The test of jurisdiction is whether or not the law vests upon the tribunal the power to enter upon the inquiry.
WAYS OF DISPOSING OF CONFLICTS CASES:
1. Dismiss the case, either because of lack of jurisdiction or refusal to assume jurisdiction pursuant to the doctrine of forum non conveniens; or
2. Assume jurisdiction over the case and apply the law of the forum; or 3. Assume jurisdiction over the case and apply foreign law.
Theory of Comity – the application of foreign legal systems in cases involving foreign element is proper because their non-application would constitute a disregard of foreign sovereignties, a lack of comity towards foreign states.
Principle of forum non conveniens
A court may resist imposition upon its jurisdiction even when jurisdiction is authorized by law. The reason given for refusal to assume jurisdiction is that to do so would prove inconvenient for the forum.
In sustaining a plea of forum of non conveniens, public and private interests should be weighed:
1. Private Interest of the litigant a. Ease of access to source of proof
b. Availability of compulsory process for attendance of unwilling witnesses c. Cost of obtaining and attendance of willing witnesses
d. Possibility of viewing the premises if appropriate
e. Other practical problems that make trial of the case easy, expeditious and inexpensive 2. Public Interest
a. Administrative difficulties encountered when courts’ dockets are clogged
b. Appropriateness of having the trial in a court familiar with the applicable state law.
GENERAL RULE: No rule of Private International Law would be violated if the courts should decide to dispose of all cases, whether domestic or conflicts cases, according to the internal law of the forum
EXCEPTION: Where a foreign, sovereign, diplomatic official, or public vessel or property of another State is involved, or where a State has, by treaty, accepted limitations upon its jurisdiction over certain persons or things.
INSTANCES JUSTIFYING THE APPLICATION OF INTERNAL LAW TO CONFLICTS CASES:
1. Where application of internal law is decreed;
2. Where there is failure to plead and prove foreign law;
3. Where a case involves any of the exceptions to the application of foreign law:
a) When the enforcement of the foreign law would run counter to an important public policy of the forum;
b) Where the application of the foreign law would infringe good morality;
c) Where the foreign law is penal in nature;
d) Where the foreign law is procedural in nature;
e) When the question involves immovable property of the forum;
f) Where the foreign law is fiscal or administrative in nature;
g) Where the application of foreign law would involve injustice or injury to the citizens or residents of the forum; and
h) Where the application of foreign law would endanger the vital interests of the State.
CHOICE OF LAW
APPROACHES TO CHOICE OF LAW A. Traditional or Single-aspect method
theories which have traditionally concentra-ted on one element of a situation in order to connect a case to a particular legal community
1. Vested Rights Theory
o Rights acquired in one country must be recognized and legally protected in other countries. The forum will not apply before a law but will simply recognize the right vested by said law.
2. Local Law Theory
o In conflict problems, the court does not enforce a foreign law but a right created by its own law by treating a case as a purely domestic case that does not involve a foreign element.
3. Cavers' Principle of Preference
o Choice of law should be determined by considerations of justice and social expediency and should not be the result of mechanical application of the rule or principle of selection.
B. Modern or Multi-aspect method
approach where all the important factors of the case both territorial and non-territorial, are analyzed and the applicable law is arrived at by “rationally elaborating and applying the policies and purposes underlying the particular legal rules that come in question as well as the needs of the interstate or international intercourse.”
1. Place of the Most Significant Relationship
Adopts an approach which identifies a plura-lity of factors that must be considered in the light of choice of law principles.
2. Interest Analysis
Urges the resolution of conflict problems by looking at the policy behind the laws of the involved states and the interests each state had in applying its own law.
3. Comparative impairment
Calls for subordination of the state objective which would be least impaired.
4. Functional Analysis
Looks into the general policies of the states (beyond those reflected in its substantive laws) and to policies or values relating to effective and harmonious intercourse between states
5. Choice-influencing Considerations
Courts will prefer rules of law, whether they are forum law or another state’s law as long as they make “good socioeconomic sense for the time the court speaks” and are sound in view of present day conditions.
These are five major influencing considerations which would lead the courts to the choice-of-law decisions in a given case:
a. predictability of results;
b. maintenance of interstate and international order;
c. simplification of judicial task;
d. application of better rule law; and e. advancement of forums interests.
6. Convenient Theory (forum conveniens)
the application of a foreign law in such a convenient forum, which implies a susbstantial connection with a given conflict problem “must be analytically understood as an exception from the basic rule calling for the application of the lex fori”.
TEST FACTORS OR POINTS OF CONTACT
Circumstances which may serve as the possible test for the determination of applicable law
The most important of these points are the following:
1. The nationality of a person, his domicile, his residence, his place of sojourn, or his origin.
2. The seat of legal or juridical person, such as a corporation.
3. The situs of a thing, that is the place where the thing is, or is deemed to be situated. In particular, the lex situs is decisive when real rights are involved.
4. The place where an act has been done, the locus actus, such as the place where a contract has been made, a marriage celebrated, a will signed or a tort committed. The lex loci actus is particularly important in contracts and torts.
5. The place where the act is intended to come into effect, the place of performance of contractual duties, or the place where the power of attorney is to be exercised
6. The intention of the contracting parties as to the law that should govern the agreement, the lex loci intentionis
7. The place where judicial and administrative proceedings are instituted or done. The lex fori – the law of the forum – because matters of procedure not going to the substance of the claim involved are governed by it; and because lex fori applies whenever the content of the otherwise applicable law is excluded from application in a given case for the reason that it falls under one of the exceptions to the application of the foreign law
8. The flag of the ship, which in many cases is decisive of practically all legal relationships of the ship and of its master or owner as such. It also covers contractual relationships, particularly contracts of affreightment
NOTE: The Philippines follows the Single-aspect method and our conflicts rules are mostly found in the Civil Code (Article 15, 16, 17). These rules specify the geographical location from where the governing law is found, consistent with the traditional approach to choice of law. The difficulty in following these territorially rigid rules is the inherent rigidity and unjust decisions that may result in its application. To avoid these, courts have resorted to characterization and renvoi which operate as “escape devices”
CHARACTERIZATION
The process by which a court at the beginning of the choice of law process assigns a disputed question to the proper area in substantive law.
Three stages in Characterization:
1. The problem of classification
2. The characterization of the “point of contact” or the “connecting factor”
3. The extent of the application of the law that is chosen as applicable to the conflicts case
2 Types of Characterization:
1. Subject Matter Characterization – calls for the classification of a factual situation into a legal category.
2. Substance-Procedure Dichotomy – directs to what extent the court will apply foreign law.
NOTE: If issue is substantive, apply foreign law, but if procedural, forum law.
I. Statute of Frauds
a. Substantive - if the words of the law relate to forbidding the obligation.
b. Procedural - if the law forbids the enforcement of the obligation.\
II. Statute of Limitations and Borrowing Statutes 1. Statute of limitations
a. Substantive - when the limitation was directed to the newly created liability specifically to warrant a qualification of the right (specificity test).
b. Procedural - if it operates to bar only the legal remedy without impairing the substantive right involved.
2. Borrowing statute
directs the state of the forum to apply the foreign statute of limitations to the pending claims based on a foreign law
NOTE: the characterization of a statute of limitation into procedural or substantive becomes irrelevant when the country of the forum has a borrowing statute. It has the practical effect of treating the foreign statute of limitation as one of substance.
Depecage
The phenomenon where the different aspects of the case involving a foreign element may be governed by different systems of law.
Allows the other relevant interests of the parties to be addressed; permits the courts to arrive at a functionally sound result without rejecting the methodology of the traditional approach
PROOF OF FOREIGN LAW 1. By pleading and proof a. Written law
i. By official publication
ii. Copy attested by officer having legal custody plus a certificate with seal from secretary of embassy, legation, consul general, consul, vice consul, consular agent or any officer in the foreign service of the Philippines stationed in the foreign country to the effect that said officer has custody (Section 24 Rule 132 of the Revised Rules of Court)
b. Unwritten law – by testimony of experts or writings of jurists
2. Judicial Notice (when the laws are already within the actual knowledge of the court, such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties concerned claim otherwise PCIB vs. Escolin 56SCRA266)
3. To conclude that the parties who fail to introduce proof as to the content of a foreign law acquiesce to the application of the forum law.
proceeds from the theory that the basic law is the law of the forum and when the claimed applicable foreign law is not proved, then the court has no reason to displace the basic law
4. Presumption that the foreign law is the same as the law of the forum (Doctrine of Processual Presumption)
PERSONAL LAW
The law which governs persons, legal condition, capacity, civil status, etc.
NOTE: Personal law governs a person wherever he goes. The personal law of an individual is either his national law or the law of his place of domicile.
A. Nationality Law Theory
The Philippines adheres to the nationality law theory. Article 15 of the Civil Code provides that Laws relating to family rights and duties, or to the status, condition, and legal capacity of persons are binding upon Filipino citizens, even though living abroad.
It is for each State to determine who are its nationals (Hague Convention). Thus, the Philippine Constitution enumerates those who are citizens of the Philippines.
Problems in Applying the Nationality Principle 1. Dual or Multiple Citizenship
This arises from the concurrent application of jus soli and jus sanguinis
a. In matters of status, he is usually considered by the forum as exclusively its own national, his additional foreign nationality is disregarded
b. In case the litigation arises in a third country, the law most consistently applied is that of the country of which the person is not only a national but where he also has his domicile or habitual residence, or in the absence thereof, his residence.
NOTE: Hague Convention on Conflict of Nationality Laws formulated the following principle in Article 5:
“… a third state shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country of which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.”
2. Statelessness
Stateless persons are generally subject to the law of their domicile or habitual residence, and in default thereof, to the law of their temporary residence.
A person may become stateless by the following means:
a. Deprived of his citizenship for any cause, such as commission of a crime;
b. Renounciation of one’s nationality by certain acts, express or implied;
c. Voluntary release from his original state;
d. If born in a country which recognizes only the principle of jus sanguinis of parents whose law recognizes only the principle of jus soli.
NOTE: Convention on the Reduction of Statelessness adopted in 1961 mandates that the jus sanguini country grant its nationality to a person born within its territory if he would otherwise be stateless, and the jus soli country to extend its nationality to a person who would otherwise be considered stateless when one of his parents is a citizen of the contracting state.
B. Domiciliary Theory
The individual’s private rights, condition, status, and capacity are determined by his physical location.
NOTE: The forum determines domicile according to its own standards.
General Rules on Domicile:
1. No person shall be without domicile
2. A person cannot have 2 simultaneous domiciles.
3. Every natural person, as long as he is free and sui juris, may change his domicile at pleasure.
4. Domicile once acquired is retained unless a new one is gained.
5. The presumption is in favor of the continuance of domicile. The burden of proof is on the one who alleges that a change of domicile has taken place.
6. To acquire a domicile a fresh domicile, residence and intention must concur; to retain an existing domicile, either residence there or intention to remain must be present; to abandon a domicile, residence in a new place and intention to abandon the old place must concur
Legal Classification of Domicile 1. Domicile of origin
Person’s domicile at birth
Legitimate child’s domicile of origin is that of his father and an illegitimate child’s is that of his mother
Upon emancipation, the child may acquire a domicile of choice
2. Constructive Domicile
a domicile assigned by operation of law to persons legally incapable of choosing their own domicile (e.g. minors, mentally disabled)
3. Domicile of Choice (voluntary domicile)
place freely chosen by a person sui juris
to acquire domicile of choice, there must be a concurrence of physical presence in the new place and unqualified intention to make that place one’s home.
PERSONAL STATUS & CAPACITY
In the determination of status and capacity of persons, our Civil Code follows the nationality principle when dealing with Filipinos.
When dealing with aliens, it depends on which principle their country follows but if the alien is in the Philippines, the nationality theory is applied by implication.
RENVOI
A procedure whereby a legal matter presented is referred by the conflict of laws rules of the forum to a foreign state, the conflict of laws rule of which, in turn refers the matter back to the law of the forum (remission) or a third state (transmission).
It literally means a “referring back”
4 WAYS OF TREATING THE RENVOI PROBLEM 1. Rejection
If the conflicts rules of the forum refer the case to the law of another state, it is deemed to mean only the internal law of that state. Thus, the court will apply the foreign law.
2. Acceptance
If the conflicts rules of the forum refer the case to the law of another state, it is deemed to include the totality of the foreign law (internal law and conflicts of laws rules). Thus, the court will recognize the referral back and apply local law.
3. Mutual Desistment Theory
The forum court upon reference to another state’s law sees that such law is limited in application to its own nationals domiciled in its territory and has no provision for application to nationals domiciled outside of the territory. Hence, the local court will apply local law.
This has the same result as the acceptance of the renvoi doctrine but the process used by the forum court is to desist applying the foreign law
4. Foreign Court Theory
Forum court assumes the same position that the foreign court would take if the case is litigated in the foreign state.
Double Renvoi
It is that which occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi.
Transmission
It is the process of applying the law of a foreign state through the law of a second foreign state.
CHOICE OF LAW PROBLEMS I. FAMILY RELATIONS
Under the New Civil Code, questions of family rights, duties, status, conditions and capacity are governed by lex nationalii.
A. MARRIAGE
1. Extrinsic validity - governed by lex loci celebrationis.
GENERAL RULE:
a. All states recognize as valid those marriages celebrated in foreign countries if they comply with the formalities prescribed therein (Hague Convention).
b. The forms and solemnities of contracts, wills and other public instruments, shall be governed by the laws of the country in which they were executed (Article 17 Civil Code).
c. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country (Article 26 Family Code).
EXCEPTIONS: The following are void marriages in the Philippines even if valid in the foreign country where celebrated:
a. When either or both parties are below 18 years of age even with parental consent;
b. Bigamous and polygamous marriages;
c. Mistake as to identity of a contracting party;
d. A subsequent marriage performed without recording in the Civil Registry the judgment of annulment or declaration of nullity, partition and distribution of properties and the delivery of the children’s presumptive legitimes;
e. Marriages where either spouse is psychologically incapacitated;
f. Incestuous marriages; and
g. Void marriages by reason of public policy.
NOTE: These exceptions put into issue the capacity of the parties to enter into the marriage and therefore relate to the substantive requirement for marriage. Since the personal law of the parties, e.g., the national law of Filipinos, governs the questions of intrinsic validity of marriages between the Filipinos abroad, the above enumerations are exceptions to lex loci celebrationis precisely because they are controlled by lex nationalii
Rules on Extrinsic Validity of certain situations:
1. Proxy marriages
GENERAL RULE: where permitted by the law of the place where the proxy participates in the marriage ceremony, are entitled to recognition in countries adhering to lex loci celebrationis rule, at least insofar as formal validity is concerned.
NOTE: Internal Philippine law does not sanction proxy marriages, it is doubtful whether this will be recognized here.
2. Common law marriages
GENERAL RULE: if valid in the State where the parties cohabitated while holding themselves out as man and wife, it is given recognition in sister States which do not permit this informal method of
GENERAL RULE: if valid in the State where the parties cohabitated while holding themselves out as man and wife, it is given recognition in sister States which do not permit this informal method of