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nullDesignations Private International Law – This is how other authors would refer to the subject as known in some jurisdictions. Conflict of Laws – In the Philippines, this is the official designation of the subject. No less than the Department of Education and the Supreme Court chose this designat...

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CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017

Conflict of Laws Introduction Designations 1. Private International Law – This is how other authors would refer to the subject as known in some jurisdictions.

Atty T: However, using Conflict of Laws is also a misnomer. If you look at the subject matter, there really is no conflict. Precisely, the Conflict of Laws rules are designed to avoid conflict. But that is the best that they can come up with. Conflict of Laws Defined

Book: 2. Conflict of Laws – In the Philippines, this is the official designation of the subject. No less than the Department of Education and the Supreme Court chose this designation.

TN: These two designations are one and the same. The term “Private International Law” is misleading Private international law was not chosen by DepEd and SC because it is misleading. Internationally, it is often confused with Public International Law while there is a world of difference between the two. It will be a misnomer.

1. That part of law which comes into play when the issue before the court affects some fact, event or transaction that is so clearly connected with a foreign system. 2. It embraces those universal principles of right and justice which govern the courts of one state having before them cases involving the operation and effect of the laws of another state or country. 3. That part of the municipal law of a state which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not they should apply foreign or foreign laws.

Conflict of Laws v. Public International Law Every country has its own set of laws Conflict of Laws

Public International Law

As to persons involved

Governs private individuals or corporations

Governs sovereign states and entities that are internationally recognized or possessed of international personality

As to nature Municipal or domestic in character

International in character

The study of Conflict of Laws is founded on one universally recognized principle that every country has its own set of laws. We have a community of nations governed by laws with respect to the relationship between nations. The member state itself has its own set of rules that governs its internal relationships—between States and citizens; and the relationship between citizens with respect to other citizens. COL is part of Municipal Law It is not international in character. “Municipal Law” means the internal or local law of each state. General classifications of laws governing every State Two general classifications of laws governing every State

As to transactions involved Deals with transactions strictly private in nature, in which country as such has generally no interest

Applies to transactions which only sovereign states or entities with international personality are concerned and which generally affect public interest

As to remedies applied

Judicial or administrative tribunals in accordance with the rules of procedure of the country where they sit

Concerned states may first resort to peaceful remedies like mediation, negotiations, conciliation, arbitration, etc. If these fail, they may resort to forcible remedies like severance of diplomatic relations, retorsions, reprisals, pacific blockade, collective measures under UN Charter and war.

1. Purely domestic laws – Laws which govern disputes involving purely domestic elements. 2. Conflict of Laws or Private International Law – Laws which govern disputes involving a foreign element.

Example 1: Purely domestic dispute calling for the application of purely domestic laws. The dispute involves a breach of contract where Ms. Ibanez entered into a contract with Mr. Cabatana for the performance of Lingam Massage Services. They are both Filipinos and the contract is to be executed and performed in the Philippines. All the important elements of the contract relate to the Philippines: citizenship of the parties, place of execution and performance. Hence, it is a dispute involving purely domestic elements. Thus, the resolution of the dispute will involve Philippine laws, whether involving the capacity of the contracting parties, or the intrinsic and extrinsic validity of the contract.

Example 2: A dispute involving foreign element calling for the application of Conflict of Laws. Ms. Ibanez is a citizen of Spain while Mr. Cabatana is a citizen of Russia. The contract is executed in Japan and the service is to be performed in 1|U N I V E R S I T Y O F S A N C A R L O S

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 Vietnam. The suit is filed before Philippine court. If the dispute revolves around the issue as to capacity or the extrinsic validity of the contract, there will be two or more laws applicable relating to two or more different countries involved. Therefore, this dispute has a foreign element because it involves different countries. The significant components of the dispute – citizenship, place of execution and performance of the contract – relate to different countries. Q. When does a dispute involve a foreign element?

ANS: When facts, events, and transactions occur in two or more states and are affected by various laws of the different states involved. In the resolution of the dispute, a court where the case is pending has to make a choice as to which laws pertaining to various States involved should be applied. Book: 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 different states or countries. Atty T: This is a critical question for the court to know which set of laws to apply – purely domestic laws or conflict of laws rules. How the court deals with a COL situation In our study of Conflict of Laws, the seat of dispute is always the Philippine setting, invested with a foreign element. This is brought before Philippine court, prompting it to apply our own Conflict of Laws. We don’t care about Conflict of Laws abroad. It is possible, however, that what will be applied is a foreign law when our own Conflict of Laws say so.

Example: The issue is about wills – Ms. Ibanez, a Tanzanian citizen, executed a will in Tanzania, but she happened to fall in love with the Philippines. She stayed in the Philippines for several years and acquired several properties. Eventually, she died and left a substantial amount of estate in the Philippines. She also left several husbands.

Examples of our Conflict of Laws 1. Nationality Theory Article 15, Civil Code 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. If there is an issue involving a Filipino regarding: a) Status b) Legal Capacity c) Condition

Atty T: It doesn’t matter where the Filipino is found, he may be anywhere in the world, because our own COL rule provides that he is governed by Philippine law. 2. Situs of the Crime Article 2, Revised Penal Code Application of its provisions. — Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or

Issue: Who among the husbands is entitled to the properties left by Ms. Ibanez?

5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code

Since the case involves a conflict of law, the forum should apply our own conflict of laws rule. Under our Conflict of Rules on Succession (Art. 16, par. 2), the national law of the testator will apply in so far as the order of succession, the amount of successional rights, validity of the testamentary provision and the capacity of the heir to inherit.

Atty T: Only crimes committed within the Philippine territory can be prosecuted, therefore, our courts have no jurisdiction over crimes that happened outside of the Philippine territory except on instances where the protective theory applies.

Thus, in this case, since the nationality theory applies, then the national law of Ms. Ibanez (Tanzanian laws) will apply as provided by our very own COL rule. Important: The seat of the controversy is our own court and the applicable laws are our own conflict of laws rules.

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GR: Territoriality principle XPNs: Protective theory (Article 2 of the RPC – the five mentioned above)

Example: A Filipino commits a crime in Russia against a fellow Filipino. Our courts cannot have jurisdiction over the said case because our courts can only acquire jurisdiction over crimes which happened in the Philippines.

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 3. Lex rei sitae or lex situs Article 16, Civil Code Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. Important: If the dispute involving a property involves: 1. Validity of the transaction (either the extrinsic or intrinsic validity of the contract), or

Three Stages in the resolution of a COL problem Q. What are the three stages in the resolution of a conflict of laws problem?

ANS: 1. Determination of jurisdiction 2. Choice of law 3. Enforcement of judgment Determination of jurisdiction Jurisdiction Jurisdiction is determined by the law of the country where the suit is lodged or filed.

Three kinds of jurisdiction: 1. Jurisdiction over the person

2. Capacity of the contracting parties Then the issues should be resolved on the basis of Lex Rei Sitae (Art. 16) GR: Real property as well as personal property is subject to the law of the country where it is situated. XPN: Article 16, 2nd par. Governed by the national law of the decedent. 4. Lex loci celebracionis Article 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. 5. Property relations of spouses Article 80, Family Code In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence.

Atty T: Where one of the parties of the marriage is a Filipino, the

It is the competence or power of a court to render a judgment that will bind the parties involved.

Jurisdiction over the: a) Plaintiff – acquired by instituting the action by the proper pleading filing of the complaint/petition b) Defendant – acquired when he enters his appearance or by coercive power of legal process exerted by the court over him (personal or substituted service of summons) 1. voluntary appearance & submission to the authority-co 2. proper service of summons General rule: Strict compliance with the rules is required for court to acquire jurisdiction. The question of erroneous service of summons must be raised before judgment is rendered, otherwise, this would be a clear case of waiver. Exception: Defective service may be cured by actual receipt of summons by the defendant, or if in any other manner, knowledge of the existence of the case should come to his attention. How service of summons is effected: If it is an action in personam: 1. Personal service 2. Substituted service

property relations should be governed by Philippine laws.

Exceptions: Art. 80, par. 2, Family Code. This rule shall not apply: 1. Where both spouses are aliens; 2. With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and 3. With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity.

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TN: Service by publication is not sufficient, whether the defendant is in the Philippines or not. When service by publication authorized 1. Actions in rem 2. Quasi in rem 3. Action involving the personal status of plaintiff (Rule 14. sec. 15. 1997 Rules on Civil Procedure) When extraterritorial service of summons effected Sec. 15, Rule 14, ROC 1. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 2. When the defendant does not reside and is not found in the Philippines, and the action relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or 3. When the defendant is a non-resident but the subject of the action is properly located in the Philippines, in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or 4. When property of a non-resident defendant has been attached within the Philippines. How extraterritorial service effected

3. Jurisdiction over the res Jurisdiction over the particular subject-matter in controversy, regardless of the persons who may be interested therein. Basis: The presence of the property within the territorial jurisdiction over the persons whose interests in the property are affected. Purpose: To impose a personal liability on anyone but it is to affect the interests of all persons in a thing.

Examples: Land registration cases and admiralty cases Important: If the court has no jurisdiction, then the court shall dismiss. If it has jurisdiction, determine whether:

Such service may, by leave of court, be effected: 1. By personal service (Sec. 6, Rule 14) 2. By publication, but copy of the summons and the order of the court must be sent by registered mail to the defendant’s last known address. 3. In any other manner that the court may deem sufficient (i.e. registered mail. See Midgely v. Fernandez) 2. Jurisdiction over the subject or nature of the action

Book: It is the power to hear and determine cases of the general class to proceedings in question belong. It is conferred by law and cannot be conferred by consent of the parties (e.g. Constitution and Judiciary Reorganization Act, as amended). The allegations of the complaint or petition read in the light of the proper jurisdictional law that confer jurisdiction. The Court must also consider the possible enforceability of its decision in foreign states subject to the rights of said states. Except from the Supreme Court whose jurisdiction is vested by the Constitution, all other courts have their jurisdiction defined by law. Therefore, jurisdictional issues over subject matter or nature of the action should be determined by the law/s that created the courts in the Philippines. Such laws are: 1. B.P. 129 which created various courts and apportioned their respective jurisdiction. 2. RA 7691 which amended B.P. 129 and expanded the jurisdiction of the lower courts. Some amendments are: (a)

When the action is purely monetary, the jurisdictional limit of MTCs is P400,000. If it exceeds such amount, the jurisdiction is with RTC.

a) To assume jurisdiction, or b) To dismiss it on the ground of forum non conveniens

TN: It is the law of the forum that determines whether the court has jurisdiction or not over the case. Principle of forum non conveniens Even if the court has jurisdiction, it may, in the exercise of its jurisdiction, still dismiss the case, not because of lack of jurisdiction, but because it believes that it is not the convenient forum.

Atty T: This principle has nothing to do with jurisdiction. The court may dismiss the action even if it has jurisdiction if forum non conveniens applies. But this is discretionary on the part of the court. The purpose of this is to avoid universal forum shopping which would result in harassment and vexation of the defendant.

Example: When a non-resident citizen initiates an action in another state of which neither of the parties is a resident. The obvious reason here is to inconvenience the defendant or to shop for a friendly forum. The plaintiff may believe that the court or the law of that country are more sympathetic to his cause. Another reason is litis pendentia. There is already a case pending; another case cannot anymore be pursued in another state. That second case may be dismiss on the ground of forum non convenience. When forum non conveniens does not apply; Elements The court may or may not dismiss a case on the ground of forum non conveniens because it is discretionary. The court may proceed with the case involving a foreign element, conduct trial and render judgment if the following requisites are present: 1. The Philippine court is one to which the parties may conveniently resort to.

(b) When the action is one that involves title to or possession over real property, if the assessed value is P20,000, jurisdiction is with MTC.

2. The Philippine court is in the position to render an intelligent decision as to the findings of facts and law.

(c)

3. The Philippine court has the adequate machinery to enforce its decision.

If incapable of pecuniary estimation such as specific performance or injunction, jurisdiction is lodged with the RTC.

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CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 When Philippine court is deemed an inconvenient forum The following are instances when the court may dismiss the case on the ground of forum non conveniens: 1. Parties involved are not residents of the Philippines

factual finding on the matter. The Philippine court was also not in the position to enforce the judgment because the defendant was in China and summons was not served. Navida et al v. Dizon et al. Facts:

2. Material witnesses are not residents or cannot be found in the Philippines and it will be too costly to bring them before the Philippine court to testify. 3. Documentary or object evidence to establish one’s cause of action or defenses are not found in the Philippines. 4. Forum shopping

This was a class suit involving a product liability tort brought about by workers in banana plantations in Davao and General Santos. The workers alleged that due to the exposure to the pesticide manufactured by the defendants, they were inflicted with diseases. The workers accused the d...