Please enable JavaScript.

Coggle requires JavaScript to display documents.

PRIL: I. INTRODUCTION - Coggle Diagram

- - - - A. CODES AND STATUTES
        
        CONFLICT OF LAWS ORIGINATED IN CONTINENTAL EUROPE
        Conflict of Laws originated in continental Europe where most laws were codified.. It can be said therefore that the primary sources of the law are found in the civil codes of the different countries.
        
        1987 CONSTITUTION
        One basic source of law in the Philippines is the Constitution of 1987 which contains principles on nationality and comity.
        Art. II. SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
        
        SPECIAL STATUTES IN PH FOR CASES WITH FOREIGN ELEMENTS
        
        CORPORATION CODE (BP 68)
        The Corporation Code (B.P. Big. 68) in 1980;
        
        GENERAL BANKING ACT No. 337
        The General Banking Act No. 337 which took effect in 1948· ,
        
        ACT INSTITUTING THE FOREIGN CURRENCY SYSTEM IN THE PH RA 426
        the Act Instituting the Foreign Currency System in the . Philippines, Rep. Act No. 426 which took effect in · 1972;
        
        PHILIPPINE FOREIGN LAW GUARANTEE CORPORATION UNDER PD 550
        Philippine Foreign Law Guarantee Corporation under Presidential Decree No. 550 which took effect in 1974;
        
        ACT REGULATING RETAIL BUSINESS RA 1180
        the · Act Regulating Retail Business, Rep. Act No. 1180 (1954);
        
        ANTI-DUMMY LAW
        the Anti-Dummy Law (Commonwealth Act No. 108 [19361);
        
        NATIONALIZATION OF RICE & CORN INDUSTRY
        the Nationalization of the Rice and Corn Industry (Rep. Act No. 3018 [1973));
        
        INSURANCE CODE
        the Insurance Code (P.D. No. 1460 [1978));
        
        PROTECTION OF IP
        the Protection of Intellectual Property (P.D. No. 49 [1972));
        
        PATENT LAW
        the :Patent Law, Rep. Act No. 1659 [19471);
        
        TRADEMARK LAW
        the Trademark Law (Rep. Act No. 166 [1976));
        
        CARRIAGE OF GOODS BY SEA ACT
        the Carriage of Goods by Sea Act (Commonwealth Act No. 65 [19361);
        
        SALVAGE LAW
        the Salvage Law (Act No. 2616 [19161);
        
        PUBLIC SERVICE ACT
        Public Service Act (Commonwealth Act No. 146 [1936]);
        
        CIVIL AERONAUTICS ACT
        Civil Aeronautics Act .· (Rep. Act No. 776 [1952));
        
        PHILIPPINE OVERSEAS SHIPPING ACT
        the Philippine Overseas Shipping Act (Rep. Act No. 1407 [19551);
        
        INVESTMENT INCENTIVES ACT
        Investment Incentives Act (Rep. Act No. 5186);
        
        EXPORT INCENTIVES ACT
        the Export Incentives Act (Rep. Act No. 6135) and
        
        LIBERALIZING ENTRY OF FOREIGN BANKS
        Republic Act No. 7722 -[1994] liberalizing the entry of foreign banks in the Philippines.
        
        B. TREATIES & INTERNATIONAL CONVENTIONS
        
        SINCE REPUBLIC, PH HAS ENTERED INTO TREATIES & INT'L CONVENTIONS
        Since it became a Republic, the Philippines has entered into a number of treaties and international conventions that deal with private international law.
        
        INTERNATIONAL CIVIL AVIATION
        Some of these important treaties or conventions are the Convention on International Civil Aviation which entered into force in the Philippines on 4 April 1947, including the Protocol which took effect on 17 November 1952;
        
        WARSAW CONVENTION
        Convention for the Unification of Certain Rules Relating .to· International Carriage by Air commonly referred to as Warsaw Convention which entered into force in the Philippines on 7 February 1951;
        
        OFFENSES COMMITTED ON AIRCRAFT
        Convention on Offenses Committed on Board Aircraft which entered into force in the Philippines on 4 December 1969;
        
        SAFETY OF CIVIL AVIATION
        Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation which took effect in the Philippines on 26 April 1973;
        
        SEA CARRIAGE OF GOODS
        United Nations Convention on the Carriage of Goods by Sea Act ( 1979);
        
        MARRIAGE
        Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriages which entered into force in the Philippines on 21 April 1965;
        
        TRAFFIC OF PERSONS
        Convention on Traffic of Persons in 1955;
        
        DISCRIMINATION AGAINST WOMEN
        Convention on the Elimination of All Forms of Discrimination Against Women which entered into force in the Philippines on 4 September 1981;
        
        POLITICAL RIGHTS OF WOMEN
        Convention on the Political Rights of Women, which entered into force in the Philippines on 12 September 1957;
        
        TRAFFIC SUPPRESSION OF WOMEN & CHILDREN
        International Convention for the Suppression of the Traffic in Women and Children which took effect in 'the Philippines on 30 September 1954;
        
        TRAFFIC & PROSTITUTION
        Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others which entered into force on 19 September 1952;
        
        WORLD INTELLECTUAL PROPERTY ORG
        Convention Establishing the World Intellectual Property Organization which entered into force in the Philippines on 14 July 1980;
        
        PROTECTION OF LITERARY & ARTISTIC WORKS
        Berne Conventions for the Protection of Literary and Artistic Works which entered into force in the Philippines in August 1951;
        
        INDUSTRIAL PROPERTY PROTECTION
        Convention for the Protection of Industrial Property Adopted in Paris on 20 March 1983 and Revised in Brussels in December 1990, Washington on 2 June 1934, and in Lisbon on 31 October 1958, which entered into force in the Philippines on 27 September 1965;
        
        INDUSTRIAL PROTECTION
        the Paris Convention for the Protection of Industrial Property as Revised in Stockholm on 14 July 1967 and entered into force in the Philippines on 16 July 1980 with the exception of some provisions.
        
        HAGUE CONVENTIONS ON PRIL
        There were several Hague Conventions on Private International Law concluded since 1951, which dealt with issues on personal status, patrimonial family status and patrimonial status such as agency and trusts.
        
        RECOGNITION OF FOREIGN JUDGMENT ON CIVIL & COMMERCIAL MATTERS
        The Philippines is a signatory to the Convention on Recognition of Foreign Judgment on Civil and Commercial Matters in 1971 and has ratified the 1993 Convention in Respect ofinter-Country Adoption.
        
        C. TREATISES, COMMENTARIES, AND STUDIES OF LEARNED SOCIETIES
        
        LIKE IN PIL, COURTS RESORT TO DISTINGUISHED JURISTS
        In interpreting statutes and codes involving conflict of laws, courts resort to works of distinguished jurists as well as studies of learned societies.
        
        Among the writers of note in continental Europe are tnrich Huber, De Conflicto Legum Diuersarum in Diversia impecis; Manreas, Comentarios al Codigo Civil Espanol (1924); F.K. von Savigny, System des Beutigen Romischen Rights, English translation by Guthrie (1849); Andre Weiss, - Traite Theorique et Pratique de Droit International Prive (1908).
        
        Among the American .and English authors are: J.H. Beale, Conflict of Laws [Commentary on the American Restatement] (1935); D.F. Cavers, The Choice of Law Process (1965); E. Cheatham, Cases and Materials on Conflict of Laws (1964); B. Currie, Selected Essays on the Conflict of Laws (1963); A. · Ehrenzweig, A Treatise on the Conflict of Laws (1974);1 H.F. Goodrich, Conflict of Laws (1964); A.K. Kuhn, . Commentaries on Private·· International Law (1937); A. Gussbaum, Principles of Private International Law (1943); E. Rabel, The Conflict of Laws (1960~1958); J. Story, Commentaries on the ,Conflict of Laws (1834); F. Wharton, Treatise on the Conflict'. of Laws (1905); G.C. Chesire, Private International Law (1974); and R.H. Graveson, Conflict of Laws (1974).
        
        1 more item...
        
        D. JUDICIAL DECISIONS
        
        MOST IMPORTANT SOURCE OF CONFLICT OF LAW RULES
        The· most important source of conflict of law rules are decisions of, courts.
        According to Graveson, "this branch of law is more completely judge-made than almost any other. In its application, judges have to deal with "
        All Manner of People" more than any other _branch. The claim of justice for right as a basis for conflict of laws is supported not only by the terms of . the judicial oath but by judicial dicta in judgments."
        
        MAIN BULK OF SOURCE OF CONFLICT RULES
        Of late, the Philippines has witnessed an influx of cases which necessitate the knowledge and application of conflict of laws principles.
        Judicial decisions undoubtedly form the main bulk of source of conflict rules.
    - - BARTOLUS
        "FATHER OF CONFLICT OF LAWS"
        Bartolus (1314-1357) is the
        Father of Conflict of Laws
        
        "THEORY OF STATUTES"
        Formulated by Bartolus
        On the basis of the works of his predecessors, Bartolus de Sassoferrato developed the so-called theory of statuta, a theory according to which the nature and content of the statute itself defined whether it was applicable to a certain case.
        
        NATIONALITY LAW PRINCIPLE
        NCC 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)
        [Provided in Art. 3 of French Civil Code (Code Napoleon) and adopted in Spanish Civil Code.]
        
        LEX SITUS RULE
        NCC Article 16. Real property as well as personal property is subject to the law of the country where it is stipulated.
        x x x
        
        UNIVERSAL SUCCESSION
        NCC Art. 16(2) 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. (10a)
        
        LEX LOCI CONTRACTUS
        NCC Article 17(1). 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.
        
        JURISTS
        
        Charles Dumoulin - What law would govern contracts between different nationals
        
        Bertrand D'Argentre - Universal succession
      - "IUS COMMUNE"
        Ius Commune was a supranational law based on Roman law that became continental European common law.
      - "IUS CIVILE
        The Romans applied this only to the reomanian citizens
  - - - C. OBJECT, FUNCTION, AND SCOPE
        
        OBJECT AND FUNCTION:
        RATIONAL & VALID RULES/GUIDELINES
        The object and function of conflict of laws is to provide rational and valid rules or guidelines in deciding cases where
        EITHER the parties, events or transactions are
        linked to more than one jurisdiction.
        
        NECESSITATED BY:
        SOCIAL AND ECONOMIC DEMANDS
        The social and economic demands in the international community of nations with constantly increasing transactions among natural and juridical persons of different nationalities necessitate protection of their rational expectations.
        
        AIMS TO PROMOTE:
        STABILITY AND UNIFORMITY OF SOLUTIONS
        Conflict of law rules aim to promote stability and uniformity of solutions provided by the laws and courts of each state called upon to decide conflicts cases.
        
        COL RULES COMPLY WITH THE
        1987 CONSTITUTION'S
        
        DECLARATION OF PRINCIPLES
        
        STATE POLICIES
        
        1987 CONSTITUTION RECOGNIZES
        
        GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW
        They comply with the Declaration of Principles and State Policy enshrined in the Philippine Constitution that recognizes the generally accepted principles of international law and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
        
        PIL HAS ACQUIRED GREAT MOMENTUM IN THE COUNTRY BECAUSE
        
        SCOPE: CUTS ACROSS SUBJECTS OF JURISDICTION OF LOCAL COURTS/TRIBUNALS
        The subject appears, at first blush, to be simple, but it covers the entire range of laws as it cuts across the subjects of jurisdiction of local courts or tribunals, the law on evidence or proof of foreign law, the personal law of individuals and juridical entities, naturalization law, laws on domicile and residence, family relations, contracts, torts, crimes, corporation law and property law. A new topic of importance is that of international air transportation contracts governed by the Warsaw Convention.
        
        3 DISINCT BUT INTERRELATED ISSUES IN CONFLICT OF LAWS:
        
        ADJUDICATORY JURISDICTION
        
        CHOICES-OF-LAW
        
        RECOGNITION & ENFORCEMENT OF FOREIGN JUDGMENTS
        This casebook will look into three distinct but interrelated issues in conflict of laws.
        
        First is the issues of adjudicatory jurisdiction which determines the circumstances that allow for a legal order to impose upon its judiciary the task of deciding multi-state and multinational disputes.
        Second is the issue of choices-of-law which refers to the probable sources from which the applicable law of the controversy may be derived.
        Third is the recognition and enforcement of foreign judgments. This deals with the study of situations which justify recognition by the forum court of a judgment rendered by a foreign court or the enforcement of such within the forum.
        
        THEORY + PRACTICE IN APPLYING THEORY IN SUBSTANTIVE LAW (by courts)
        Our study of conflicts of law will encompass both conflicts theory and practice of courts in applying these theories in various areas of substantive law.
      - PRIVATE INTERNATIONAL LAW DEFINED
        In Hilton v. Guyot, the US Supreme Court defined . private international law as
        "the law concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominion of another nation."
        
        COMMON THREAD: PRIL IS PART OF MUNICIPAL LAW GOVERNING CASES INVOLVING A FOREIGN ELEMENT
        A common thread running through all classical definitions of private international law is that it .is that part of municipal law which governs cases ·involving a foreign element.
        
        MINOR
        Minor defined private international law as "those universal principles of right and justice which· govern the courts of one state having before them cases involving the operation and effect of laws of another state or country."
        
        CHESIRE
        Chesire stated that "private international law is that part of law which comes into play when the issue before. the court affects some fact or event, or transaction that js so closely connected with a foreign system of law as to necessitate recourse to that system.
        
        AMJUR 2ND ED
        The Second Edition of American Jurisprudence defined conflict of laws as that part of the law of each state or nation which determines whether, in dealing with a legal situation, the law ·of some other state or nation will be recognized, given effect, or applied.
        
        AUST (BOC)
        FOREIGN ELEMENT
        Private International Law is the body of rules of the domestic law of a State that is applicable when a legal issue contains a foreign element, and
        APPLY FOREIGN LAW OR RELINQUISH
        it has to be decided whether a domestic rule should apply foreign law or relinquish jurisdiction to a foreign court [AUST].
        
        MA'AM:
        Absent the foreign element, municipal laws apply
      - PIL vs PRIL
        SOURCES OF LAW:
        
        PIL = ART. 38 OF ICJ
        
        PRIL = INTERNAL LAW
        The central distinction therefore lies in the sources of law.
        
        In public international law, the sources are codified in Article ,38 of the Statute of the International Court of Justice, namely, custom, treaty, and general Principles of law recognized by civilized nations and juridical decisions and teachings of the most highly qualified publicists.
        Private international law, on the other hand, is generally derived from the internal law of each state and not from any "international law extraneous- to municipal law.
        
        CHIEF EXCEPTION:
        HAGUE CONVENTION ON CONFLICT OF LAWS, RELATING TO THE FORM OF TESTAMENTARY DISPOSITIONS
        A chief exception in this regard is any conflict of laws question, which is governed by a treaty, e.g., the Hague Convention on the Conflict of Laws relating : to the ·. Form of Testamentary Dispositions, signed by 18 parties whose municipal courts are accordingly bound to apply• the convention.
        
        MA'AM:
        EXCEPTIONS IN PRIL
        Human Rights
        Humanitarian Rights
        
        PIL vs PRIL
        AS TO:
        
        PERSONS INVOLVED
        a. PIL = STATES & IOs
        b. PIL = INDIVIDUALS or CORPORATIONS
        More specifically, as to persons involved, public international law governs only states and internationally recognized organizations while private international law governs individuals or corporations.
        
        TRANSACTIONS
        a. PIL = STATE-to-STATE or GOV'T-to-GOV'T
        b. PRIL = INDIVIDUALS
        As to transactions, public international law involving state-to-state or government-to-government matters, while private international law relates to private transactions between individuals.
        
        REMEDIES
        a. PIL = STATE MAY RESORT TO
        -i. DIPLOMATIC PROTEST
        -ii. DISPUTE SETTLEMENT
        -iii. FSOW or WAR
        b. PRIL = MUNICIPAL LAW REMEDIES
        As to remedies, in case of .violation of international law, a state may resort to diplomatic protest, peaceful means of settlement of international disputes such as diplomatic negotiations, arbitration or conciliation, or adjudication by filing a case before international tribunals. The state may even use· force short of war and eventually go to war. In private international law, all the remedies are provided by municipal laws of the state, such as resort to courts or administrative tribunals.
        
        MUNICIPAL LAW vs CONFLICT OF LAW RULES WITHIN MUNICIPAL LAW
        A further distinction may be useful, namely, between municipal law, in general, and the conflict of law rules within that municipal law.
        
        PURELY INTERNAL/DOMESTIC LAW = NO FOREIGN ELEMENT IS PRESENT
        In a purely internal or domestic law, no foreign element is present. ·
        
        CONFLICT OF LAWS ARE NOT MERELY PART OF MUNICIPAL LAW
        Although some writers consider conflict of laws as merely part of municipal law, this is erroneous since it involves situations which contain a foreign element upon which a court or tribunal decides to apply the local law or a foreign law. However, there are some cases when, notwithstanding a foreign element, the internal law still controls under the exceptions to the rule of comity.
        
        MA'AM: SOURCES OF LAW
        In the PH, we find our conflict of law rules in the municipal law; however, it's not just municipal law
        
        CONFLICT OF LAW RULES ARE EITHER NATIONAL or INTERNATIONAL
        Conflict of law rules are therefore either national conflict rules which refer to the· internal law of each-country or international conflict rules which. constitute international conventions, foreign case law and commentaries interpreting these conventions.
    - - :two_men_holding_hands: COMITY OF NATIONS = RECOGNITION A NATION ALLOWS WITHIN ITS TERRITORY TO LEJ ACTS OF ANOTHER
        The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call "'the comity of nations." Although the phrase has been often criticized, no satisfactory substitute has been suggested.
        "Comity," in the legal sense is neither a matter of absolute obligation, on the one. hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its· territory, to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the· rights of its own citizens or of other persons who are .under the protection of its law
        (Hilton v. Guyot, 1895)
        
        RATIONALE:
        
        INTERNATIONAL DUTY & CONVENIENCE
        
        RIGHTS OF ITS OWN CITIZENS OR OF OTHER PERSONS UNDER PROTECTION OF ITS LAW
        
        There is no duty to recognize. There is a duty to improve commercial and international relations; if a state will not recognize each and every decision, all decisions will have to be relitigated.
        
        PRIMA FACIE EVIDENCE:
        FOREIGN JUDGMENTS ARE
        PRIMA FACIE EVIDENCE OF THE TRUTH (WITHOUT ANY OBLIGATION TO RECOGNIZE)
        When an action is brought in a court of this country, by a citizen of'.'1 foreign country against one of our own citizens, to cover a sum of money adjudged by a court of that country to be. due from the defendant to the plaintiff', and the foreign judgment: appears to have been rendered by a competent court having jurisdiction of the cause and of the parties, and 'upon due· allegations .and- proofs, and opportunity to defend . against them, and its proceedings are according to the course. of, a civilized jurisprudence, and . are · stated in a clear· and formal record, the judgment is prl:ma facie evidence, at least, of the truth· ot the matter 'adjudged; and it· should be held conclusive upon the merits tried in the. foreign court...
        (Hilton v. Guyot)
        
        UNLESS THERE IS:
        
        FRAUD
        
        PREJUDICE
        
        OTHER SPECIAL GROUND RECOGNIZED BY PRINCIPLES OF INT'L LAW & COMITY
        ...unless some special ground. is shown .. for impeaching the judgment, as by s.,howing that it was unaffected by fraud or prejudice, or . that, by the principles of-international law, and by the comity of our own country, it should -not be given full credit and effect
        (Hilton v. Guyot)
        
        WANT OF RECIPROCITY =
        FOREIGN JUDGMENT NOT CONCLUSIVE, MERELY PRIMA FACIE
        It is unnecessary for this case to determine whether the French judgment may. be impeached for fraud] because there -is a distinct .and independent ground upon which. we are satisfied that. the comity of our nation does not require. us to give conclusive effect to the judgments of the courts of France; and that ground is, the want of reciprocity, on the part of France, as to the effect to. be given to the judgments of this and other foreign countries.
        (In this case, there is no treaty between the US and France that provides for the obligation to recognize a foreign judgment)
        (Hilton v. Guyot) :
        
        MUTUALITY & RECIPROCITY.
        INT'L LAW IS BASED ON MUTUALITY & RECIPROCITY
        international law is founded upon mutuality and reciprocity, and that by the principles of international law recognized in most civilized nations, and by the comity of our own country, which it is our judicial duty to know and to .declare, the judgment is not entitled to be considered conclusive
        
        MA'AM:
        COMITY :first_quarter_moon: = RECOGNITION
        RECIPROCITY " :full_moon: = RECOGNITION BY BOTH! OF EACH OTHER!
        “What is the difference between mutuality & reciprocity?”
        Comity is recognition of a state to another state’s act/law
        The recognition is comity, but reciprocity is when both states recognize the laws
      - MA'AM:
        Recognizing the foreign judgment cannot be an obligation because there is no law which makes it obligatory.
        Here, neither may comity be made the basis for conclusiveness of the foreign judgment.
        There is no duty to recognize.