can be found at the WIPO website. It is important also to recognize that choice of law issues persist despite the overlay of a well-developed system of international norms imposed by multilateral treaties such as the WTO TRIPs Accord, the Berne Convention, and the Paris Convention. Treaty obligations include minimum standards of protection in addition to the requirement of national treatment (non discrimination against foreign rightowners), but do not as a general rule prescribe applicable law.551
INTELLECTUAL PROPERTY IN THE CONFLICT OF LAWS The Territorial Framework Similar to other choses in action, intellectual property is without a definite situs and must therefore follow the place of its registration or protection. Lex loci protectionis, also known as the "territorial principle", enables each country to apply its own law to the infringement of an intellectual property right that is in force in its territory. This is because intellectual property rights arise, though creation or registration, in each country for which a work seeks protection; infringements are governed by the laws of the countries where the alleged infringing acts take place. In intellectual property, cross-border acts may best be localized, for purposes of resolving conflicts of laws, by considering consequences for judicial remedies. 552 This has tended to mean that the forum, as the place of registration or of infringement, will apply its own substantive intellectual property laws. 553 Drawing from the fact that this principle has been adopted by both the Berne Convention for the Protection of Literary and Artistic Works of 1886 as well as the Paris Convention for the Protection of Industrial Property of 1883, it can be confirmed that the rights held in each country are independent. Whereas in copyright cases, the courts apply the law of the country where the violation is committed, the counterfeiting of an industrial property right is governed by the law of the country in which the patent is issued or the trademark or model is registered.554 wierczyski The special conflict rule concerning international infringements of intellectual property rights was put forward in the Proposal for the Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations ("Rome II Proposal"). The aim of this proposal is to unify Member States' rules on the conflict of laws regarding non-contractual obligations and thus further the harmonization of private international law in relation to civil and commercial obligations. Unfortunately, the wording is ambiguous, which may lead to different interpretations in identical cases. It is essential that the future conflict rule precisely
Id. Id. Id. 548 Ibid., at 3. 549 Ibid. 550 WEIGMANN, supra note 62.
551 Jane C. Ginsburg, Conflicts of Law and Intellectual Property, Columbia University School of Law at http://www.aals.org/profdev/international/ginsburg.html. (last visited Feb, 2006) (hereinafter GINSBURG) 552 Paul Edward Geller, International Intellectual Property, Conflicts of Laws, and Internet Remedies, EUROPEAN INTELLECTUAL PROPERTY REVIEW (2000), vol. 22, no. 3, at p. 125. (hereinafter GELLER) 553 GINSBURG, supra note 75. 554 WIERCZYSKI, supra note 76.
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The Ambiguity of Territoriality It would seem ideal in many circumstances to apply the law of the territorial location. However, given the nature of intellectual property, especially with the advent of the internet and multiple-situs databases, it has become increasingly difficult to determine the territorial location of infringement.
555 556
Wollf, 558, as cited in Salonga. Id., pp. 11,12. 51 Phil. 115 (1927). 558 41 SCRA 50 (1971).
557
206 SCRA 457 (1992). 251 SCRA 600 (1995). COQUIA, supra note 84, at 322.
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562 563
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RECOGNITION & ENFORCEMENT C/O: MIKE MATE, JANG MORENO, TRINA GARCIA, TRINA ILLARDE (Salonga, CHAPTER XXIII, 1995) RECOGNITION A foreign judgment is given the same effect that it has in the State where it was rendered with respect to the parties, the subject matter and the issues involved The extension to another State of the res judicata effect of a judgment obtained in one State ENFORCEMENT In addition to the recognition of a foreign judgment, affirmative relief is given to a party entitled to the same because of such judgment DISTINCTION 1. RECOGNITION Foreign judgment is given the same effect in another State The extension of the foreign judgments res judicata effect Enforcement of the foreign judgment is not necessarily implied 2. ENFORCEMENT Recognition of the foreign judgment Giving affirmative relief to a party entitled to it because of such foreign judgment Recognition of the foreign judgment is necessarily implied
The present Philippine Rules on Foreign Judgments System of Qualified Recognition Story Judgments in rem are conclusive upon the title to the thing Judgments in personam are subject to examination into the merits if sued upon by the successful plaintiff In either case, such judgments may be repelled by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact (Section 48, Rule 39, Rules of Court) INTERNATIONAL SETTING
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ARGUMENTS AGAINST RECIPROCITY Reciprocity should not be a bar to enforcing the foreign judgment which appears not to have been tainted with any of the exceptions since the presence or absence of reciprocity is a political than a legal question. Stumberg Judicial policy should be determined by reference to the desirability of giving effect to foreign judgments and not by reference to a supposed foreign policy against enforcing judgments obtained in other countries.
Theoretical Basis Object of recognition/enforcement = protection of the reasonable expectations of the parties equivalent to policy of preclusion, which is equivalent to res judicata thus, res judicata may be the current theoretical basis (but only according to authors) Salonga believes is only the basis for the earliest cases But today, the SC believes that comity is the theoretical basis for recognition Exception the basis is an obligation which is given rise to by a foreign judgment it is assumed that the parties willingly submit themselves to be bound by the judgment thus, the obligation is created by the will parties, not by the State (Perkins v. Benguet Consolidated) Requirements S.48, R.39, Rules of Court Sec. 48 The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows In either case the judgment or final order may be repelled by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. - These are the basic requirements and defenses Asiavest Merchant Bankers v. CA In this jurisdiction, a valid judgment rendered by a foreign tribunal may be recognized insofar as the immediate parties and the underlying cause of action are concerned so long as it is convincingly shown that there has been an opportunity for a full and fair hearing before a court of competent jurisdiction; that the trial upon regular proceedings has been conducted, following due 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 it is sitting or fraud in procuring the judgment. Salongas requirements [A] foreign judgment may be recognized and enforced if it constitutes a final adjudication on a civil or commercial subject matter, including questions of status, issued by an impartial court or agency of competent jurisdiction and is neither inconsistent with our fundamental principles of public policy nor tainted with collusion or fraud Basically, these are needed:
McElmoyle v. Cohen the adjudications of the English courts have now established the rule to be that foreign judgments are prima facie evidence of the right and matter they purport to decide. Being prima facie, a foreign judgment may be impeached by showing lack of jurisdiction, fraud, mistake or irregularity in the proceedings. Another ground for impeachment: The Disconto Gesellschaft vs. Umbreit A foreign judgment may not be enforced if the same would be detrimental to the citizens of the country where the enforcing court sits. But the detriment or injury contemplated must be so grave in character in order that enforcement may be validly denied. RES JUDICATA AND THE POLICY OF PRECLUSION Baldwin v. Iowa State Travelling Mens Association Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of
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Defenses Sources: jurisprudence + Rules of Court (S.48, R.39 and S.29, R.132 (how to impeach a judicial record)) - basically, all the means by which the foreign judgment may be repelled under S.48, R.39 - system of qualified recognition = the foreign judgment will only be recognized if it is not repelled (through the means provided for by law and jurisprudence) Jurisdiction over the Subject Matter Jurisdiction over the subject matter = the nature of the cause of action and of the relief sought, and this is conferred by the sovereign authority which organizes the court, and is to be sought for in general nature of its powers, or in authority specially conferred. Has to be affirmatively shown (by competent proof), and a mere recital of jurisdictional facts is not enough So, a false return showing service of summons which was never made, or an unauthorized appearance by an attorney does not confer the foreign court with jurisdiction over the subject matter The main question is: by whose laws is jurisdiction measured? View 1: need JD in the international sense ie: has to be valid according to the forum state View 2: if valid in foreign state, then valid elsewhere but this doesnt preclude an inquiry into jurisdiction, etc. US and UK rule (vs. Italy rule [no inquiries] and French rule [need new trial on the merits])
o 2nd view Supported by the Rules of Court S.48, R.39 + the disputable presumptions relating to lawful exercise of JD and regularity of official acts
Maam agrees that View 2 should be followed. But, even if the foreign court did have jurisdiction, the judgment may not be given recognition/effect here if the assumption of the jurisdiction was unfair. This is because Conflicts of Laws Rules are based on fairness. So, if it was unfair, then dont follow it.
Asiavest v. CA The Court found for the validity of the foreign judgment on proof that it complies with foreign law (eg: appearance of counsel in compromise, that facts and law must be shown in decision) o However, these were, according to the SC, only procedural matters so, the lex fori governed o But, one issue raised was that the facts and law on which the decision were based were not given in the decision. The SC held that under Malaysian law, this was ok. As we all know, this is a constitutional mandate. o Basically, the SC held that even if our Constitution is violated, as long as its ok in the foreign country, its ok here. ie: judge jurisdiction via the foreign law only Goodrich and Scoles o An oversight in the procedural law of one country, allowing the foreign court to exercise jurisdiction, may be treated by the forum court as a limitation on the competence of foreign court ie: foreign substantive law is the basis
1st view Gorayeb v. Hashim The failure to get jurisdiction over the person in accordance with RP jurisprudence makes the foreign judgment invalid here, the foreign court could not pronounce a divorce decree without at least one spouse having domicile in the foreign country o The basis of the SCs ruling was Phil. jurisprudence ie: RP law was used to test the assumption of jurisdiction of the foreign court o But, this was subsequently undercut by other pronouncements of the court.
03-23-2006 | THROUGH THE JOINT EFFORTS OF STUDENTS OF ATENEO LAW III- C 2006 | Edited by J.C. de Veyra
Jurisdiction over the Person Involves giving both parties reasonable notice and an opportunity to be heard ie: due process Party attacking it has to overcome presumption of validity of foreign courts jurisdiction and the presumption that the judgment is presumptive of a right b/w the parties Remember that the lex fori governs procedural law and this includes service of summons Generally, however, the SC will only refuse recognition and enforcement if there is a complete lack of due process eg: if a foreign judgment is rendered against a party, for an act committed there, when it is later shown that that party was never in the foreign country and he is not given notice and has no knowledge of the proceedings, then that judgment is void for utter lack of due process Otherwise, the presumption in favor of validity of the foreign judgment places the burden upon the party attacking the lack of jurisdiction over his person to plead and prove the foreign law and to show that the process used was contrary to that law failure to do so means that it is presumed that the foreign court validly acquired jurisdiction
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3. The action must be a judicial or quasi-judicial action The body pronouncing the judgment must have been judicial or quasi-judicial eg: SEC So, a declaration by a minister of a de facto government is not conclusive on the issue Includes arbitration awards because: a) voluntarily submitted to by the parties; b) enforceable under the concept of res judicata (since they end litigations) 4. Judgment on the Merits Under S.48, R.39, the foreign judgment is evidence of a right or title so, if no right or title adjudged, no occasion for recognition or enforcement to come into play So, a dismissal due to prescription or due to a demurrer doesnt allow recognition or enforcement, or bar a new trial based on the original cause of action But, if the judgment is barred by the procedural law of the forum, then no recognition since lex fori governs eg: if statute of limitations shorter in the forum, the claim is barred in the forum 5. Final Judgment Final judgment = whether or not the judgment conclusively establishes the fact upon which the plaintiff rests his claim and sets the issue between the parties at rest forever Eg: if no appeal taken, the foreign judgment is conclusive upon the parties Provisional or interlocutory decrees will not be recognized or enforced 6. Fraud Why is it a defense? a) shows that defendant doesnt have to comply with the obligation imposed by the judgment; b) shows that the foreign court did not have jurisdiction Has to be extrinsic extrinsic fraud = fraud based on facts not controverted or resolved in the case where judgment is rendered, or that which would go to the jurisdiction of the court or would deprive the party against whom judgment is rendered a chance to defend the action to which he has a meritorious defense Intrinsic fraud = goes to the very existence of the cause of action is deemed already adjudged, and it, therefore, cannot militate against the recognition or enforcement of the foreign judgment So, the latter precludes retrial since its considered to have been considered in the foreign judgment but the former doesnt because it precludes a fair trial ab initio 7. Clear Mistake of Law Some authors think that this shouldnt even be considered a ground since theres nothing to show that the forum court will apply the law better than the foreign court Example of mistake = foreign court concluded that a sale made of a business only affected the business property within the Philippines (Ingenohl v. Olsen) but this was reversed by the US SC reversal is supported by Salonga, who claims that authors and judges alike subscribe to this view, and also that it is fair and equitable they hold that the remedy is to appeal
03-23-2006 | THROUGH THE JOINT EFFORTS OF STUDENTS OF ATENEO LAW III- C 2006 | Edited by J.C. de Veyra
8. Contrary to Public Policy Some authors think that this may be a ground, but should only be used under exceptional circumstances since it potentially comes up in every conflicts case Another view holds that its not a valid ground But there is difference between public policy as regards the nature of the proceedings and public policy as regards the nature of the claim Nature of the proceedins deals more with questions of lack of justice (ie: DP, full and fair trial, etc.) so, it falls under jurisdiction Nature of the claim is the ground explained here RP courts tend to accept it as a ground for non-recognition but, its mostly intertwined with some law that is believed to be based on public policy very rarely is it used as a ground by itself in other words, we subscribe to the view that its only used under exceptional circumstance Examples: a) obtaining a divorce abroad is contrary to our public policy regarding the sanctity of marriage divorce obtained on grounds not found in RP divorce law; b) forum shopping, and abandoning a foreign judgment when adverse = against public policy (manifested by orderly administration of justice) The only time when the foreign decree was not recognized on the ground of its solely being contrary to public policy (ie: not attached to a violation of the law) is when it was against the best interests of the child (to be placed in the custody of an adulterous mom) 9. No Court available in the forum Generally, it shouldnt be considered as precluding recognition and enforcement because no state is allowed to devise methods to deny JD to courts otherwise competent to hear the proceedings on recognition/enforcement The same applies to forum law that makes too time-consuming, expensive and complex to bring suit for recognition/enforcement has the same effect as a statute depriving the forum court of JD eg: when the law only allows recognition of a foreign judgment for or against a corporation when all the stockholders of a large multinational are impleaded According to Stumberg, whether or not the forum should be allowed to deny recognition through this method depends on the situation so, if its a judgment for wrongful death, it has to be enforced (since denial would amount to no enforcement anywhere); but if its a judgment between corporations, then enforcement is only partially affected 10. Penal Judgments and Penalties According to Salonga, the judgment has to be on civil or commercial matters
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11. Other Defenses Must be for a sum certain since the 2nd state should only be involved in enforcing or recognizing the right/title, not fixing the amount thereof Appeal or writ of error on the original judgment depends on the law of the foreign state if the foreign judgment is stayed by the appeal or writ, then a subsequent action may be maintained in a 2nd state Taxes generally not considered a defense because of: a) inherent difficulty in enforcing; b) embarrassing to pass upon the fiscal laws of another state The court has to be an impartial tribunal eg: king rendering judgment over thing which he has an interest could be subsumed under the defenses of jurisdiction or fraud
Remember that the discussion on the defenses not explicitly stated in our law (S.48, R.39, Rules of Court) are based on foreign jurisprudence. So, they should be used here with a measure of caution. Maam (and Jang) did point out that the forum court may also refuse to recognize the a foreign judgment on the grounds of forum non conveniens. This is generally applied when, under the foreign law, the judgments of the Phils. are never granted recognition and enforcement ie: the foreign courts will always review RP judgments on the merits This is based on the principle of reciprocal retaliation, adopted by the US SC in Hilton v. Guyot that doctrine was never explicitly adopted here, but Maam said that forum non conveniens is basically another form of refusing recognition to a foreign judgment because the foreign court does the same automatically.
03-23-2006 | THROUGH THE JOINT EFFORTS OF STUDENTS OF ATENEO LAW III- C 2006 | Edited by J.C. de Veyra
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03-23-2006 | THROUGH THE JOINT EFFORTS OF STUDENTS OF ATENEO LAW III- C 2006 | Edited by J.C. de Veyra
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