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By: Atty. Enrique V. dela Cruz, Jr.
CONFLICT OF LAWS Conflict of laws is defined as that part of the municipal of the state which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, to apply either the local law or a foreign law. Conflict of Laws is part of the municipal law, particularly civil law, not international law.
DISTINGUISHED FROM INTERNAL RULES
Internal Rules are applicable to cases without any foreign element, which are also part of the municipal law, by the fact that they do not purport to solve the problem. They merely point to the law to be applied, whether local law or the proper foreign law.
Lex Loci Celebrationis
Art. 17. CIVIL CODE. 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. Except: 1. Alienation and encumbrance of property (Art. 16 ± Lex Situs); 2. Consular Contracts
an American from New York. and the contract was entered into in the Kingdom of Saudi Arabia. a Filipino from Baguio City. . A is an American. entered into a contract of employment in the Kingdom of Saudi Arabia under which A is to pay F monthly salary of P5. and F.00 provided the latter prays to Allah five times a day. Is the Contract valid? There are two foreign elements in the problem.SAMPLE PROBLEM A.000.
ANSWER Art. It merely points to the law to be applied. is the internal law of the Kingdom of Saudi Arabia. and other public instruments shall be governed by the laws of the country in which they are executed. we do not pretend to know. the lex loci celebrationis. 17. The forms and solemnities of contracts. As to what Arabian law provides. wills. . The first paragraph of Article 17 does not decide the case. which in this case. CIVIL CODE.
B accepted the donation in a private instrument. [There is no foreign element] PROBLEM: A donated a parcel of land to B in a public instrument. Is the donation valid? ANSWER: No. B accepted the donation. because under Article 749 of the Civil Code both the giving and the acceptance must be in a public instrument.CONTRAST WITH INTERNAL LAW PROBLEM: A donated a parcel of land to B in a private instrument. Is the donation valid? ANSWER: No. the donation was not made in a public instrument as required by Article 749 of the Civil Code. [There is no foreign element] .
. when municipal law provides that international law applies within our jurisdiction. Dualism Monists believe that international law and domestic law are part of a single legal order. Under this view. contend that international law and domestic law are distinct. however. international law is automatically incorporated into each nation's legal system and that international law is supreme over domestic law.Monism v. it is but an exercise of the authority of municipal law. Dualists. an adoption or transformation of the rules of international law.
Thus. . a crime is punishable only within the territorial jurisdiction where it is committed.What is meant by the Principle of TERRITORIALITY? It provides that penal statutes are applicable only within the territorial jurisdiction of the enacting state.
CIVIL CODE. 14. . subject to the principles of public international law and to treaty stipulations.TERRITORIALITY Art. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory.
EXTRA-TERRITORIALITY It provides that penal statutes may find application even outside the territorial jurisdiction of an enacting state pursuant to treaty obligations and general principles of public international law. . An example of extra-territoriality is Article 2 of our Revised Penal Code.
Civil Code). Under the principle of territoriality. Allowing a Filipino convicted abroad to serve sentence in the Philippines will be tantamount to recognizing and enforcing a foreign judgment which is penal in nature. This is contrary to our public policy on territoriality (Article 14. .May a Filipino convicted of a crime abroad serve his sentence in the Philippines? No. a crime is punishable only in the territorial jurisdiction where it is committed.
he may also serve his sentence here under the principle of universality. If a Filipino is convicted of crimes against humanity. which makes such crimes punishable in any jurisdiction regardless of the place of commission.Extra -Territoriality If there is a treaty for exchange of prisoners. it becomes part of our laws and a Filipino convicted for a crime abroad may serve his sentence in the Philippines. .
Ricky thereafter went to London and married Rita.Sample Problem: Territoriality Ricky and Arlene got married in Manila. Ricky went to San Francisco and married Sheila. May Ricky be prosecuted for Bigamy in the Philippines at the instance of his first wife. Arlene? Why? . After a month.
which was entered into in the Philippines. were all entered into abroad.Answer: Ricky is not liable for Bigamy Ricky did not commit any crime within Philippine territory. Bigamy is committed by entering into a second or subsequent marriage. The subsequent marriages. is not bigamous. or outside Philippine territory. Ricky¶s first marriage with Arlene. and therefore beyond our criminal jurisdiction. which are the bigamous marriages. .
1992 (Question Nos. B. XIII-B). and 2004 (Question No. VII-B) . 1994 (Question Nos. in various forms. 2. It was asked. XX). B). III-B1. XIV-A. 2002 (Question No. 3. I-1.2. II-1.Forum Non Conveniens This principle is one of the most frequently asked questions in the bar exams. C). VII-A. in the bar exams of: 1991 (Question Nos.
What is Jurisdiction? In International Law. jurisdiction is often defined as the right of a State to exercise authority over persons and things within its boundaries subject to certain exceptions. .
Universality of Jurisdiction Certain offenses are so heinous and so widely condemned that any state that captures an offender may prosecute and punish that person. on behalf of the international community regardless of the nationality of the offender or victim or where the crime was committed. .
FOUR QUESTIONS ON JURISDICTION Has the court jurisdiction over the person of the defendant or over his property? Has the court jurisdiction over the subject matter (³competency´)? Has the suit been brought in the proper venue in cases where a foreign element is involved? Is there a statute or doctrine under which a court otherwise qualified to try the case may or may not refuse to entertain it? .
Current Legal Issues electronic transactions (sales and banking) jurisdiction and identity (cyber crimes) Privacy and security (hacking and viruses) content regulation (cyber libel and e-fraud) telecommunications/VoIP (franchise / costs) Piracy (copyright / trademark) Functional Equivalence (e-documents) Automated Elections (Electoral Fraud) .
com/article/technologyNews/id USTRE4BG0PI20081217 . Service of summons.Reuters. or facebook accounts is now feasible. Australia has recently ruled that legal documents may be served via Facebook for defendants who cannot be found. blogs. friendster. http://www. subpoena and other court process via email.SOCIAL NETWORK SITES The Supreme Court in Canberra. myspace. The defendants in the subject case failed to pay a loan and cannot be found.
com/stories/2009/02/05/national/main4 777194.S_4777194.cbsnews.FACEBOOK USED FOR BLACKMAIL Facebook has already been used for blackmail by a male student who posed as a girl in a fictitious account. He was able to trick at least 31 male classmates into sending him naked photos of themselves and then blackmailing some for sex acts. .shtml?source=RSSattr=U. http://www.
The woman was held civilly liable.smh.com. http://www.au/articles/2008/11/27/1227491672826 . .MYSPACE USED FOR FRAUD A woman created a fictitious boy on MySpace and set flirtatious messages from him to a female teenage neighbor. The girl killed herself shortly thereafter.html. He then ³dumped´ the girl.
´ The internet is a means of communicating.´ ³Publication. Internet is subsumed in ³any similar means. even if the internet is not a medium expressly enumerated in the law.´ which is one of the requisites.Cyber Libel Defamatory statements made on the internet is libel. . is defined as the ³communication of the defamatory matter to some third person or persons.
Internet writings. . the owner of the blog is also liable for libel --. including blogs.similar to the liability of a publisher of a newspaper.Publishing Libel Online The blogger ³publishes´ the post or article. When someone posts a comment in another¶s blog and such comment is libelous. would fall under ³any similar means´ of publication.
.BLOGGER¶S LIABILITY Bloggers can be both a provider and a user of interactive computer services. Under the law. any person who causes the publication of a defamatory article is held liable for libel. Bloggers are users when they create and edit blogs through a service provider. and they are providers to the extent that they allow third parties to add comments or other material to their blogs.
publication. The webhost is generally not liable. dissemination or distribution of such material is unlawful or infringes any rights subsisting in or in relation to such material. that the making. Under RA 8792. or is not aware of the facts or circumstances from which it is apparent.IS THE WEB HOST LIABLE? NO. the service provider is not liable so long as it ³does not have actual knowledge.´ .
INTERNET LIBEL The Taytay provincial prosecutor has recommended the indictment of lawyer Argee Guevarra on libel charges in connection with his Facebook postings last year in which he allegedly defamed the practice of celebrity cosmetic doctor Vicki Belo. The complaint stemmed from his status updates in July 2009 on the social networking site FACEBOOK in which Guevarra referred to Belo¶s clinic as a ³Frankenstein factory. .´ and called her ³Reyna ng Kaplastikan (queen of fakery).
in protest of the alleged botched buttock augmentation procedure performed on a former patient. by one of her doctors. Guevarra also called for a boycott of Belo¶s company. Josie Norcio. the prosecutor said she found all the elements of libel²defamation. (BMGI). In a June 28 resolution. identification and publication²in the libel complaint.INTERNET LIBEL Atty. malice. . the Belo Medical Group Inc.
and that the Taytay prosecutor did not have jurisdiction over the case. Atty. He also reasoned that the messages were a form of privileged communication as they were not defamatory and were only an exercise of his freedom of expression. He also noted that Belo and her clinic are public figures.INTERNET LIBEL In his counter affidavit. . The Investigating Prosecutor found probable cause and the case is now undergoing trial. Guevarra said Facebook postings were not covered by libel laws.
Inc. Inc.. 5 May 2010 Gimenez.BONIFACIO V. (Malayan). which was indirectly owned by the Yuchengco Group of Companies (YGC). (PEPCI). on behalf of the Yuchengco Family and of the Malayan Insurance Co.R. Inc. (PPI). GIMENEZ G. FILED a criminal complaint for 13 counts of libel under Article 355 against officers and trustees of Parents Enabling Parents Coalition.com . PEPCI was formed by a large group of disgruntled plan holders of Pacific Plans.pepcoalition. No. 184800. PEPCI sought to provide a forum by which the plan holders could seek redress by maintaining a website on the internet under the address of www.
However. on appeal.R. GIMENEZ G. and particularly. No. finding probable cause.BONIFACIO V. filed thirteen (13) separate Informations in the Makati RTC. Malayan. the Secretary of Justice. The accused then filed a Motion to Quash the Information on the grounds that it failed to vest jurisdiction on the Makati RTC. 5 May 2010 Gimenez alleges that he accessed the website in Makati and found the website to contain thirteen articles containing highly derogatory statements and false accusations against the Yuchengco Family. 184800. reversed the finding of probable and reasoned that the crime of ³internet libel´ was non-existent. YGC. The Makati City Prosecutor¶s Office. .
IMMUNITY FROM JURISDICTION .
the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state.Sovereign Immunity According to the absolute theory. but not with regard to private acts or acts jure gestionis . be made a respondent in the courts of another sovereign. a sovereign cannot. without its consent. According to the restrictive theory.
After receiving earnest money. Starlight Realty sued the church for breach. . Aggrieved. The DFA certified that the Holy See (Vatican) is a State and enjoys state immunity from suit. Summons was issued against the Holy See and the Pope. the church sold the same property to another buyer. JUDGE ROSARIO The Catholic Church entered into a contract with Starlight Realty for the sale of the vacation house of the papal nuncio.HOLY SEE V.
. though immuned. .A State. government). the sale of the vacation house of the papal nuncio is an act jure imperii.Here. Under the four elements of a state (people.Factual determination by the DFA is binding upon the courts. . may still be sued for acts jure gestionis. Under the Lateran Treaty of 1929.NO.Is the Vatican a State? . . .Yes. sovereignty. territory.
or an incident thereof. If the act is in pursuit of a sovereign activity. July 23. The test is whether the foreign state is engaged in the activity in the regular course of business. especially when it is not undertaken for gain or profit.TEST OF IMMUNITY The mere entering into a contract by a foreign state with a private party cannot be the ultimate test. 2003) . then it is an act jure imperii. (Indonesia v. Vinzon.
. However in March 2000. when a new minister entered service for the embassy. The agreement provided that the respondent would maintain the cleanliness of the embassy and that it shall be effective until 4 years and will be automatically renewed thereafter unless cancelled for which there needs to be a 30-day written notice. he terminated the agreement for unsatisfactory service. VINZON (2003) The Republic of Indonesia entered into an agreement for the maintenance of the Indonesian Embassy with Vinzon Trade and Services.INDONESIA V.
VINZON (2003) Due to this VINZON filed a case against the Indonesian government in the RTC of Manila. It alleged that the petitioner may be sued under the Restrictive Doctrine of Immunity. the state can be sued upon the theory that it has descended to the level of an individual from which it can be implied that it has given its consent to be sued under the contract. that when a sovereign state enters into a contract with a private person.INDONESIA V. .
It must be given explicitly or by necessary implication. or an incident thereof. Submission by a foreign state to local jurisdiction must be clear and unequivocal. VINZON (2003) The SC held that the mere entering into a contract by a foreign State with a private party cannot be construed as the ultimate test of whether or not it is an act jure imperii or jure gestionis. If the act is in pursuit of a sovereign activity.INDONESIA V. then it is an act jure imperii. .
He uttered defamatory words to Joyce V. PEOPLE (2001) Jeffrey was a Chinese national who was employed as an Economist by the Asian Development Bank (ADB). His defense is diplomatic immunity because he is an employee of the ADB. a member of the clerical staff of ADB. Cabal.JEFFREY LIANG V. Is he correct? . He was sued for grave oral defamation.
that the immunity granted to officers and staff of the ADB is not absolute. PEOPLE (2001) The Supreme Court ruled.JEFFREY LIANG V. the SC held that the immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty. Furthermore. . it is limited to acts performed in an official capacity. in essence.
´ .JEFFREY LIANG V. including experts and consultants performing missions for the Bank. shall enjoy the following privileges and immunities: (a)Immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity. PEOPLE (2001) ³Officers and staff of the Bank.
jurisdiction of the receiving state. a consular officer enjoys immunity from the civil and administrative. . On the other hand. civil and administrative jurisdiction of the receiving state. but not criminal. under Article 41 of the Vienna Convention on Consular Relations.Diplomatic v. Consular Immunity Under Article 32 of the Vienna Convention on Diplomatic Relations. a diplomatic agent shall enjoy immunity from the criminal.
heir or legatee as a private person and not on behalf of the sending state. unless he holds it on behalf of the sending state for the purpose of the mission. . administrator.When is a diplomat not Immuned? He shall enjoy immunity from civil and administrative jurisdiction except in the case of: (i) A real action relating to property situated in the territory of the receiving state. (iii) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions. (ii) An action relating to succession in which the diplomatic agent is invoked as executor.
Consular officers are not immuned when the civil action: (i) Arises out of a contract concluded by a consular officer in which. or aircraft.When is a consul not Immuned? Under Article 43 of the Convention. (ii) By a third party for damage arising from an accident in the receiving state caused by a vehicle. vessel. . he did not contract expressly or impliedly as an agent of the sending state.