conflict of laws_complete notes.doc

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CONFLICT OF LAWS

Course Outline

PART ONE: INTRODUCTION

I. SCOPE OF CONFLICT OF LAWS

• Embraces cases or situations where a foreign element is involved

• A factual situation that cuts across territorial lines and is affected by diverse laws of two or more States is said to contain a foreign element

NATURE

• Municipal Law or private law of each state which regulates relations of individuals among themselves or with their state

• It is the law of the forum that furnishes the yardstick for the presence or absence of jurisdiction

DEFINITION

•

Is that part of the municipal law of the state which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not, they should apply a foreign law or foreign laws (Paras)

IMPORTANCE

1. to adjust conflicting rights in international, mercantile and corporate transactions; and 2. to solve personal, family, property and successional contractual problems, possessed

of facts or elements operating in two or more states OBJECT AND FUNCTION

• Is to provide rational and valid rules or guidelines in deciding cases not only by courts but also by administrative agencies and public officers who are called upon to act on a given situation where either or all the parties, event or transaction are linked to more than one jurisdiction

FUNCTIONS According to Paras

1. the determination of which country has jurisdiction

2. the applicability to a particular case of either the local or the foreign law

3. the determination of the force, validity and effectiveness of a foreign judgment According to Coquia

1. to proscribe the conditions under which a court or agency is competent to entertain a suit or proceeding involving facts containing a foreign element;

2. to determine the extent, validity and enforceability of foreign judgment;

3. to determine for each class of cases the particular system if law by reference to which the rights of the parties must be ascertained

BASIS PRIVATE INTERNATIONAL LAW (CONFLICT OF LAW) PUBLIC INTERNATIONAL LAW 1. As to nature Municipal in character International in character

2. As to persons

involved Dealt by private individuals Parties involved are sovereign states and other entities possessed of an international personality

3. As to transactions

involved Transactions are private one between private individuals Transactions are entered into which generally affect public interest; those which in general are of interest only to sovereign states

4. As to remedies or

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II. BRIEF HISTORY AND DEVELOPMENT OF CONFLICT OF LAWS (25)

In Ancient Rome, it presented a fertile place for the development of “ conflict rules” because two legal systems were in vogue: Roman citizens were governed by the civil law of Rome; all others were under the jurisdiction of their own provincial legislation -- how easily, therefore, “conflict” theories could have arisen. But the theories did not come for only one law prevailed whenever a Roman citizen was involved, namely, Roman civil law. However, there were two incidental developments – the concept of domicile and the concept of lex situs – ( where the immovables were concerned. )

In 212 A.D., the Edict of Caracalla conferred Roman citizenship on all the people living within the Roman Empire: consequently only one law remained – the civil law of Rome – for any and all acts, events, and transactions within the Empire. Law was, thus, placed on territorial without personal or racial discrimination.

In the 5th_{century, the Roman Empire was overthrown by the} so-called “barbarian tribe”: personal law replaced territorial law. This simply means that every person, regardless of residence, was considered subject to the law of his original nation or tribe. If the parties to a contract came from different nations, the law of the debtor prevailed – for it was then believed that his interest were paramount.

III. SOURCES OF CONFLICT OF LAWS 1. Indirect sources

 Natural moral law

 Works of writers

2. Direct sources

 constitutions

 codifications

 special laws

 treatises and international conventions  judicial decisions

 international customs such as lex situs, lex loci celebrationis, lex

nationalii/domicilii, territoriality, generality

PART TWO: JURISDICTION

IV. JURISDICTION (2)

•

Authority of a tribunal to hear and decide a case and possible enforceability in foreign states, subject to the rights of said states (Paras)

• In international law, it is often defined as the right of a State to exercise authority over persons and things within its boundaries, subject to certain exceptions

JUDICIAL JURISDICTION VERSUS LEGISLATIVE JURISDICTION (Coquia)

• Judicial Jurisdiction is the power or authority of a court or administrative tribunal to

try a case, render judgment and execute it in accordance with law while Legislative

Jurisdiction which is the power of the state to promulgate laws and regulations and

enforce them on all persons and property within its territory

FOUR MAJOR QUESTIONS TO BE CONSIDERED IN CONFLICT OF LAWS PROBLEM -1. Has the court jurisdiction over the person of the defendant or over his property 2. Has the court jurisdiction over the subject matter, usually referred to as “competency” 3. Has the suit been brought in the proper venue in cases where a foreign element is

involved and

4. Is there a statute or doctrine under which a court otherwise qualified to try the case may or may not refuse to entertain it

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A. BASIS OF EXERCISE OF JURISDICTION / KINDS OF JURISDICTION 1. Jurisdiction over the person which is based on forum-defendant contacts; 2. Jurisdiction over the subject matter and

3. Jurisdiction over the res based on forum-property contacts

1. JURISDICTION OVER THE PERSON

•

is the power of the court to render judgment that will be binding on the parties involved: the plaintiff and defendant (Paras)

Acquired through

Plaintiff - institution of action by proper pleading

Defendant - voluntary appearance or by the coercive power of legal process exerted over the person (Paras)

Jurisdiction over the person of the plaintiff is acquired from the moment he

invokes the aid of the court and voluntarily submits himself by institution of the suit through proper pleadings

Jurisdiction over the person of the defendant is acquired through voluntary

appearance or personal or substituted service of summons (Coquia)

WILLIAM GEMPERLE V. HELEN SCHENKER

19 SCRA 45 (Jan. 23, 1967 GR No. L-18164)

FACTS : Paul Schenker acting through his wife Helen Schenker filed a complaint against petitioner for the enforcement of Paul Schenker’s allegedly initial subscription to the shares of stock of the Phil. Swiss Trading Company and the exercise of his alleged preemptive rights to the unissued original capital stock of said corporation. Believing that the suit was only for the purpose of harassing and degrading his reputation, he also filed a damage suit against the Schenkers. The trial rendered in favor of Gemperle thus Helen Schenker appealed alleging that Paul Schenker cannot be sued or joined as defendants because the trial court never acquired jurisdiction over his person because he was outside of the Phil. thus he is beyond the jurisdiction of our court.

ISSUE : Whether or not the court can acquire jurisdiction over the person of an alien defendant?

HELD : Yes, where a Swiss citizen, residing abroad was served with summons through his wife who was residing in the Phil. and who was his representative and attorney-in-fact in a prior civil case which was filed at her behest in her aforementioned capacity, the trial court acquired jurisdiction over his person by means of service of summons to his wife.

As a the wife had authority to sue in his behalf, so she was also empowered to represent him in suits filed against him, particularly in a case which is a consequence of the action brought by her in his behalf.

SPS. DOMINGO BELEN vs. HON. PABLO CHAVEZ

G.R. No. 175335, March 26, 2008

FACTS : Respondent Sps. Silvestre and Patricia Pacleb filed an action before the RTC of Rosario, Batangas against petitioners, Sps. Belen for the enforcement of a foreign judgment rendered by Judge Green of the superior court of the State of California, in a complaint for breach of contract against herein petitioners ordering them to pay private respondents monetary award. The summons was served on petitioner’s address in San Gregorio, Alaminos, Laguna received by a certain Marcelo Belen as alleged in the complaint. Atty. Alcantara, whose services were retained by the petitioner’s relatives, entered his appearance for

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the petitioners, filed an answer stating among others that petitioners are actually residents of California, USA. Atty. Alcantara on a later date moved to dismiss the complaint due to the judgment of dismissal rendered by the same foreign court

which was denied for failure to present a copy thereof. Subsequently, the RTC ordered a judgment in favor of the respondents which judgment was not received by Atty. Alcantara due to his death but by a certain Leopoldo Avecilla. Thereafter, Att. Carmelo Culvera, petitioner’s new counsel assailed the judgment before the CA for lack of jurisdiction over the petitioners in view of the improper service of summons. The CA affirmed the said decision. Hence, this petition.

ISSUE : Whether or not the RTC acquired jurisdiction over the person of the petitioner. HELD : Yes. Even if the service of summons was defective upon non- resident

defendants, the appearance of Atty. Alcantara impliedly authorized by the defendants to appear on their behalf and his filing of numerous pleadings were sufficient to vest jurisdiction over the persons of the defendants.

2. JURISDICTION OVER THE PROPERTY

• is the subject matter of litigation results either from the seizure of the property under a legal process or from the institution of legal proceedings wherein the court’s power over the property is recognized and made effective

• this kind of jurisdiction is referred to as in rem jurisdiction. Another form of jurisdiction is quasi in rem jurisdiction which affects only the interests of particular persons in the thing

NOTE: Summons of publication is effective in the following cases – • if the action is in rem

• quasi in rem

• involves personal status of plaintiff

MINIMUM CONTACTS TEST AND FUNDAMENTAL FAIRNESS TEST

• Due process requires only that in order to subject a defendant to a judgment in personam, is he is not present within the territory of the forum, he should have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice

• In both in rem and quasi-in rem actions, all that due process required is that defendant be given adequate notice and opportunity to be heard which are met by service of summons by publication

LONG-ARM STATUTES

 statutes which specify the contacts which jurisdiction will be asserted over a defendant outside of state territory

3. JURISDICTION OVER THE SUBJECT MATTER

• is conferred by law and defined as the authority of a court to hear and decide cases of the general class to which the proceedings in question belong

• acquire through the allegations in the petition or complaint, read together with the proper jurisdictional law, that will confer jurisdiction on the court

CLASSIFICATION OF ACTIONS (as to object)

1. Action in personam – any judgment that the court will render in that case binds only

the parties to the action and their privies or their successors-in-interest;

2. Action in rem – any judgment that the court will render in the case binds not only the

parties to the case but the whole world

3. Quasi in rem action – quasi in rem is actually in personam because it is directed

only against a particular individual but the purpose of the proceeding is to subject his property to the obligation of lien burdening it. The object of the case is the sale or other disposition of property of the defendant which one may have a right or lien over the property

Example: an action to subject certain property of the defendant to payment of a

claim. An action between parties where the direct object is to reach and dispose of property owned by them, or of some interest therein

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IDONAH PERKINS V. ROXAS

June 19, 1941 GR No. 4751

FACTS : Respondent Eugene Perkins filed a complaint against Benguet Consolidated Mining Company for the recovery of dividends but it was withheld by the corporation because of the demands made by the petitioner Idonah Perkins and George Englehard. Respondent then amended the complaint and included the herein petitioner. Summons by publication were then served upon the non-resident defendants, Idonah and Englehard. Petitioners contended that the court cannot acquire jurisdiction over the subject matter because there was already a judgment of the Supreme Court of New York declaring that she was the legal owner of the questioned shares and the trial court cannot amend, annul, modify or reverse the same because it was already res judicata.

ISSUE : Whether or not CFI can assume jurisdiction over the subject matter of the case. HELD : Yes, because jurisdiction over the subject matter is the nature of the cause of

action which is conferred by the sovereign authority which organizes the court. In the case at bar the respondent’s action calls for the adjudication of title to certain shares of stock of the corporation and the granting of affirmative reliefs which fall within the general jurisdiction of the CFI of Manila.

B. WAYS OF DEALING WITH A CONFLICTS PROBLEM / WAYS OF DISPOSING CONFLICTS CASES

1. Dismiss the case for lack of jurisdiction

2. Dismiss the case on the ground of Forum Non-Conveniens 3. Assume jurisdiction and apply the forum law

1. DISMISS THE CASE FOR LACK OF JURISDICTION Effect of absence or presence of Jurisdiction (Paras)

1. when a court is without jurisdiction, it has no alternative except to dismiss the case for being null and void due to lack of due process

2. if a tribunal possesses jurisdiction, it may:

a. refuse to assume jurisdiction on the ground of forum non convenience or b. assume jurisdiction, in which case it may:

- apply the internal law of the forum (lex fori) or - apply proper foreign (lex causae)

2. DISMISS THE CASE ON THE GROUND OF FORUM NON-CONVENIENS •refusal of assume jurisdiction because it would prove inconvenient for the forum

•

a forum may resist imposition upon its jurisdiction even when jurisdiction is authorized by law on the ground that the forum is inconvenient or the ends of justice would be best served by trial in another forum or the controversy may be more suitably tried elsewhere (Doctrine of Forum Non-Conveniens)

ELEMENTS:

a. the forum state is one to which the parties may conveniently resort to; b. it is in a position to make an intelligent decision as to the law and the

facts; and

c. it has or is likely to have power to enforce its decision

MANIFESTATIONS:

• the witnesses and evidence may not be readily available

• the court dockets of the forum may already be clogged; to permit additional cases would inevitably hamper the speedy administration of justice

• the evils of forum-shopping ought to be curbed • the forum has no particular interest in the case

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• other courts are open: certainly the case may be better tried in said courts

HEINE V. NEW YORK INSURANCE CO.,

45 Fed (2d) 426 (1940)

FACTS : Plaintiffs were German nationals and residents of Germany. Defendant on the other hand was a corporation or an entity organized in New York. Plaintiffs brought an action against the defendants for the recovery of insurance claims on insurance contracts issued by the defendant corporation. But the action was brought not in New York nor in Germany but in Oregon, USA. Plaintiffs contends that the court should take cognizance of the case because anyway it has acquired jurisdiction over the subject matter, over the plaintiffs (because plaintiffs filed a pleading in Oregon court) and over the defendant (by means of service of summons having been made on its residents or statutory agents in Oregon).

ISSUE : Whether or not the Oregon court can refuse to take cognizance of the case.

HELD : Yes, the Oregon court can refuse to take cognizance or to assume jurisdiction over the case on the ground of forum non-conveniens, were both parties are not residents of the place where the court was located and exercising jurisdiction and especially the courts of Germany and New York are open and functioning.

But it may also take cognizance of the case in the exercise of its sound discretion.

3. ASSUME JURISDICTION AND APPLY THE FORUM LAW

• As a general rule, no rule of Private International Law would be violated if the courts should decide to dispose cases, according to the internal law of the forum

•

EXCEPT: 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 of things

INSTANCES WHEN INTERNAL / DOMESTIC LAW SHOULD BE APPLIED:

1. when a specific law of the forum expressly provides or decrees in its conflict rules that internal law should apply

Examples:

i. Article 16 of the Civil Code – real and personal property subject to the law of the country where they are situated and testamentary succession governed by lex nationalii

ii. Article 829 of the Civil Code – makes revocation done outside the Philippines valid according the law of the place where will was made or lex domicilii

iii. Article 819 of the Civil Code – prohibits Filipinos from making joint wills even if valid in foreign country

2. when the proper foreign law has not been properly pleaded and proved

• NOTE: as a general rule, courts do not take judicial notice of foreign laws must be pleaded and proved

• The following actions may be resorted in case of failure to prove and plead the proper foreign law

i. Dismiss the case for inability to establish cause of action

ii. Assume that the foreign law of the same as the law of the forum (processual presumption)

iii. Apply the law of the forum

3. when the case involves any of the exceptions to the application of the proper foreign law as when the foreign law is

 contrary to an important public policy of the forum  penal in nature

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 application of the foreign law may work undeniable injustice to the citizens of the forum

 the case involves real or personal property situated in the forum  contrary to good morals

 application might endanger the vital interest of the state

Foreign Law was not properly pleaded and proved

FLEUMER V. HIX, 54 PHIL 610

March 17, 1930 GR No. L-32636

FACTS : Petitioner was an administrator of the estate of Edward Hix. When the petitioner went to court to have the will of deceased Edward probated, it was refused by the court. Petitioner contends that the deceased was a resident of Virginia and the will he executed was within the formalities of Virginia law. In fact he presented the proof such law in a book found in a national library and thereafter he let it certified by the director of our national library.

ISSUE : Whether or not proof of Virginia law was properly laid down.

HELD : No, because there was no showing that the book which he presented was an official publication of West Virginia, nor there was an attestation by the officer having the custody of the original and there was no proof that the law he presented was still enforced at the time alleged will was executed.

Phil. court are not bound to take cognizance of a foreign law which must be proved as a fact and in the absence of such proof it is considered as the same as ours.

Furthermore, the due execution of the will was not established because it was not acknowledged by the testator in the presence of two competent witnesses or that these witnesses subscribed to the will in the presence of the testator and of each other as the law of West Virginia seems to require.

PHILIPPINE TRUST CO. V. BOHONAN

106 Phil 997, January30, 1960 L-12105

FACTS : During the probate of the will and testament of C.O. Bohonan, it was not disputed that testator Bohonan was a citizen of Nevada and that his will shall be disposed in accordance with the law of Nevada. Proof of such foreign law having been offered and taken by the probate court. After the probate becomes final Magdalena and her children filed with the court contending that they have deprived of the legitime so they asked the court to present again the Nevada law to determine on whether or not the deprivation was in accordance with Nevada laws and to determine also whether the Nevada law shall apply.

ISSUES : 1) Whether or not the court shall again take judicial notice on Nevada law 2) Whether or not Nevada law shall apply in the disposition of the estate of a foreign individual

HELD : 1) Not anymore because it has already been presented and admitted in court during the probate of the will and that appellant did not dispute the said law. In addition, the other appellants, children of the testator, do not dispute the provision of the laws of the State of Nevada. Thus, the court can taken judicial notice without proof of such law having been offered at the hearing of the project of partition.

2) Nevada law shall apply. Art.16 of the Civil Code provides that the validity of testamentary disposition the amount of successional right the order of

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succession, the intrinsic validity of the will and capacity to succeed shall be the governed by the law of the person whose succession is under consideration regardless of the nature of the property and regardless of the place where the property is situated.

NOTE: there is no judicial notice of any foreign law. A foreign law must be properly pleaded and proved as a fact, otherwise, our courts will presume that the foreign law is the same as our internal law

RAYTHEON INTERNATIONAL INC., vs. STOCKTON ROUZIE, JR.,

G.R. No. 162894, February 26, 2008

FACTS : Respondent, a resident of La Union, instituted an action for damages arising from breach of contract against petitioner as well as Brand Marine Services, Inc. (BMSI) and Rust Intl. Inc. (RUST) alleging that BMSI a foreign corp. organized under the laws of the State of Connecticut, entered into a contract with respondent where BMSI hired respondent to negotiate the sale of services in government projects in which respondent was not paid his commissions from the Pinatubo dredging project which he secured in behalf of BMSI. Petitioner sought the dismissal of the complaint on grounds of failure to state a cause of action and forum non conveniens since the rights and obligations of the parties shall be governed by the laws of the State of Connecticut.

ISSUE : Whether or not the complaint should be dismissed on grounds of forum non conveniens

HELD : No. Under the doctrine of forum non conveniens, a court in conflict of laws cases, may refuse impositions on its jurisdiction where it is not the most convenient or available forum and the parties are not precluded from seeking remedies elsewhere. In the said case, petitioner’s averments of the foreign elements in the instant case are not sufficient to oust the trial court of its jurisdiction. The propriety in dismissing a case based on the principle of forum non conveniens requires a factual determination thus, it is more properly considered a matter of defense.

V. THE PROBLEM OF CHARACTERIZATION (6) CHARACTERIZATION, defined

• the process by which a court at the beginning of the choice-of-law process assigns a disputed question to an area in substantive law, such as torts, contracts, family law of property (Coquia)

• the process of determining under what category a certain set of facts or rules fall, the ultimate purpose of which is enable the forum to select the proper law (Paras)

Factors which give rise to the problem of characterization: Different legal systems –

• attach to the same legal term with different meanings, that is, an identity of names covers a difference of nature or content of legal idea;

• may contain ideas or conceptions completely unknown to one another;

• apply difference principles for the solution of problems, which, in general terms, are of common nature

STEPS IN CHARACTERIZATION

1. The determination of the facts involved

• determine whether or not foreign element is involved

• law of the forum must be guided by its own rules of pleading and proof 2. The characterization of the factual situation

• process of assigning facts into their particular category • do the facts constitute a problem of –

•

meaning, we do not want the problem to be sent back to us; that we do not want the matter to be referred back to us (Paras)

•

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 the state. Thus, the court will apply the foreign law (Coquia)

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•

apply or accept it by reference to the whole law, including the conflicts rule of the foreign law (Paras)

•

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 rule). Thus, the court will recognize the referral back and apply local law. (Coquia)

3. Follow the DESISTMENT THEORY (also referred to as the MUTUAL-DISCLAIMER OF JURISDICTION THEORY)

• meaning, we desist or refrain from applying the foreign law because it is inadequate as it is founded on a different basis

•

the reason for the desistance is that the forum court upon reference to another state’s law sees that such law is limited in application to its own national and has no provision for application to a non-national(Paras)

•

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 but the process used by the forum court is to desist applying the foreign law. (Coquia)

4. Use “FOREIGN COURT THEORY”

•

meaning, the local forum, in deciding the case, will put itself in the position of the foreign court and whatever it does respecting the case, the Philippine court will likewise do. (Paras)

• foreign court assumes the same position that the foreign court would take if the case is litigated in the foreign state: Hence –

a. if the foreign court would accept the renvoi, the local court shall apply the foreign law.

b. if the foreign law would reject the renvoi, the local court shall apply lex fori c. if the foreign court would apply the desistment theory, the local court shall

apply the foreign law

d. if the foreign court would use the foreign court theory, then international pingpong would ensue (Coquia)

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

• the process of applying the law of a foreign state thru the law of a second foreign state

DOUBLE RENVOI versus TRANSMISSION

• double renvoi deals with 2 countries while transmission deals with three or more countries

• double renvoi deals with referring back while transmission with a transmitting SUGGESTED CONCLUSION

• the theory to be adopted must consider the circumstances of a given situation that will best result in fairness, equity and justice

AZNAR V GARCIA

117 Phil 106, 7 SCRA 95 (1963)

FACTS : Edward Christensen was a citizen of California. He came to the Phl. where he became a domiciliary till the time of his death. Before he died he executed a will instituting his natural child Maria as his only heir to his estate but left a legacy P3600 in favor of Helen also his acknowledge natural child. Helen claims that she was deprived of her legitime, she claims that our Phil. law that should be applied

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under California law the matter is referred back to the law of domicile, that therefore Phil. law is ultimately applicable, that finally therefore her share shall be increased in view of the successional rights of illegitimate children under Phil. law. Maria contends that it is clear that under Art.16 par.2 of Civil Code, the national of the ceased must apply, our courts must apply the internal law of California that there are no compulsory heirs and consequently a testator could dispose of any property possessed by him in absolute dominion and that illegitimate children not being entitled to anything under California law.

ISSUE : Which law shall apply?

HELD : Phil. law shall apply. There are two rules in California on the matter, the internal law which will apply to Californian citizens domiciled in California and the conflicts rule which will apply to Californian citizens domiciled n other states which states that “If there is no law to the contrary in the placed where personal property is situate, it is deemed to follow the person of its owner and is governed by the law of his domicile.

As the domicile of the deceased who was citizen of California was the Phil., the validity of the provisions of his will depriving his acknowledged natural child of the latter’s legacy should be governed by the Phil. law. Therefore Helen’s legacy shall be increased.

C. Usefulness of Renvoi (to avoid unjust results)

BELLIS VS BELLIS

20 SCRA 359 (1968)

FACTS : Decedent Amos Bellis was a citizen and a domiciliary of Texas at the time of his death. He made two wills before he died which are executed in the Phil., one disposing his properties in Texas and the other his properties in the Phil. Although respondents were given their shares in other properties, they were however deprived in the residuary estate of the decedent. They filed an opposition on the ground that they were deprived of their legitimes to which they would be entitled if the Phil. law were to apply. But the executor contended that since the decedent is a Texan citizen the Texas law shall be applied. There are no compulsory heirs under Texas law and therefore no legitimes.

ISSUE : Whether or not respondents entitled to that residuary estate of the decedent. Whether or not renvoi shall be applied.

HELD : No, because under Art.16 of the NCC that in case of intestate and testamentary succession, both with respect to the order of success and to the amount of successional rights, and to the intrinsic validity of testamentary provision and the capacity to succeed shall be governed by the national law of the person whose succession is under consideration, whatever may b e the nature of the property and regardless of the place wherein said property may be found.

Testamentary provisions that successional right to decedent’s estate would be governed by law other than the national law of the decedent is void.

nvoi doctrine because the decedent is a resident and citizen of Texas at the time of his death. Renvoi can be applied only if the decedent is a citizen of one country but a resident in another at the time of his death. So that even if Texas has a conflict rule regarding successional right the same would not result in a reference back to Phil. law but would still refer to Texas Law.

VII. NOTICE OF PROOF OF FOREIGN LAW (RULE 132, RULES OF COURT; RULE 130, RULES OF COURT)

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A. Extent of Judicial Notice

• Section 1, Rule 129, Rules of Court , Judicial Notice, when mandatory – A

court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions

• Section 2, Rule 129, Rules of Court , Judicial Notice, when discretionary –

a court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions

B. Proof of Foreign Law

1. Written Law (Constitution, Statute) • Official publication thereof or

• By a copy attested by the officer having the legal custody of the record, or by his deputy and accompanied with a certificate that such officer has custody 2. Unwritten Law (Constitution, Statute)

• Oral testimony of expert witnesses or

• By printed and published books of reports of decisions of the country involved, if proved to be commonly admitted in such courts;

•

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDMENTS

• a foreign judgment is recognized when it is given the same effect that it has in the state where it was rendered with respect to the parties, the subject matter of the action and the issued involved. Where the foreign judgment is being presented as a defense to the claim of the plaintiff, what is involved is the recognition of a foreign judgment

• a foreign judgment is enforced when, in addition to being recognized, a party is given affirmative relief to which the judgment entitles him. When a plaintiff asks the court of one state to carry out and make effective a judgment obtained by him in another state, what is involved is the enforcement of a foreign judgment. Requisites:

1. foreign judgment was rendered by a judicial or a quasi-judicial tribunal which had competent jurisdiction over the parties and the case in the proper judicial proceedings in which the defendant shall have been given reasonable notice and the opportunity to be heard;

2. it must be a judgment on civil and commercial matters;

3. the judgment must be valid according to the court that delivered it;

4. judgment must be final and executory to constitute res judicata in another action

Elements of res judicata:

a. Final

b. Rendered by a competent court c. On the merits

d. Involve the same parties, subject matter and cause of action

5. foreign judgment must not be contrary to the public policy or the good morals of the state where it is to be enforced

6. judgment must not have been obtained by fraud, collusion, mistake of fact or mistake of law

7. the foreign judgment must not be barred by prescription under the law of the state in which it was promulgated or under the law of the state in which its recognition/enforcement is sought

DISTINCTION BETWEEN RECOGNITION

AND ENFORCEMENT OF FOREIGN JUDGMENT

RECOGNITION

OF FOREIGN JUDGMENT OF FOREIGN JUDGMENTENFORCEMENT

Courts will allow the foreign judgment

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Involves merely the sense of justice Virtually implies a direct act of sovereignty Does not require either an action of a

special proceeding Necessitates a separate action or proceeding brought precisely to make the foreign judgment effective

May exist without enforcement Necessarily carries with it recognition

• For both recognition and enforcement, proof of the foreign judgment has to be presented. Moreover, the requisites or conditions for the recognition or enforcement of foreign judgments must be present.

EFFECTS OF FOREIGN JUDGMENTS

• Under the Rules of Court, in case of judgment against a specific thing, the judgment is conclusive upon the title of the thing.

• In case of judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors-in-interest by a subsequent title; but the judgment may be repelled by evidence of want of jurisdiction, want of notice to the party, collusion or clear mistake of law of fact

C. Philippine Courts not authorized to take judicial notice of foreign laws

IN RE ESTATE OF JOHNSON

39 Phil 157

FACTS : Emil Johnson was a naturalized citizen of USA but he died in the Phil. He made a holographic will before he died but was witnessed only by two witnesses instead of three as required by Phil. law. A petition for probate was filed before the CFI of Manila by his executor, who contended that Johnson was a citizen of USA at the time of his death and that the will was duly executed in accordance with the laws of Illinois, USA which pursuant to the provision of the Civil Procedure, it can be probated here in the Phil. He then presented the proof of said law before the court which was admitted by the same. However, Ebba, the daughter of the late Johnson moved to annul the decree of probate and prayed for the commencement of intestate administration of the estate on the ground that Johnson was not a resident of the state of Illinois (became a resident in Manila, but offering only a general statement) and that the probated will was not in accordance with the laws of that state.

ISSUES : 1. Whether or not Johnson is a citizen of USA.

2. Whether or not the will was valid according to the national law of the decedent.

HELD : 1. Johnson remains a citizen of USA. The petition does not deny the citizenship of Johnson but only asserts that he became a resident of the Phil. Mere residency in another country without any intention of renouncing his citizenship does not necessary follow that he will immediately acquire citizenship in the state of his new domicile.

2. Yes. The will was in accordance with the laws of USA. The trial judge was fully satisfied with the proof of such law presented by the executor of the deceased. Even presuming that the trial judge in taking judicial notice of the law of USA, such error is not available to the petitioner daughter because she did not offer any evidence as what the true law of USA is which would appear that the law found by the court is different from the true law of Illinois USA.

A.1. Exceptions to the application of the proper foreign law – When the foreign law

is- contrary to an important public policy of the forum  penal in nature

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 procedural in nature

 purely fiscal and administrative in nature

 application of the foreign law may work undeniable injustice to the citizens of the forum

 the case involves real or personal property situated in the forum  contrary to good morals

PARDO V. REPUBLIC

85 Phil 323

FACTS : Petitioner Vicente Pardo was a Spanish citizen born in Spain in 1895. In 1905 he went to the Phil. and resides here wherein he married a Filipino and employed in Manila. Petitioner arrived in the Phil. when he was only ten years old and has already lived here for 44 years. Petitioner filed a petition for naturalization but it was opposed by the herein respondent on the ground that he did not or the evidence that he presented on whether the laws of Spain grant Filipinos the right to become naturalized citizen of that country is not sufficient. Petitioner only presented a certificate signed by the Consul Gen. of Spain in the Phil. stating that in accordance with Art.17 and 25 of the Spanish Code, Filipinos are eligible to Spanish citizenship in Spain besides court should have take judicial notice on this law.

ISSUE : Whether or not court shall take judicial notice.

HELD : Yes, because mot of our laws comes from Spain, the court may take judicial notice. As the Civil Code has been and still the basic code in force in the Phil. Art.17 of thereof may be regarded as matters known to judges of the Phil. by reason of their, judicial functions and may be judicially recognized by them without the introduction of proof.

A copy of a foreign law certified only by the local consul of the applicant’s country does not conform to the requirements concerning the certification and authentication of such law.

Proof of a foreign law on regarding the acquisition of citizenship, although not meeting the prescribed rule of practice under the Rules of court, may be allowed and used as basis for a favorable action, if in the light of all the circumstances, the court is satisfied of the authenticity of the written proof offered.

PHIL. COMMERCIAL AND INDUSTRIAL BANK V. ESCOLIN

56 SCRA 266

FACTS : Spouses Charles and Linnie Hodges executed a mutual will wherein they mutually made a testamentary provisions in favor of each other. Both spouses resided in the Phil. at the time of the death of Linnie Hodges. The validity of certain testamentary provisions made by Linnie in favor of his husband, arose a question as to what exactly were the laws of Texas on the matter at the time of death of Linnie. PCIB contended that since Hodges spouses were both residents of the Phil. at the time of the death of Linnie, Texan Law would result in the renvoi. The other party contended that no renvoi was possible therefore Texas Law shall be the applicable law. But PCIB previous admitted that under the laws of Texas that there is such a legitime of ¼ of said conjugal estate.

ISSUES : 1. Whether or not there is a need to ascertain the laws of Texas.

2. Whether or not by previous admitted on what the Texas law is all about creates a estoppel?

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HELD : 1. Elementary is the rule that foreign laws may not be taken judicial notice of and have to be proven like any other fact in dispute between the parties in any proceeding, with the rare exception in instances when the said 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.

2. Yes, it creates estoppel. The existence and effects of foreign laws being questions of fact, such previous admission thereof creates estoppels in any further proceedings.

PHILIPPINE TRUST CO. V. BOHONAN

106 Phil 997, January30, 1960 L-12105

FACTS : During the probate of the will and testament of C.O. Bohonan, it was not disputed that testator Bohonan was a citizen of Nevada and that his will shall be disposed in accordance with the law of Nevada. Proof of such foreign law having been offered and taken by the probate court. After the probate becomes final Magdalena and her children filed with the court contending that they have deprived of the legitime so they asked the court to present again the Nevada law to determine on whether or not the deprivation was in accordance with Nevada laws and to determine also whether the Nevada law shall apply.

ISSUES : 1) Whether or not the court shall again take judicial notice on Nevada law 2) Whether or not Nevada law shall apply in the disposition of the estate of a foreign individual

HELD : 1) Not anymore because it has already been presented and admitted in court during the probate of the will and that appellant did not dispute the said law. In addition, the other appellants, children of the testator, do not dispute the provision of the laws of the State of Nevada. Thus, the court can taken judicial notice without proof of such law having been offered at the hearing of the project of partition.

2) Nevada law shall apply. Art.16 of the Civil Code provides that the validity of testamentary disposition the amount of successional right the order of succession, the intrinsic validity of the will and capacity to succeed shall be the governed by the law of the person whose succession is under consideration regardless of the nature of the property and regardless of the place where the property is situated.

LIM V. COLLECTOR OF CUSTOMS

36 Phil 472

FACTS : Two children(minors) born in China from a Chinese father and who were in the custody of their Filipino mother were denied by the respondent to enter into the Phil. on the ground that under Chinese immigration laws a certificate shall be necessary in order to enter into the Phil. Petitioners contended that they are entitled to enter, regardless of the provisions of the law since the are citizens of the Phil. and that their mother who is entitled to their custody and charged with their maintenance and education, is clearly entitled to take up her residence in the Phil. and should not be required, to that end, to abandon her minor children. But petitioners failed to prove and present the Chinese law.

ISSUE : In the absence of any evidence of the Chinese law, what law shall apply.

HELD : Infant children of a Filipino woman born in China out of lawful wedlock, whose father was a Chinese person, seeking entry into the Phil. in the custody and

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control of their mother for the purpose of taking up their residence here with her are not subject to exclusion under the Chinese Immigration laws.

In the absence of anything to the contrary as to the character of a foreign law, it will be presumed to be the same as the domestic law on the same subject.

Since the court was not advised of any provision of Chinese law which differentiates the status of infant children, born out of lawful wedlock, the court therefore assumes that China law is the same in Phil. law regarding the rights and status of infant children born out of wedlock.

BEAM V. YATCO

82 Phil 30

FACTS : A.W. Beam and his wife Lydia Beam were residents and citizens of California at the time of Lydia Beam’s death. But sometime during their marriage they resided her and acquired properties in the Phil. When Lydia Beam died half of her properties were inherited by the plaintiffs and consequently the defendant imposed an inheritance tax. Plaintiffs refused to pay or paid under protest on the ground that A.W. Beam was a Utah citizen, that under the law of Utah properties acquired by the spouses during the marriage belong to them separately however A.W. Beam failed to prove his citizenship. Defendant contends that since he failed to prove his Utah citizenship the law of the Phil. shall govern. And that since the properties in questions were acquired by them during their marriage, it should be considered as part of the community property and upon the death of the wife, the one belong to her passed by succession to her heirs in accordance with Art.1401 of the Civil Code and therefore subject to the inheritance tax.

ISSUE : Failure of A.W. Beam to prove Utah law, what law shall apply?

HELD : When a foreign law is pleaded and no evidence has been presented as to said law it is presumed that Utah law is the same as in the law of the forum.

MICIANO V. BRIMO

50 Phil 67

FACTS : A Turkish national made a will wherein he stated that his property shall be distributed in accordance with Phil. laws and not that of his nation since the provisions of the will is void. When the judicial administrator of the Turkish filed a scheme partition proceedings, brothers of the deceased Turkish opposed on the ground that said provisions in the will is void being in violation of Art. 16 of the Civil Code. However, the oppositor failed to prove that the said testamentary provisions are not in accordance with the Turkish Laws and failed to present any evidence showing what the Turkish laws are on the matter.

ISSUE : Whether or not partition proceedings be refused. What law shall be applied.

HELD : No, it shall not be refused because foreign laws shall be proved as a fact and in the absence of such proof, they are presumed to be same as these of the Phil. Thus partition proceedings may be continued.

However, by failure to prove by the brother oppositor on what the Turkish law is all about, the court indulged in a presumption that Turkish law was the same as ours. And his estate shall be distributed in accordance with the Phil. laws but testamentary provision made by the testator shall be void for being contrary to the law.

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COLLECTOR OF INTERNAL REVENUE V. FISHER

110 Phil 636

FACTS : Stevenson was born in the Phil. of British parents and was married to Beatrice also a British national. Stevenson died and instituted his wife as his sole heir to certain properties acquired by both spouses while residing here in the Phil. when the wife filed a preliminary estate4 and inheritance tax return, she claims for a deduction of taxes on the ground that under the Phil. civil law, in the absence of

any ante-nuptial agreement, the contracting parties are presumed to have adopted the system of conjugal partnership as to the properties acquired during the marriage, hence, the taxable net estate shall be reduced. But the petitioner contended that the property relation of the husband should not be governed by the Phil. but by the English law which does not recognize legal partnership between spouses, hence all properties acquired by the husband during the marriage shall belong exclusively to the husband, and therefore the taxable net estate is the whole of the decedent’s estate. But petitioner failed to prove said English law.

ISSUE : Whether or not English law shall be applied.

HELD : No. The pertinent English law that allegedly vests in the decedent husband full ownership of the properties acquired during the marriage has not been proven by the petitioner except for a mere allegation in his answer which is not sufficient. In the absence of such proof, it is presumed that the law of England on the matter is the same as our law.

YAM KA LIM VS. COLLECTOR OF CUSTOMS

30 Phil 46

FACTS : Yam Ka Lim, of Chinese descent, arrived at the port of Manila from the port of Hongkong and sought admission into the Philippine Islands, claiming that he is the legitimate minor son of Yam Long Sai, a resident Chinese merchant. The board of special inquiry, questioned his right to enter the Philippines and after examining the evidence submitted by the petitioner and from the testimonies of the witnesses, refused to permit him to land upon the ground that they did not believe him to be the legitimate son of the said Yam Long Sai. Notice of the said decision was given to Yam Long sai and to his representative William Tracey Page, giving them 2 days to appeal to the Insular Collector of Customs. Later a bond was given for the release of the plaintiff. No appeal was taken from the decision of the board of special inquiry to the Insular Collector of Customs. Without having first decided whether the Collector of Customs had abused his authority, the lower court proceeded to hear evidence upon the question whether or not Yam Ka Lim was the legitimate minor son of Yam Long Sai. After hearing the evidence and taking into consideration the laws of China, without any proof as to what they were, the lower court decided that the said Yam Ka Lim was the legitimate son of the said Yam Long Sai and ordered him to be released from the custody of the Collector of Customs and that he be permitted to enter the Philippine Islands and that the said bond theretofore given be canceled. Hence this appeal.

ISSUE : Whether or nor the court erred in taking judicial notice of the laws of China relative to marriage and child legitimacy, which differ from those in force in the Philippine Islands.

HELD : Yes, the lower court committed an error in taking judicial notice of what the laws of marriage in China are. The statutes of other countries must be pleaded and proved the same as any other fact. In the absence of such pleading and proof the laws of a foreign state will be presumed to be the same as our own.

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There was ample proof in the record to show, or at least to convince the board of special inquiry, that said Yam Ka Lim was not the legitimate minor son of the said Yam Long Sai.

PART THREE: PERSONAL LAW

VIII. NATIONALITY

 refers to membership in a political community.  The Philippines adheres to the nationality law Theory Nationality Law Theory

•

is a conflict of law theory by virtue of which jurisdiction over the particular subject matter affecting a person such as status of a natural person, is determined by the latter’s nationality (Coquia)

• it is national law of the individual that regulates his civil status, capacity, condition, his family rights and duties, laws on succession and capacity to succeed

Nationality vs. Citizenship

• while nationality is membership in an ethnic, social, racial and cultural group, citizenship is membership in a political society

NATIONALITY CONFLICT RULE

• Article 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)

A. DETERMINATION OF NATIONALITY

• Each State has the prerogative and authority to determine by its own municipal law who are its nationals or citizens

• The Hague Convention on Conflict of National Laws provides “it is for each state to determine who are its nationals. This law shall be recognized by other states insofar as it is consistent with international convention, international customs, and the principles of law generally recognized with regard to nationality.

NOTE: Nationality may be acquired by birth or by naturalization

The three kinds of citizens of the Philippines are – 1. Natural Born Citizens

2. Naturalized Citizens or Citizens by Naturalization 3. Citizens by election

1. NATURAL BORN CITIZENS – those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship.

Native born citizen is one born in the country of which he is a citizen, hence, a child born to a Filipino mother in Germany is a natural born, but not native born citizen

Article IV of the Philippine Constitution (1987), The following are citizens of the Philippines –

a. Those who are citizens of the Philippines at the time of the adoption of the Constitution;

b. Those whose fathers and mothers are citizens of the Philippines;

c. Those born before January 17. 1973 of Filipino mothers, who elect Philppine citizenship upon reaching the age of majority (within three years)

d. Those who are naturalized in accordance with law

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1. JUS SOLI PRINCIPLE – the law of the place of one’s birth determine one’s nationality

2. JUS SANGUINIS PRINCIPLE – one follows the citizenship of his parents; this is citizenship by blood

 The Philippine Constitution applies the Jus Sanguinis principle which means the rule of descent or blood.

TALAROC V. UY, 92

Phil 52 (1952)

FACTS : Respondent Yu was elected as Municipal Mayor. However his election was questioned by the defeated candidate Talaroc, the herein petitioner, on the ground that Uy was a Chinese and therefore ineligible for the position. Respondent contended that his father is a Chinese citizen.while he was still a minor his father died and that his mother without expressly expatriating herself ipso facto reacquired her Filipino citizenship upon the death of her husband. He thus followed his mother’s citizenship and is a citizen of the Phil. by the mere fact of his birth.

ISSUE : Whether or not Uy is Filipino citizen.

HELD : Filipino, a Filipino woman married to Chinese ipso facto reacquired her Filipino citizenship upon the death of her husband and that thereafter her minor children’s nationality automatically followed that of the mother’s.

The rule applies only to minor children not to persons who are already in age.

CO V. ELECTORAL TRIBUNAL OF THE HOUSE OF REP.

199 SCRA 692

FACTS : Private respondents Ong’s father was a Chinese citizen married to a natural born Filipina in 1932. They bore 8 children, one of whom is private respondent who was born in 1948. On 1955, private respondent’s father took his Oath of Allegiance and was declared a Filipino citizen. In 1984 and 1986 elections, he registered himself as a voter of Laoang Samar. The following year he ran in the elections for representative in the 2nd_{district of Northern Samar in which he was} proclaimed winner. Petitioner then filed protests on the ground that Ong, the private respondent was not a natural born citizen of the Phil. because he failed to file a statement or formal declaration when he reached the age of majority to elect Phil. citizenship which is required under the law.

ISSUE : Whether or not there is a need for Ong to file a sworn statement.

HELD : Not anymore. He was already a citizen. Not only because his mother was a natural born citizen but also his father had been naturalized when the respondent was still a minor. He exercises his right of suffrage and established his life here in the Phil.

The exercise of right of suffrage and the participation in election exercises constitute a positive act of Phil. citizenship.