CONFLICT OF LAWS NOTES

CONFLICT OF LAWS NOTES

By: Evelyn De Matias

PRINCIPLES AND DOCTRINES

Extraterritoriality

-         General rule: Philippine laws have no extraterritorial effects in another country.

Reason: One sovereign country is independent of another.

-         Exceptions:

• When our law provides respect to other countries with respect to its citizens and nationals

• When our country enters into a treaty with another country.

• Congressional legislations adopting foreign law to municipal law of the land.

-         Extraterritorial application of a foreign law allowed when the country gives consent (implied or expressed).

Exception: When the foreign law is against public policy and order.

Foreign Elements

-         consist of the following as subject matter:

a.       nationality or citizenship

b.      personal status

c.       property

-         points of contacts include:

a.       place of contracting

b.      place of negotiation of contract

c.       place of performance

d.      location of subject matter of the contract

e.       domicile, residence, place of incorporation, nationality and place of business of parties.

f.        If the place of negotiating the contract and the place of performance are in the same state, the local law of this state shall apply.

Renvoi

-         the court in resorting foreign law adopts rules of foreign country as to conflict of law which rule may refer back to the law of the forum. (Aznar vs Garcia, 7 SCRA 95)

Borrowing Doctrine

            - Philippines may adopt foreign procedural law under the Borrowing Statute such as Sec. 48 of the Civil Procedure Rule stating “if by the laws of the State or country where the cause of action arose the action is barred, it is also barred in the Philippines.” (CADALIN vs POEA ADMINISTRATOR, 238 SCRA 721)

Doctrine Processual Presumption

            - foreign law must be properly pleaded and proved as a fact. If not pleaded, the court will presume that the foreign law is the same as our local or domestic or internal law. (BANK OF AMERICA vs AMERICAN REALTY CO., 321 SCRA 659)

            - “In a conflict between a Philippine law and a foreign law, Philippine law prevails”

-         General Rule: foreign documents, before they can be admitted as evidence in Philippine courts, must be duly authenticated.

-         Written laws may be evidenced by an official publication or a copy attested by an officer with the legal custody of the record or his deputy. (Secretary of an embassy, consul general, consul, vice consul, consular agent or officer of a foreign service of the Philippines stationed in a foreign country in which the record is kept and authenticated by the seal of his office). – As provided for by Sections 24 & 25 of Rule 132 of the Rules of Court.

-         Exception to the Rule: a foreign law may be proved in open court by the testimony of an active law practitioner familiar with the foreign law and quoting the specific foreign law involved. (Manufacturers Hanover Trust Co. vs Guerrero).

-         Rules of authentication as provided in Sections 24 & 25 of Rule 132 DO NOT APPLY IN ADMINISTRATIVE PROCEEDINGS IN ADMINISTRATIVE TRIBUNALS.

-         Rules on ELECTRONIC EVIDENCE may be availed of in the presentation of evidence in conflicts of law.

Law of Significant Relationship aka Center of Gravity Doctrine aka Grouping of Contacts

            - choice of law problems in conflicts of law are resolved by application of law of the jurisdiction which has the most significant relationship or contact with the events and parties to the litigation and issues.

Kilberg Doctrine

-         When the rule involves PROCEDURAL, the law of the forum is not bound by the country where the place of injury or wrongful act arose.

-         If the action is filed in Philippine court, the court will adopt its own Rules on Procedure.

Doctrine of Characterization or Doctrine of Qualification

-         court determines the character of the action filed in court in order to determine which law would be applicable (choice of law to apply) when trying the case.

-         Analysis of the factual situation, event or operative fact to determine the “POINT OF CONTACT” or “CONNECTING FACTOR” (such as situs of the res, place of celebration, place of performance, and place of delict or wrong doing.

PRINCIPLES ON PERSONAL LAW IN CONFLICTS OF LAWS:

1. Domiciliary Rule

–        law of the domicile of the person is the determining factor

2. Nationality Rule

–        the law of the nationality and citizenship of the person determines his personal law.

–        What the Philippine follows

Two Remedies in Conflicts of Law:

1. Enforcement of rights that accrued in a foreign country, completely or partly, in the form of actions filed in the Philippines by the aggrieved party;
2. Recognition and enforcement of a foreign judgment in the form of petition or complaint to enforce such foreign judgment in the Phil. courts.

Source of Conflict of Laws:

1. Primary Sources

            - Constitution

            - Rules and regulations by administrative tribunals

            - Statutes

            - Judicial ruling by the Supreme Court

2. Secondary Sources (merely persuasive in effect)

            - Decisions of foreign courts

            - Treatises

            - Commentaries and studies of well-known authors

When case involves no foreign element but involves local laws with conflicting applicability, court will resolve by:

1. Reconcile the local laws involved
2. If cannot be reconciled, consider the most recent statute to have repealed the older one.
3. Except one law from the operation of the other and from the basis thereof decide the case.

* When interpreting the application of law in such case, there is always the presumption that the laws are enacted to bring justice and equity therefore the court must decide to this effect.

3 Ways to Deal with Conflict of Laws cases:

1. Court may deny due to the following grounds: lack of jurisdiction or invoke FORUM NON CONVENIENCE (it is more convenient to try a case in a different forum).
2. Hear the case and apply the local law. (exercise of state’s sovereign prerogatives)
3. Hear the case and apply special rules to promote international system to do justice to the parties. (hear the case and apply foreign law).

REAL PROPERTY

-         real property and personal property is subject to the law of the country it is situated.

INTESTATE AND TESTAMENTARY SUCCESSION

-         regulated by the nationality of a person whose succession is in consideration.

CONTRACTS

-         the law of the place of execution of contract, wills and other public documents that governs its forms and solemnities is applied.

CORPORATIONS

            - governs by the law of the country where the corporation is created or incorporated.

Contractual Agreement of parties as to venue  

-         Agreement of parties as to venue of litigation in the contract is merely permissive UNLESS it is clearly stipulated in the agreement that the chosen venue is EXCLUSIVE using qualifying or restricting words to the exclusion of other venue other than the one agreed. (HSBC v Sheman, 176 SCRA 331).

-         Rationale: parties cannot stipulate the jurisdiction of the court over the subject matter because it is fixed by law or the Constitution.

Applicable foreign law to resolve conflicts of laws in the absence of a local law directing the court to apply a foreign law or in the absence of a valid agreement between parties on what rule to govern in case of dispute:

1. Substance vs Procedural Principle

-         General rule: All procedural rules shall follow the law of the forum where the case is filed. Substantive laws shall be governed by the law of the country where the cause of action arose.

2. Center of Gravity Doctrine

-         apply the Most Significant Relationship Theory (law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort or in contract);  or

-         Grouping of Contacts Principles (for torts and contracts) as applied in Saudi Arabian Airlines (SAUDIA) v CA 297 SCRA 469.

-         What are taken into account:

1. place where the injury occurred
2. place where the conduct causing the injury occurred
3. domicile, residence, nationality, place of incorporation, place of business of parties
4. place where the relationship if any between parties is centered

3. Renvoi

-         the court in resorting foreign law adopts rules of foreign country as to conflict of law which rule may refer back to the law of the forum. (Aznar vs Garcia, 7 SCRA 95)

4. Lex Fori

            - “the law of the forum or the court”

            - Lex loci – law of jurisdiction in which relief is sought to control to all matters that are remedial or procedural.

            - German Rule of elective occurrence – the place of tort is whenever an essential part of the tort has been committed and the injured person may choose to sue in either of the places which to him is the most advantageous to his claim.

            - Caver’s Principle – court applies general principles to arrive at a just solution by accommodating conflicting policies and affording fair treatment of the parties caught in the conflict between state policies.

                        ● Court faced with conflicts of laws has to decide the same by applying:

                                    First – the written laws

                                    Second – the customs of the place

                                    Third – judicial decisions

                                    Fourth – general principles of law

                                    Fifth – principles of justice, reason and equity

5. Grouping of Contacts

6. Place of the most significant relations

PERSONAL LAW

CITIZENSHIP AND NATIONALITY

CIVIL CODE PROVISIONS:

Article 15. Law relating to family rights and duties, status, condition and legal capacity of persons are binding upon citizens of the Philippines.

Article 16. Intestate and testamentary succession with respect to successional rights and order of succession and intrinsic validity of testamentary provision shall be regarded by the national law of the person whose succession is under consideration.