CASES IN CONFLICT OF LAWS

PRELIMINARY CONSIDERATIONS

THE HOME INSURANCE COMPANY vs. EASTERN SHIPPING LINES and/or ANGEL JOSE TRANSPORTATION, INC. and HON. A. MELENCIO-HERRERA

The objective of the law was to subject the foreign corporation to the jurisdic -tion of our courts. The Corporation Law must be given a reasonable, not an unduly harsh, interpretation which does not hamper the development of trade relations and which fosters friendly commercial intercourse among coun-tries.The Corporation Law is silent on whether or not the contract executed by a foreign corporation with no capacity to sue is null and void ab initio.

A Michigan statute provides: No foreign corporation subject to the provisions of this Act, shall maintain any action in this state upon any contract made by it in this state after the taking effect of this Act,  until it shall have fully complied with the requirement of this Act, and procured a certificate to that effect from the Secretary of State. It was held that the above statute does not render con-tracts of a foreign corporation that fails to comply with the statute void, but they may be enforced only after compliance therewith.

There is no question that the contracts are enforceable. The requirement of registration affects only the remedy.

Significantly, Batas PambansaBlg. 68, the Corporation Code of the Philip-pines has corrected the ambiguity caused by the wording of Section 69 of the old Corporation Law. Section 133 of the present Corporation Code provides: SEC. 133. Doing business without a license.-No foreign corporation transact-ing business in the Philippines without a license, or its successors or assigns, shag be permitted to maintain or intervene in any action, suit or proceeding in any court or administrative agency in the Philippines; but such corporation may be sued or proceeded against before Philippine courts or administrative tribunals on any valid cause of action recognized under Philippine laws.

Our ruling that the lack of capacity at the time of the execution of the con -tracts was cured by the subsequent registration is also strengthened by the pro-cedural aspects of these cases.

FIRST PHILIPPINE INTERNATIONAL BANK (Formerly Producers Bank of the Philippines) and MERCURIO RIVERA vs. COURT OF APPEALS, CARLOS EJERCITO, in substitution of DEMETRIO DEMETRIA, and JOSE JANOLO

Black's Law Dictionary says that forum shopping "occurs when a party at-tempts to have his action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgment or verdict." Hence, accord-ing to Words and Phrases, "a litigant is open to the charge of "forum shop-ping" whenever he chooses a forum with slight connection to factual circum-stances surrounding his suit, and litigants should be encouraged to attempt to settle their differences without imposing undue expenses and vexatious situa-tions on the courts".

There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an ad-ministrative proceeding is pending, as in this case, in order to defeat adminis -trative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling.

TEST: Buan vs. Lopez , also by Chief Justice Narvasa, and that is, forum shopping exists where the elements of litis pendentia are present or where a fi-nal judgment in one case will amount to res judicata in the other.

Corporate veil cannot be used to shield an otherwise blatant violation of the prohibition against forum-shopping. Shareholders, whether suing as the ma-jority in direct actions or as the minority in a derivative suit, cannot be al-lowed to trifle with court processes, particularly where, as in this case, the cor-poration itself has not been remiss in vigorously prosecuting or defending cor-porate causes and in using and applying remedies available to it. To rule oth-erwise would be to encourage corporate litigants to use their shareholders as fronts to circumvent the stringent rules against forum shopping.

McGee v Int'l Ins. Co

The Due Process Clause did not preclude the California court from entering a judgment binding on respondent, since the suit was based on a contract which had a substantial connection with California. In International Shoe Co. v. Washington, 326 U. S. 310, the Court decided that "due process requires only that, in order to subject a defendant to a judg-ment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.

RATIONALE: In part, this is attributable to the fundamental transformation of our national economy over the years. Today, many commercial transactions touch two or more States, and may involve parties separated by the full conti-nent. With this increasing nationalization of commerce has come a great in-crease in the amount of business conducted by mail across state lines. At the same time, modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.

The contract was delivered in California, the premiums were mailed from there, and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims. These resi-dents would be at a severe disadvantage if they were forced to follow the in-surance company to a distant State in order to hold it legally accountable

VALMONTE VS. ALCALA

the CA committed a reversible error when it dismissed the petition for failure to strictly follow the verification requirements. Stated otherwise, we do not consider the variance between the dates as fatal to the petitioners case because the variance did not necessarily lead to the conclusion that no verification was made, or that the verification was false. More importantly, the variance totally lost significance after the petitioners sent from the US and submitted to the CA the required Verification/Certification in compliance with their previously manifested intent. As this Court noted in a case where compliance with a cer-tificate of non-forum shopping was at issue, the fact that the Rules require strict compliance merely underscores its mandatory nature; it cannot be dis -pensed with or its requirements altogether disregarded, but it does not thereby interdict substantial compliance with its provisions under justifiable circum-stances, as we find in this case.

JURISDICTION

Equal Employment Opportunity Commission (EEOC) v. Arabian American Oil Co.

Title VII does not apply extraterritorially to regulate the employment practices of United States firms that employ American citizens abroad.

It is a longstanding principle of American law "that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States. This canon of construction is a valid ap-proach whereby unexpressed congressional intent may be ascertained. It serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.

Absent clearer evidence of congressional intent, this Court is unwilling to as-cribe to Congress a policy which would raise difficult international law issues by imposing this country's employment discrimination regime upon foreign corporations operating in foreign commerce. This conclusion is fortified by other factors suggesting a purely domestic focus, including Title VII's failure even to mention foreign nations or proceedings, despite a number of provi-sions indicating a concern that the sovereignty and laws of States not be un-duly interfered with, and the Act's failure to provide any mechanisms for its overseas enforcement. It is also reasonable to conclude that, had Congress in-tended Title VII to apply overseas, it would have addressed the subject of con-flicts with foreign laws and procedures, as it did in amending the Age Dis-crimination in Employment Act of 1967 (ADEA) to apply abroad.

Small vs United states

Section 922(g)(1)’s phrase “convicted in any court” encompasses only domes-tic, not foreign, convictions.

In considering the scope of the phrase “convicted in any court” it is appropri-ate to assume that Congress had domestic concerns in mind. This assumption is similar to the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application.

foreign convictions may include convictions for conduct that domestic laws would permit. In addition, it is difficult to read the statute as asking judges or prosecutors to refine its definitional distinctions where foreign convictions are at issue. To somehow weed out inappropriate foreign convictions that meet the statutory definition is not consistent with the statute’s language; it is not easy for those not versed in foreign laws to accomplish; and it would leave those previously convicted in a foreign court (say of economic crimes) uncer-tain about their legal obligations. These considerations provide a convincing basis for applying the ordinary assumption about the reach of domestically oriented statutes here.

CORAZON C. SIM, petitioners, vs.NATIONAL LABOR RELATIONS COMMISSION and EQUITABLE PCI-BANK, respondents

LA has extra-territorial jurisdiction.

Section 10 of Republic Act (R.A.) No. 8042, or the Migrant Workers and Overseas Filipinos Act of 1995,18 provides: SECTION 10. Money Claims. — Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days af-ter the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages.

Also, Section 62 of the Omnibus Rules and Regulations Implementing R.A. No. 804219 provides that the Labor Arbiters of the NLRC shall have the origi-nal and exclusive jurisdiction to hear and decide all claims arising out of em-ployer-employee relationship or by virtue of any law or contract involving Fil-ipino workers for overseas deployment including claims for actual, moral, ex-emplary and other forms of damages, subject to the rules and procedures of the NLRC.

Under these provisions, it is clear that labor arbiters have original and exclu-sive jurisdiction over claims arising from employer-employee relations, in-cluding termination disputes involving all workers, among whom are overseas Filipino workers.

Whether employed locally or overseas, all Filipino workers enjoy the protec-tive mantle of Philippine labor and social legislation, contract stipulations to the contrary notwithstanding. This pronouncement is in keeping with the basic public policy of the State to afford protection to labor, promote full employ-ment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. For the State assures the basic rights of all workers to self-organization, collective bargaining, secu-rity of tenure, and just and humane conditions of work [Article 3 of the Labor Code of the Philippines; See also Section 18, Article II and Section 3, Article XIII, 1987 Constitution]. This ruling is likewise rendered imperative by Arti -cle 17 of the Civil Code which states that laws "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 or conventions agreed upon in a foreign country."

Kirtsaeng vs. John Wiley & Sons Inc

First sale doctrine - “the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord,”  Sec109(a). Importing a copy made abroad without the copy-right owner’s permission is an infringement of sec106(3).

Section 109(a) of the copyright act says nothing about geography. A non-geo-graphical interpretation provides each word in the phrase “lawfully made un-der this title”  with a distinct purpose: “lawfully made”  suggests an effort to distinguish copies that were made lawfully from those that were not, and “un-

der this title” sets forth the standard of “lawful[ness]” (i.e., the U. S. Copyright Act). This simple reading promotes the traditional copyright objective of com-batting piracy and makes word-by-word linguistic sense. In contrast, the geo-graphical interpretation bristles with linguistic difficulties. Wiley first reads “under” to mean “in conformance with the Copyright Act where the Copyright Act is applicable.” Wiley then argues that the Act “is applicable” only in the United States. However, neither “under” nor any other word in “lawfully made under this title” means “where.” Nor can a geographical limitation be read into the word “applicable.”  The fact that the Act does not instantly protect an American copyright holder from unauthorized piracy taking place abroad does not mean the Act is inapplicable to copies made abroad.

BMW of North America Inc vs. Gore Jr.

The Due Process Clause of the Fourteenth Amendment imposes a substantive limit on the size of punitive damages.Writing for the majority, Justice Stevens, with whom Justices O'Connor, Kennedy, Souter, and Breyerjoined, began his analysis by focusing on the relationship between Alabama's inter-ests in punishment and deterrence and the size of the punitive-damages award.

Justice Stevens noted that under the federal system Alabama, like the other states, has "considerable flexibility in determining the level of punitive dam-ages that [it] will allow in [various cases]." However, while Alabama could compel BMW NA to comply with a particular disclosure policy in that state, Alabama could not punish BMW NA for out-of-state conduct that was neither unlawful nor detrimental to Alabama's residentswith the intent of changing the tortfeasors' lawful conduct in other States." 77 Applying this state-interest analysis, the Court concluded that the $2 million punitive award was "grossly excessive" in relation to Alabama's legitimate objectives.

The Court developed three "guideposts" for determining whether adequate no-tice has been given: (1) the "degree of reprehensibility" of defendant's con-duct; (2) the ratio between the actual or potential harm and the punitive dam-ages; and (3) the authorized civil or criminal sanctions for comparable mis-conduct.80 Using the guideposts, the Court made three key findings. First, be-cause BMW NA's conduct "evinced no indifference to or reckless disregard for the health and safety of others," and because the harm that Gore suffered was "purely economic in nature," BMW NA's conduct was not "sufficiently reprehensible" to justify the $2 million award.

Second, the punitive damages were 500 times the actual damages as deter-mined by the jury, and there was no reasonable relationship between these two types of awards.8 2 Third, the $2 million award was dramatically greater than the maximum $2000 civil penalty authorized by Alabama for a violation of its Deceptive Trade Practices Act.8 3 Furthermore, there was no judicial prece-dent in which similarly large punitive damages were awarded for comparable misconduct when BMW NA's nondisclosure policy was first challenged.

The Relationship Between Reasonableness and Substantive Due Process The BMW Court declared that when a punitive-damages award is unreasonably large in relation to a state's legitimate interests in punishment and deterrence, the award "enter[s] the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.

SPECTOR V. NORWEGIAN CRUISE LINE LTD. (03-1388)545 U.S. 119 (2005)  

Title III of the ADA applies to foreign-flagged cruise ships doing business in the United States.

Unless Specifically Exempted by the Statute in Question, Foreign-Flag Cruise Ships Doing Business Within the Internal Waters and Ports of the United States Must Comply with All Generally Applicable Laws. It is axiomatic that activities taking place on United States waters are generally governed by United States law.

The fact that a cruise ship sails under a foreign flag or is registered in a for-eign country does not exempt it from generally applicable laws of the coun-tries in which it does business. As this Court has recognized, “[i]t is well set-tled that when a foreign-flag shipping line chooses to engage in foreign com-merce and use American ports it is amenable to the jurisdiction of the United States and subject to the laws thereof.”The jurisdiction of the country whose territorial limits a ship voluntarily enters attaches in virtue of her presence,

just as with other objects within those limits. During her stay she is entitled to the protection of the laws of that place and correlatively is bound to yield obe-dience to them.

PENNOYER vs. NEFF

No. A court may enter a judgment against a non-resident only if the party: 1) is personally served with process while within the state, or 2) has property within the state, and that property is attached before litigation begins (i.e. quasi in rem jurisdiction).

“If, without personal service, judgments in personam, obtained ex parte against non-residents and absent parties, upon mere publication of process, which, in the great majority of cases, would never be seen by the parties inter -ested, could be upheld and enforced, they would be the constant instruments of fraud and oppression.”

In this case the property was moved against to satisfy a personal judgment against a non-resident. Pre-trial seizure of the land would have satisfied noti-fication of a property judgment (in rem), because it is assumed that property is attached to the personNeff was not personally notified nor was his land attached at the time of adju -dication. Judgments in rem for non-residents must be given due process, which involves a personal appearance by the Defendant or personal service of notification or attachment of land.

The substituted service of process by publication in actions brought against non-residents is valid only where property in the state is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such prop-erty or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem.

The Oregon court did not have personal jurisdiction over Neff because he was not served in Oregon. The court‘s judgment would have been valid if Mitchell had attached Neff‘s land at the beginning of the suit. Mitchell could not have done this because Neff did not own the land at the time Mitchell initiated the suit.

Asiavest Limited v. CA

Under paragraph (b) of Section 50, Rule 39 of the Rules of Court, which was the governing law at the time this case was decided by the trial court and re-spondent Court of Appeals, a foreign judgment against a person rendered by a court having jurisdiction to pronounce the judgment is presumptive evidence of a right as between the parties and their successors in interest by the subse-quent title. However, the judgment may be repelled by evidence of want of ju -risdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

Also, Section 3(n) of Rule 131 of the New Rules of Evidence provides that in the absence of proof to the contrary, a court, or judge acting as such, whether in the Philippines or elsewhere, is presumed to have acted in the lawful exer-cise of jurisdiction.

Hence, once the authenticity of the foreign judgment is proved, the burden to repel it on grounds provided for in paragraph (b) of Section 50, Rule 39 of the Rules of Court is on the party challenging the foreign judgment.

The testimony of an expert witness may be allowed to prove a foreign lawn according to a private international law expert. There is, however, nothing in the testimony of Mr. Lousich that touched on the specific law of Hong Kong in respect of service of summons either in ac-tions in rem or in personam, and where the defendant is either a resident or nonresident of Hong Kong. In view of the absence of proof of the Hong Kong law on this particular issue, the presumption of identity or similarity or the so-called processual presumption shall come into play. It will thus be presumed that the Hong Kong law on the matter is similar to the Philippine law.

In an action in personam wherein the defendant is a non-resident who does not voluntarily submit himself to the authority of the court, personal service of summons within the state is essential to the acquisition of jurisdiction over her person. This method of service is possible if such defendant is physically present in the country. If he is not found therein, the court cannot acquire ju-risdiction over his person and therefore cannot validly try and decide the case

against him. An exception was wherein a non-resident was served with sum-mons through his wife, who was a resident of the Philippines and who was his representatives and attorney-in-fact in a prior civil case filed by him; more-over, the second case was a mere offshoot of the first case.

Since HERAS was not a resident of Hong Kong and the action against him was, indisputably, one in personam, summons should have been personally served on him in Hong Kong. The extraterritorial service in the Philippines was therefore invalid and did not confer on the Hong Kong court jurisdiction over his person. It follows that the Hong Kong court judgment cannot be given force and effect here in the Philippines for having been rendered with-out jurisdiction.

BANCO DO BRASIL, petitioner, vs. THE COURT OF APPEALS, HON. ARSENIO M. GONONG, and CESAR S. URBINO, SR., re-spondents.

When the defendant is a nonresident and he is not found in the country, sum-mons may be served extraterritorially in accordance with Rule 14, Section 17 of the Rules of Court. Under this provision, there are only four (4) instances when extraterritorial service of summons is proper, namely: "(1) when the ac-tion affects the personal status of the plaintiffs; (2) when the action relates to, or the subject of which is property, within the Philippines, in which the defen-dant claims a lien or interest, actual or contingent; (3) when the relief de-manded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (4) when the de-fendant non-resident's property has been attached within the Philippines." In these instances, service of summons may be effected by (a) personal service out of the country, with leave of court; (b) publication, also with leave of court; or (c) any other manner the court may deem sufficient. Clear from the foregoing, extrajudicial service of summons apply only where the action is in rem, an action against the thing itself instead of against the per-son, or in an action quasi in rem, where an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obli-gation or loan burdening the property. This is so inasmuch as, in in rem and quasi in rem actions, jurisdiction over the person of the defendant is not a pre -requisite to confer jurisdiction on the court provided that the court acquires ju-risdiction over the res. 

However, where the action is in personam, one brought against a person on the basis of his personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. When the defen-dant is a non-resident, personal service of summons within the state is essen-tial to the acquisition of jurisdiction over the person.

This cannot be done, however, if the defendant is not physically present in the country, and thus, the court cannot acquire jurisdiction over his person and therefore cannot validly try and decide the case against him.

It must be stressed that any relief granted in rem or quasi in rem actions must be confined to the res, and the court cannot lawfully render a personal judg-ment against the defendant. Clearly, the publication of summons effected by private respondent is invalid and ineffective for the trial court to acquire juris -diction over the person of petitioner, since by seeking to recover damages from petitioner for the alleged commission of an injury to his person or prop-erty caused by petitioner's being a nuisance defendant, private respondent's ac-tion became in personam. Bearing in mind the in personam nature of the ac-tion, personal or, if not possible, substituted service of summons on petitioner, and not extraterritorial service, is necessary to confer jurisdiction over the per-son of petitioner and validly hold it liable to private respondent for damages.

REGNER v. LOGARTA

There are generally two types of actions: actions in rem and actions in per-sonam. An action in personam is an action against a person on the basis of his personal liability, while an action in rem is an action against the thing itself, instead of against the person.

The certificate, subject of the donation, is a personal property. The action filed by Victoria is therefore a personal action. So in order for the court to acquire jurisdiction over the respondents, summons must be served upon them. Fur-ther, the certificate is indivisible, Cynthia’s and Teresa’s interests thereto can only be determined if both are summoned in court.

In personal actions, if the respondents are residents of the Philippines, they may be served summons in the following order:

1. Personal Service;2. If (1) is not possible, Substituted Service;3. If respondent can’t be found because he is abroad but still a resi-

dent of the Philippines, by publication with leave of court.4. In personal actions still, if the respondents are non-residents,

they may be served summons in the following manner:

Personal service through the Philippine embassy; By publication in a newspa-per of general circulation in such places and for such time as the court may or-der, in which case a copy of the summons and order of the court should be sent by registered mail to the last known address of the defendant; or In any other manner which the court may deem sufficient. The above must be with leave of court.

NM Rothshild& Sons (Australia) Limited v. Lepanto Consoli-dated Mining Company

Rothschild, by seeking affirmative reliefs from the trial court, is deemed to have voluntarily submitted to the jurisdiction of said court. A party cannot in-voke the jurisdiction of a court to secure affirmative relief against his oppo-nent and after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction.

Section 12, Rule 14 of said rules provides:Sec. 12.Service upon foreign private juridical entity. When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accor-dance with law for that purpose, or, if there be no such agent, on the govern-ment official designated by law to that effect, or on any of its officers or agents within the Philippines. (Emphasis supplied.)  Section 15 of the same rule which provides: Sec. 15.Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plain-tiff or 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, or in which the relief demanded consists, wholly or in part, in excluding the defen-dant from any interest therein, or the property of the defendant has been at -tached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.

Breaking down Section 15, Rule 14, it is apparent that there are only four in-stances wherein a defendant who is a non-resident and is not found in the country may be served with summons by extraterritorial service, to wit: (1) when the action affects the personal status of the plaintiffs; (2) when the ac-tion relates to, or the subject of which is property, within the Philippines, in which the defendant claims a lien or an interest, actual or contingent; (3) when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (4) when the defendant non-resident's property has been attached within the Philippines. In these instances, service of summons may be effected by (a) personal service out of the country, with leave of court; (b) publication, also with leave of court; or (c) any other manner the court may deem sufficient.

Undoubtedly, extraterritorial service of summons applies only where the ac-tion is in rem or quasi in rem, but not if an action is in personam.

When the case instituted is an action in rem or quasi in rem, Philippine courts already have jurisdiction to hear and decide the case because, in actions in rem and quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court, provided that the court ac-quires jurisdiction over the res. Thus, in such instance, extraterritorial service of summons can be made upon the defendant. The said extraterritorial service of summons is not for the purpose of vesting the court with jurisdiction, but for complying with the requirements of fair play or due process, so that the defendant will be informed of the pendency of the action against him and the

possibility that property in the Philippines belonging to him or in which he has an interest may be subjected to a judgment in favor of the plaintiff, and he can thereby take steps to protect his interest if he is so minded. On the other hand, when the defendant or respondent does not reside and is not found in the Philippines, and the action involved is in personam, Philippine courts cannot try any case against him because of the impossibility of acquiring jurisdiction over his person unless he voluntarily appears in court.

International shoe co. vs Washington

The activities in behalf of the corporation render it amenable to suit in courts of the State to recover payments due to the state unemployment compensation fund. The activities in question established between the State and the corpora-tion sufficient contacts or ties to make it reasonable and just, and in conform-ity to the due process requirements of the Fourteenth Amendment, for the State to enforce against the corporation an obligation arising out of such activ-ities.

In such a suit to recover payments due to the unemployment compensation fund, service of process upon one of the corporation's salesmen within the State, and notice sent by registered mail to the corporation at its home office, satisfies the requirements of due process. The tax imposed by the state unem-ployment compensation statute -- construed by the state court, in its applica-tion to the corporation, as a tax on the privilege of employing salesmen within the State -- does not violate the due process clause of the Fourteenth Amend-ment.

"Presence" in the state in this sense has never been doubted when the activi-ties of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given. Con-versely, it has been generally recognized that the casual presence of the corpo-rate agent, or even his conduct of single or isolated items of activities in a state in the corporation's behalf, are not enough to subject it to suit on causes of action unconnected with the activities there. To require the corporation in such circumstances to defend the suit away from its home or other jurisdiction where it carries on more substantial activities has been thought to lay too great and unreasonable a burden on the corporation to comport with due process.

Appellant having rendered itself amenable to suit upon obligations arising out of the activities of its salesmen in Washington, the state may maintain the present suit in personam to collect the tax laid upon the exercise of the privi-lege of employing appellant's salesmen within the state.

Kulko v. Superior Court of California

The exercise of in personam jurisdiction by the California courts over appel-lant, a New York domiciliary, would violate the Due Process Clause of the Fourteenth Amendment. The mere act of sending a child to California to live with her mother connotes no intent to obtain nor expectancy of receiving a corresponding benefit in that State that would make fair the assertion of that State's judicial jurisdiction over appellant.

A defendant to be bound by a judgment against him must "have certain mini-mum contacts with [the forum State] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'"

The acquiescence of appellant in his daughter's desire to live with her mother in California was not enough to confer jurisdiction over appellant in the Cali-fornia courts. Exercise of in personam jurisdiction over appellant was not war-ranted by the financial benefit appellant derived from his daughter's presence in California for nine months of the year, since any diminution in appellant's household costs resulted not from the child's presence in California, but from her absence from appellant's home, and from appellee's failure to seek an in-crease in support payments in New York.

The "effects" rule that the California courts applied is intended to reach wrongful activity outside of the forum State causing injury within the State where such application would not be "unreasonable," but here, where there is no claim that appellant visited physical injury on either property or persons in

California; where the cause of action arises from appellant's personal, domes-tic relations; and where the controversy arises from a separation that occurred in New York, and modification is sought of a contract negotiated and signed in New York that had virtually no connection with the forum State, it is "un-reasonable" for California to assert personal jurisdiction over appellant.

Since appellant remained in the State of marital domicile and did no more than acquiesce in the stated preference of his daughter to live with her mother in California, basic considerations of fairness point decisively to appellant's State of domicile as the proper forum for adjudicating this case, whatever be the merits of appellee's underlying claim.

California's legitimate interest in ensuring the support of children residing in California without unduly disrupting the children's lives is already being served by the State's participation in the Uniform Reciprocal Enforcement of Support Act of 1968, which permits a California resident claiming support from a nonresident to file a petition in California and have its merits adjudi-cated in the State of the alleged obligor's residence, without either party's hav-ing to leave his or her own State. New York is a signatory to a similar statute. Those statutes appear to provide appellee with means to vindicate her claimed right to additional child support from appellant and collection of any support payments found to be owed to her by appellant

Burnham vs. Superior court

Jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard. That standard was developed by analogy to physical pres-ence. Justice BRENNAN, joined by Justice MARSHALL, Justice BLACK-MUN, and Justice O'CONNOR, although agreeing that the traditional "tran-sient jurisdiction" rule is generally valid, concluded that historical pedigree, although important, is not the only factor to be taken into account in establish-ing whether a jurisdictional rule satisfies due process, and that an independent inquiry into the fairness of the prevailing in-State service rule must be under-taken. The transient jurisdiction rule will generally satisfy due process re-quirements.

Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over non-resi-dents who are physically present in the State. The view developed early that each State had the power to hale before its courts any individual who could be found within its borders, and that, once having acquired jurisdiction over such a person by properly serving him with process, the State could retain jurisdic-tion to enter udgment against him, no matter how fleeting his visit. That view had antecedents in English common law practice, which sometimes allowed "transitory" actions, arising out of events outside the country, to be maintained against seemingly non-resident defendants who were present in England.

The Supreme Court upheld the ruling of the California Superior Court. Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresi-dents who are physically present in the State. The view developed early that each State had the power to hale before its courts any individual who could be found within its borders, and that once having acquired jurisdiction over such a person by properly serving him with process, the State could retain jurisdic-tion to enter judgment against him, no matter how fleeting his visit. A state court's assertion of personal jurisdiction satisfies the Due Process Clause if it does not violate “traditional notions of fair play and substantial justice”.

World-wide Volkswagen corp. vs. Woodson

The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defen-dant.  A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.

A state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist "minimum contacts" between the defendant and the forum State. . It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States through their courts, do not reach out beyond the limits imposed on them by their sta-tus as coequal sovereigns in a federal system.

Thus, the Due Process Clause "does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations." The defendant's con-tacts with the forum State must be such that maintenance of the suit does not offend traditional notions of fair play and substantial justice, and the relation-ship between the defendant and the forum must be such that it is "reasonable . . . to require the corporation to defend the particular suit which is brought there."

Here, there is a total absence in the record of those affiliating circumstances that are a necessary predicate to any exercise of state-court jurisdiction. Peti-tioners carry on no activity whatsoever in Oklahoma; they close no sales and perform no services there, avail themselves of none of the benefits of Okla-homa law, and solicit no business there either through salespersons or through advertising reasonably calculated to reach that State. Nor does the record show that they regularly sell cars to Oklahoma residents or that they indi-rectly, through others, serve or seek to serve the Oklahoma market.

Asahi Metal Industry Co. Vs Superior Court

The Due Process Clause of the Fourteenth Amendment limits the power of a state court to exert personal jurisdiction over a nonresident defendant. "[T]he constitutional touchstone" of the determination whether an exercise of per-sonal jurisdiction comports with due process "remains whether the defendant purposefully established minimum contacts' in the forum State."

Jurisdiction is proper . . . where the contacts proximately result from actions by the defendant himself that create a 'substantial connection' with the forum State."

RATIONALE: 1) to allow an exercise of personal jurisdiction to be based on no more than the defendant's act of placing the product in the stream of com-merce 2)to have jurisdiction it is required that the action of the defendant to be more purposefully directed at the forum State than the mere act of placing a product in the stream of commerce)

Because the stream of commerce eventually brought some valves Asahi sold Cheng Shin into California, Asahi's awareness that its valves would be sold in California was sufficient to permit California to exercise jurisdiction over Asahi consistent with the requirements of the Due Process Clause.

SOCIETE NATIONALE INDUSTRIELLE AREOSPATIALE V. U.S. DISTRICT COURT

(1) Hague Evidence Convention applied to request for information from for-eign national which was a party to the litigation; (2) Hague Evidence Conven-tion did not provide exclusive and mandatory procedure for obtaining docu-ments and information located within territorial foreign signatory; (3) first re-sort to Hague Convention was not required; and (4) Hague Convention did not deprive district court of jurisdiction it otherwise possessed to order foreign na-tional party before it to produce evidence physically located within a foreign signatory nation.

The Convention does not provide exclusive or mandatory procedures for ob-taining documents and information located in a foreign signatory's territory. The Convention's plain language, as well as the history of its proposal and rat-ification by the United States, unambiguously supports the conclusion that it was intended to establish optional procedures for obtaining evidence abroad. Its preamble speaks in non-mandatory terms, specifying its purpose to "facili-tate" discovery and to "improve mutual judicial cooperation." Similarly, its text uses permissive language, and does not expressly modify the law of con-tracting states or require them to use the specified procedures or change their own procedures. The Convention does not deprive the District Court of its ju-risdiction to order, under the Federal Rules, a foreign national party to pro-duce evidence physically located within a signatory nation.

The Court of Appeals erred in concluding that the Convention "does not ap-ply" to discovery sought from a foreign litigant that is subject to an American court's jurisdiction. Although they are not mandatory, the Convention's proce-

dures are available whenever they will facilitate the gathering of evidence, and "apply" in the sense that they are one method of seeking evidence that a court may elect to employ.

The concept of comity requires, in this context, a more particularized analysis of the respective interests of the foreign and requesting nations than a blanket "first resort" rule would generate. Thus, the determination whether to resort to the Convention requires prior scrutiny in each case of the particular facts, sov-ereign interests, and likelihood that such resort will prove effective.

PFEGER R. DULAY vs. RODRIGO S. DULAY

While the letters rogatory issued by the trial court specifically directed the Clerk of Court of Boston to take the depositions needed in the case, it became impossible to follow the directive since the Clerk of Court of Boston merely brushed it aside and refused to cooperate. Respondent cannot be faulted for the resultant delay brought about by this circumstance. Neither can the trial court be faulted for allowing the admission of the depositions taken not in strict adherence to its original directive, nor for directing the petitioner to have the depositions authenticated. Obviously, it was not within the trial court's power, much less the respondent's to force the Clerk of Court of Boston to have the deposition taken before it. After all, while a court had the authority to entertain a discovery request, it is not required to provide judicial assistance thereto. This reality was recognized by the trial court when it ordered respon-dent to have the questioned depositions authenticated by the Philippine con-sulate.

More importantly, the Court finds that respondent substantially complied with the requirements for depositions taken in foreign countries. In our jurisdiction, depositions in foreign countries may be taken: (a) on notice before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the Republic of the Philippines; (b) before such person or officer as may be appointed by commission or under letters rogatory; or (c) before any person authorized to administer oaths as stipulated in writing by the parties. While letters rogatory are requests to foreign tribunals, commissions are directives to officials of the issuing jurisdiction.

In the instant case, the authentication made by the consul was a ratification of the authority of the notary public who took the questioned depositions. The deposition was, in effect, obtained through a commission, and no longer through letters rogatory.

Besides, the allowance of the deposition cannot be said to have caused any prejudice to the adverse party. They were given the opportunity to cross-ex-amine the witnesses through their cross-interrogatories, which were in turn an-swered by the deponents. Save for the complaint of delay in the proceedings, petitioners were unable to point out any injury they suffered as a result of the trial court's action.

Navida v Dizon

The rule is settled that jurisdiction over the subject matter of a case is con-ferred by law and is determined by the allegations in the complaint and the character of the relief sought, irrespective of whether the plaintiffs are entitled to all or some of the claims asserted therein. Once vested by law, on a particu-lar court or body, the jurisdiction over the subject matter or nature of the ac -tion cannot be dislodged by anybody other than by the legislature through the enactment of a law.

At the time of the filing of the complaints, the jurisdiction of the RTC in civil cases under Batas PambansaBlg. 129, as amended by RA 7691, In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs or the value of the property in controversy exceed P100K or, in such other cases in Metro Manila, where the demand, exclusive of the abovementioned items exceeds P200K. It is clear that the claim for damages is the main cause of action and that the total amount sought in the complaints is approximately P2.7 million for each of the plaintiff claimants. The RTCs unmistakably have jurisdiction over the cases filed in General Santos City and Davao City.

Del Monte Fresh Produce, petitioner vs DOW Chemical Com-pany, etc., respondents

There are two requisites for a court to allow an omitted counterclaim or cross-claim by amendment: (1) there was oversight, inadvertence, or excusable ne-glect, or when justice requires; and (2) the amendment is made before judg-ment.

The CA correctly held that there is basis for allowing the cross-claims of the Dole, Del Monte and Chiquita defendants against the Dow/Occidental defen-dants as they complied with the rules. It is undisputed that the Dole, Del Monte and Chiquita defendants sought to amend their answers to include their cross-claims before judgment. More importantly, justice requires that they be allowed to do so in consonance with the policy against multiplicity of suits.

FORUM NON CONVENIENS

Gulf Oil Corporation v. Gilbert

Gilbert himself is not a resident of New York, nor did any event connected with the case take place there, nor does any witness with the possible excep-tion of experts live there. No one connected with that side of the case save counsel for the plaintiff resides there.

It is a strange argument on behalf of a Virginia plaintiff that the community which gave him patronage to make his business valuable is not capable of fur-nishing jurors who know the value of the goods they store, the building they are stored in, or the business their patronage creates. And there is no specifica-tion of any local influence, other than accurate knowledge of local conditions, that would make a fair trial improbable. The net of this is that the Court can-not say the District Court was bound to entertain a provincial fear of the provincialism of a Virginia jury. That leaves the Virginia plaintiff without even a suggested reason for transporting this suit to New York.

The principle of forum non conveniens is simply that a court may resist impo-sition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality, and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy.

An interest to be considered, and the one likely to be most pressed, is the pri-vate interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possi-bility of view of premises, if view would be appropriate to the action, and all other practical problems that make trial of a case easy, expeditious, and inex-pensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient fo-rum, "vex," "harass," or "oppress" the defendant by inflicting upon him ex-pense or trouble not necessary to his own right to pursue his remedy. But, un-less the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Factors of public interest also have place in applying the doctrine.

Piper aircraft co. vs Reyno

The possibility of a change of law should not be given substantial weight in a forum non conveniens analysis. Plaintiffs can choose among many forums, and generally choose the most favorable one. If they do not choose the most favorable but the action can be dismissed anyway, it would not be proper. In addition, courts would have to interpret the law of foreign districts, which would pose a lot of problems and inconsistencies. This is why there is a doc-trine of forum non conveniens, to get rid of this kind of confusion.

Giving the plaintiff’s interests less weight is justified when the plaintiffs are foreign. Under this circumstance, the choice of forum is not necessarily con-venient. The connections with Scotland were not necessarily “overwhelming”, but the District Court correctly found that there would be fewer evidentiary problems. If Defendants had to prove exactly what persons it would be diffi-cult to identify and bring as witnesses, Defendants required expenditures would defeat the purpose of their motion. Even if Scottish law would not ap-ply, the other public interest factors would be sufficient to support dismissal. There is a local interest. The American interest is not sufficient.

SINOCHEM INT’L CO. v. MALAYSIA INT’L SHIPPINGCORP

The Court ruled 9-0 that "a court need not resolve whether it has personal ju-risdiction over the defendant if it determines that a foreign tribunal is plainly the more suitable arbiter of the merits of the case." The opinion by Justice Ruth Bader Ginsburg held that while the first step of a court is normally to de-termine whether it has jurisdiction, a court can dismiss a case for forum non conveniens without establishing subject-matter or personal jurisdiction. The Court held that determination of jurisdiction is only important when there is a chance that the court will rule on the merits of the case. When it is clear that the case would be more conveniently tried in a foreign court, a court should immediately dismiss for forum non conveniens rather than undergo a burden-some and unnecessary determination of jurisdiction before dismissing the case anyway.

Philsec Investment Corp. vs. CA

The trial court’s refusal to take cognizance of the case is not justifiable under the principle of forum non conveniens.

First, a motion to dismiss is limited to the grounds under Rule 16, §1, which does not include forum non conveniens. The propriety of dismissing a case based on this principle requires a factual determination, hence, it is more prop-erly considered a matter of defense. Second, while it is within the discretion of the trial court to abstain from assuming jurisdiction on this ground, it should do so only after “vital facts are established, to determine whether special cir-cumstances” require the court’s desistance.

In this case, the trial court abstained from taking jurisdiction solely on the ba-sis of the pleadings filed by private respondents in connection with the motion to dismiss. It failed to consider that one of the plaintiffs (PHILSEC) is a do-mestic corporation and one of the defendants (Ventura Ducat) is a Filipino, and that it was the extinguishment of the latter’s debt which was the object of the transaction under litigation.

Manila Hotel Corporation vs. NLRC, Marcelo Santos

The main aspects of the case transpired in two foreign jurisdictions and the case involves purely foreign elements. The only link that the Philippines has with the case is that respondent Santos is a Filipino citizen. The Palace Hotel and MHICL are foreign corporations. Not all cases involving our citizens can be tried here.

Under the rule of forum non conveniens, a Philippine court or agency may as-sume jurisdiction over the case if it chooses to do so provided: (1) that the Philippine court is one to which the parties may conveniently resort to; (2) that the Philippine court is in a position to make an intelligent decision as to the law and the facts; and (3) that the Philippine court has or is likely to have power to enforce its decision. The conditions are unavailing in the case at bar.

The NLRC was not in a position to determine whether the Tiannamen Square incident truly adversely affected operations of the Palace Hotel as to justify re-spondent Santos' retrenchment.

Principle of effectiveness, no power to execute decision. —  Even assuming that a proper decision could be reached by the NLRC, such would not have any binding effect against the employer, the Palace Hotel. The Palace Hotel is a corporation incorporated under the laws of China and was not even served with summons. Jurisdiction over its person was not acquired. If Santos were an "overseas contract worker", a Philippine forum, specifically the POEA, not the NLRC, would protect him.

BANK OF AMERICA NT & SA, petitioner, vs.HONORABLE COURT OF APPEALS, AND THE COMMISSIONER OF INTERNAL

The doctrine of forum non-conveniens, literally meaning 'the forum is incon-venient', emerged in private international law to deter the practice of global forum shopping, that is to prevent non-resident litigants from choosing the fo-rum or place wherein to bring their suit for malicious reasons, such as to se-cure procedural advantages, to annoy and harass the defendant, to avoid over-crowded dockets, or to select a more friendly venue. Under this doctrine, a court, in conflicts of law cases, may refuse impositions on its jurisdiction where it is not the most "convenient" or available forum and the parties are not precluded from seeking remedies elsewhere.

However, though this case satisfies all the requisites for the application the doctrine of forum non conveniens, this principle should not be used as a ground for a motion to dismiss because Sec. 1, Rule 16 of the Rules of Court does not include said doctrine as a ground.

This Court has also further ruled that while it is within the discretion of the trial court to abstain from assuming jurisdiction on this ground, it should do so only after vital facts are established, to determine whether special circum-stances require the court's desistance; and that the propriety of dismissing a case based on this principle of forum non conveniens requires a factual deter-mination, hence it is more properly considered a matter of defense.

CRESCENT PETROLEUM, LTD., vs. M/V LOK MAHESHWARI

In a suit to establish and enforce a maritime lien for supplies furnished to a vessel in a foreign port, whether such lien exists, or whether the court has or will exercise jurisdiction, depends on the law of the country where the sup-plies were furnished, which must be pleaded and proved.

The multiple-contact test to determine, in the absence of a specific Congres-sional directive as to the statute’s reach, which jurisdiction’s law should be ap-plied. The following factors were considered: (1) place of the wrongful act; (2) law of the flag; (3) allegiance or domicile of the injured; (4) allegiance of the defendant shipowner; (5) place of contract; (6) inaccessibility of foreign forum; and (7) law of the forum. This is applicable not only to personal injury claims arising under the Jones Act but to all matters arising under maritime law in general.

Out of the seven basic factors listed in the case of Lauritzen, Philippine law only falls under one – the law of the forum. All other elements are foreign – Canada is the place of the wrongful act, of the allegiance or domicile of the in-jured and the place of contract; India is the law of the flag and the allegiance of the defendant shipowner. Balancing these basic interests, it is inconceivable that the Philippine court has any interest in the case that outweighs the inter-ests of Canada or India for that matter

Applying P.D. No. 1521,a maritime lien exists would not promote the public policy behind the enactment of the law to develop the domestic shipping in-dustry. Opening up our courts to foreign suppliers by granting them a mar-itime lien under our laws even if they are not entitled to a maritime lien under their laws will encourage forum shopping.

It is clear that Canada has the most significant interest in this dispute. The in -jured party is a Canadian corporation, the sub-charterer which placed the or-ders for the supplies is also Canadian, the entity which physically delivered the bunker fuels is in Canada, the place of contracting and negotiation is in Canada, and the supplies were delivered in Canada.

CHOICE, ASCERTAINMENT AND APPLICATION OF FOREIGN LAW

KAZUHIRO HASEGAWA and NIPPON ENGINEERING CONSUL-TANTS CO., LTD. vs. MINORU KITAMURA

Jurisdiction and choice of law are two distinct concepts. Jurisdiction considers whether it is fair to cause a defendant to travel to this state; choice of law asks the further question whether the application of a substantive law which will determine the merits of the case is fair to both parties. The power to exercise jurisdiction does not automatically give a state constitutional authority to ap-ply forum law. While jurisdiction and the choice of the lexfori will often coin-cide, the "minimum contacts" for one do not always provide the necessary "significant contacts" for the other. The question of whether the law of a state can be applied to a transaction is different from the question of whether the courts of that state have jurisdiction to enter a judgment.

Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign authority which establishes and organizes the court. It is given only by law and in the manner prescribed by law. It is further determined by the al -legations of the complaint irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein. To succeed in its motion for the dis-missal of an action for lack of jurisdiction over the subject matter of the claim, the movant must show that the court or tribunal cannot act on the matter sub-mitted to it because no law grants it the power to adjudicate the claims. In the instant case, petitioners, in their motion to dismiss, do not claim that the trial court is not properly vested by law with jurisdiction to hear the subject contro-versy for, indeed, the case for specific performance and damages is one not capable of pecuniary estimation and is properly cognizable by the RTC of Lipa City. What they rather raise as grounds to question subject matter juris-diction are the principles of lex loci celebrationis and lexcontractus, and the "state of the most significant relationship rule."

Lex loci celebrationis relates to the "law of the place of the ceremony" or the law of the place where a contract is made.,The doctrine of lexcontractus or lex loci contractus means the "law of the place where a contract is executed or to be performed." It controls the nature, construction, and validity of the contract and it may pertain to the law voluntarily agreed upon by the parties or the law intended by them either expressly or implicitly. Under the "state of the most significant relationship rule," to ascertain what state law to apply to a dispute, the court should determine which state has the most substantial connection to the occurrence and the parties. In a case involving a contract, the court should consider where the contract was made, was negotiated, was to be performed, and the domicile, place of business, or place of incorporation of the parties. This rule takes into account several contacts and evaluates them according to their relative importance with respect to the particular issue to be resolved.

Before determining which law should apply, first there should exist a conflict of laws situation requiring the application of the conflict of laws rules. Also, when the law of a foreign country is invoked to provide the proper rules for the solution of a case, the existence of such law must be pleaded and proved.

It should be noted that when a conflicts case, one involving a foreign element, is brought before a court or administrative agency, there are three alternatives open to the latter in disposing of it: (1) dismiss the case, either because of lack of jurisdiction or refusal to assume jurisdiction over the case; (2) assume juris-diction over the case and apply the internal law of the forum; or (3) assume ju-risdiction over the case and take into account or apply the law of some other State or States. The court’s power to hear cases and controversies is derived from the Constitution and the laws. While it may choose to recognize laws of foreign nations, the court is not limited by foreign sovereign law short of treaties or other formal agreements, even in matters regarding rights provided by foreign sovereigns.

NORSE MANAGEMENT CO. (PTE) and PACIFIC SEAMEN SER-VICES, INC., petitioners, vs. NATIONAL SEAMEN BOARD

The "Employment Agreement" between Norse and the late Abordo states that compensation shall be paid under Philippine Law or the law of registry of pe -titioners' vessel, whichever is greater. Since RestitutaAbordo was offered P30k only by the petitioners, Singapore law was properly applied in this case.

The "Employment Agreement" is attached to the Supplemental Complaint of Restituta and, therefore, it forms part thereof. As it is familiar with Singapore Law, the National Seamen Board is justified in taking judicial notice of and in applying that law.

 Article 20, Labor Code of the Philippines, provides that the National Seamen Board has original and exclusive jurisdiction over all matters or cases includ-ing money claims, involving er-ee relations, arising out of or by virtue of any law or contracts involving Filipino seamen for overseas employment. Thus, it is safe to assume that the Board is familiar with pertinent Singapore maritime laws relative to workmen's compensation. Moreover, the Board may apply the rule on judicial notice and, "in administrative proceedings, the technical rules of procedure — particularly of evidence — applied in judicial trials, do not

strictly apply." 

Finally, Article IV of the Labor Code provides that "all doubts in the imple-mentation and interpretation of the provisions of this code, including its im-plementing rules and resolved in favor of labor.

EDI-Staffbuilders International, Inc. vs National Labor Rela-tions Commission

In cases involving OFWs, the rights and obligations among and between the OFW, the local recruiter/agent, and the foreign employer/principal are gov-erned by the employment contract. A contract freely entered into is considered law between the parties; and hence, should be respected. In formulating the contract, the parties may establish such stipulations, clauses, terms and condi -tions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.

In the present case, the employment contract signed by Gran specifically states that Saudi Labor Laws will govern matters not provided for in the con-tract (e.g. specific causes for termination, termination procedures, etc.). Being the law intended by the parties (lex loci intentiones) to apply to the contract, Saudi Labor Laws should govern all matters relating to the termination of the employment of Gran.

In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law. The foreign law is treated as a question of fact to be properly pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign law. He is presumed to know only domestic or forum law.

Unfortunately for petitioner, it did not prove the pertinent Saudi laws on the matter; thus, the International Law doctrine ofpresumed-identity ap-proach or processual presumption comes into play. Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as ours. Thus, we apply Philippine labor laws in determining the issues presented before us.

Heirs of the Deceased Spouses Vicente Arcilla v. Teodoro

Section 5, Rule 7, of the Rules of Court provides: “Certification against fo-rum shopping. – The plaintiff or principal party shall certify under oath in the complaint /other initiatory pleading asserting a claim for relief/in a sworn cer-tification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint/initiatory pleading has been filed.”

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint/other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance w/ any of the undertakings therein shall constitute indirect con-tempt of court, w/o prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and de-liberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as a cause for adminis-trative sanctions.

Circular No. 28-91, w/c originally required the certification of non-forum shopping for petitions filed with the SC and the CA; and SC Administrative Circular No. 04-94, w/c extended the certification requirement for civil com-plaints and other initiatory pleadings filed in all courts and other agencies.

However, it is equally settled that litigation is not merely a game of technicali -ties. Rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be eschewed. Moreover, the emerging trend in our jurisprudence is to afford every party-litigant the amplest opportunity for the proper and just determination of his cause free from the constraints of technicalities.

In the instant case, the Court finds that the lower courts did not commit any error in proceeding to decide the case on the merits, as herein respondent was able to submit a certification of non-forum shopping. More importantly, the apparent merit of the substantive aspect of the petition for land registration filed by respondent with the MTC coupled with the showing that she had no intention to violate the Rules with impunity, as she was the one who invited the attention of the court to the inadvertence committed by her counsel, should be deemed as special circumstances/compelling reasons to decide the case on the merits.

Section 25, Rule 132, to wit: “Proof of public or official record – An official record or an entry therein, when admissible for any purpose, may be evi-denced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.”

It cannot be overemphasized that the required certification of an officer in the foreign service under Section 24 refers only to the documents enumerated in Section 19(a), to wit: written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers of the Philippines or of a foreign country. The SC agrees w/ the CA that had the Court intended to include notarial documents as one of the public documents

contemplated by the provisions of Section 24, it should not have specified only the documents referred to under paragraph (a) of Section 19.

WILDVALLEY SHIPPING CO., LTD. petitioner, vs. COURT OF AP-PEALS

It is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.

A distinction is to be made as to the manner of proving a written and an un-written law. The former falls under Section 24, Rule 132 of the Rules of Court, as amended, the entire provision of which is quoted hereunder. Where the foreign law sought to be proved is "unwritten," the oral testimony of ex-pert witnesses is admissible, as are printed and published books of reports of decisions of the courts of the country concerned if proved to be commonly ad-mitted in such courts.

The two Venezuelan Laws were not duly proven as fact before the court. Only mere photocopies of the laws were presented as evidence. For a copy of a for-eign public document to be admissible, the following requisites are manda-tory:

(1) It must be attested by the officer having legal custody of the records or by his deputy; and

(2) It must be accompanied by a certificate by a secretary of the embassy or legation, consul general, consul, vice consular or consular agent or foreign service officer, and with the seal of his office.

And in case of unwritten foreign laws, the oral testimony of expert witnesses is admissible, as are printed and published books of reports of decisions of the courts of the country concerned if proved to be commonly admitted in such courts.

DEUTSCHE GESELLSCHAFT FÜR TECHNISCHE ZUSAMMENAR-BEIT, also known as GERMAN AGENCY FOR TECHNICAL COOP-ERATION, (GTZ) HANS PETER PAULENZ and ANNE NICO-LAY, Petitioners, vs CA

The principle of state immunity from suit, whether a local state or a foreign state, is reflected in Section 9, Article XVI of the Constitution, which states that "the State may not be sued without its consent." If the instant suit had been brought directly against the Federal Republic of Germany, there would be no doubt that it is a suit brought against a State, and the only necessary in -quiry is whether said State had consented to be sued. However, the present suit was brought against GTZ. It is necessary for us to understand what pre-cisely are the parameters of the legal personality of GTZ.

Where suit is filed not against the government itself or its officials but against one of its entities, it must be ascertained whether or not the State, as the prin -cipal that may ultimately be held liable, has given its consent to be sued. This ascertainment will depend in the first instance on whether the government agency impleaded is incorporated or unincorporated.

If the agency is incorporated, the test of its suability is found in its charter. The simple rule is that it is suable if its charter says so, and this is true regard-less of the functions it is performing. Municipal corporations, for example, like provinces and cities, are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit.

A corporation organized under the Corporation Code but owned by the Philip-pine government, or a government-owned or controlled corporation without original charter. And it bears notice that Section 36 of the Corporate Code states that "[e]very corporation incorporated under this Code has the power and capacity x xx to sue and be sued in its corporate name."

GTZ has failed to establish that under German law, it has not consented to be sued despite it being owned by the Federal Republic of Germany. We adhere to the rule that in the absence of evidence to the contrary, foreign laws on a particular subject are presumed to be the same as those of the Philippines, and following the most intelligent assumption we can gather, GTZ is akin to a governmental owned or controlled corporation without original charter which, by virtue of the Corporation Code, has expressly consented to be sued.

Had GTZ obtained such certification from the DFA, it would have provided factual basis for its claim of immunity that would, at the very least, establish a disputable evidentiary presumption that the foreign party is indeed immune which the opposing party will have to overcome with its own factual evi-dence.

Cadalin vs. POEA

NLRC applied the Amiri Deere, No. 23 of 1976, which provides for greater benefits than those stipulated in the overseas-employment contracts of the claimants. It was of the belief that where the laws of the host country are more favorable and beneficial to the workers, then the laws of the host country shall form part of the overseas employment contract. It approved the observation of the POEA Administrator that in labor proceedings, all doubts in the imple-mentation of the provisions of the Labor Code and its implementing regula-tions shall be resolved in favor of labor.

The overseas-employment contracts, which were prepared by AIBC and BRII themselves, provided that the laws of the host country became applicable to said contracts if they offer terms and conditions more favorable than those stipulated therein.

Adopting the provisions of the Amiri Decree No. 23 of 1976 as part and par-cel thereof. The parties to a contract may select the law by which it is to be governed. In such a case, the foreign law is adopted as a “system” to regulate the relations of the parties, including questions of their capacity to enter into the contract, the formalities to be observed by them, matters of performance, and so forth. Instead of adopting the entire mass of the foreign law, the parties may just agree that specific provisions of a foreign statute shall be deemed in -corporated into their contract “as a set of terms.” By such reference to the pro-visions of the foreign law, the contract does not become a foreign contract to be governed by the foreign law. The said law does not operate as a statute but as a set of contractual terms deemed written in the contract. A basic policy of

contract is to protect the expectation of the parties. Such party expectation is protected by giving effect to the parties’ own choice of the applicable law. The choice of law must, however, bear some relationship the parties or their trans-action. There is no question that the contracts sought to be enforced by claimants have a direct connection with the Bahrain law because the services were rendered in that country.

As a general rule, a foreign procedural law will not be applied in the forum (local court), Procedural matters, such as service of process, joinder of ac-tions, period and requisites for appeal, and so forth, are governed by the laws of the forum. This is true even if the action is based upon a foreign substantive law. A law on prescription of actions is sui generis in Conflict of Laws in the sense that it may be viewed either as procedural or substantive, depending on the characterization given such a law.

However the characterization of a statute into a procedural or substantive law becomes irrelevant when the country of the forum (local Court) has a “bor-

rowing statute.”  Said statute has the practical effect of treating the foreign

statute of limitation as one of substance. A “borrowing statute”  directs the state of the forum (local Court) to apply the foreign statute of limitations to the pending claims based on a foreign law. While there are several kinds of “borrowing statutes,” one form provides that an action barred by the laws of the place where it accrued will not be enforced in the forum even though the local statute was not run against it.

The courts of the forum (local Court) will not enforce any foreign claim ob-noxious to the forum’s public policy. To enforce the one-year prescriptive pe-riod of the Amiri Decree No. 23 of 1976 as regards the claims in question would contravene the public policy on the protection to labor.

In the Declaration of Principles and State Policies, the 1987 Constitution em-phasized that:“The state shall promote social justice in all phases of national

development” (Sec. 10).

‘The state affirms labor as a primary social economic force. It shall protect the

rights of workers and promote their welfare” (Sec. 18).

In Article XIII on Social Justice and Human Rights, the 1987 Constitution provides: “Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.”

HOME INSURANCE CO. v. DICK

Doubtless a state may prohibit the enjoyment by persons within its borders of rights acquired elsewhere which violate its laws or public policy, and, under some circumstances, it may refuse to aid in the enforcement of such rights. But the Mexican corporation never was in Texas, and neither it nor the gar-nishees invoked the aid of the Texas courts or the Texas laws.

And, in the absence of a contractual provision, the local statute of limitation may be applied to a right created in another jurisdiction even where the rem-edy in the latter is barred. In such cases, the rights and obligations of the par-ties are not varied. When, however, the parties have expressly agreed upon a time limit on their obligation, a statute which invalidates the agreement and directs enforcement of the contract after the time has expired increases their obligation and imposes a burden not contracted for.

The Texas statute as here construed and applied deprives the garnishees of property without due process of law. A state may prohibit and declare invalid the making of certain contracts within its borders. It may prohibit performance within its borders. Even of contracts validly made elsewhere, if they are re-quired to be performed within the state and their performance would violate its laws. But, in the case at bar, nothing in any way relating to the policy sued on, or to the contracts of reinsurance, was ever done or required to be done in Texas. All acts relating to the making of the policy and contracts of reinsur-ance were done in Mexico or in New York.

Allstate Ins. Co. v. Hague

The decedent was a member of Minnesota's workforce. The State of employ-ment has police power responsibilities towards non-resident employees that are analogous to those it has towards residents; as such employees use state services and amenities and may call upon state facilities in appropriate cir-cumstances. Also, the State's interest in its commuting non-resident employ-ees, such as respondent's decedent, reflects a state concern for the safety and wellbeing of its workforce and the concomitant effect on Minnesota employ-ers. That the decedent was not killed while commuting to work or while in Minnesota does not dictate a different result, since vindication of the rights of the estate of a Minnesota employee is an important state concern. Nor does the decedent's residence in Wisconsin constitutionally mandate application of Wisconsin law to the exclusion of forum law. Employment status is not a suf-ficiently less important status than residence, when combined with the dece-dent's daily commute across state lines and the other Minnesota contacts present, to prohibit the choice of law result in this case on constitutional grounds.

Petitioner was at all times present and doing business in Minnesota. By virtue of such presence, petitioner can hardly claim unfamiliarity with the laws of the host jurisdiction and surprise that the state courts might apply forum law to litigation in which the company is involved. Moreover, such presence gave Minnesota an interest in regulating the company's insurance obligations inso-far as they affected both a Minnesota resident and court-appointed representa-tive (respondent) and a longstanding member of Minnesota's workforce (re-spondent's decedent).

In addition to the other contacts, respondent became a Minnesota resident prior to institution of the instant litigation. She subsequently moved to Savage, Minn., after marrying a Minnesota resident who operated an automobile ser-vice station in Bloomington, Minn.

Phillips Petroleum v. Shutts

Although some of the class members were non-residents who had no contacts with the forum state, the class members were plaintiffs, and therefore the tra-ditional minimum contacts test for personal jurisdiction was not applicable. The Shutts Court also concluded that due process considerations were af-forded to absent class members because each class member was provided with notice of the action, an opportunity to appear in person or through counsel, an opportunity to opt out, and adequate legal representation. The Supreme Court's analysis centered on distinguishing among the different burdens of liti-gation placed upon class action plaintiffs as opposed to those placed upon a defendant in a non-class suit.

state court may exercise personal jurisdiction over the claims of nonresident class members constituted a vital step in the process of ensuring the full and fair litigation of multistate class actions. A decision otherwise would have de-

nied judicial access to multistate class action plaintiffs with small monetary claims, thus contradicting the explicit purpose of class action adjudications. Although precedent supports the Court's conclusion, the Court's analysis in reaching this conclusion was inadequate. Generally, restrictions are placed upon a state court's exercise of personal jurisdiction for two reasons: first, to guarantee protection of the personal liberty interests of the parties to the litiga-tion;second, to protect state sovereignty concerns. The Shutts Court, however, based its decision primarily on matters of convenience,'" rather than conduct-ing a complete analysis of the controversial aspects of personal jurisdiction.

The minimum contacts test is premised on the theory that due process permits state courts to exercise personal jurisdiction over nonresident defendants who have certain contacts with the forum state. Thus, the minimum contacts re-quirement ensures that the maintenance of the action in a forum does not of-fend the "traditional notions of fair play and substantial justice. Included in these notions of fair play and substantial justice is the principle of interstate federalism embodied in the Constitution." Accordingly, the mini-mum contacts requirement limits a state court's jurisdictional powers in order to protect the personal liberty interests of nonresident parties in obtaining a fair adjudication of their claims. In addition, the minimum contacts require-ment guarantees the concept of state sovereignty"

 SAUDI ARABIAN AIRLINES vs. COURT OF APPEALS

Before a choice can be made, it is necessary for us to determine under what category a certain set of facts or rules fall. This process is known as character-ization, or the doctrine of qualification. It is the process of deciding whether or not the facts relate to the kind of question specified in a conflicts rule. The purpose of characterization is to enable the forum to select the proper law.

Our starting point of analysis here is not a legal relation, but a factual situa-tion, event, or operative fact. An essential element of conflict rules is the indi-cation of a test or connecting factor or point of contact. Choice-of-law rules invariably consist of a factual relationship (such as property right, contract claim) and a connecting factor or point of contact, such as the situs of the res, the place of celebration, the place of performance, or the place of wrongdoing.

Note that one or more circumstances may be present to serve as the possible test for the determination of the applicable law. These test factors or points of contact or connecting factors could be any of the following:(1) The nationality of a person, his domicile, his residence, his place of so -journ, or his origin;(2) the seat of a legal or juridical person, such as a corporation;(3) the situs of a thing, that is, the place where a thing is, or is deemed to be situated. In particular, the lexsitus is decisive when real rights are involved;(4) the place where an act has been done, the locus actus, such as the place where a contract has been made, a marriage celebrated, a will signed or a tort committed. The lex loci actus is particularly important in contracts and torts;(5) the place where an act is intended to come into effect, e.g., the place of performance of contractual duties, or the place where a power of attorney is to be exercised;(6) the intention of the contracting parties as to the law that should govern their agreement, the lex loci intentionis;(7) the place where judicial or administrative proceedings are instituted or done. The lexforithe law of the forumis particularly important because, as we have seen earlier, matters of procedure not going to the substance of the claim involved are governed by it; and because the lexfori applies whenever the con-tent of the otherwise applicable foreign law is excluded from application in a given case for the reason that it falls under one of the exceptions to the appli -

cations of foreign law; and(8) the flag of a ship, which in many cases is decisive of practically all legal relationships of the ship and of its master or owner as such. It also covers con -tractual relationships particularly contracts of affreightment.

Considering that the complaint in the court a quo is one involving torts, the connecting factor or point of contact could be the place or places where the tortious conduct or lex loci actus occurred. And applying the torts principle in a conflicts case, we find that the Philippines could be said as a situs of the tort (the place where the alleged tortious conduct took place). This is because it is in the Philippines where petitioner allegedly deceived private respondent, a Filipina residing and working here. According to her, she had honestly be-lieved that petitioner would, in the exercise of its rights and in the perfor -mance of its duties, act with justice, give her her due and observe honesty and good faith.

Considering that it was the petitioner who was invoking the applicability of the law of Saudi Arabia, thus the burden was on it [petitioner] to plead and to establish what the law of Saudi Arabia is.

NATIONALITY AND DOMICILE

Djumantan vs. Domingo

Never was the marriage of petitioner to Banez disclosed to the immigration authorities in her applications for temporary visitor's visa and for permanent residency.Generally, the right of the President to expel or deport aliens whose presence is deemed inimical to the public interest is as absolute and unqualified as the right to prohibit and prevent their entry into the country, this right is based on the fact that since the aliens are not part of the nation, their admission into the territory is a matter of pure permission and simple tolerance which creates no obligation on the part of the government to permit them to stay.

There is no law guaranteeing aliens married to Filipino citizens the right to be admitted, much less to be given permanent residency, in the Philippines. The fact of marriage by an alien to a citizen does not withdraw her from the opera-tion of the immigration laws governing the admission and exclusion of aliens. Marriage of an alien woman to a Filipino husband does not ipso facto make her a Filipino citizen and does not excuse her from her failure to depart from the country upon the expiration of her extended stay here as an alien.Under Section 9 of the Immigration Act of 1940, it is not mandatory for the CID to admit any alien who applies for a visitor's visa. Once admitted into the country, the alien has no right to an indefinite stay. Under Section 13 of the law, an alien allowed to stay temporarily may apply for a change of status and "may be admitted" as a permanent resident. Among those considered qualified to apply for permanent residency if the wife or husband of a Philippine citizen (Immigration Act of 1940, Sec. 13[a]). The entry of aliens into the country and their admission as immigrants is not a matter of right, even if they are legally married to Filipino citizens. Indonesian wife can be deported.

TuanAnhNguyen vs. INS

When the citizen parent of the child born abroad and out of wedlock is the child’s mother, the requirements for the transmittal of citizenship are de-scribed in 1409(c):

c. Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out wed-lock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such per-son’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuos period of one year.

Specifically, the imposition of the requirement for a paternal relationship, but not a maternal one, is justified by two important governmental objectives.

The first governmental interest to be served is the importance of assuring that a biological parent - child relationship exists. In the case of the mother, the re -lation is verifiable from the birth itself.

The second important governmental interest furthered in a substantial manner by 1409(a)(4) is the determination to ensure that the child and the citizen par-ent have some demonstrated opportunity, or potential to develop not just a re-lationship that is recognzed by the law but one that consist of the real every-day ties that provide a certain connection between child and citizen parent and in turn the United States. In the case of citizen mother and a child born over-sees, the opportunity for a meaningful relationship between citizen parent and child inheres in the very event of birth, an event so often critical to our consti-tutional and statutory understandings of citizenship.

Section 1409(a) thus imposes a set of requirements on the children of citizen fathers born abroad and out of wedlock to a noncitizen mother that are not im-posed under like circumstances when the citizen parent is the mother. All con-cede the requirements of 1409(a)(3) and (a)(4), relating to a citizen father’s ac-knowledgement of a child while he is under 18, were not satisfied in this case. As an individual seeking citizenship under 1409(a) must meet all of its pre -conditions, the failure to satisfy 1409(a)(4) renders Nguyen ineligible for citi -zenship.

Before considering the important governmental interests advanced by the statute, two observations concerning the operation of the provision are in or-der. First, a citizen mother expecting a child and living abroad has the right to reenter the United States so the child can be born here and be a 14th amend-ment citizen. From one perspective the statute simply ensures equivalence be-tween two expectant mothers who are citizens abroad if one chooses to reenter for the child’s birth and the other chooses not to return, or does not have the means to do so. This equivalence is not a factor if the single citizen parent liv-ing abroad is the father. For, unlike the unmarried mother, the unmarried fa-ther as a general rule cannot control where the child will be born.

Second, although 1409(a)(4) requires certain conduct to occur before the child of a citizen father born out of wedlock and abroad reaches 18 years of age, it imposes no limitation on when an individual who qualifies under the statute can claim citizenship. The statutory treatment of citizenship is identical in this respect wether the citizen parent is the mother of the father. A person born to a citizen parent of either gender may assert citizenship, assuming compliance with statutory preconditions regardless of his or her age. And while the condi-tions necessary for a citizen mother to transmit citizenship under 1409(c) exist at birth, citizen father and/or their children have 18 years to satisfy the re -quirements of 1409(a)(4).

Statutory distinction relevant in this case, is that 1409(a)(4) requires one of three affirmative steps to be taken if the citizen parent is the father, but not if the citizen parent is the mother: legitimation, a declaration of paternity under oath by the father, or a court order of paternity. Congress ‘ decision to impose requirements on unmarried fathers that differ from those on unmarried moth-ers is based on the significant difference between the respective relationships to the potential citizen at the time of birth.

Specifically, the imposition of the requirement for a paternal relationship, but not a maternal one, is justified by two important governmental objectives.The first governmental interest to be served is the importance of assuring that a bi-ological parent - child relationship exists. In the case of the mother, the rela-tion is verifiable from the birth itself.The second important governmental in-terest furthered in a substantial manner by 1409(a)(4) is the determination to ensure that the child and the citizen parent have some demonstrated opportu-nity, or potential to develop not just a relationship that is recognzed by the law but one that consist of the real everyday ties that provide a certain connection between child and citizen parent and in turn the United States. In the case of citizen mother and a child born oversees, the opportunity for a meaningful re-lationship between citizen parent and child inheres in the very event of birth, an event so often critical to our constitutional and statutory understandings of citizenship.

SCHNEIDER vs. RUSK

352(a)(1) is discriminatory, and therefore violative of due process under the Fifth Amendment of the Constitution, since no restriction against the length of foreign residence applies to native-born citizens, though some members of that majority believe that Congress lacks constitutional power to effect invol-untary divestiture of citizenship.

Section 352(a)(1) of the Immigration and Nationality' Act of 1952, provides:

“(a) A person who has become a national by naturalization shall lose his na-tionality by --"(1) having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, except as provided in section 353 of this title, whether such residence commenced before or after the effective date of this Act. . . ."

While the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is so unjustifiable as to be violative of due process. A na-tive-born citizen is free to reside abroad indefinitely without suffering loss of citizenship. The discrimination aimed at naturalized citizens drastically limits their rights to live and work abroad in a way that other citizens may. It creates indeed a second-class citizenship. Living abroad, whether the citizen be natu-ralized or native born, is no badge of lack of allegiance, and in no way evi-dences a voluntary renunciation of nationality and allegiance. It may indeed be compelled by family, business, or other legitimate reasons

Trop vs Dulles

Section 401(g), the statute that decrees the forfeiture of this petitioner's citi -zenship, is based directly on a Civil War statute, which provided that a de-serter would lose his "rights of citizenship." The meaning of this phrase was not clear. Citizenship is not subject to the general powers of the National Gov-ernment, and therefore cannot be divested in the exercise of those powers. The

right may be voluntarily relinquished or abandoned either by express language or by language and conduct that show a renunciation of citizenship.

Under these principles, this petitioner has not lost his citizenship. Desertion in wartime, though it may merit the ultimate penalty, does not necessarily signify allegiance to a foreign state. Section 401(g) is not limited to cases of desertion to the enemy, and there is no such element in this case. This soldier committed a crime for which he should be and was punished, but he did not involve him-self in any way with a foreign state. There was no dilution of his allegiance to this country.

Use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international po-litical community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is state-less. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the ex-patriate has lost the right to have rights.

This punishment is offensive to cardinal principles for which the Constitution stands. The civilized nations of the world are in virtual unanimity that state-lessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in con-duct in derogation of native allegiance.

AASJS (ADVOCATES AND ADHERENTS OF SOCIAL JUSTICE FOR SCHOOL TEACHERS AND ALLIED WORKERS) MEMBER - HECTOR GUMANGAN CALILUNG, Petitioner,  vs. THE HONOR-ABLE SIMEON DATUMANONG

It is clear that the intent of the legislature in drafting RA 9225 is to do away with the provision in Commonwealth Act No. 63 which takes away Philippine citizenship from natural-born Filipinos who become naturalized citizens of other countries. What RA 9225 does is allow dual citizenship to natural-born Filipino citizens who have lost Philippine citizenship by reason of their natu-ralization as citizens of a foreign country. On its face, it does not recognize dual allegiance. By swearing to the supreme authority of the Republic, the person implicitly renounces his foreign citizenship. Plainly, from Sec. 3, RA 9225 stayed clear out of the problem of dual allegiance and shifted the burden of confronting the issue of whether or not there is dual allegiance to the con-cerned foreign country. What happens to the other citizenship was not made a concern of RA 9225.

Pursuant to Sec. 5, Article IV of the 1987 Constitution, dual allegiance shall be dealt with by law. Thus, until a law on dual allegiance is enacted by Con -gress, the Supreme Court is without any jurisdiction to entertain issues regard-ing dual allegiance. To begin with, Section 5, Article IV of the Constitution is a declaration of a policy and it is not a self-executing provision. The legisla-ture still has to enact the law on dual allegiance. In Sections 2 and 3 of RA 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their coun-tries of origin even after their naturalization. Congress was given a mandate to

draft a law that would set specific parameters of what really constitutes dual allegiance. Until this is done, it would be premature for the judicial depart -ment, including this Court, to rule on issues pertaining to dual allegiance.

MACALINTAL, petitioner VS. COMELEC, ROMULO, and BON-CODIN, respondents

Section 5(d) of R.A. No. 9189 is not violative of Art. V, Sec. 1 of the Constitu-tion.

Section 5(d) of R.A. No. 9189, entitled “An Act Providing for a System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes,” provides:

Sec. 5. Disqualifications.—The following shall be disqualified from voting under this Act: xxxxxxxxx

d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or perma-nent resident from the National Registry of Absentee Voters and his/her per-manent disqualification to vote in absentia.

It was clearly shown from the said discussions that the Constitutional Com-mission intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin, which is in the Philippines. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents’  domicile of origin is in the Philip-pines, and consider them qualified as voters for the first time.

It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, which may be applied in con-struing constitutional provisions, the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution.

Section 18.5 of R.A. No. 9189, with respect only to the votes of the President and Vice-President, and not to the votes of the Senators and party-list repre-sentatives, is violative of Art. VII, Sec. 4 of the Constitution.

Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-president, senators, and party-list representatives.

Section 18.5 of the same Act provides:

Sec. 18.On-Site Counting and Canvassing.—

xxx xxx xxx

18.5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will not be affected by the re-sults thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite the fact that the scheduled election has not taken place in a particular country or countries, if the holding of elections therein has been rendered impossible by events, fac-tors and circumstances peculiar to such country or countries, in which events, factors and circumstances are beyond the control or influence of the Commis-sion.

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empow-ering the COMELEC to order the proclamation of winning candidates for President and Vice-President is unconstitutional and violative of the following provisions of Section 4 of Article VII of the Constitution:

Sec. 4.

xxx xxx xxx

The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certifi-cates of canvass, the President of the Senate shall, not later than thirty days af-ter the day of the election, open all the certificates in the presence of the Sen-ate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the man-ner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

Congress could not have allowed the COMELEC to usurp a power that consti-tutionally belongs to it or, as aptly stated by petitioner, to encroach “on the power of Congress to canvass the votes for President and Vice-President and the power to proclaim the winners for the said positions.”

Section 25 of R.A. No. 9189, with respect only to the second sentence in its second paragraph allowing Congress to exercise the power to review, revise, amend, and approve the IRR that the COMELEC shall promulgate, is viola-tive of Art. IX-A, Sec. 1 of the Constitution.

 Section 25 of R.A. No. 9189 created the Joint Congressional Oversight Com-mittee (JCOC), as follows:

Sec. 25. Joint Congressional Oversight Committee.—a Joint Congressional Oversight Committee is hereby created, composed of the Chairman of the

Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators designated by the Senate President, and the Chairman of the House Committee on Suffrage and Electoral Reforms, and seven (7) other Members of the House of Representatives designated by the Speaker of the House of Representatives: Provided, that of the seven (7) members to be designated by each House of Congress, four (4) should come from the majority and the remaining three (3) from the minority.

The Joint Congressional Oversight Committee shall have the power to moni-tor and evaluate the implementation of this Act. It shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission.

All the parties, petitioner and respondents alike, are unanimous in claiming that Section 25 of R.A. No. 9189 is unconstitutional

The ambit of legislative power under Article VI of the Constitution is circum-scribed by other constitutional provisions, one of which is the aforementioned provision on the independence of constitutional commissions. The Court has held that “whatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted it to be inde-pendent from the other departments of the Government. The Court has no general powers of supervision over COMELEC which is an independent body “except those specifically granted by the Constitution,”  that is, to review its decisions, orders and rulings. In the same vein, it is not correct to hold that be-cause of its recognized extensive legislative power to enact election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making authority. In line with this, this Court holds that Section 25 of R.A.  9189 is unconstitutional and must therefore be stricken off from the said law.

Loida Nicolas- Lewis, et.al. v. COMELEC

There is no provision in the dual citizenship law - R.A. 9225 - requiring "du-als" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in im-plicit acknowledgment that duals are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter un-der R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the res-idency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote.

Constitutional Commission that [it] intended to enfranchise as much as possi-ble all Filipino citizens abroad who have not abandoned their domicile of ori -gin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents domicile of origin is in the Philippines, and consider them qualified as voters for the first time. It is in pursuance of that intention that the Commission provided for Section 2 [Article V] immediately after the residency requirement of Section 1. By the doctrine of necessary im-plication in statutory construction, , the strategic location of Section 2 indi-cates that the Constitutional Commission provided for an exception to the ac-tual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution.

COMELEC itself admits that the Citizenship Retention and ReAcquisition Act expanded the coverage of overseas absentee voting. According to the poll body with the passage of RA 9225 the scope of overseas absentee voting has been consequently expanded so as to include Filipinos who are also citizens of other countries, subject, however, to the strict prerequisites indicated in the pertinent provisions of RA 9225.

Lopez vs Comelec

While respondent was able to regain his Filipino Citizenship by virtue of the Dual Citizenship Law when he took his oath of allegiance before the Vice Consul of the Philippine Consulate Generals Office in Los Angeles, Califor-nia, the same is not enough to allow him to run for a public office. The above-quoted provision of law mandates that a candidate with dual citizenship must make a personal and sworn renunciation of any and all foreign citizenship be-fore any public officer authorized to administer an oath. There is no evidence presented that will show that respondent complied with the provision of R.A. No. 9225. Absent such proof we cannot allow respondent to run for Barangay Chairman of Barangay Bagacay.

For the renunciation to be valid, it must be contained in an affidavit duly exe-cuted before an officer of law who is authorized to administer an oath. The af-fiant must state in clear and unequivocal terms that he is renouncing all for-eign citizenship for it to be effective. In the instant case, respondent Lopezs failure to renounce his American citizenship as proven by the absence of an affidavit that will prove the contrary leads this Commission to believe that he failed to comply with the positive mandate of law. For failure of respondent to prove that he abandoned his allegiance to the United States, this Commission holds him disqualified from running for an elective position in the Philippines.

TEODORA SOBEJANA-CONDON, Petitioner, v. COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P. PAGADUAN, Respondents

R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born citizens who have lost their Philippine citizenship by taking an oath of allegiance to the Republic. The oath is an abbreviated repatriation process that restores one’s Filipino citizenship and all civil and political rights and obligations concomitant therewith, subject to certain conditions imposed in Section 5.

Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renun-ciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections.

To qualify as a candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine citizenship.

Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven. To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads:

Sec. 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evi-denced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul gen-eral, consul, vice- consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Emphasis ours)

Sec. 25. What attestation of copy must state. –  Whenever a copy of a docu-ment or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.

The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may also be established through: (1) a testimony under oath of an expert witness such as an attorney-at-law in the country where the foreign law operates wherein he quotes verbatim a section of the law and states that the same was in force at the time material to the facts at hand; and (2) likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign country on reciprocity regarding the ac -quisition of citizenship, although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of the written proof offered.

CASAN MACODE MACQUILING, PETITIONER, vs. COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, AND LINOG G. BALUA. RESPONDENTS. 

The use of foreign passport after renouncing one’s foreign citizenship is a pos-

itive and voluntary act of representation as to one’s nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective posi -tion.

Such act of using a foreign passport does not divest Arnado of his Filipino cit -izenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively reverted to his ear-lier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport. This act of using a foreign passport after renouncing one’s foreign

citizenship is fatal to Arnado’s bid for public office, as it effectively imposed

on him a disqualification to run for an elective local position. In effect, Ar -nado was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009 until 14 April 2009, on which date he first used his American passport after renouncing his American citizenship. 

American law does not govern in this jurisdiction. Instead, Section 40(d) of the Local Government Code calls for application in the case before us, given the fact that at the time Arnado filed his certificate of candidacy, he was not only a Filipino citizen but, by his own declaration, also an American citizen. It is the application of this law and not of any foreign law that serves as the basis for Arnado’s disqualification to run for any local elective position. This re-quirement of renunciation of any and all foreign citizenship, when read to-gether with Section 40(d) of the Local Government Code which disqualifies those with dual citizenship from running for any elective local position, indi-cates a policy that anyone who seeks to run for public office must be solely and exclusively a Filipino citizen. To allow a former Filipino who reacquires Philippine citizenship to continue using a foreign passport – which indicates

the recognition of a foreign state of the individual as its national – even after the Filipino has renounced his foreign citizenship, is to allow a complete dis-regard of this policy.

The renunciation of foreign citizenship must be complete and unequivocal. The requirement that the renunciation must be made through an oath empha-sizes the solemn duty of the one making the oath of renunciation to remain true to what he has sworn to. Allowing the subsequent use of a foreign pass-port because it is convenient for the person to do so is rendering the oath a hollow act. It devalues the act of taking of an oath, reducing it to a mere cere-monial formality.

REYES v. COMELEC and TAN G.R. No. 207264, 22 October 2013, EN BANC

“xxx for Reyes to reacquire her Filipino citizenship and become eligible for public office the law requires that she must have accomplished the following acts: (1) take the oath of allegiance to the Republic of the Philippines before the Consul-General of the Philippine Consulate in the USA; and (2) make a personal and sworn renunciation of her American citizenship before any pub-lic officer authorized to administer an oath." In the case at bar, there is no showing that Reyes complied with the aforesaid requirements.

GOOD LUCK AND GOD BLESS!