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PRIL - Week 2 - Choice of Law - Characterization, Renvoi, Notice and Proof…

- - - - VIII. Notice and Proof of Foreign Law
        
        A. Extent of Judicial notice
        
        B. Proof of Foreign law (132.19 and 24)
        
        C. Exceptions to Application of Foreign Law - Generally, court/administratiive agency should look into applicability of foreign law and apply it under the principles of comity and reciprocity.
        
        Main Category Exceptions -
        
        When the local law expressly so provides;
        
        When there is failure to plead and prove the foreign law or judgment; and
        
        When the case falls under any of the exceptions to the rule of comity.
        
        C2. Procedural Forum law - Procedural laws are purely internal matters peculiar only to the State, this is in pursuit of judicial convenience, under the principle that Any individual who submits himself to the jurisdiction of the law of the forum must follow the forum’s rules of procedure.
        
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        Local Law Provisions in the Philippines (NCC 17) - 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.
        
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        Classes of Documents (Section 19) - Public Documents are documents falling under the specific enumeration of Sec. 19, namely:
        
        Enumeration -
        
        (a)WRITTEN - The written oﬃcial acts, or records of the sovereign authority, oﬃcial bodies and tribunals, and public oﬃcers, whether of the Philippines, or of a foreign country;
        
        (b)NOTARY- Documents acknowledged before a notary public EXCEPT LAST WILLS AND TESTAMENTS
        
        (c)TREATIES - Documents that are considered public documents under treaties and conventions which are in force between the Philippines and the country of source; and
        
        (d)PUBLIC RECORDS - kept in the Philippines, of private documents required by law to be entered therein.
        
        Public Documents as Evidence (Section 23) - Can be subdivided into two categories.
        
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        Nadagdag ay (c) and Apostille Convention process
        
        Apostillized
        
        Effect of Failure to Plead and Prove Foreign Law - Grants the forum courts 3 options:
        
        Dismiss the case for failure to establish a cause of action;
        
        Assume that the foreign law is the same as forum law (processual presumption); or
        
        Apply forum law (Assume
        
        Traditional Approach - First option. Court rests on the party relying on the foreign law the burden of introducing proof of the contents of the law. Under this approach, upon proof of law, the forum court would enforce a right existing under said law. This is why failure to prove its contents results in failure to establish a prima facie case.
        
        Relevant Factors in determining application of domestic law or deciding the case against the party who has the burden of proving foreign law:
        
        Public interest involved in the dispute;
        
        Accessibility of foreign law materials to the parties;
        
        Possibility that the plaintiff is merely forum shopping; and
        
        Similarities between forum and foreign law on the issue in point.
        
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        Processual presumption/Presumed Identity-Approach - Presume that the foreign law is the same as forum law.
        
        French law is the same as the law of the forum (processual presumption);
        
        French law, like all civilized countries, recognizes certain fundamental principles (such as repayment of a loan); or
        
        That the parties, by failing to prove French law, have acquiesced in having their dispute determined by the law of the forum.
        
        Court usually follows processual presumption
        
        Burden of Proof - The party whose cause of action or defense depends upon foreign law has the burden of proving such law; an evidentiary matter and foreign law must be proven as evidence. This is because courts cannot take JNs of foreign laws.
        
        Judicial Notice in PH -
        
        GR - Judges cannot take judicial notice of a foreign law. They cannot decide a case on the basis of their own knowledge and information and can instead only act based on the evidence presented before them.
        
        XCPN - Delgado v. Republic, where JN of foreign law if court is evidently familiar with them, generally known, such as American or Spanish Law OR judge had previously ruled upon it in other cases.
        
        XCPN 2 Testimony (Aisavest Limited v. CA) - Open court testimony of attorneys
        
        Foreign Courts - In the US, courts can take judicial notice of laws passed by sister states as mandated by the full faith and credit clause of the Federal Constitution.
        
        Rationale: to transform several sovereignties into a single, unified nation.
        
        Foreign Laws (Manufacturers v. Guerrero) - Foreign laws are not a matter of judicial notice. These must be proved either:
        
        RoC 132.34 - Attested Public documents
        
        Testimony (Aisavest Limited v. CA) - Open court testimony of attorneys
      - Definition - A procedure, where there is remission (reference to forum law) and transmission (law of a third state)
        
        Tl;Dr jural matter under conflict of law rules in a forum to a foreign state, and COL rules there refer the matter to the law of the original forum or to a third state.
        
        Spread of Application - No worldwide acceptancce. However, those that do, it is used in cases where domiciliary and nationality laws are applied to the same individual, in issues involving succession, domestic relations and real properties.
        
        American Courts - Do not usually look to choice of law rules of another state. Instead, refers only to the law that the foreign court would apply if the case were a purely domestic problem.
        
        Uniform Commercial Code makes reference to the whole law of a foreign state and 2nd restatement, which are few exceptions that encourage the use of renvoi, albeit on a limited scale.
        
        Court applied double renvoi here.
        o Case was filed in England, whose conflicts rules referred the case to France.
        o France’s conflict rules referred back to England. Single renvoi stops here. English municipal law would be applicable.
        o But instead, it referred back to France a second time.
        
        Escape Device - Court has the option of accepting or rejecting renvois. Effectively, may option to choose between two sets of laws.
        
        EAP - because even after controlling law is arrived at after approach, escape devices may still be invoked.
        
        When Occurring - Renvoi occurs when there is reference back to forum court by foreign law.
        
        Modes of Dealing with Renvoi - as identified by Prof. Griswold are as follows:
        
        1. Rejecting Renvoi; Reference to Internal Law - if the forum conflict rules refer the case to the law of another state, it is deemed to mean only the internal law of that state. Internal law is that which would be applied to a domestic case had there been no conflict situation.
        
        Thus, the forum court rejects renvoi and applies the internal law of the foreign state.
        
        2. Acceptance of Renvoi - Court accepts and refers to both internal law of another state as well as its whole law i.e., including choice of law rules applicable in multi-state cases.
        
        Accept referral back to it, look at CIL rules
        
        3. Desistance/Mutual Disclaimer of Jurisdiction - Forum court, upon reference to another state's law sees that law is limited in application to its own national and has no provision for application to a non-national.
        
        This also results in the acceptance of the renvoi doctrine, but different process as here the forum court desists in applying the foreign law, does not apply it.
        
        Aznar v. Garcia - Applies this approach.
        
        4. Foreign Court Theory - Here, Forum court assumes same stance as the foreign law i.e., what would X court do.
        
        Criticism - Here, if both courts follow the same theory, they would end up referring the cases back to each other endlessly. Leading to a revolving door situation, lawn tennis, logical cabinet ofmirrors, circulus inextricabilis
        
        Usefulness of Renvoi - rarely applied by US, but it has been used to avoid unjust results.
        
        Dar - US court in accepting renvoi, protected the interest of a Michigan wife as Illinois disclaimed any desire in applying its law. Acceptance resulted in uniformity of results despite discrepancies in the choice of law rules involved.
        
        Objections to Renvoi -
        
        That universal application would lead to perpetually closed circle, no finding of body of substantive rules to apply to a particular case.
        
        Courts may be unnnecessarily burdened with identifying choice of law rules of another state.
        
        Inapplicability to False Conflicts - 2nd US Restatement of Conflicts provide that renvoi is used when there is a disinterested forum to ensure that only the laws advancing the policies of the interested states will be applied. Therfore, if renvoi situation i.e., CIL of a state refers to foreign state and so on, court may use the sitaution to determine if both states have an interest in having their laws applied. If false conflict, renvoi is inappropriate.
        
        Bellis v. Bellis - False Conflict issue.
        
        Rebuttals -
        
        False premise, so long as remission is to the state's internal law alone, there will be a stop to endless chain of reference. Even. Prof. Lorenzen, critic of renvoi admitted that for reasons of necessity and expediency it should be allowed sometimes.
        
        Valid criticism however, practically, forum court will not use renvoi if it cannot identify conflict of law rules in the first place.
    - - B. Multi-Aspect Method - Modern approach. This considers all important factors, both territorial and non-territorial. Applicable law determined by rationally elaborating and applying the policies and purposes underlying the particular legal rules that come in question as well as the needs of interstate or international intercourse."
        
        No characterization here, different laws in different issues. in the Philippines, single-aspect method. Tendency here is one characterized,that ruling controls.
      - Philippine Application - Single-asepect method. Leading to conflict rules found in Articles 15-17 of the Civil Code.
        
        Art. 15 - Legal status, capacity, family relations - law of nationality (Binding upon PH citizens, though living abroad)
        
        Art. 16 -
        2a. Real property - Lex Situs
        2b. Succession - Re: amount and order, and validity of wills nationality of the decedent
        
        Art. 17 - Contracts - Lex Loci
        3a. If before diplomatic/consular officials, law of the Philippines
        3b. Prohibite laws for public order, policy, good customs, shall not be rendered ineffective by laws or judgments, or determinations conventions agreed upon in a foreign country.
        
        Purpose of Rules - Specify geographical where the governing law is found, consistent with traditional approach choice. However, may face difficulties due to inherent rigidity which can result in unjust decisions.
        
        Proposed Remedies - Characterization and Renvoi, which are escape devices.
        
        By characterizing the problem differently, and if they change the characterization, then the result changes and becomes more sound.
      - Characterization - Characterization is 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 (e.g., torts, civil law, etc.,)
        
        Types of Characterization - Can be subdivided into subject matter and substance-procedure.
        
        Substance-Procedure Dichotomy -
        
        Procedural - Forum Law applies
        
        Substantive - The court may apply foreign law, has the option.
        
        Rationale for Procedural Law - Means provided for compulsion or limitation upon the compulsion are almost equal practical importance to the declaration of the validity of a plaintiff's claim. However, an all-inclusive reference to foreign law would be too heavy a burden resulting in hampering and delay of administration of justice.
        
        Goal of CIL rules is that the rights and duties of the parties shall not be substantially varied because of the application of law.
        
        Rationale - Procedural issues are governed by forum law so as not to unduly burden or complicate the task of the court with the study of uncommon peculiarities and refinements of another legal system.
        
        Problems in Substance-Procedure Dichotomy
        
        Statute of Frauds - May be considered as substantive or, procedural.
        
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        Statutes of Limitations and Borrowing Statutes
        
        GR - Procedural, as these bar only the legal remedy, without impairing the substantive right involved.
        
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        Potential Issue - Sometimes procedural and substantive laws are so closely intertwined such that a refusal to accept foreign rule on the basis of dichotomy results in defeat of purpose.
        
        Ended here, WLV Construction v. Dupo
        
        Subject-Matter Characterization - Particularly significant in a single aspect method as the legal category to which an issue is assigned determines governing law.
        
        Issues in Subject Matter Characterization - Considered a menace in traditional CIL theories, as those aim for uniformity of results.
        
        Adopted Child Problem - Adopted child, intestate share in parent's estate where child was adopted in PH by a former Filipino citizen (adoptive mother moved to US, with child)
        1a. Here, court has to decide: (a)
        
        (b) to successsion - If succession, adoptor's personal law prevails.
        
        (a) question relating to legality and effects of adoption or; - If (a) adoption, then governing law is state where the legal relationship of hte adoption was established, or where, a
        
        Agency Problem - where agent ocmmits a negligent act - Liability of principal determined depending on Court's characterization of the case as: (a) contractual (where contract of agency was entered into; (b) tortious, where the conduct or injury occurred.
        
        Contract for Services - entered into in PH - National v. Foreigner laborer - Work done abroad - but element of negligence
        
        If characterized as contractual - lex loci
        
        If tort - place of tort
        
        Depecage - from the French "depecer" meaning "to dissect") Phenomenon where "different aspects of a case involving a "foreign element may be governed by different systems of laws.
        
        Example - Professors Von Mehren and Trautman - a man who dies intestate domiciled in State A and with movable properties in State B.
        
        The conflict rules of State A refer to the laws of the domicile to determine how the man's estate should be divided.
        
        The intestate law of State B gives the widow a definite share in the estate of the deceased.
        
        Remedy - The determination of whether or not the woman who claims a share in the est.ate is a "wife" is referred to family law, not the laws on succession.
        
        Distinction as to Areas -
        
        Movable Properties - issues of what laws govern movable properties and the successional rights of a spouse embody the substance of the claim
        
        Validity of marriage to the Deceased - affects the solution, because it answers a preliminary or incidental question.
        
        Considerations for Depacage (1969 Restqatements 2d) -
        
        Needs of interstate and international system;
        
        Relevant policies of the forum;
        
        Relevant policies of other interested states and the relevant interests of those states in the determination of a particular issue;
        
        Protection of the justified expectations of the parties;
        
        Basic policies underlying the particular field of law;
        
        Certainty, predictability and uniformity of results; and
        
        Ease in the determination and application of the law to be applied.
        
        Rationale - Consideration of these factors helps ease the restrictions of the single-aspect method. Cutting up the case into issues and applying pertinent laws thereto allows the court to reach a decision that is fair and desirable.
        
        Criticism - Application of which might lead to egregious results.
        
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        Advantages - allows the other relevant interests of the parties to be addressed. Permits the courts. to arrive at a functionally sound result without rejecting the methodology of the traditional approach. This single aspect method employs depacage by choice.
        
        Application in CIL - Characterization is a pervasive problem in CIL, since a minimum of two jurisdictions, with divergent laws are involved.
  - - - 1. Traditional Approaches - Those which emphasize principles of simplicity in form, convenience(capable of easy administration) and uniformity (promotes uniformity of result.
        
        Vested Rights Theory (Beale) - Provides that an act done in a foreign jurisdiction gives rise to the existence of a right IF the laws of that state provides so.
        
        Such rights vest in the plaintiff and he carries it with him to be enforced in any forum which he chooses to bring suit.
        
        Determinant For Law - The law of the place of the occurrence of the last act necessary to complete the cause of action determines. This applies even if the law of the last act state provides no legal right. Such law of the last act state is the law applicable to all substantive issues of the case.
        
        Criticism -
        
        failure to resolve conflicts cases with reference to considerations of policy and fairness. Strict application of the law of the place of the wrong was counterintuitive and arbitrary.
        
        Little to no jurisprudential basis, as Beale relied on a priori theories.
        
        Propounded by Dr. Jovito Salonga
        
        It is not the foreign law but the rights acquired under it which are enforced by the courts of another country – there is a self-delusion of reasoning.
        
        Not all rights acquired under foreign law are protected elsewhere, nor is their protection always desirable.
        
        Protection of rights and interests is not the only consideration to be taken into account.
        
        Law protects not only vested rights, but also foreign legal relationships, capacities or powers out of which rights, or the extinction of duties and charges or the invalidity of acts may arise.
        
        It is difficult and impracticable to apply the theory where the material aspects of a transaction or event touch two or more states equally.
        
        Rationale - This would:
        
        Enhances predictability of results
        
        Discourages Forum Shopping - Because cause of action vests, courts will just look at last act.
        
        Local law Theory (Walter Cook) - Proposes deriving rules by looking at cases and other concrete phenomena, such as the behavior of judges.
        
        Observations -
        
        The power of a state to regulate within its own territory has no limitation, except such as may be imposed by its own positive law.
        
        In conflict of laws problems, the court does not enforce a foreign right but a right created by its own law by treating a case as a purely domestic case that does not involve a foreign element.
        
        Conclusion - The law applied may not be exactly the one which the foreign court would have enforced.
        
        Criticism - practical and equitable considerations may be overlooked in favor of an exercise of sovereignty via exagerrated lcoal policy i.e., prone to abuse by persons responsible for controlling the adjudication of conflicit of law cases
        
        Cavers’ Principles of Preference - Choice of law should be determined by considerations of justice and social expediency. Not a result of the mechanical application of a rule or principle of selection.
        
        Factors to Consider - In determining whether to apply forum or foreign law, the court should:
        
        Scrutinize the event or transaction giving rise to the issue before it;
        
        Compare carefully the proffered rule of law and the result which its application might work in the case at bar with the rule of the forum; and
        
        Appraise these results from the standpoint of justice between the litigants or of those broader considerations of social policy which conflicting laws may evoke.
        
        Effect of Framework - successfully set aside the stifling effects of ensuring certainty and uniformity above all other objectives.
        
        Rationale - Choice of law decisions should be made with reference to principles of preference which are conceived to:
        
        Provide fair accommodation to conflicting state policies; and
        
        Afford fair treatment to the parties who are caught up in the hazards between conflicting state policies.
        
        Observations - shows a “territorialist bias”—looks to the place where significant events occurred or where the legal relationship is centered.
      - 2. Modern Approaches - Focuses on reaching appropriate results in particular cases.
        
        Place of the Most Significant Relationship - Rejects the last act approach. here, a plurality of factors must be considered in light of choice-of-law principles as applied to the factual contacts of each case
        
        Principles in General -
        
        Needs of Interstate and International System
        
        Relevant Policies of the Concerned States
        
        Relevant policies of other interested states and their relative interest of those in the determination of the particular issue
        
        Protection of justified expectations of the parties
        
        Basic policies underlying the particular field of law
        
        Certainty, predictability and uniformity of result
        
        Ease in the determination and application of the law to be applied.
        
        Factual Contacts in Torts -
        
        Place where the Injury occurred
        
        Place where the negligent conduct occurred
        
        Domicile, residence or nationality of the parties
        
        Place where the relationship between the parties is entered
        
        However, the factual contacts vary per substantive law.
        
        Factual Contacts in Contracts -
        
        Law chosen by the parties and in the absence thereof;
        
        The place of contracting
        
        Place of negotiation of the contract
        
        Place of performance
        
        domicile, residence, nationality, place of incorporation and place of business of the parties
        
        Common Principles - In both cases, the contacts are evaluated depending on their relative importance and relevance to the issue at hand.
        
        Criticism - Prof. Ehrenzweig from Auten//Haag cases. Stated that this approach can be used to support virtually any result. Thus hampers sound development of common law by making it so courts dont have to articulate the true motivations which are the very elements of growing rules
        
        State Interest/Approach Analysis - Look at the policy behind the laws of the involved states and the interest each state had in applying its own law. Thus, factual contacts alone do not determine the outcome of a case UNLESS they reflected state policy which would be advanced by the application of the substantive state law.
        
        Stemmed from criticism of the Auten decision's failure to provide any standard to determe which contacts were significant and evaluate the relative importance of a group of contacts.
        
        Steps of Application -
        
        Analyze policies reflected by State Law
        
        Determine whether both states had a real interest in having their law applied
        
        If yes - True conflicts problem
        
        If no, - false conflict, and forum law had to apply substantive law of the interested state
        
        False Conflict - One state has no real interest in having their law applied
        
        Comparative Impairment - Resolution of true conflicts cases. Here, the state objective which would be least impaired is subordinated. Thus, state law which would be most impaired by non-application ist he one tha tapplies.
        
        offshoot of the interest analysis approach
        
        Mirror of the state interest approach.
        
        Functional Analysis - Looks beyond the general policies of the state reflected in substantive law but goes into policies and values relating to effective and harmonious intercourse between states
        
        Policies Considered -
        
        Recipriocity
        
        Advancement of Multistate Activity
        
        Protecting Justifiable Expectations
        
        Evenhandeness in dealing with similar cases
        
        Effectiveness
        
        Steps -
        
        Consider Policies
        
        Policy-Weighing - Consider relative strength of a state policy
        
        Emerging/Regressing - Courts should consider whether the law of a state reflects an emerging or regressing policy.
        
        Choice-Influencing Considerations - Distinguished from interest analysis, which applies a particular rule of substantive law in order to implement a policy reflected therein.
        
        Here, Choice influencing considerations --> Determine which substantive law to apply.
        
        Choice Influencing Considerations -
        
        Predictability of Results
        
        Maintenance of Interstate and International order
        
        Simplification of the Judicial task
        
        Application of the better rule of law
        
        Advancement of the forum's governmental itnerest
        
        Preference - Courts will prefer rules of law whether they are forum law or, another state's law so long as they make good socieconomic sense for the time the court speaks and are in sound view in view of present day conditions.
        
        Nevertheless, due to the absence of principled and objective standards, This stance has been controversial. In practice, courts have almost always considered its own law the better law
      - Questions Addressed -
        
        What legal system should control a case where some of the significant facts occurred in two or more states?
        
        To what extent should the chosen legal system regulate the situation?
      - Choice of Law by express stipulation (1306, 1347, 1352) - PH may stipulate so long as not contrary to law, morals, good customs, public order, public policy.
        
        Traditional Approach; Lex Intentionis - Whatever parties intended is fine.
        
        Modern-Approach - Choice of law stipulation may not apply, if contrary to state policy. In Pakistan Airlines v. Ople - Choice of Law Stipulation
        
        Recit: In Pakistan International v. Ople - In public policy exception, suggests that FIlipinos can disregard contracts. Bad precedence?
        
        Philippine Choice of law -
        
        GR - Look for intent of the parties, as evidenced by contemporaneous acts, maybe express stipulations as evidence of intent for law.
        
        XCPN - In the absence thereof, PH law applies under lex loci,.
    - - 2. Non-Application of Internal Law - If the forum applies its internal law on account of its real interest in the case, then the outcome will be predetermined by the forum where the suit is brought. - In effect, the plaintiff will bring suit in the state which has a real interest in applying its internal law.
        
        3. Effect on Plaintiff - since in practice the forum is more likely to apply internal law, the plaintiff will predictably bring his claim in a state where the provisions of internal law are more favorable to him.
        
        Points of Distinction -
        
        Jurisdiction;Not Law - There are cases over which the forum may exercise jurisdiction but will not apply its own law.
        
        Law; No Jurisdiction - There are cases over which the forum has no jurisdiction, although its internal law may be applied as the proper law.