52481735 PRIL Finals Reviewer 2010

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)Examples of Conflict of Law Rules in the Philippines 1. Art. 15 CC 2. Art. 1251 (par. 3) CC 3. Art. 16 CC 4. Art. 17 (par. 1) CC 5. Art. 71 CC 6. Art. 26 (par. 1) FC 7. Art. 1306 CC Lex Patriae Lex Domicili Lex Situs / Lex Rei Sitae Lex Loci Contractus Lex Loci Celebrationis Lex Loci Celebrationis Lex Loci Intentionis

CONFLICT OF LAWS PRIL FINALS REVIEWER!

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Art. 815 When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. Art. 816 The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. Art. 817 A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. Art. 818 Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. Art. 819 Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. Art. 1251 Payment shall be made in the place designated in the obligation. There being no express stipulation and if the undertaking is to deliver a determinate thing, the payment shall be made wherever the thing might be at the moment the obligation was constituted. In any other case, the place of payment shall be the domicile of the debtor. If the debtor changes his domicile in bad faith or after he has incurred in delay, the additional expenses shall be borne by him. These provisions are without prejudice to venue under the Rules of Court. Art. 1306 The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. Art. 1753 The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or deterioration.

Civil Code : Arts. 15, 16, 17, 71, 75, 124, 815-817, 818-819, 1039, 1753, 1306 Art. 15 Laws relating to family rights and duties, or to status, condition and capacity of persons are binding upon citizens of the Philippines even though living abroad. Art. 16 Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary succession, both with respect to the order of successions 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. Art. 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.Art. 71 (Amended by Art. 26, FC) All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed, and valid there as such, shall also be valid in this country, except bigamous, polygamous, or incestuous marriages as determined by Philippine law. Art. 75 (See Art. 7 and 10, FC) Marriages between Filipino citizens abroad may be solemnized by consuls and vice-consuls of the Republic of the Philippines. The duties of the local civil registrar and of a judge or justice of the peace or mayor with regard to the celebration of marriage shall be performed by such consuls and vice-consuls. Art. 124 (See Art. 80, FC) If the marriage is between a citizen of the Philippines and a foreigner, whether celebrated in the Philippines or abroad, the following rules shall prevail: (1) If the husband is a citizen of the Philippines while the wife is a foreigner, the provisions of this Code shall govern their relations; (2) If the husband is a foreigner and the wife is a citizen of the Philippines, the laws of the husband's country shall be followed, without prejudice to the provisions of this Code with regard to immovable property.

Family Code: Arts. 10, 7.5, 26, 80, 184, 185, 187 Art. 7 Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction; (2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted by his church or religious sect and provided that at least

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)one of the contracting parties belongs to the solemnizing officer's church or religious sect; (3) Any ship captain or airplane chief only in the case mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; (5) Any consul-general, consul or vice-consul in the case provided in Article 10. Art. 10 Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. Art. 26 All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.Art. 35 The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without license, except those covered the preceding Chapter; (4) Those bigamous or polygamous marriages not failing under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; and (6) Those subsequent marriages that are void under Article 53. Art. 36 A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. Art. 37 Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half blood. (81a) Art. 38 The following marriages shall be void from the beginning for reasons of public policy: (1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law; (4) Between the adopting parent and the adopted child;


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(5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and (9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. (82)

Art. 80 In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: (1) Where both spouses are aliens; (2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. Art. 184 The following persons may not adopt: (1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation; (2) Any person who has been convicted of a crime involving moral turpitude; (3) An alien, except: (a) A former Filipino citizen who seeks to adopt a relative by consanguinity; (b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or (c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoptions as may be provided by law. (28a, E. O. 91 and PD 603) Art. 185 Husband and wife must jointly adopt, except in the following cases: (1) When one spouse seeks to adopt his own illegitimate child; or (2) When one spouse seeks to adopt the legitimate child of the other. (29a, E. O. 91 and PD 603) Art. 187 The following may not be adopted: (1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to the adoption, said person has been consistently considered and treated by the adopter as his or her own child during minority. (2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and (3) A person who has already been adopted unless such adoption has been previously revoked or rescinded.

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)PART ONE INTRODUCTION I. SCOPE OF CONFLICT OF LAWS: NATURE, DEFINITION AND IMPORTANCE A.DIVERSITY OF LAWS, CUSTOMS AND PRACTICES -division of world into many independent states with own laws + occurrence of events that contains elements significant to more than 1 legal system = conflict of laws -there had been attempts to have a uniform law: 1928 Sixth International Conference of American States in Havana: on PRIL Bustamante Code: uniform provisions on civil law, commercial law, penal law and law on procedure creation of the Inter-American Council of Jurists by OAS in 1948 - but has not achieved anything concrete 1951 Hague Convention on PRIL: on family law, succession and products liability EAP notes GR: Laws have effect only within their territories Basis: every nation is sovereign and independent; another state cant force our courts to apply their laws X: When our own law provides that laws of other states are applicable HILTON V GUYOT (1895) Gustave Guyot (liquidator for French firm CHARLES FORTRICH & CO.) sued co-partners of A.T. STEWART & CO. Henry Hilton and William Libbey (residents of NY) in FRENCH COURT for amount due to the French firm. French court ruled in his favor, so he sued Hilton and Libbey in US Circuit Court for enforcement of the French Judgment. US CC held judgment conclusive, entered decree in favor of Guyot W/O EXAMINING ANEW MERITS OF THE CASE. WON US court should give force and effect to the French Judgment when French courts give no force and effect to the duly rendered judgments in US Courts against French citizens NO GR: No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. X: 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 COMITY -neither a matter of absolute obligation nor mere courtesy and good will -RECOGNITION WHICH ONE NATION ALLOWS WITHIN ITS TERRITORY OF 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 LAWS EAP notes Lowers standard of comity: principle of retortion is a task for the legislature to do, not for the courts; the court in applying comity was doing legislative act. Plus injustice is that private individuals


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cannot change laws so why make them suffer for the difference in laws in different states? B. DEFINITION Distinguished from Public International Law and other Disciplines Part of municipal law which governs cases involving a foreign element MINOR: 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: part of law which comes into play when the issue before the court AFFECTS SOME FACT OR EVENT OR TRANSACTION that is SO CLOSELY CONNECTED W/ FOREIGN SYSTEM OF LAW as to necessitate recourse to that system 2nd ed, American Jurisprudence: part of the law of each state or nation which determines whether, in dealing w/ a legal situation, the law of some other state or nation will be ...recognized, ...given effect ...or applied HILTON v. GUYOT: 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 PIL vs. PRIL Category PUBLIC IL PRIVATE IL

Applicability Relationships ofRelationship of individuals of ratione states amongin their private transactions personae themselves which involve a foreign and ratione element materiae Sources law of A38, ICJ Statute: GR: from internal law of *custom each state, NOT from any *treaties international law *GPIL extraneous to municipal law *juridical decisions *teachings of mostNATIONAL CONFLICT highly qualifiedRULES: Internal law of publicists each country X: if conflict governed by treaty e.g. Hague Convention on the Conflict of Laws relating to the form of testamentary dispositions INTERNATIONAL CONFLICT RULES: *international conventions *foreign case law *commentaries interpreting these conventions Persons involved *States *Internationally Recognized organizations *Individuals *Corporations

Transactions State to state governed Government

Private transactions to

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)


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government Remedies *Diplomatic protest *courts *peaceful means of*admin tribunals settlement of international disputes: >diplomatic negotiations >arbitration >conciliation *adjudication by filing case before int'l tribunals *war

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REAL STATUTES (STATUTA REALIA): applied to immovable property w/n the state PERSONAL STATUTES (STATUTA PERSONALIA): 2. followed persons even outside his domicile, governed all questions concerning personal status capacity movables MIXED STATUTES (STATUTA MIXTA): on contracts 3. depend on where entered 16th century France CHARLES DUMOULIN: method to determine what law would govern CONTRACTS BETWEEN DIFFERENT NATIONALS BERTRAND D'ARGENTE: PRINCIPLE OF UNIVERSAL SUCCESSION Netherlands BURGUDNOU, RODENBERG, ULRICH HUBER (first used CONFLICT OF LAWS): State was under no obligation to apply foreign law UNLESS imposed by treaty COMITAS GENTIUM (Comity of Nations?) on consideration of courtesy and expediency JOHN VOET: no statue, real, personal or mixed, can act by itself beyond the territory of the legislator nor can it have any effect elsewhere against the will of the legislator of another state -Territorial Principle: GR: laws of every state may operate ONLY WITHIN THE TERRITORIAL LIMIT OF SUCH STATE X: may recognize laws of another country PROVIDED that it will not prejudice the subjects of the sovereign whose recognition is sought *Comitas Gentium (Comity of Nations) approach readily accepted -most trans-jurisdictional disputes to be resolved by the application of IUS GENTIUM or IUS COMMUNE Ius Commne: supranational law based on Roman Law, became continental European Common Law -nations began codifying their national laws to include conflict of laws provisions: *Bavarian Code: theory of statutes *Prussian Code: theory of efficacy of contracts *French Civil Code: pattern for Civil Codes of Spain, Belgium, and Romania: nationality principle -adopted by RP: ART15, NCC J. JOSEPTH STORY: Commentaries on the Conflict of Laws territorial theory/comitas gentium approach -territorial sovereignty, founded conflict of laws on the principle of comity of nations -adopted by JOSEPH BEALE, American Restatement of Conflict of Laws, developed territorial "VESTED RIGHTS" school of thought FREDERICH CARL VON SAVIGNY: System of Modern Law Situs theory -advocated historical school of jurisprudence -applicationof foreign law was not due to comity BUT the resultant benefits for everyone concerned -founder of MODERN PRIL -theory of situs/seat of legal relationship: every element of a transaction be governed by the law of the place with which said element has the most substantive connection PASCUALE MANICINI: Nationality as the Basis of Law of Nations- nationality theory(sortof Mixed statute)

Municipal law vs. Conflict of Law rules in Municipal law Municipal law No foreign element present Conflict of Law in ML Involves foreign element

C.OBJECT, FUNCTION AND SCOPE Object and Function -provide rational and valid rules or guidelines in deciding cases where issue involved relates to more than one jurisdiction -protection of rational expectations -stability and uniformity of solutions Scope -almost all subjects 1. Jurisdiction of courts 2. Evidence of proof of foreign law 3. Personal law of individuals and juridical entities 4. Naturalization law 5. Laws on domicile and residence 6. Family relations 7. Contracts 8. Torts 9. Crimes 10. Corpo law 11. Property law 12. International air transport (Warsaw convention)

II. HISTORY AND DEVELOPMENT OF CONFLICT OF LAWS A.ROMAN LAW ORIGIN Roman Empire Ius gentium: -law of nations in PIL -governs relations of States -body of rules developed by the PRAETOR PEREGRINUS to resolve disputes between Foreigners Foreigners and Roman Citizens Ius Civile: applied only to Roman Citizens Italy -Italy was divided into many city-states, each have own law - so they have conflicts of law problems BARTOLUS (father of conflict of laws): formulated the THEORY OF STATUTES -the theory of statutes was used by the Italian city-states to resolve conflict of law issues STATUTES classification

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)-nationality theory on Status Capacity Private interests of the individual -NEW THEORY OF PRIL B.MODERN DEVELOPMENTS *Neostatutists: when two or more independent laws are applicable to a conflict of laws problem, the method so devised determines what law shall prevail *Internationalists: there should be a single body of rules that can solve problems involving foreign element *Territorialists: law of the State applied to persons and things within the State, no foreign law should be applied -branch: only rights vested or acquired under a foreign law are recognized but not the foreign law itself *2nd Restatement, William Reese: the law to be applied in a conflict of laws case is the law of the most significant relationship *CAVERS, CURRIE AND EHRENZWEIG: policy-centered approaches Conflicts of Laws in the Philippines -only when RP became sovereign state In NCC: Article 15: nationality principle Art. 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(1): lex situs rule Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated. Article 16(2): universal succession 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. Article 17(1): lex loci contractus Art. 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.


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2. General Banking Act 3. Act Instituting Foreign Currency System in the Philippines 4. Philippine Foreign Law Guarantee Corporation 5. Act Regulating Retail Business 6. Anti-Dummy Law 7. Nationalization of the Rice and Corn Industry 8. Insurance Code 9. Protection of Intellectual Property 10. Patent Law 11. Tradesmark Law 12. COGSA 13. Salvage Law 14. Public Service Act 15. Civil Aeronautics Act 16. Philippine Overseas Shipping Act 17. Investment Incentives Act 18. Export Incentives Act 19. RA 7722 liberalizing entry of foreign banks in the Philippines B.TREATIES AND INTERNATIONAL CONVENTIONS 1. Convention on International Civil Aviation 2. Convention for the Unification of Certain Rules relating to international Carriage by Air - Warsaw Convention 3. Convention on Offenses Committed on Board Aircraft 4. Convention for Suppression of Unlawful Acts against the Safety of Civil Aviation 5. UN COGSA 6. Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriages 7. Convention on Traffic of Person 8. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 9. Convention on Political Rights of Women 10. International Convention for the Suppression of the Traffic in Women and Children 11. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 12. Convention Establishing the World Intellectual Property Organization 13. Berne Conventions for the Protection of Literary and Artistic Works 14. Convention for the Protection of Industrial Property 15. Paris Convention for the Protection of Industrial Property 16. Hague Conventions on PRIL: personal status patrimonial family status patrimonial status such as agency and trusts 17. Convention on Recognition of Foreign Judgment on Civil and Commercial matters 18. Convention in Respect of Inter Country Adoption C.TREATISES ,COMMENTARIES AND STUDIES OF LEARNED SOCIETIES European Ulrich Huber, De Conflicto Legum Diversarum in Diversia Impecis Mareas (di ba Manresa?), Comentarios al Codigo Civil Espanol FK von Savigny, System des Beutigen Romishcen Rights, english translation by Guthrie Andrei Weiss, Traite Theorique et Pratique de Droit International Prive American and English JH Beale, Conflict of Laws DF Cavers, The Choice of Law Process E. Cheatham, Cases and Materials on Conflict of Laws B. Currie, Selected Essays on the Conflict of Laws A. Ehrenzweig, A Treatise on the Conflict of Laws HF Goodrich, Conflict of Laws

III. SOURCES OF CONFLICT OF LAWS A.CODES AND STATUTES Note: maam just glossed over this. -Conflict of Laws from Continental Europe - codified - so Civil Codes are primary sources of Conflict of Laws rules -principle of ius gentium: codified in Roman Codes In RP Spanish Civil Code of 1888: enforced in RP Dec7, 1889 until August 30, 1950 -Conflict of laws provisions adopted by RP NCC Code of Commerce of Spain: foreign transactions provisions also enforced in Dec1, 1888 New: 1987 Consti: Nationality, Comity Special Statutes 1. Corporation Code

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)AK Kuhn, Commentarieson PRIL A Gussbaum, Principles of PRIL E Rabel, The Conflict of Laws J Story, Commentaries on the Conflict of Laws F Wharton, Treatiese on the Conflict of Laws GC Chesire, Private International Law RH Graveson, Conflict of laws American Institute Restatement of the Conflicts of Laws Second Restatement D.JUDICIAL DECISIONS Graveson: this branch of law is more completely judge-made than almost any other PART TWO JURISDICTION AND CHOICE OF LAW IV. JURISDICTION Judicial Jurisdiction: power or authority of a court to ...try a case render judgment and execute it in accordance with law Legislative jurisdiction: ability of the state to promulgate laws enforce them On all persons and property within its territory A. BASIS OF EXERCISE OF JUDICIAL JURISDICTION 1. Jurisdiction Over the Person Generally a. Voluntary appearance b. Submission to authority OVER THE PERSON OF THE PLAINTIFF -when plaintiff invokes the aid of the court by filling a suit OVER THE PERSON OF THE DEFENDANT 1. Enters appearance GR: appearance of defendant or lawyer - gives consent for the forum's exercise of jurisdiction over him X: Special appearance for the purpose of protesting the jurisdiction of the court 2. If non-resident who is initially the plaintiff: if counterclaim filed against him, he is already deemed to be under the court's exercise of jurisdiction 3. Served with the legal process within the state: SERVICE OF SUMMONS (RULE 14, ROC) Section 6: PERSONAL SERVICE -handing him a copy -tendering him a copy if he refuses Section 7: Substituted Service -for justifiable causes, defendant cannot be served w/n reasonable time personally a. Residence: with some person of SUITABLE AGE and DISCRETION THEN RESIDING THEREIN b. OFFICE/ REGULAR PLACE OF BUSINESS: competent person in charge thereof Section 12: Service upon Foreign Private Juridical Entity (FPJE) Defendant: foreign Private Juridical Entity -transacted business in RP


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How Service made: a. on RESIDENT AGENT designated in accordance with law for that purpose b. if NO AGENT: i. on government official designated by law to that effect Ii. On any of its officers or agents within the Philippines Section 15. Extraterritorial Service Defendant: a. Does not reside + not found in RP b. Action affects the personal status of plaintiff c. Relates to, or the subject of which is, property within the Philippines in which the defendant has or claims a lien or interest, actual or contingent d. Or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein e. Or the property of the defendant has been attached within the Philippines How served: -with leave of court a. Personal service b. By publication in a newspaper of general circulation in such places and for such time as the court may order + copy of summons and order sent thru registered mail to last known address c. In any other manner the court may deem sufficient WILLIAN GEMPERLE V HELEN SCHENKER (1967) In the first case, the wife Helen Schenker, sued Gemperle in behalf of her husband Paul. Gemperle now sues Paul for malicious publication of allegations and summons was served on Helen. Court ruled in favor of Gemperle so Paul contests the jurisdiction of the court, with the defense that no jurisdiction was acquired over him as the defendant. WON jurisdiction may be acquired by service of summons to the wife of the defendant? YES, under exceptional circumstances. GR: service of summons on wife is not service of summons on the defendant husband X: in this case, the wife is the attorney in fact of her husband, who had authority to sue and be sued 2. Jurisdiction over the Property a. Seizure of property under a legal process b. Institution of legal proceedings wherein the court's power over the property is recognized and made effective -situs could bind the world, not just the interest of specific persons -basis of exercise of jurisdiction: presence of the property within the territorial jurisdiction of the forum e.g. forfeiture of tangible property, registration of land title Quasi In rem: -based on state's physical power over the property found within its territory BUT affects only interests of particular persons in that thing e.g. action to quiet title to property: the claimant's title to the property in question is superior to others In Proceedings IN REM and QUASI IN REM: as long as there is adequate notice + opportunity to be heard, okay na! this can be done through publication

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)PENNOYER V NEFF (1878) Pennoyer obtained a judgment in Oregon against Neff (a Californian resident), with summons served by publication in an Oregon newspaper. Court ruled in favor of Pennoyer, ordered execution of judgment over Neff's land in Oregon. Neff contests jurisdiction of the court over his property (for the execution of judgment), arguing that no jurisdiction was obtained over him as the defendant. WON court could execute judgment over Neff's property in Oregon? No. The judgment from which the order for execution was derived is void, as the court did not acquire jurisdiction over the person of the defendant. -If the judgment is previously void (no jurisdiction over the person of the non-resident defendant), it will not become valid by the subsequent discovery of the property of the nonresident defendant or by his subsequent acquisition of it - or else, judgment would occupy a doubtful position of being void or valid depending on the presence of property of the nonresident defendant in the forum's territory *presence within territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him INTERNATIONAL SHOE CO. V WASHINGTON Int'l Shoe is a Company whose principal place of business is Missouri but does business in Washington (although maintains no office in Washington, hired 11-13 salesman under direct supervision and control of sales managers based in Missouri. These salesmen are only allowed to solicit sales, then would forward the orders for approval to Missouri). Washington wants to tax its business activities in the state, served summons to its Washington salesmen and mailed through registered mail to the Missouri office. WON Washington can impose taxes on the activities of the company in the state? YES. The continuous and systematic operations of the corporation in Washington through its agents were considered to vest the state with jurisdiction over it + traditional notions of fair play and substantial justice. -presence symbolize those activities of the corporation's agents within the state which courts will deem to be sufficient to satisfy the demands of due process -service of process service to an agent vests the courts jurisdiction if the activities are continuous, systematic, also gives rise to the liabilities sued, even if no consent to be sued or no authorization to an agent to accept. EAP notes *this approach of minimum contacts and fundamental fairness demands that there be forum-transaction contacts that will make it fundamentally fair to require the defendant to defend a suit in the forum regardless of his nonresident status e.g. if a person sells only 2 pairs of shoes in a state, would he be sufficiently appraised of any suit against him in that state? No. so no expectation that he be hailed in court + if mejo marami ang kita, may expectation dapat na you may be sued in that state *did not look into what kind of suit was filed: even if in personam or in rem or even quasi in rem, not strict what kind of service was used as long as notions of fair play was observed MULLANE V. CENTRAL HANOVER BANK AND TRUST CO., TRUSTEE, ET.AL (1950) The Central Hanover Bank, a trust company in NY, wanted to have a judicial settlement of its assets which is binding on all the beneficiaries in its books. However, publication was only made in


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NY, pursuant to NY law, when some of its beneficiaries does not live in NY. WON the judgment of the NY Court binds non-resident beneficiaries of the common fund maintained by Central Hanover Bank NO. The NY banking law violaes Due process so its void, thus, service in accordance with it is also void and non-binding. The bank had the names and addresses of its beneficiaries so they should have served summons to those affected by it through a more adequate means than that provided by the law -STANDARD FOR ADEQUATE NOTICE: the means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected SHAFFER V HEITNER (1977) Heitner sued the officers of Greyhound, a corporation incorporated in Delaware but whose officers (and their corresponding stock certificates elsewhere) for antiturst liabilities. Court served summons through publication and through certified mail to the officers' last known addresses. Court ruled in favor of Heitner, ordered that the certificate of stocks of the officers be sequestered. WON there are sufficient contacts for the Delaware court to exercise jurisdiction over the officers of Greyhound and their certificate of stocks NO Being mere officers is not sufficient minimum contact -Officer's holdings in Greyhound do not provide contacts with Delaware sufficient to support the jurisdiction of Delaware Courts because property is NOT THE SUBJECT MATTER OF LITIGATION (not action in rem) -the Officers-appellants, who are not required to acquire interest in Greyhound in order to hold their positions, did not by acquiring those interests, surrender their rights to be brought to judgment only in states with which they had "Minimum Contacts EAP notes US SC defined the outer reaches of permissible exercise of judicial jurisdiction when it held that MINIMUM CONTACTS AND FUNDAMENTAL FAIRNESS TEST SHOLD BE SATISFIED REGARDLESS OF WHETHER THE PROCEEDINGS ARE IN REM, QUASI IN REM OR IN PERSONAM. Note that Shaffer demands that minimum contacts exist among the forum, defendant AND THE COA. In INTERNATIONAL SHOE, all that was required was minimum contact between defendant and forum. Long arm Statutes -specify the kind of contacts upon which jurisdiction will be asserted by a state e.g. Commission of tortuous acts w/n the state Celebration of a contract there Presence of property owned by defendant -if these or other minimum contacts exist, the court can exercise jurisdiction because it has a justified interest in providing the plaintiff with a forum, no fundamental unfairness results -if long-arm statute broad, as long as it doesn't conflict with Consti, courts now have discretion to define on a case-to-case basis 3. Jurisdiction Over the Subject Matter (competence) -conferred by law or consti -based on the nature of the controversy

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)-it is necessary that said power to try be properly invokedby filing a petition -cannot be conferred by consent of parties: decision is void if court exceeds its jurisdiction and power in rendering it IDONAH PERKINS V ROXAS (1941) Eugene Perkins wanted the court to declare that the shares in BCMC was his, thus the dividends belong to him, and not to his wife Idonah. He impleaded Idonah and Engelhard, both nonresidents of the Philippines, and Idonah alleged in her answer that there was already a NY judgment declaring her to be the sole owner of the shares claimed by Eugene, thus, this judgment should be res judicata. WON Court had jurisdiction over the subject matter of the case (with Idonah arguing that this is barred by Res Judicata) YES, the court has jurisdiction over the subject matter to determine if the NY Judgment is Res Judicata -JURISDICTION OVER SUBJECT MATTER: the nature of the cause of action and of the relief sought, conferred by the sovereign authority which organizes the court, and is to be sought for in general nature of its powers, or in authority specially conferred *TEST OF JURISDICTION: WON the tribunal has the power to enter upon the inquiry, NOT Whether its conclusion in the course of it is right or wrong B. WAYS OF DEALING WITH A CONFLICTS PROBLEM 1. Dismiss the Case


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WHEN CAN'T REFUSE TO EXERCISE JURISDICTION: *when the forum is the only state where jurisdiction over defendant can be obtained *when the forum provides procedural remedies not available in another state EAP notes:When Forum non Conveniens *would cause injustice to the parties *if the suit was bought in a particular case only because it gives a larger verdict - but so what? e.g. there's a study that if the state is mostly composed of Asians, the jury would give lower amount of damages. Why? -Disparity in the GDP and standard of living of Asians and Westerners. Asians think its already a big amount of value but Westerners don't think so. Asians are happier, and can live with, less things. so this ground, on its own, is not a ground. But if there are other factors which would make it inconvenient for the forum to exercise jurisdiction, then dismiss case *harass the other party: choose forum most inconvenient to the other party *global forum shopping: files numerous cases before several forums - different (and maybe conflicting) decisions that's why we have CNFS *forum shopping vs. forum non conveniens: forum shopping only one of the reasons why dismiss HEINE V NEW YORK INSURANCE COMPANY (1940) A NY INsurance Company who did business (issued insurance policies in Germany, established an office) in Germany was sued by German citizens in US Courts WON US Courts are compelled to take cognizance of the dispute? NO. Although US Courts could exercise jurisdiction over the dispute, it would be inconvenient for the defendant US Corporation to bring to US it corporate books and records all the way from Germany just to defend itself against German plaintiffs -Forum non conveniens:The court has discretion to exercise jurisdiction. The courts have repeatedly refused, in their discretion, to entertain jurisdiction in COA arising in a foreign jurisdiction, WHERE BOTH PARTIES ARE NONRESIDENTS OF THE FORUM:The courts of this country are established and maintained primarily to determine controversies between its own citizens and those having business there, and manifestly the court may protect itself against a flood of litigation over contracts made and to be performed in a foreign country IN RE: UNION CARBIDE (1986) Facts Because of the gas leak in Union Carbide's India plant, several Indian citizens were killed and injured. As a result, several suits were filed against Union Carbide in US - which were later dismissed because the Indian Government was granted by a newly enacted Indian law to have exclusie right to represent the victims in India or elsewhere (note: Indian government filed complaint in India against Union Carbide) Issue WON dismissal based on forum non conveniens valid (the other two issues are not really related to the topic so just see the book) Held YES. The Indian Citizen-Plaintiffs have revoked their authorizations of American counsels to represent them and substituted the Indian Government. The Indian Government

Doctrine of forum non conveniens -courts may decline to try the case on the ground that the controversy may be more suitably tried elsewhere -literal interpretation: forum is inconvenient *Usual grounds when this was used by the court: >When plaintiff made the choice of the forum primarily to harass defendant by inflicting upon him unnecessary expense and hardship in pursuing the remedy >Where non-resident plaintiff chose the forum because he felt that the jury verdicts were larger than in other for a >When such would be burdensome on the court or taxpayers >When the parties are non-residents and there was a severe backlog of cases when it perceived that jury duty, when compulsory, should not be foisted on a community with no link with or interest in the litigation >when the court's local machinery was inadequate to effectuate a right, such as when it had no way of securing evidence and the attendance of willing witnesses Summary: should consider both public and private interests Private interests: *relative ease of access to source of proof *Availability of compulsory process for attendance of unwilling witnesses *cost of obtaining and attendance off willing witnesses *possibility of viewing the premises if appropriate *all other practical problems that make trial of a case easy, expeditious, and inexpensive Public Interest *administrative difficulties encountered when courts are congested *jury duty: burden on community *appropriateness of having the trial in a court that is familiar with the applicable state law rather than getting another forum enmeshed in a complicated conflict-of-laws problem

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)already filed with Indian court, and Indian courts provides reasonably adequate alternative forum. -though evidence in US: basic design programs, Most of the evidence in INDiA: *principal witnesses *documents bearing on the development and construction of the plant *detailed designs *implementation of plans *operation and regulation of the plant *safety precautions *facts w/ respect to the accident itself *deaths and injuries attributable to the accident WING ON COMPANY V SYYAP (1967) Facts Wing-on, an NY Company, entered into a contract with Syyap Co, an RP Company, for the shipping of clothing materials from NY to RP. Syyap failed to settle their obligations with Wing-on so Wingon sued Syyap in RP. Syyap was arguing that the RP court should have refused exercising jurisdiction over the case based on Forum non conveniens Issue WON the court should have declined jurisdiction based on forum non conveniens Held NO. Unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed -Consideration of inadequacy to enforce the judgment 2. Assume Jurisdiction


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Held No because the will was not shown to be executed in accordance with the law where the will was made, i.e. W. Virginia law -the court can't take judicial notice, foreign laws must be proved as facts PHILIPPINE TRUST CO. V BOHANAN (1960) Facts Bohanan, a Nevadan citizen, died with a will. PTC was named the executor of the will, offered the will for probate in RP. Will left only P6k to the wife and children, while giving almost everything to decedent's siblings and grandson.PTC presented Nevada law applicable before the court in 2 earlier hearings. Issue WON the will was duly executed in accordance with Nevada Law, which was not duly proved in this stage of the proceeding Held Yes because Philippine Trust Co. already produced Nevada laws twice before the courts below. As Nevada law does not impose compulsory heirs, project partition valid -SO HERE, court decided to take judicial notice of the Nevada law, as presented in the earlier stages of the case Foreign law cannot be applied ...when foreign law is (1) contrary to an important public policy of the forum (2) penal in nature (3) procedural in nature (4) purely fiscal/administrative in nature (5) (will) work undeniable injustice to the citizens of the forum (6) case involves real/personal property situated in theforum (7) application of foreign law might endanger vital interest of the state (forum) (8) contrary to good morals

Forum law decrees application of internal law Civil Code Article 16: makes real and personal proerty subject to the law of the country where they are situated Intestate and testamentary succession: governed by lex nationale of the person whose succession is under consideration Article 829: makes revocation done outside the Philippines valid according to the law of the place where the will was made or lex domicilli Article 819: prohibits Filipinos from making joint wills even if valid in the country where they were executed Forum law was not properly pleaded and proved The proper foreign law was not properly pleaded and proved -no Judicial notice of foreign law Relevant rules of evidence: To prove written foreign law: follow requirements in Sec 24-25, Rule 132 May be subject of judicial admission Processual presumption - no proof nor admission, foreign law presumed to be the same as that in the Philippines FLEUMER V HIX (1930) Facts Fleumer, the administrator of Hix's estate, presented the latter's will(executed abroad) for probate before RP court. He alleges that the will was duly executed in accordance with W.Virginia laws, showing a copy of the applicable laws as found in the West Virginia Code and Certified by the Director of RP National Library. If the will would be probated in accordance with RP laws, it would not be allowed because it did not show that Hix acknowledged it in the presence of 2 competent witnesses and it was subscribed by Hix and his witnesses in the presence of one another Issue WON the will should be probated in RP

V. CHOICE OF LAW A.THE CORRELATION CHOICE OF LAW BETWEEN JURISDICTION AND

Exercise of Jurisdiction and Choice of Law decisions related in 3 important ways: 1. FACTORS that will justify the forum courts exercise of jurisdiction may be the same factors that will determine whether the forum court will apply its internal law (factors that will determine jurisdiction may be the same factors that will determine choice of law) 2. If the Forum applies its internal law (because it has a real interest in that case), then the outcome of the case will be foreordained by that forum where the suit was brought. > The effect of this is that the plaintiff Will bring his suit, in the state which has a real interest in applying its internal law. 3. And since in practice, the forum will most likely apply its own law rather than displace it in favor of a foreign law, the plaintiff will predictably bring his claim in the courts of the state, the internal law of which is favorable to him.rt Jurisdiction and choice of law are 2 distinct concepts. forum court may exercise jurisdiction but will not apply its own law; or will refuse to assume jurisdiction although its internal law may be applied as proper law



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B.APPROACHES TO CHOICE OF LAW All choice of law problems seek to answer 2 important questions: 1. What legal system should control where the significant facts of the case occurred in 2 or more states? 2. To what extent should the chosen legal system regulate the situation? - Several theories have already been propounded to identify the legal system that should control - Ideally, all choice of law theories must advance both notions of JUSTICE and PREDICTABILITY. - However, they do not always do so. The forum is then faced with the problem which if these 2 important values should be stressed. Prof. Arthur Von Mehren and Donald Trautman classify these theories into two: Traditional Approach and Modern Approach 1. Traditional Approach - emphasize the principles of SIMPLICITY, CONVENIENCE and UNIFORMITY (asked in the exam) 2. Modern Approach those which relate to reaching appropriate results in particular cases

Held: If there is a conflict bet. lex loci and lex fori, the former governs in torts and in contracts wrt the legal effect and incidents of acts. Therefore, whatever would be a defense to this action had it been brought in Maine, would also be a defense in New Hampshire. It is desirable that the remedy be the same, wherever the action is brought. Plaintiff argues that the inability to recover in Maine is merely because there is a prohibition of suit between H and W in Maine. Thus, recovery may be had by going to a jurisdiction where such suits are allowed, like in New Hampshire. No. The inability to file an action is not merely because there is a prohibition of suit, but that the acts complained of do not give rise to ANY cause of action. There has been no breach of legal duty. ALABAMA GREAT SOUTHERN R.R. CO. V CARROLL (1892) Carroll is a resident of Alabama, a brakeman employed by Alabama Great Southern RR. Alabama RR operated a railroad from Tennessee, through Alabama to Mississippi. The contract of employment was entered into in Alabama. Carroll was injured in Mississippi, because of a negligent failure to spot a defective link between 2 freight cars. Under Mississippi law Carroll could NOT recover against Alabama RR because the negligence was caused by a fellow servant. Under Alabama law could recover; injury suffered in the course of employment Carroll brought suit in Alabama. WON Carroll may recover in Alabama. NO Held: No cause of action both in Alabama and in Mississippi. There can be no recovery in one State for injuries to a person sustained in another unless the infliction of the injuries is actionable under the law of the State in which they were received. The negligent infliction of an injury in a state under statutory circumstances creates a right of action in that state, which, being transitory, may be enforced in any other State or country, the comity of which admits of it. The injury occurred in Mississippi. It was in that state therefore where the COA, if any, arose. And under the law of Mississippi, plaintiff had no cause of action. Hence, plaintiff has no rights, which the court of Alabama can enforce. Another point being raised by the plaintiff is its right to recover under the Employers Liability Act (Alabama contract of employement). This is based upon the fact that at the time the plaintiff was injured, he was in the discharge of his duties which rested on him by the terms of his employment contract entered into in Alabama. NO. The fact that it was an Alabama contract and that the plaintiff and the corporation were residents of Alabama are of no importance here. The duties and liabilities incident to the relation between the plaintiff and the defendant which are involved in this case are not imposed by, nor do they spring from the contract. The only office of the contract here is the establishment of a relation between them of master and servant. The conduct of such persons toward each other, when its legality is brought in question, is to be adjudged by the rules of the one or the other States as in falls territorially within the one or the other. In Gray vs Gray although the only relation of Maine to the spouses was solely that it was the place where the accident occurred, the court automatically applied the law of that place; rejected a choice of law based on reason, justice and expediency. if this law was enacted by Maine to prevent domestic controversies in Maine, why should a New

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Traditional Approach Vested Rights Theory Local Law Theory Cavers Principles of Reference

Vested Rights Theory * traditional learning is anchored on the principle that choice of law rules that are: > simple in form > capable of easy administration > would promote predictability > and discourage forum shopping theory advanced by Prof. Joseph Beale; he incorporated the theory into the first Restatement of Conflict of Laws - Under this theory, an act done in a foreign jurisdiction gives rise to the existence of a right if the laws of that state provides so. This right VESTS in the plaintiff and he carries it with him to be enforced in any forum he chooses to bring suit. Forum refers to the law of the place of occurrence of the last act necessary to complete the cause of action. HENCE, if the laws of the state where the last act occurred create no legal right, there is nothing for the forum to recognize and enforce, even if its own law creates such a right. Furthermore, the law of the state of the last act is considered the law applicable to all substantive issued of the case. - DISADVANTAGE: values of simplicity and uniformity are advanced even at the expense of reaching a just result Gray vs Gray, Alabama Great Southern vs Carroll GRAY V GRAY (1934) Gray, with her husband, was on their way home to New Hampshire. They had an accident in Maine. Grey filed damages for personal injuries in New Hampshire against her husband, who was the one driving. In Maine, spouses are barred from maintaining an action against each other. No such prohibition in New Hampshire.

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)Hampshire wife not be allowed to sue her husband in New Hampshire? Shouldnt problems of family relations be determined by the personal laws of the parties rather than the place of the wrong? CRITICISMS ON VESTED RIGHTS THEORY Its main weakness was its failure to resolve conflicts cases with reference to considerations of policy and fairness. - The strict and unyielding application of the law of the place of injury can become counterintuitive, if not altogether arbitrary. In Carroll for example, the Alabama court applied the law of Mississippi at the expense of arriving at a just result. - Dr. Jovito Salonga identifies 5 major defects of the theory: 1. When theorists of the vested rights theory state that it is not the foreign law but the rights acquired under it, which are enforced by the courts of another country there is at once involved a selfdelusion of reasoning. 2. Not all rights acquired under foreign law are protected elsewhere, nor is their protection always desirable. 3. The protection of rights and other interests is not the only consideration to be taken into account. 4. The law protects not only vested rights constituted abroad but often foreign legal relationships, capacities or powers out of which, rights or the extinction of duties and charges or the invalidity of acts, may arise. 5. It is difficult or impracticable to apply the theory where the material aspects of a transaction or event touch two or more states equally. most states have eschewed the rigidity inherent in the traditional approach. However, a number of courts still follow it in reaction to the perceived uncertainty of the policy-oriented policies. Local Law Theory by Prof. Walter Wheeler Cook rejected deduction from general principles as a means to ascertain positive law and instead proposed to unearth rules by looking at the cases and other concrete phenomena, including the behavior of judges. Cook observed that: 1st: the power of a state to regulate within its territory has no limitation, except such as may be imposed by its own positive law 2nd: that in conflicts 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. As a result, the law applied may not be exactly that which the foreign court would have enforced. CRITICISM it lends to the narrow-minded who may be inclined to depreciate the practical and equitable consideration that should control the adjudication of conflict cases in favor of an exaggerated local policy on the ground that they and the sovereign which they represent can do as they please Cavers Principles Of Preference by Prof. David Cavers choice of law should be determined by considerations of justice and social expediency and should not be a


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result of the mechanical application of a rule or principle of selection When a court is faced with a question whether to reject the law of the forum and admit foreign law, it should: 1. scrutinize the event or transaction giving rise to the issue before it 2. 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 its effect therein 3. appraise these results from the standpoint of justice between the litigants or of those broader considerations of social policy which conflicting laws may evoke only when this process of analysis is followed can we successfully set aside the stifling effects of ensuring certainty and uniformity above all other objectives Cavers contends that the choice of law decisions should be made with reference to principles of preference which are conceived to provide a fair accommodation of conflicting state policies and afford fair treatment to the parties who are caught up in the hazards between conflicting state policies CRITICISMS: shows a TERRITORIALIST BIAS; they look at the place where the significant events occurred or where the legal relationship is centered.

2. Modern Approaches Place Of Most Significant Relationship rejected the single connecting factor of the place where the last act occurred and adopted an approach which identified a plurality of factors that must be considered in the light of choice of law principles. Among these choice of law principles were: (a) the needs of the interstate and international system (b) relevant policies of the concerned states (c) relevant policies of other interested states and the relative interest of those in the determination of the particular issue (d) the protection of justified expectations of the parties (e) the basic policies underlying the particular field of law (f) certainty, predictability and uniformity of result (g) ease in the determination and the application of the law to be applied To determine which was the state of the most significant relationship, the factual contacts of each case were considered in the light of these principles These contacts however differed in each area of substantive law. Example: In TORTS the contacts to be taken into account are: 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 are entered In CONTRACT CASES the contacts include: law chosen by the parties place of contracting factual

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)place of negotiation of the contract place of performance domicile, residence, nationality, place of incorporation and place of business of the parties - in both tort and contract cases, the contacts are evaluated depending on their relative importance and relevance to the issue at hand AUTEN V AUTEN(1954) The Autens married in England. The husband deserted his wife and 2 children and moved to NY. The wife later went to NY where they had a separation agreement where the wife promised not to bring any action relating to the separation. Husband Auten failed to give financial support so wife brought a suit for legal separation in England in the ground of adultery. Nothing happened with the case. So the wife brought an action in NY to enforce the separation agreement. Husband argued that th ewifes institution of the English separation proceeding was in violation of the separation agreement, thus his obligations under it are extinguished. The lower court of NY found for the husband. Whether NY law or British law should apply. ENGLISH LAW Held: ENGLISH LAW applies. All matters relating upon the execution, interpretations and validity of contracts are determined by the law of the place where the contract is made; while all matters connected with its performance are regulated by the law of the place where the contract is performed. What constitutes a breach of contract and what circumstances excuse a breach are considered matters of performance, governable by the law of the place of performance. Some treat this rule as conclusive, while others consider the INTENTION of the parties as controlling, while others have resorted to the CENTER OF GRAVITY or GROUPING OF CONTACTS THEORY. Under this theory the courts, instead of regarding as conclusive the parties intention or the place of making or place of performance, lay emphasis rather upon the law of the place which has the most significant contacts with the matter in dispute. Although this may afford less certainty and predictability, it gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context, thus allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of the particular litigation. Examining the contacts with New York and England compels the conclusion that it must be English law that should be applied. It is where all the truly significant contact took place, while NY is just the place where the agreement was made. The H and W are both British subjects, married in England, had children there, and there lived as a family. The husband left for NY only under a temporary visa. The agreement determined and fixed the marital responsibilities of an English husband and father. There is no question that England has the greatest concern. Even though the agreement was executed in NY, it is sting England that has the greatest concern in defining and regulating the rights and duties existing under that agreement. HAAG V BARNES (1961) Norman Barnes, an Illinois lawyer, and Dorothy Haag, a NY legal secretary, had an illegitimate child. After she became pregnant, Haag went to California. Prior to the birth of her child, she went to Chicago and entered into a support agreement with Barnes. The agreement contained a choice of law clause in favor of Illinois which upheld such agreement. However, NY law gave no binding effect to agreements made by parents of an illegitimate child


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unless such is judicially approved. Haag returned to NY and filed this support action. Whether NY law or Illinois law should apply. ILLINOIS LAW. Held: Illinois law should apply. The parties stipulated in the agreement that Illinois law would apply, Even if the parties intention and the place of making the contract are not given decisive effect, they are given heavy weight in determining which jurisdiction has the most significant contact with the matter in dispute. Illinois contacts: agreement entered into in Illinois, child was born in Illinois, all contributions for support are made from Chicago; parties expressly intended for Illinois law to apply. Contrasted with these Illinois contacts, the NY contacts are of far less weight and significance: mother and child currently live in NY and part of the liaison took place in NY. It may not be gainsaid that the center of gravity of the agreement was Illinois. Applying the Illinois law, the support agreement thus bars the present action for support. Instead of the term state of the most significant relationship, although using the same methodology, the Auten case used the term center of gravity, place which has the most significant contacts and grouping of contacts Auten considered all relevant contacts instead of automatically applying the law of the place where the contract was made. CRITICISM: the approach is one which can be used to support virtually any result and is thus bound to hamper the sound development of the common law by saving the court the difficult but necessary effort of articulating those true motivations which are the very elements of growing rules As in the case of Haag, the court applied the law of Illinois which was the mans home. the question is, is this consistent in applying Auten or did the court manipulate the contacts to achieve a preconceived result? CRITICISM: failure to provide any standard to determine which of the contacts were significant and evaluate the relative importance of a group of contacts.

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Interest Analysis by Prof. Brainerd Currie urged the resolution of choice of law problems by looking at the policy behind the laws of the involved states and the interest each state had in applying its own law under this approach, factual contacts alone did not determine the outcome of a case unless they reflected a state policy which would be advanced by application of the substantive state law. After the court analyzed the policies reflected by a state law, it had to determine whether both states had a real interest in having their law applied, hence there was a true conflict FALSE CONFLICT only one state had an interest in having its law applied thus, the forum only had to apply the substantive law of the interested state TRUE CONFLICT both states have a real interest in having their law applied. BABCOCK V JACKSON Georgia Babcock and Mr. and Mrs. Jackson, all residents of NY, left for a weekend trip to Canada. Mr. Jackson lost control of the

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)car and Babcock was badly injured. Upon their return to NY, Babcock filed a suit against Jackson. NY law does not have a guest statute but Canada law renders a driver/owner of a vehicle not liable for such injury. WON the law of the place of the accident governs. NO. Held: NY law applies. Comparison of the relative contacts and interests of NY and Ontario makes it clear that NY has greater and more direct interest. The present action involves injuries sustained by NY guests as a result of the negligence of a NY host. Ontarios sole relationship with the occurrence is the mere fact that the accident occurred there. NY policy requires the tortfeasor to compensate his guest for injuries caused by his negligence; the legislature has repeatedly refused to enact a statute denying or limiting recovery. NY court has no reason nor warrant to depart from such policy just because the accident happened beyond its borders. Neither has Ontario any interest in denying remedy to a NY guest against his NY host. For the object of Ontarios guest statute is to prevent fraudulent assertion of claims by passengers, in collusion with the drivers against insurance companies; asserted against Ontario defendants and their insurance carriers. Whether the NY defendants might be defrauded by the NY plaintiffs is scarcely a valid concern for Ontario. Also, it is NY where the parties reside, where the guest-host relationship arose and where the trip began and was to end. While Ontario was just the place of fortuitous occurrence of the accident. The liabilities of the parties stem from their guest-host relationship and not vary and shift as the automobile proceeds from place to place. Dissent: The present case makes substantial changes in the law of torts. The expression of center of gravity and significant contacts were neither applied nor are they applicable in the realm of torts. Attempts to make the law of public policy of NY prevail over the laws and policies of other States where citizens of NY ar concerned are simply a form of extraterritoriality which can be turned against us wherever actions are brought in the courts of NY which involve citizens of other States. in Babcock, the court held that the application of NY law advanced the policy reflected in that law, while the failure to apply Ontario law did not impair the policy behind the law. CRITICISMS: conflicts cases are ordinarily concerned only with private and not governmental interests. Unworkable because it will require the court to decide each case in an ad hoc basis since the court is required in every case to ascertain the purpose of each of the potentially applicable local law rules in order to determine which of these rules apply. Its emphasis on the policy reflected in the law gave rise to a number of difficulties because not all state legislatures published committee reports that explained the background and purpose of the law, leading each court to determine on its own the purpose of the law in question may encourage courts to engage in Comparative Impairment -


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armchair speculation of the policy behind another states law Also, not all laws reflected policy or had a purpose other than to decide cases.

by Prof. William Baxter calls for the subordination of the state objective which would be least impaired. The courts were asked to weigh conflicting interests and apply the law of the state whose interest would be more impaired of its law were not followed CRITICISM: pressured courts to look behind an apparent conflict to the precise issue and the precise interest of each state

Functional Analysis by Prof. Donald Trautman and Arthur Von Mehren

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this approach looked into the general policies of the state beyond those reflected in its substantive law and to policies and values relating to effective and harmonious intercourse between states. These policies include reciprocity, advancement of multipstate activity, protecting justifiable expectations, evenhandedness in dealing with similar cases and effectiveness The next step is for the court to consider the relative strength of the state policy which the author calls policy weighing Milliken vs Pratt: Prat was a resident of Massachusetts, where spouse cannot act as surety for ones obligation. In Maine, Pratts spouse applied for credit from Milliken guaranteed by Pratt. When they defaulted, Milliken sued Pratt on the guaranty in Maine. Held: Daniel was liable place of contracting was in Maine. During the time this decision was made, the restrictive policy on the right of married woman was on the wanw in Massachusetts and in other states. Thus, the rule in force at the time the contract was made was not based on a strongly held policy. Using the functional analysis, the court should consifer whther the law of the state reflects an emerging or regressing policy.

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Choice Influencing Considerations by Prof. Robert Leflar espoused 5 major choice-influencing considerations that would lead courts to the choice of law decision: 1. Predictability of results; 2. Maintenance of interstate and international order; 3. Simplification of the judicial task; 4. Application of the better rule of law; 5. Advancement of the forums governmental interests contrasted with interest analysis which apply a particular rule of substantive law in order to implement a policy reflected therein according to Leflar, courts will prefer rules of law whether they are forum law or another states law as long as they make good socioeconomic sense for the time the court speaks and are sound in view of present day conditions Leflars better rule criterion has been the most controversial aspect of his approach.

Antonio Arcilla | Rachelle Mayuga | Charisse Mendoza Jaklyn Pineda | Dahlia Salamat | Aida Villanueva (Second Semester, A.Y. 2009-2010)CRITICISM: in practice, the courts have almost always considered its own law as the better law. -


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VI. PROBLEM OF CHARACTERIZATION A.CHARACTERIZATION AND THE SINGLE-ASPECT METHOD

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Choice of law theories have traditionally concentrated on one element of a situation on order to connect the case to a particular legal community this is called the SINGLE-ASPECT METHOD For example an issue determined as contractual is immediately referred to the place of contracting; one that is tortuous is assigned to the place of tort The goal of this method is to foster SIMPLICTY, CONVENIENCE and UNIFORMITY OF RESULTS Traditional Approach single aspect method Modern Approach multi-aspect method Here, ALL important factors of the case, both territorial and non-territorial are analyzed and the applicable law is arrived at by rationally elaborating and applying the policies and purposes underlying the particular legal rules that come in question as well as the needs of the interstate or international intercourse End is to reach a just resolution for the case at hand PHILIPPINES follow the SINGLE-ASPECT METHOD Found in Civil Code: o Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Phil. even though living abroad o Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary succession, 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. o Art. 17. 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 RP 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 determination s or conventions agreed upon in a foreign country.

These Phil. rules specify the geographical location from where the governing law is found, consistent with the traditional approach Difficulty in following these territorially oriented rules inherent rigidity and unjust decisions that may resuklt from their application. TO AVOID THESE, courts have resorted to CHARACTERIZATION and RENVOI, which operate as escape devices. CHARACTERIZATION a. 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 or property. b. in conflicts of laws situations, characterization becomes a pervasive problem since at least 2 jurisdictions with divergent laws are involved. c. There are 2 TYPES of characterization: i. Subject Matter Characterization ii. Substance Procedure Dichotomy

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Subject Matter Characterization - is the classification by a court of a factual situation into a legal category; impt. In single-aspect method because the LEGAL CATEGORY to which an issue is assigned, determines the governing law GIBBS V GOVT OF PI(1933) Allison Gibbs was the H of Eva Gibbs. They were citizens of California and were domiciled there. They acquired 3 parcels of land in Manila, which formed part of their conjugal property. Eva died and Allison was appointed administrator. Allison filed a petition in California alleging that under California, when a spouse dies, the conjugal property becomes absolutely owned by the surviving spouse. Court granted petition and adjudicated to Allison sole and absolute ownership of the land. Allison presented the decree to the Register of Deeds in Manila and demanded for the issuance of a TCT. Register of Deeds declined to accept the decree as binding and refused to register the transfer of title on the ground that the inheritance tax has not yet been paid. Allison filed a case in Manila. Court affirmed the decision of the Register of deeds. Hence this petition. Issue: Whether the California Civil Code or the Phil. Administrative Code should apply. Held: Philippine Law should apply. In real property, the law of the place where the property is located governs. The nature and extent of the title which vested in Mrs. Gibbs must be determined in accordance with the lex rei sitae. Under Phil. law, she was vested of a title equal to that of her husband; shall be deemed partnership property. Upon her death her share in the conjugal property does not become absolutely owned by the husband but is transmitted to her heirs by succession, which levies a tax on inheritance (the order of succession is to be governed by California law since personal law governs in succession).



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Although the courts was silent on the matter of characterization, it was faced with the task of categorizing the issue in Gibbs as involving real property to be governed by the lex situs, OR one involving succession to be governed by the national law of the decedent. Characterization problems are considered a menace to the traditional choice of law theories which aim for uniformity and predictability of results. Ex. in issue of WON an adopted child is entitled to an intestate share in her parents estate. If the child was adopted in the Phil. by a former Fil. Citizen, then moves to the US and becomes a US citizen, by whose laws she will not be an heir, the court will have to decide whether is a question relating to adoption or to succession. If succession law of the place where adoption took place governs; if succession law of adopted governs. Another example is in when a person hires an agent in another country and the agent commits a negligent act. The liability of the principal will depend on the characterization of the case if contractual, law of the place where the contract was entered into governs; if tortuous, law of the place of tort. 3. Substance-Procedure Dichotomy directs the court to the extent it will apply foreign law if the issue is SUBSTANTIVE the court may apply foreign law if PROCEDURAL law of the forum; the rights and duties if parties arising from a legal situation shall not be substantially varied because of the forum in which an action is brought o all inclusive reference to the foreign law is never made; a heavy burden would be thrown upon the courts of the forum and the orderly administration of justice will be hampered. A limitation upon the scope of the reference to the foreign law is thus necessary.

in the case. Another view: correct result but arrived at using dubious method. Accdg. to Currie the court availed of one of several escape devices characterization; it characterized the problem differently and the different characterization produced the result that has been previously recognized as the sound one; the just and rational result being clear, the court availed itself of one of the several escape devices that are built into the system itself. far from an ideal way of dealing with the situation; it would be better if the court could state explicitly the considerations that led them in the first place to determine what the result should be and indicate clearly how these considerations will be appraised in other cases legal scholars however have not suggested any method whereby courts could select an appropriate law objectively and an attempt by the court to explain its decisions in terms of demands of justice or social policy would doubtlessly create more uncertainty and arouse more criticism than did the California SCs employment of the traditional escape device so characterization 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. However, so closely are procedure and substance connected that in many cases, a refusal to accept the foreign rule as to a matter falling into a doubtful class will defeat the policy involved in following the foreign substantive law. 2 Issues that occasion the debate as regards their proper classification: Statute of Frauds and Statute of Limitations Statute Of Frauds - considered as substantive if the words of the law relate to forbidding the creation of obligation - on the other hand, one that forbids the enforcement of the obligation is considered procedural o Art. 1403 contracts that do not comply with the Statues of Frauds are unenforceable by action unless the same or some note or memorandum thereof be in writing; evidence of the agreement cannot be received without the writing or secondary evidence of its contents. - Marie vs Garrison: Garrison maintains that the NY Statute of Frauds is a rule affecting the remedy upon a contract within its terms and deemed a rule of procedure. Marie claims that the NY law was constructed as a rule of substance going into the existence of a contract HELD: the NY Statute of Frauds was a rule of substance since it provides that the contract of sale of any interest in land shall be void unless it was in writing; as opposed to a law stating that no action shall be brought if the requirement was not complied with. Statutes Of Limitations And Borrowing Statutes - by tradition, classified as procedural because they barred only the legal remedy without impairing the substantive right involved. as a result, a suit could still be maintained in another jurisdiction that provides for a longer statute of limitations however, certain statutes of limitations have been classified as substantive for conflicts purposes if they provide a shorter period for certain types of claims that fall within a wider classification covered by a general statute of limitations.

GRANT V MCAULIFFE (1953) Grant et. al. were residents of California. Injured in Arizona when their car collided with the car of Pullen. Pullen, also from California, died. Grant brought action in California against Pullens estate to recover for their injuries. Under Arizona law, a tort action which has not been commenced before the death of the tortfeasor must be abated. Under California law, cause of action for torts survive the death of the tortfeasor. WON the present proceeding are substantive or procedural for purposes of conflict of laws. Held: Survival of causes of action of a procedural issue; California law governs Survival of causes of action should be governed by the law of the forum. Survival is not an essential part of the COA itself but relates to the procedures available for the enforcement of the legal claim of damages. Grants COA survives Pullens death. the reaction to Grant was on the whole, negative. characterized as having been based on an erroneous characterization that was greatly influenced by sympathy factors



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In order to determine whether a foreign statute should be regarded as substantive or procedural SPECIFICITY TEST US court held that a statute of limitations of a foreign country is treated as substantive when the limitation was directed to the newly created liability so specifically as to warrant saying that is qualified the right. Nonetheless, in order to eliminate forum-shopping, many states including the Phil. have passed borrowing statutes which bar the filing of a suit in the forum if it is already barred by the statute of limitations in the place where the cause of action arose However, in Cadalin, the court held that to enforce the borrowed statute would contravene public policy on protection of labor.

- ex. by Prof. Mehren and Trautman Man dies intestate, domiciled in State A and has movable property in State B. State A refer to laws of the domicile to det. how his estate should be divided State B gives the widow a definite share in the estate of the deceased However, the determination of WON the woman who claims a share in the estate IS a wife is governed by Family law and not laws on succession The issue of what law governs the movable property and the successional rights of the spouse are of primary importance since they embody the substance of the claim; however, the validity of the marriage affects the solution because it answers a preliminary or incidental question. The presence of an incidental question is one instnce which calls for the employment of depecage a single element of a case is made to relate it to one legal system; depecage allows the other relevant interests of the parties to be addressed

Effect permit courts to arrive at a functionally sound result w/o rejecting the methodology of traditional approach

CADALIN V POEA ADMINISTRATOR (1994) Cadalin instituted a class suit with the POEA for money claims arising from their recruitment from Asia International Builders and emloyment by Brown and Root International (BRII). BRII is a foreign corporation with headquarters in Texas, while AIBC is a domestic corporation. Cadalin sought the payment of the unexpired portion of the employment contracts, which were terminated prematurely. In Bahrain were some of the complainants were deployed, their labor law provides the terms and conditions of employment to govern employees and workers in Bahrain. NIRC dismissed the claims. To POEA, the prescriptive period was 10 years, while NLRC provides for 3 year prescription period as provided in the Labor Code. Solocitor General said the prescriptive period is 1 year as prescribed by the Amiri decree. Held: As a general rule, a foreign procedural law will not be applied in the forum. Procedural matters such as service of process, joinder of actions, period and requisites for appeal, etc. are governed by the laws of the forum. This is true even if the action is based upon foreign substantive law. However, a law on prescription of actions is sui generis in that it may be viewed either as procedural or substantive, depending on the characterization given such law. However, the characterization into a procedural or substantive law becomes irrelevant when the country of the forum has a borrowing statute. Such statute has the practical effect of treating the foreign statute of limitation as one of substance. It directs the state of the forum to apply the foreign statute of limitations. It provides that an action barred by the local laws of the place where in the forum even though the local statute has not run against it. Sec. 48 of our Code of Civil Procedure provides this. HOWEVER, Sec. 48 cannot be enforced in so far as it ordains application of the Amiri Decree. The courts of the forum will not enforce any foreign claim obnoxious to the forums public policy. To enforce the 1 yr. prescriptive period would contravene the public policy on protection to labor. The applicable provision is the Philippine law. B.DEPACAGE - from the French word depecer meaning to dissect - term for the phenomenon where different aspects of a case involving a foreign element may be governed by different systems of laws

HAUMSCHILD V CONTINENTAL CASUALTY (1959) Jacquelyn Haumschild and Le Roy Gleason were married in Wisconsin and were domiciled there. In 1958arriage was annulled. 1956, Haumschild was injured while driving a motor truck driven by Gleason in California. Haumschild filed an action against Gleason in California. Gleason moved to dismiss bec. under California law, spouses are immune from suit by the other and that Haumschild is estopped to assert the invalidity of their marriage. WON the law of the domicile should apply. YES Whether the law of the place of wrong should be applied, in resolving an issue of interfamily immunity from suit in tort. NO Held: The law of the domicile is the one that ought to be applied in determining any issue of incapacity to sue based upon family relationship. the court decided that the law of the place of accident, California, governed the issue of negligen

52481735 PRIL Finals Reviewer 2010

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