WAYS OF DEALING WITH A CONFLICTS PROBLEM / WAYS OF DISPOSING

CONFLICTS CASES
1. Dismiss the case for lack of jurisdiction
2. Dismiss the case on the ground of Forum Non-Conveniens
3. Assume jurisdiction and apply the forum law

1. DISMISS THE CASE FOR LACK OF JURISDICTION

Effect of absence or presence of Jurisdiction (Paras)
1. when a court is without jurisdiction, it has no alternative except to dismiss the case
for being null and void due to lack of due process
2. if a tribunal possesses jurisdiction, it may:
a. refuse to assume jurisdiction on the ground of forum non convenience or
b. assume jurisdiction, in which case it may:
- apply the internal law of the forum (lex fori) or
- apply proper foreign (lex causae)

2. DISMISS THE CASE ON THE GROUND OF FORUM NON-CONVENIENS

refusal of assume jurisdiction because it would prove inconvenient for the
forum
a forum may resist imposition upon its jurisdiction even when jurisdiction is
authorized by law on the ground that the forum is inconvenient or the ends
of justice would be best served by trial in another forum or the controversy
may be more suitably tried elsewhere (Doctrine of Forum Non-Conveniens)
ELEMENTS:
a. the forum state is one to which the parties may conveniently
resort to;
b. it is in a position to make an intelligent decision as to the law and
the facts; and
c. it has or is likely to have power to enforce its decision
MANIFESTATIONS:
the witnesses and evidence may not be readily available
the court dockets of the forum may already be clogged; to permit
additional cases would inevitably hamper the speedy
administration of justice
the evils of forum-shopping ought to be curbed
the forum has no particular interest in the case
other courts are open: certainly the case may be better tried in
said courts
ASSUME JURISDICTION AND APPLY THE FORUM LAW
As a general rule, no rule of Private International Law would be violated if the
courts should decide to dispose cases, according to the internal law of the forum
EXCEPT: where a foreign, sovereign, diplomatic, official or public vessel or
property of another state is involved, or where a state has by treaty, accepted
limitations upon its jurisdiction over certain persons of things

INSTANCES WHEN INTERNAL / DOMESTIC LAW SHOULD BE APPLIED:

1. when a specific law of the forum expressly provides or decrees in its conflict
rules that internal law should apply
Examples:
i. Article 16 of the Civil Code real and personal property subject to the
law of the country where they are situated and testamentary succession
governed by lex nationalii
ii. Article 829 of the Civil Code makes revocation done outside the
Philippines valid according the law of the place where will was made or
lex domicilii
iii. Article 819 of the Civil Code prohibits Filipinos from making joint wills
even if valid in foreign country
2.

when the proper foreign law has not been properly pleaded and proved

3.

NOTE:
as a general rule, courts do not take judicial notice of
foreign laws must be pleaded and proved

The following actions may be resorted in case of failure to prove and

plead the proper foreign law
i. Dismiss the case for inability to establish cause of action
ii. Assume that the foreign law of the same as the law of the forum
(processual presumption)
iii. Apply the law of the forum

when the case involves any of the exceptions to the application of the proper
foreign law as when the foreign law is
contrary to an important public policy of the forum
penal in nature
procedural in nature
purely fiscal and administrative in nature
application of the foreign law may work undeniable injustice to the
citizens of the forum
the case involves real or personal property situated in the forum
contrary to good morals
application might endanger the vital interest of the state

II.

THE PROBLEM OF RENVOI (11)

A. RENVOI, definition
procedure whereby a jural matter is presented which the conflict of laws rules
of the forum refer to a foreign law, the conflict of law of which in turn, refers
the matter back to the law of the forum (remission) or a third state
(transmission)
literally means referring back : problem arises when there is doubt as to
whether a reference to a foreign law
a. is a reference to the internal law of said foreign law; or

b. is a reference to the whole of the foreign, including its conflicts rule

B. VARIOUS WAYS OF DEALING WITH THE PROBLEM OF RENVOI
SOLUTIONS TO THE RENVOI
1. Reject the renvoi
meaning, we do not want the problem to be sent back to us; that we do
not want the matter to be referred back to us (Paras)
if the conflicts rules of the forum refer the case to the law of another state,
it is deemed to mean only the internal law of the state. Thus, the court will
apply the foreign law (Coquia)
2. Accept the renvoi
apply or accept it by reference to the whole law, including the conflicts rule
of the foreign law (Paras)
if the conflicts rules of the forum refer the case to the law of another state,
it is deemed to include the totality of the foreign law (internal law and
conflicts of laws rule). Thus, the court will recognize the referral back and
apply local law. (Coquia)

3. Follow the DESISTMENT THEORY (also referred to as the MUTUALDISCLAIMER OF JURISDICTION THEORY)
meaning, we desist or refrain from applying the foreign law because it is
inadequate as it is founded on a different basis
the reason for the desistance is that the forum court upon reference to
another states law sees that such law is limited in application to its own
national and has no provision for application to a non-national(Paras)
the forum court upon reference to another states law sees that such law
is limited in application to its own nationals domiciled in its territory and
has no provision for application to nationals domiciled outside of the
territory. Hence, the local court will apply local law. This has the same
result as the acceptance of the renvoi but the process used by the forum
court is to desist applying the foreign law. (Coquia)
4. Use FOREIGN COURT THEORY
meaning, the local forum, in deciding the case, will put itself in the position
of the foreign court and whatever it does respecting the case, the
Philippine court will likewise do. (Paras)
foreign court assumes the same position that the foreign court would take
if the case is litigated in the foreign state: Hence
a. if the foreign court would accept the renvoi, the local court shall apply
the foreign law.
b. if the foreign law would reject the renvoi, the local court shall apply
lex fori
c. if the foreign court would apply the desistment theory, the local court
shall apply the foreign law
d. if the foreign court would use the foreign court theory, then
international pingpong would ensue (Coquia)

DOUBLE RENVOI
it is that which occurs when the local court, in adopting the foreign court
theory, discovers that the foreign court accepts the renvoi
TRANSMISSION
the process of applying the law of a foreign state thru the law of a second
foreign state
DOUBLE RENVOI versus TRANSMISSION
double renvoi deals with 2 countries while transmission deals with three or
more countries
double renvoi deals with referring back while transmission with a
transmitting
SUGGESTED CONCLUSION
the theory to be adopted must consider the circumstances of a given
situation that will best result in fairness, equity and justice

A. Bases for Recognition and Enforcement of Foreign Judgments

a) Theory of Comity under this theory, we apply the foreign law
because of its convenience and finally because we want to give
protection to our citizens, residents, and transients in our land.
b) Theory of Vested Rights or Obligation of Foreign Judgments
here we seek to enforce the final judgment not the foreign law itself
but the rights that have been vested under such foreign law.
c) Theory of Local Law foreign law is applied not because it is
foreign but because our own laws, by applying similar rules, require
us to do so, hence, it is as if the foreign law has become part and
parcel of our own local law.
d) Theory of Harmony of Laws this theory insist that in many cases
we have to apply foreign laws so that wherever a case is decided,
that is, irrespective of the forum, the solution should be approximately
the same, thus identical or similar solutions anywhere and
everywhere. When the goal is realized there will be a harmony of
laws
e) Theory of Justice the purpose of all laws, including Conflict of
Laws, is the dispensing of justice, if this can be attained in many
cases by applying the proper foreign law, we must do so.
Defects of Theory of Comity:
1. Theory presupposes the existence of an international duty. There is no
such duty. Theoretically, every state may apply its own internal law
exclusively.

2. The theory assumes, although in a minimal sense, a desire to show

courtesy to other states. This is not true. The real reason for the
application of proper foreign law id the avoidance of gross
inconvenience and injustice to litigants, whether natives or foreigners.
According to Prof. Minor, the basis of COL is something more than comity
to the litigants. It is an answer to the demands of justice and enlightened
policy.
3. Theory apparently leaves the application of the foreign law to the
discretion of the forum. Clearly, this will prevent the adoption of definite
rules and principles for COL.
Kinds of Comity:
1. Comity based on reciprocity is simple. If the laws and
judgments of the forum are recognized in a foreign state, the
forum in turn will recognize the laws and judgments
emanating from said foreign state.
2. Comity based on persuasiveness of the foreign judgment
it says that if the forum is persuaded that a foreign
judgment is meritorious and has been rendered by a court of
competent jurisdiction, it will not hesitate to enforce that
foreign judgment in the forum even if the foreign forum does
not reciprocate
Collateral Matters:
The following collateral matters must first be examined before proper foreign
law is to be applied:
1.
2.
3.
4.
5.

Nature and Proof of foreign judgments

Nature and composition of conflicts rules
Characterization or classification of conflict rules and judgments
Various theories on status and capacity
Problem of the renvoi

B. Policies Underlying Recognition and Enforcement

1) Res Judicata under this principle those who have contested an
issue shall be bound by the result of the contest and that matters
once tried and decided with finality in one jurisdiction shall be
considered settled as between the parties.

2) Bar and Merger

Merger considers the plaintiffs cause of action as merged in the
judgment and as a result he may not relitigate that exact claim.
Bar refers to a situation where a successful defendant interposes
the judgment in his favour to avert a second action by the plaintiff on
the same claim.
3) Doctrine of Collateral estoppel renders conclusive all essential
issues of fact actually litigated in the suit decided on by the foreign
court.
Whereas res judicata seeks to end litigation by disallowing a suit on
the same claim; collateral estoppels is concerned with the issue
preclusion by barring relitigation of an issue already litigated on a
prior proceeding.
C. Requisites for Recognition and Enforcement
1. There must be proof of the foreign judgment; for the recognition,
there is no necessity for a separate action or proceeding
2. The judgment must be on a civil or commercial matter
3. There must be no lack of jurisdiction, no want of notice, no collusion,
no fraud, no clear mistake of law or fact
Note:
a. Fraud here must be Extrinsic fraud that is fraud based on
facts not controverted or resolved in the case where the
judgment was rendered
b. Regarding clear mistake of law or fact, the supreme court of
the U.S. reversing the SC of the Phils., held that even if there
is a clear mistake of law or fact, this alone will not prevent the
recognition or enforcement of a foreign court (Hongkong)
judgment which otherwise fulfils all the other requisites.
4. The judgment must not contravene a sound established policy of the
forum.
Note:
a. An unfaithful mother, awarded by a US court custody of her
child, was denied said custody by our Philippine courts
b. A litigant not satisfied with the decision of a Philippine court,
resorted to a foreign court to obtain another remedy. Failing in
this foreign venture, he now seeks the enforcement of the
Philippine decision which he had formerly abandoned.
HELD: The litigants, whether they are citizens or foreigners,
should respect the decisions of Philippine courts, but
if they choose to resort to a foreign court, asking for a
remedy that is incompatible with the execution of a
decision obtained in the Philippines and obtained a
decision that is adverse, they should not be permitted
to repudiate the decision of the foreign court and to
ask the enforcement of the decision of the Philippine

court which they have abandoned. To permit them to

litigate in that manner is contrary to the order and
public interest of the Philippines because it disturbs
the orderly administration of justice.
5. The judgment must be res judicata in the state that rendered it.

The requisites for res judicata are the following:

a. Judgment must be final
b. The court rendering the judgment must have
jurisdiction over the subject matter and the parties
c. The judgment must be on the merits
d. There must be identity of the parties, subject matter
and cause of action except that the recognition or
enforcement of a foreign action is now the recognition
or enforcement of the foreign judgment on the original
cause of action
Provisions of the Rules of Court on Foreign Judgments:
Sec. 48. Effect of foreign judgments. The effect of a
judgment of a tribunal of a foreign country, having jurisdiction to
pronounce the judgments as follows:
a) In case a judgment against a specific thing, the judgment
is conclusive upon the title to the thing
b) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties
and their successors in interest by a subsequent title; but
the judgment may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law
Whose judgment is really enforced?
It would seem that when our courts enforce a foreign
judgment by allowing it, the effect is that it is really our own courts
judgment that we enforce.