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PRIL - Week I - Introduction, William Gemperle v. Helen Schenker - ● How…

- - - - C. Object, Function and Scope
        
        Object and Function - 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. This is to provide stability and uniformity of solutions;.
        
        Scope - Generally, deals with any of the three issues:
        
        Judicial Jurisdiction
        
        Choice of Law
        
        Foreign Judgments
        
        Contentious Subjects - However, dispute as to matters which can be brought within the scope of Conflicts of Law. These can refer tot he following subjects
        
        Nationality - Nationality rules are not generally brought within the subject. Nationality, in contrast to a "localizing" factor like domicile, is determined without regard to the policy considerations of private international law; nor do they address common topics such as jurisdiction, choice of law, etc.
        
        Rights of Aliens - only those municipal law norms affecting aliens which relate as well to judicial jurisdiction, choice of law, or foreign judgments are properly included within private international law
        
        Inter-Country Court Assistance - assistance rendered by the courts of one nation to those of another is a further topic sometimes included within private international law, although the connection is tenuous
        
        State Immunity - norms concerning the immunity of foreign sovereigns, diplomats, and State property from judicial jurisdiction deﬁnitely should be included within private international law
        
        Judicial Jurisdiction/Choice of law in Criminal Cases - udicial jurisdiction and choice of law in criminal cases, it is a difﬁcult question, since generally a court will not apply a foreign criminal law even if it has jurisdiction over the accused; however, Stevenson believes criminal law can be analyzed within PRIL.
        
        Rationale (Baghieri) - This is an object facilitated by considerations of justice, convenience, necessities of international intercourse between individuals, and an enlightened conception of public policy itself.
      - Conflict of Laws Definition - Part of the law of each state/nation which determines which law, either of some other state or nation will be recognized, given effect or applied.
        
        Distinguished from PIL and Other Disciplines -
        
        From PIL -
        
        As to Applicability Rationae Personae/Materiae - PIL governs relationships between states. PRIL governs individuals in their private transactions which involve a foreign element.
        
        Sources of Law - PIL based on ICJ 38, whereas PRIL is derived from the internal law of each state, subject to the exception of conflict of laws questions governed by treaties such as the Hague Convention.
        
        Remedies - In PRIL, all remedies are provided by municipal laws of the state. Whereas PIL can cover other means, such as diplomatic protest, arbitration, etc.,
        
        Persons Involved - PRIL is individuals and corporations. PIL is internationally recognized orgs and states
        
        Transactions - State to state whereas PRIL is private transactions between individuals
        
        Sources;Conflicts of Law - Either national conflict rules referring to the internal law of each country or, international conflict rules which constitute international conventions, foreign case law and commentaries interpreting these conventions.
        
        Human Rights/Humanitarian - Exception to persons in PIL. There, can cover individuals.
        
        From Domestic Law -
        
        Municipal in General - No foreign element is present.
        
        Municipal Conflicts of Laws - Contains foreign elements.
        
        Comity - There are instances where internal laws still control under the exceptions tot he rule of comity, notwithstanding the rpesence of a foreign element.
    - - Source of Conflict - In light of ease of transportation, there are many instances where transactions entered into one state have force and effect in another, thus being governed by entirely different laws.
    - - International Conventions on Conflicts of Laws - Several states have concluded international conventions to deal with conflict of laws situations. Totalling to 34 conventions on limited subjects.
        
        Principles of Conflict of Laws - Incorporated in municipal laws to deal with conflict situations. These are based on comity of nations.
        
        Comity of Nations (Hilton v. Guyot) - "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 other and convenience, and to the rights of its own citizens or, of other person who are under the protection of its laws.
        
        Recognition of one nation of the acts of another nation, having due regard both to international duty other and convenience, and to the rights of its own citizens or, of other person who are under the protection of its laws.
        
        Not an obligation - because laws have no effect outside territory of legislature.
        
        Not Courtesy/Good Will - because duty of State to promote international relations. Recognition of the fact that if no recognition, then each state will have to be relitigated
        
        Distinguished from Reciprocity - Recognition is comity, reciprocity is exchange of rights.
  - - - B. Modern Developments - Can be subdivided into three sub-trees.
        
        In the Philippines - Conflict of Laws was not given much importance until the Philippines became a sovereign state. The Current Civil Code adopts principles taken from the Spanish Civil Code, which was in force until 1950. In turn, the SCC took provisions from the Code Napoleon of 1804.
        
        PH Principles -
        
        NCC Art. 15 - Nationality Principle
        
        NCC Art. 16 - Lex Situs Rule and system of universal succession
        
        NCC Art. 17 - Lex Loci Contractus
        
        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)
        
        Article 16. Real property as well as personal property is subject to the law of the country where it is stipulated.
        However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a)
        
        Article 17. 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.
        When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution.
        Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a)
        
        Neo-Statuists - followed Italian theory. Here, if 2 or more independent laws are applicable to a CoL problem, the method so devised determines what law shall prevail.
        
        Internationalists - Maintains that there should be a single body of rules that can resolve problems involving a foreign element.
        
        Territorialists - Provides that law of hte state applies to person and things within the state. Thus, no foreign law should eb applied.
        
        Sub-Branch of Territorialists maintain that only rights vested or acquired under foreign law are recognized in the forum, but not the foreign law itself
        
        Restatement of Conflict of Laws (1969) - Adopted by the American law Institute. Two Step process:
        
        statutory law -->
        
        Absence htereof, the law of the most significant relationship.
      - Ius Gentium - The law of nations, concept originated in the early Roman Empire to denote the body of rules developed by the praetor pereegrinus to resolve disputes involving foreigners. This incorporated Greek legal doctrines and the concept of bona fides (good faith)
        
        Ius Civile - Law applicable ONLY to Roman Citizens.
        
        Italian City States - Prompted the study of conflict of laws, wherein Italian jurists referred to Roman Law principles. This was because Northern Italy had several city states which had separate laws.
        
        Initial solution was to apply the Statute toq uestions of choice of law. Real statutes, personal statutes and mixed statutes.
        
        Real Statute - To immovable property within the state
        
        Personal - Followed the person outside of the domicile, concered personal status, capacity and movables
        
        Mixed - Governed contracts, depending if they were entered into by different nationals.
        
        France Jurisprudence (16th Century) - French Jurists developed the statute theory for resolving conflicts between persons governed by different laws
        
        Netherlands - Developed conflict of laws principles, anchored on sovereignty and interdependence.
        
        Dutch - Developed the territorial principle.
        
        Territorial Principle - Laws of a state may operate only within the territorial limit of such state. But, a sovereign state may recognize that a law which has already operated in the country of its origin shall retain its force everywhere, provided that this will not prejudice the subjects of the sovereign whose recognition is sought.
        
        Comitas Gentium (Comity of Nations) - Adopted due to increasing number of international transactions. However, Ius Commune was also developed, which became continental Europe common law. Ius Commune.
        
        1 more item...
        
        Burgudnou (1596-1649), Rodenberg (1618-1686} and Ulrich Huber - First used the term conflict of laws. Asserted that State had no obligation to apply a foreign law unless imposed by treaty, by comitas gentiuym, or on consideration of courtesy/expediency.
        
        John Voet (1647-1715) - Asserted that no statute can act by itself beyond the territory of the legislator. Similarly, cannot have effect elsewhere against the will of the legislator of another state.
        
        1. Charles Dumoulin (1500-1566) - advocated a method to determine what law would govern contracts between .. different nationals,
        2. Bertrand D'argentre - Formulated the principle of universal succession
    - - A. Codes and Statutes
        
        B. Treaties and International Conventions - PH has entered into treaties and international conventions dealing with PRIL.
        
        C. Treatises, Commentaries and Studies of Learned Societies - In interpreting statutes and codes involving conﬂict of laws, courts resort to works of distinguished jurists and studies of learned societies
        
        D. Judicial Decisions - Most IMPORTANT source of conflict of law rules. In its application, judges have to deal with all manner of people more than any other branch. [Graveson]
        
        Enumeration -
        
        Warsaw Convention
        
        Convention on International Civil Aviation
        
        Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
        
        Convention on the Political Rights of Women
        
        Convention Establishing the World Intellectual Property Organization
        
        Convention on Recognition of Foreign Judgment on Civil and Commercial Matters
        
        1993 Convention in Respect of Inter-Country Adoption
        
        Ius Gentium - Codified int he Roman Codes of Law. However, Code Napoleon which first contained the specific rule on personal law of the individual. Code Napoleon became the pattern for subsequent codes such sa Code Bustamante in South Ameriac.
        
        Philippines - Primarily Spanish Civil Code, and then principal provisions on conflict of laws were adopted int he Philippine Civil Code. Spanish Code of Commerce also adopted here.
        
        Constitution - 1987 Constitution codified principles on nationality and comity.
        
        Special Statutes -
        
        BP 68 (Corporation Code)
        
        General Banking Act No. 337 which took effect in 1948
        
        the Act Instituting the Foreign Currency System in the
        . Philippines, Rep. Act No. 426 which took effect in 1972
      - In EU, countries are connected subject to borders.
- - - - 1. Jurisdiction Over the Person - Acquired by the voluntary appearance of a party and submission to authority.
        
        2. Jurisdiction Over the Res/Property - Property refers to the subject matter of the litigation.
        
        3. Jurisdiction Over the Subject Matter (Caluag v. Pecson) - Subject matter jurisdiction or competence is defined as both the general power conferred by law to take cognizance of a case of a general class as well as the invocation of such power by the filing of a petition.
        
        How Determined - Determined by law. Parties cannot consent or determine it. A decision is void and may be set aside, either direclty or collaterally if a court does not have subject matter jurisdiciton.
        
        Refers to jurisdiction in rem,w herein it binds the world, and not just the interest of specific persons.
        
        Basis for Exercise of Jurisdiction in Rem - The presence of the property within the territorial jurisdiction of the forum. Such as the forfeiture of tangible property and registration of land title.
        
        Basis for Quasi in Rem - Affects only interests of particular persons in that thing. Such as in proceedings to quiet title to a property wherein the forum may adjudicate that one claimant's title tot he property in question superior to others.
        
        Due process requirements - For both kinds of proceedings, all that is required is that the defendant be given adequate notice and opportunity to be heard. Here, both requirements are met by service of summons by publication.
        
        Traditional Basis of Judicial Jurisdiction - State's physical power over persons and property within its territory. This explains distinction between in personam (served with summons while physically present) vs in rem (jurisdiction over property in state, regardless of jurisdiction over person whose interest would be affected)
        
        Long-Arm Statutes - Instituted in response to requirement of minimum contacts between the non-resident defendant and the forum. Long-arm statutes specify the kinds of contacts upon which jurisdiction will be asserted.
        
        Relation to Minimum Contacts - if long arm conditions or other minimum contacts exist, court may exercise jurisdiction because it has a justified interest in providing the plaintiff with a forum and no unfairness results from subjecting the defendant to a suit there. This has the effect of leaving it to the court to define its limitations on a case by case basis so long as not inconsistent with the Constitution.
        
        Philippines - PH Subscribes to the Traditional basis of jurisdiction i.e., the Pennoyer v. Neff rationale.
        
        Evolution of Concept - US has strayed from the Pennoyer v. Neff Doctrine. Instead, it adopted basis shifted from territorial power to considerations of minimum contacts and fundamental fairness. This applies regardless of whether the proceedings are in rem, personam, or quasi in rem.
        
        1 more item...
        
        How Acquired - This is acquired from either:
        
        the seizure of the property under a legal process or,
        
        from institution of legal proceedings wherein the court's power over the property is recognized and made effective.
        
        Forms of Proceedings According to the Object of the Action - in the PH, these determine whether there is a need to obtain jurisdiction over the person of the defendant
        
        In Personam - In personam proceedings involve personal rights and obligations.
        
        In Rem - are instituted against a thing and not against a particular person. Probate proceedings, land registration, annulment/declaration of nullity
        
        Quasi In Rem - Affects only interests of particular persons in that thing. Such as in proceedings to quiet title to a property wherein the forum may adjudicate that one claimant's title tot he property in question superior to others.
        
        Judicial foreclosure of real estate mortgage, attachment
        proceedings, action for partition, action for accounting
        
        Distinguished from According to Foundation - These determine venue.
        
        Real - one brought for the protection of real rights, land, tenements or hereditaments or one founded on privity of estate only, to be filed in the venue where the property is located.
        
        Personal - one which is not founded upon the privity of real rights or real property (Filed where the plaintiff/defendant resides)
        
        Mixed - one brought for protection or recovery of real property and also for an award for damages sustained (Governed by rules of venue in real actions)
        
        Jurisdiction over Plaintiff - Acquired the moment he files the suit.
        
        Rule on Non-Resident Plaintiff - Court has jurisdiction over subsequent proceedings arising out of the original cause of action, including counterclaims filed by the defendant.
        
        Jurisdiction over Defendant - Either (a) When he enters his appearance or; (b) When he is served with the legal process within the state (Service of Summons)
        
        Exception to Appearance (Carballo v. Encarnacion) - When they appear for the purpose of protesting the jurisdiction of the court.
        
        Service of Summons (RoC Sec. 5) - Can be done through personal service or, substituted service.
        
        Personal Service (14.5) - Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person and informing the defendant that he or she is being served, or, if he or she refuses to receive and sign for it, by leaving the summons within the view and in the presence of the defendant.
        
        When a party is represented by counsel of record, service of orders and notices must be made upon said attorney; and notice to the client and to any other lawyer, not the counsel of record, is not notice in law.
        
        Substituted Service (14.6) - If, for justifiable causes, the defendant cannot be served personally after at least three (3) attempts on two (2) different dates, service may be effected by any of four means:
        
        Leaving copies of the summons at the defendant’s residence to a person at least eighteen (18) years of age and of sufficient discretion residing therein
        
        Leaving copies of the summons at [the] defendant’s office or regular place of business with some competent person in charge thereof. A competent person includes, but is not limited to, one who customarily receives correspondences for the defendant;
        
        Leaving copies of the summons, if refused entry upon making his or her authority and purpose known, with any of the officers of the homeowners’ association or condominium corporation, or its chief security officer in charge of the community or the building where the
        defendant may be found
        
        By sending an electronic mail to the defendant’s electronic mail address, if allowed by the court.
    - - Schengen Example - PRIL instance because sovereign states connected to each other, issue of which laws to apply. Any case with a foreign element.
    - - 1. Dismiss The Case - This applies in cases where the court assumes jurisdiction over the parties/subject matter. Despite assumption, it may decline to try the case on the ground that the controversy may be more suitably tried elsewhere.
        
        Forum Non Conveniens - latin, literally forum is inconvenient.
        
        Origins - Despite this, originated in 1800s practice of Scottish trial courts, who refused to hear cases when the ends of justice would be best served by trial in another forum.
        
        American Application - to prevent abuse of the court's process such as:
        
        when the plaintiff chose the forum to harass the defendant by increasing unnecessary expense/hardship in pursuing the remedy or,
        
        where a non-resident plaintiff chose the forum because he felt that the verdicts were large than in other fora.
        
        if jurisdiction would be burdensome on the court or taxpayers
        
        Where local judicial facilities to non-residents would impair severe backlog
        
        When courts perceived that compulsory jury duty should not be foisted on a community with no link with or, interest in the litigation
        
        Where Local Machinery insufficient to effectuate a right, such as no way of securing evidence/attendance of willing witnesses.
        
        Scottish/English Application - Applied when there was another available and more appropriate forum, in which the ends of justice would be better served in view of the interests of all parties by eliminating the vexatious or oppressive character of the pending proceedings and by removing any unfairness to either party which would result from trial in the forum seized of the case.
        
        Global Forum Shopping - To prevent global forum shopping (filing of repetitious suits in courts of different jurisdictions). This may occur when two or more courts may assume jurisdiction over a case. The litigants then file in all available courts and execute the judgment most favorable to them.
        
        Philippine Application -
        
        First PH Intl bank v. CA - Courts, in CIL 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
        
        Wing On Company v. Syyap - Held that plaintiff's choice of forum should not be disputed unless the balance is strongly in favor of the defendant.
        
        Requisites (Bank of America v. CA) – as held in Communications Material Design v. CA , PH Courts May assume jurisdiction if it chooses to do so if:
        
        that the Philippine Court is one to which the parties may conveniently resort to;
        
        that the Philippine Court is in a position to make an intelligent decision as to the law and the facts; and,
        
        that the Philippine Court has or is likely to have power to enforce its decision.
        
        2 more items...
        
        Forum Non Conveniens - address parallel litigation arising in multiple jurisdictions. Must be pled as a ground for dismissal, at the earliest possible opportunity. Otherwise, deemed waived.
        
        Dismiss for Lack of Jurisdction
        
        Dismiss with jurisdiction, but forum non conveniens
        
        Litis Pendentia
        
        Immunity
        
        If forum shopping - Dismiss on the basis of forum non conveniens (Global forum shopping)
        
        Also covers cross-country litis pendentia.
      - 2. Assume Jurisdiction - Here, the court may apply either forum law or, foreign law.
        
        General Rule - Forum law applies whenever there is a good reason to do so, such as the presence of any of the following factors:
        
        Specific Law - of the forum decrees that internal law should apply
        
        Lack of Proof - That proper foreign law was not properly pleaded and proved
        
        Exceptions - That the case falls under any of the exceptions to the application of foreign law
        
        Specific Law - The Civil Code provides when the local courts have to apply forum law.
        
        NCC 16 - makes real and personal property subject to the law of the country where they are situated.
        1a. NCC 16- intestate/testamentary succession governed by the nationality (lex nationale) of the person whose succession is under consideration.
        
        NCC 829 - Revocation done outside the Philippines dependent on law where the will was made or, domicile
        
        NCC 819 - Absolute prohibition on joint wills by FIlipinos, regardless where they were executed.
        
        Lack of Proof/Pleading - Courts may not take judicial cognizance of any foreign law. instead, failure to plead and prove foreign law means doctrine of processual presumption applies i.e., presumed same as forum law.
        
        How Proven -
        Foreign Laws (Manufacturers v. Guerrero) - Foreign laws are not a matter of judicial notice. These must be proved either:
        
        RoC 132.24/25 - Attested Public documents
        
        Testimony (Aisavest Limited v. CA) - Open court testimony of attorneys
        
        Foreign law - Should not be applied if the case falls under the exceptions to the application of the foreign law.
        
        When Inapplicable -
        
        Foreign law is contrary to an important public policy of the forum;
        
        Foreign law is penal in nature;
        
        Foreign law is procedural in nature;
        
        Foreign law is purely fiscal or administrative in nature;
        
        Foreign law is contrary to good morals;
        
        Foreign law application will work undeniable injustice to citizens of the forum;
        
        Case involves real or personal property situated in the forum;
        
        Foreign law application might endanger forum state’s vital interest;
        
        Proof of Official Record; Attestation (Section 24; 25) - Proof must be:
        
        By an official publication thereof; or
        
        By a copy of the document attested by the officer having legal custody of the record, or his/her deputy
        2a. If record is not kept in the Philippines: accompany with a certificate that such officer has the custody
        2ai.If the foreign country is a contracting party to a treaty or convention to which the Philippines is also a party, or it is considered a public document under the treaty or convention: certificate or its equivalent shall be in the form prescribed therein, subject to reciprocity
        2aii. If not a contracting party: certificate made by a secretary of the embassy or legation, consul general, consul, vice-consul, or consular agent, or any officer in the foreign service of the Philippines stationed in the country where the record is kept
        
        Must be authenticated by the seal of his/her office
        
        What Attestation must State (25) -
        
        Must state that the copy is a correct copy of the original or a specific part thereof, as the case may be
        
        Must be under the official seal of the attesting officer, if there be any, or if he/she be the clerk of a court having a seal, under the seal of such court
        
        Exception to Certificate Requirement - The certificate shall not be required when a treaty or convention between a foreign country and the Philippines has abolished the requirement or has exempted the document itself.
        
        Coverage (Spouses Fabre v. CA) - Certification requirement applies only to 19a i.e., entries in public records found abroad. For other classes of public documents, no need to attestation.
        
        Recognition of Apostillized Documents - Only if all the following conditions are met:
        
        The state in which the document was issued is a party to the Convention;
        
        The state in which the document is to be used is also party to the Convention;
        
        The law of the state in which the document was issued considers the document as a public instrument; and
        
        The state in which the document is to be used requires an apostille in order to recognize the document as a foreign public document.
      - Requisites for Litis Pendentia -
        
        Identity of parties/interest;
        
        Identity of rights asserted and relief prayed for, the relief being founded on the same facts; and
        
        Identity in the two cases should be such that the judgment which may be rendered in one would, regardless of which party is successful, amount to res judicata in the other.
        
        When a court is faced with a COL problem it may either:
        
        Dismiss the case for
        
        lack of jurisdiction (person, property or subject matter) OR
        
        on the ground of forum non conveniens
        
        Assume jurisdiction and apply either forum or foreign law.