Chapter It WHAT THE TRIBUNALS OF THE FORUM MUST DO ALTERNATIVES GIVEN TO THE COURT mjlicts problem presents itself before «tribunal of isdiction, in which case it may either: i ram (lex ford}; oF (2) apply the internal law ofthe forum (le fOri; oF (). apply the proper foreign law (lex causae). (See Stimson, Conflict of Lents, p. 948). ‘THE QUESTION OF JURISDICTION shurisdiction Defined tn ener jaitietion om the “right to speak’) is the author ‘a tribun: se tba vet 25 ail. 246; Dea Oras. ot Prat a) Complete feisdiction necessarily ineludes not % WAHIAT THE TRIBUNALS OF THE FORUM MUST DO 2% the power to hear and determine a cause, but also the power to enforce any judgment it may render thereon (14 Amer. .hur., ‘pp. 363-364; Ballentine's Law Dictionary). In the realm of Conflict of Laws, jurisdiction has essentially m, with the added element of possible enfor: states, subject of course to the rights of said jon may be variously classi shall for the present content ou (2) jurisdiction over the person (3) jurisdiction over the res. (As distinguished from jurisdiction over the su ‘matter, which is generic in character, jurisdiction 04 jon over the particular subjec for instance, specific propert are the subject of the litigation have been pro ached. (See Banco-Espaiol-Filipino v, Palanca, 921; Bernabe v. Vergara, 73 Phil. 676.) Jurisdiction Over the Subject Matter Jurisdiction over the subject matter is conferred bylaw and the parties on this point is of no consequence; indeed, law confers it, and only the law may change it (Caluag v, Pecsom,PHILIPPINE CONFLICT OF LAWS 82 Phil 8). In the Philippines this law on the juri ‘courts may be found in the Philippine Consti Judiciary Act of 1948, as amended by Batas Pambansa Big. 129 (also as amended). ‘enough, however, that the court has this power in ing more is vital, and this is the invoking of such power by the fil 82 Phil. 8)AT \ow prima facie a tack ofjurisdiction, the court must iately dismiss the case. No preliminary hearing on the evidence is needed. (Administrator v. Alberto, G.R. 1-12123, Oct. 31, 1958). jurisdic \e court lias no course exeept to dismiss the case (Manlapaz’v. Pagdanganan, 54 0.G. No, 34, Dec. 1, 1958, p. 7890). worthwhile jing the period in which a decision should be in the sense sions pres rendered are merely directory, not mandatory that even if a judgment is promulgated after the expiration of the period, said judgment would generally still be valid — unless Je contrary is manifest. Of course the officer who the law may be dealt with administratively bor, et al, 1-228, Feb. 27, 1969). Jurisdiction Over the Person person is the power of a court to will be binding on the parties involved: fendant. Jurisdiction ove! render a judgment tl the plaintiff and the Jurisdiction over the person of the plaintiffis acquired from the moment he institutes the action by the proper pleading (Manila Railroad Co. v. Attorney-General, 20 Phil. 523). Jurisdiction over the person of the defendant is acquired through the following means: voluntary appearance; personal WHAT THE TRIBUNALS OF THE FORUM MUST DO a ted service of summons (Rule 14, Revised Rules of (1) The first way is by voluntary appearance in court or voluntary submission to the jurisdiction of the court (Rule 14, Sec. 23, Revised Rules of Court) except of course if ‘ise purpose of the appe: in the manner provided v. Severino, 78 Phil. 283).} preceding sec leaving copes of the summons atthe defendants ig house or residence with some person of suitable age and discretion then residing therein, or (b) by if the copies at defendant's office or irge thereof." (Rule 14, Sec. 9, Revised Rules Strict compliance with these modes is re modes is required before the court can acquire jurisdiction over the person of the defendant (Pantaleon v. Asuncion, 105 Phil. 761; Sequito v, Letrondo, 105 Phil. 1139),"ThusPHILIPPINE CONFLICT OF LAWS service through a 12-year old daughter of the defendant is not valid substituted service, even ifshe Grade Four pupil, in vi and discretion (Sequito v. Letrondo, supra.) However, the question of erroneous service of summons must be raised before judgment is the person of the defendant, not. said defendant is in the Philippines. (Pantaleon v. Asuncion, 105 Phil. 761). Jurisdiction Over the Res Jurisdiction over the res or thing is jurisdiction over the particular subject matter in controversy, regardless of the persons who may be interested thereon. Said ji on may for instance be acquired by coercive seizure of the property by attachment proceedings. (See Banco Espariol-Filipino ». Palanca, 37 Phil. 921; Bernabe v. Vergara, 73 Phil. 676). Mlustrative Examples: (1) Problem: An Arn intimidated a Fil ‘The day followin, departed for parts unknown. Subsequently, the woman filed in the Regional Trial Court of Manila a suit asking for the annulment of the marriage and for consequential damages. Since the husband could not be found, service of ‘an, not residing in the Philippines, WHAT THE TRIBUNALS OF THE FORUM MUST DO » ‘summons was made by publication. Incidentally, the man has no property in the Philippines. (a) Does the Court have jurisdi cage, assuming that the proved? (b)_ Does the Court have jurisdiction to award damages to the woman in case the marriage is annulled? ANSWER: to annul the marri- jmidation can be duly the Court has jurisdi marriage, assuming the intimidation 1 Court has jurisdiction over the subject matter — inulment of a marriage — a jurisdiction granted it by law; jon over the person of the plaintiff — for the iple reason that she filed the complaint before ti lf. Neither personal summons nor voluntary appearance by the in court, in person or through an attorney, is NOT essential, and ifthe law demandsservice ion, it is merely to satisfy the constitutional requirement of due process (Perkins v. Dizon, 69 Phil. 186). Moreover, the Family Code sanctions the annulment, ofa marriage even if the defendant does not appear, in the following words: “In all cases of annulment or declaration of ity of marriage, the court shall order the On behalf of the State to take stepe to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confes: judgment.” (Art. 48 of the Family Code)the husband and wife) ora confession of judgment (a statement by the erring spouse to the effect that he or 1" suppressed.” Thus, a marriage cannot. be annulled by means of a summary judgment (Joc- son v, Robles, 22 SCRA 521). adjudged. This is because an award of dam: judgment in personam, enforceable not ag: ony by publication. There was neither a. voluntary appearance nor personal or substituted service of sum: mons, Hence, for the purpose of awarding damages there was NO jurisdiction over the person of the defendant. (See isdiction to grant arrelief which would bea personal liability of the defendant (Pennoyer . Neth, 95 U.S. 714; Banco Espanol Filipino v. Palanca, 37 Phil. 921). [NOTE: Inthe problem hereinabove presente cerning the award of damages, the defendant had NO property in the Philippines. Now, then, suppose the defendant has properties here, would the answer be the same? YES, the answer would be the same; since the court never acquired jurisdiction over his person, WHAT THE TRIBUNALS OF THE FORUM MUST DO (2). Similarly, an action for the recognition of an il iteannot now satisy his when previously, the court had jon over the property itself, such as by attachment or by any other proceeding in rem, the court may validly render the property liable for the payment of the damages, notwithstanding the fac 714; Perkins ». Dizon, 69 child concerns the personal status of the plaintiff, and summons by publication would be sufficient on a non- again, if a debtor-mortgagor is a non-resident defendant, summons by publication would besufficient for the foreclosure of the mortgage, but not for award of the case the proceeds are insufficient to cover Gemperle v. Schenker 1-18164, Jan. 23, 1967 FACTS: Sometime in 1952, P through his wife and attorney in fact, Helen Schenker — filed with the Rizal CFI a complaint (regarding certain corporate shares in the Philippine Swiss Trading Co, Ine.) against a certain William Gemperle. Gemperlein turn sued the couple for damages (action in personam), al because of certain libelous matters in conneetio case filed against him. The principal issue in the case with the Supreme Court was whether or not the lower court hhad obtained jurisdiction over te person of Paul Schenker, who admittedly was a Swisscitizen and resident of Zurich, Switzerland. The summons in the case filed by Gemperle had actually been served in the Philippines personally only on Helen (although addressed to both Paul and Helen). Schenker — acting.VATILIPPINE CONFLICT OF LAWS ere was jurisdiction over the person of Paul, non-resident, it, appearing from Helen's answer to the complaint that she was the representative ‘and attorney-in-fact of her husband in the civil case they had filed against Gemperle. In other words, Helen had authority to sue and had How Service Is Made on a Private Foreign Corporation “SHC. 14. Service upon private foreign corporations. — If (Gout 1s, Revised fates of Court) NOTE: The private foreign corporation must be DOING BUSINESS in the Philippines (and not engaged merely in an isolated transaction), otherwise the rule hereinabove quoted ‘does not apply, and our courts cannot acquire jurisdiction over the same (Pacific Micronisian Line, Inc. v. Be il, 23), Whether the business it is doin, Phil. v, Union Insurance Society of Canton, 90 Phil. 868). Effect of Vitiated Personal Service of Summons (a) Vitiation by Fraud 1) If fraud was availed of in personally serving the summons on the defendant in a proceeding in ‘personam, and such fraud was through the initiative or at the instigation of the plaintiff, the court does NOT acquire jurisdiction over the person of such defendant. (See Dunlap and Co. v. Cody, 31 Iowa, 260, Bax parte Edwards, 99 Cal. App. 541.) Example: If a woman-plaintiff in a breach of WHAT THE TRIBUNALS OF THE FORUM MUST DO a promise damage suit lures the.defendant into her state by fraudulently alleging serious illness on the part of her mother, and succeeds subsequently in having a sheriff personally serve summons on the ‘occasion of the defendant's arrival in her state, such defendant is not subject to the jurisdiction of the court. 2) On the other hand, if the intervened in acquired ju! 129.) reason is patent: having 4 particular judicial Je the plant n entire machine completed unces burdens. (See Goodrich, Conflict of Laus, p. 158.) (0) On the part of the defendant: perly before a court, defendant is subject toPHILIPPINE CONFLICT OF LAWS litigation (New York Life Insurance Co. v. Duntevy, 241 US. 578.) Continuing Jurisdiction Bven if the Defendant Leaves endant leaves the sat ofthe forum pros to explains the reason fo hii the case of Michi says in characteristic felicitous ary jurisdiction over a person iesovereign asserting t to seize to await the sovercign’s pleasure. Bi instances where judgments in may validly be given. (See Goodrich, Conflict of Lanes, p. 157.) REFUSAL TO ASSUME JURISDICTION stated at the beginning of this Chapter, if the mn, it may decide either to refuse to assume litigation, even granting n. AS a matter of fact, a isdiction or without the possibility of acquiring assume jurisdiction for there would be mee WHAT THE TRIBUNALS OF THE FORUM MUST DO % that to do so would prove inconvenient for the forum: forum ‘non conveniens. The inconvenience may be manifested, among other things, in the following ways: (1) the evidence and the witnesses may not be readily ay able (Koster v. Lumbermen's Mutual Casualty Co., 330 US. 518); (2)_ the court dockets of the forum may already be clogged: to permit additional cases would inevitably hamper the tages) ought to ()_ the forum has no particular interest inthe case; the parties ay either be citizens or re ; the subject matter of Conflict id Co. v, Oroshy, 222 US. 473, “It should be remembered that parties do not enter ground for complaint would be if 's, when enforced, by our courts, should be measured by a different rule from that under which the parties dealt.” On the other hand, Prof. Goodr ple should sparingly, if at all, believes that the princi sd. He says: t may be argued that some courts are crowded, and that foreign suits are burdensome not cover the cost ofthe suit. However, ifone state shuts itsPHILIPPINE CONFLICT OF LAWS courts to residents of another state, there may be retalia- tion by the other state. In the long run, there wil probably ut aloss, and it would seem more desirable on le, to allow free flow of litigation" (Goodrich, ould seem clear that our own he risk of retaliation by foreign ‘ay at times profitably and legally make use of the inly, our country is a 1 civil or procedural ld militate against the proposition that in f our own discretion, we may at times refuse to tiff, nor the defendant, nor related to the forum, the action (2) Courts of equity and of law occasionally interest of justice, to exercise jurisdiction, where the suit is between aliens or non-residents, or where for kindred reason, the litigation can more appropriately be con. ducted in a foreign tribunal (Canada Malting Company v. Patterson Steamship, 285 U.S. 913, 423). Heine v. New York Insurance Co. 45 Fed. (2d) 426 (1940) © FACTS, Several German citizens brought insurance claims against the New York Life Insurance Company on insurance contracts and policies issued in Germany. ‘Although the plaintiffs were citizens and residents of Germany, and although the defendant was a New York corporation, suit was brought not in Germany nor in New York, but in Oregon, US.A. The Oregon court had undoub- WHAT THE TRIBUNALS: OF THE FORUM MUST DO a tedly jurisdiction over the subject matter; over the pl tiffs (on account of their pleadi dant (service ofsummons having been made on its resident or statutory agent in Oregon.) However, the following facts stood out: (a) The cause of action did not arise in Oregon, (b) The material witnesses were not residents of Ore gon. © int company were either in @ ISSUE: May the Oregon cot discretion, still refuse to take cog HELD: Yes, the Oregon cou to assume jurisdiction over the forum non conveniens. The court said: “This is a matter resting in a courts discretion. It may retain jurisdiction, or it may, in the exercise of sound discretion, decline to do courts have repeatedly entertain jurisdi parties are ‘non- residents of the fora ible that residents and citizens of Germany may import bodily into this court numerous actions against a non-resident defendant, on contracts made and payable in Germany, and insist as a maiter of right that, because obtained jurisdiction over the defendant by service on its statutory agent, the8 PHILIPPINE CONFLICT OF LAWS taxpayers, citizens, and residents of the district having business in the court should stand aside and await the conclusion of the case, where as here, the courts of Germany and the home state of the defendant are open and functioning. “The courts of Germany and New York... are compe- tent to take jurisdiction of the controversies, and service inconvenience and expense, and probably compel them to produce here (3,000 miles away from its home office) daily use by it in taking care of current business. In addition, it would no doubt, consume months ofthe time of this court to try to dispose of this case, thus necessarily disarranging the calendar, resulting in delay, inconveni- ence, and expense to ot '5 who are entitled to invoke its jurisdiction.” ASSUMPTION OF JURISDICTION When the forum assumes jurisdiction over a case, it may, under proper cirew ces: (1). apply the internal or domestic law (Lex fori); or (2). apply the proper foreign law (lear causae). APPLICATION OF THE INTERNAL OR DOMESTIC LAW ‘There are at least three instances, when the forum has to apply the internal or domestic law (lew fori) in adjudicating a conflicts problem set before it. These instances are the following: (1) when the law of the forum expressly so provides in its conflicts rules, (2) when the proper foreign law has not been properly pleaded and proved; (3) when the case involves any of the exceptions to the application of the proper foreign law (exceptions to comity): WHAT THE TRIBUNALS OP THE FORUM MUST DO 2 (a) when the foreign law, judgment, or contract is con- trary toa sound and established puble policy ofthe (b) when the foreign law, judgment, or contract, is contrary to almost universally conceded principles of morality (contra. bonos mores); (©) when the foreign law, judgment, or contract involves procedural matters; (a) when the ease involves penal laws, contracts, judg- ments; (©) when the case involves purely fiscal (thats, revenue- producing) or administrative matters, (when the application ofthe foreign lw, judgment or ork undeniable injustice to the citiz- G ign law, ud Contract, may work against the vital interests and national security of the state of the forumy; (h) when the ease involves real or personal property situated in the forum, (See Art. 17, par. 8, and Art 16, par. 1, Civil Code. See also Minor, Conflict of ae mp. 9:26; Goodrich, Conflict of Laws, pp. 21-24, WHEN THE LAW OF THE FORUM EXPRESSLY PROVIDES. FOR THE APPLICATION OF THE INTERNAL LAW Our Civil Code cites certain instances when our courts in resolving a conflict problem have no course except to apply our own. internal law. Among them are the following: (1) When, for example, a Filipino father, with a Chinese child, dies, the estate of said father shall be distributed in accordance with Philippine law. The reason is simple: the Similarly, the capacity of the Chinese child to inherit from his Filipino father is governed, not by Chinese law, but by@ @ PHILIPPINE CONFLICT OF LAWS Philippine law. Again the reason is obvious: the deceased is a Filipino (Art. 1039, Civil Code). If a will exeeuted by an alien abroad is revoked in our country, the revocation must comply with the formalities of Philippine law (Art. 829, Civil Code). Regarding matrimonial property relations, Art. 80 of our Family Code says: celebration of the marriage and their residence. “This rule shall not apply: *(1) Where both spouses are aliens; “(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is Jocated; and “(3) Wid 4; to the extrinsic validity of contracts enteres pines but affecting property situated in a foreign country whose laws require different ities for its extrinsic validity.” Bramples: (a) A Filipino gentleman marries an American. In the Philippines, in the absence of a marriage settlement, it is presumed that the matrimonial property rela- tions shall be the absolute community of property (Art. 75, Family Code). Let us assume that in ‘America the general rule is “complete separation of property.” Now, then, if the husband earns seven thousand pesos a month, who will be its owner — the husband alone, or both of the spouses as common owners? Answer: The property should be considered as ‘owned in common by the spouses. Since the husband is a Filipino, their property relationship shall be governed by the regime referred to in our law as “the ‘WHAT THE TRIBUNALS OF THE FORUM MUST DO a @) regime of absolute community’ (Art. 75, Family Code). [NOTE: Itwillbeobserved here that the forum, i.e, the Philippine court, has no alternative except to apply our own intern: ince this is the explicit provision of our conflicts rule (Art. 80, Family Code) on the matter. An American gentleman m: warriage, the husban‘ a Filipina. During (Under the Parity Amendment, may not purchase Philippine land — Quasha, 130299, Aug. 17, 1971) ); while a house is, real property, it is not land, so same may be validly ld the house be the separate property of the husband, or ist we regard the same as conjugal? Answer: sidered as separate property of the husband. Under Art. 80 of the Family Code, there isno doubt that the husband, being an American, the matrimonial property regime in his country must be followed, and consequently, their property relations shall be governed by the “separation of property” regime. ‘Therefore, the 250,000 earned by him solely shall be his exclusive property, thus, also, whatever is substituted therefor shall be deemed as his separate property. This is true both under Philippines and American laws. (See Art. 109, par. 4, Family Code. [NOTE: Under Presidential Decree No. 713, three types of American citizens, who had acquired private residential lands for family dwelling purposes before July 3, 1974, are allowed to continue holding such lands (up to 5,000 squaremeters only, however) and to transfer their ownership to qualified persons or entities: 1) _ those who were formerly Filipino citizens, 2) those who have become permanent residents of ‘the Philippines; andPHILIPPINE CONFLICT OF LAWS 3) _ those who have resided in the Philippines con- nuously for at least twenty (20) OBJECTION: Art.80 ofthe Family Code, among other things, states: “This rule shall not apply: (1) Where both spouses are aliens; (2) With respect to the extrinsic validity of contracts affecting property not in the Philippines anid executed in the ry where the property is located; and (3) With sspect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity.” Now, then, since the subject matter here is a \e house, should we not apply here the regime of abs pines? ANS. ion is untenable: 1) Firstly, roperty regime is governed by the national law of the husband, not by the location of the property (Art. 80, Family Code). 2) Secondly, the phrase alluded to refers not to the ‘ownership of the property but to the requisites and the manner of its disposi and encumbraneing. For instance, ‘must comply with the formal can law but of Philippine law, si situated in our country (Art. 16, par. 1, Civil Code). Hence, to be valid even as between the immediate parties to the transaction, a public instrument is essential (Art. 749, Civil Code). If instead of donating to a friend, he desires to donate the house to his wife during the exis- tence of their marriage, the donation would ‘generally be VOID under Art. 87 of our Family Code, unless the gift be a moderate one consid- ering the financial circumstances of the hus- band, (See Harding v. Commercial Union “Assurance Co., 28 Phil. 464.) (a) an official publicatio (b) by a copy attested by WHAT THE TRIBUNALS OF THE FORUM MUST DO a WHEN THE PROPER FOREIGN LAW HAS NOT BEEN PROPERLY PLEADED AND PROVED ‘The second case when our internal law shall control presents itself when the proper foreign law, which shouldordinarily govern the litigation, is not properly pleaded and proved. There is NO judicial notice of any foreign law. A foreign law must be properly pleaded and proved as a fact (Adong w. Cheong Seng Gee, 48 Phil. 43; Sy Joe Lieng 95 Phil. 500). Philippine Trust Co. v. Bohanan, et al. 1-12105, Jan. 30, 1960 he probate of a wil posed project of partition of the estate, said foreign law ‘was not introduced anymore. In the partition, was it still necessary to reintroduce the proved Nevada law? HELD: No more, in view of its prior satisfactory proof during the probate proper. The answer would have been different h@d there been no prior allegation and proof. Proof of Foreign Law (1) Ifthe foreign law is WRITTEN LAW (such as a statute or a constitution), it may be proved by: eof or we officer having the legal custody of the record, or by his deputy, and accom panied with a certificate that such officer has cus- tody. [NOTE: Thecertificate may be made byasecre- tary of an embassy or a legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines sta- tioned in the foreign country in which the record isPHILIPPINE CONFLICT OF LAWS kept, and authenticated by the seal of his office. (Rule 132, Sec, 25, Revised Rules of Court.)] Fluemer v. Hix 54 Phil. 610 FACTS: Hix died with a will allegedly executed in accordance with the formalities of West Virginia law. To prove the existence of said foreign law, the proponent of the will presented in evidence a copy of said law found in a book (West Virginia Code) in our National Library. The ificate was signed by the Director of the brary. Issue: Has the existence of said law been properly proved? because the legal requisites for proof of a ime of the execution of the will law is UNWRITTEN LAW as customs or may be proved by: (@) the oral testimony of expert witnesses; or (b)_ by printed and published books of reports of deci- sions of the country involved, if proved to be com: monly admitted in such courts (Rule 130, Sec. 45, Revised Rules of Court). In re: Testate Estate of Suntay 95 Phil. 500 FACTS: To prove Chinese law, the proponents of a will presented in evidence written answers (to certain written questions) of the Chinese consul-general. Issue: Has the existence of said law been proved? HELD: No, firstly, because the witness should have been presented for the purpose of confrontation and cross-examination; and secondly because, a Chinese consul-general is not necessarily an expert on the mat- ter. ‘WHAT THE TRIBUNALS OF THE FORUM MUST DO 6 How a Proved Foreign Law Must be Interpreted by Our Courts It is believed, as a general proposition, that a foreign law that has been duly pleaded and proved in our courts of justice rust receive the same interpretation given to said law by the foreign tribunals concerned. An exception, however, tothisrule may be stated: if somewhere laws we find a statute worded identically, we cannot be blamed if we disregard the foreign interpretation, and instead use our own previous Interpretation of the same. EXCEPTIONS TO THE APPLICATION OF THE PROPER FOREIGN LAW (EXCEPTIONS TO THE APPLICATION OF COMITY) public policy of (a) Codal Provision Involved “Prohibitive laws cone or property, and those not be rendered ineffective by la promulgated, or by deter agreed upon in a foreign country" (Art 17, par. 3 Civil Code). () Public Policy Defined Public policy is simply the manifest willofa st ‘that which it desires on account ofits own fundame talprinciples of justice, its own conception of morals, and its deep-rooted traditions for the common weal (See Chaffee v. Farmer's Cooperative Elec. Go, 39 N.D. 585; Loucks ». Standard Oil Company of New York, 224 N.Y. 99.) (©) Query: When isa foreign law, judgmentor contract contrary to our public policy? ANSWER: (1) When we already have a conflicts rule on the matter (a rule governing a situation where 2PHILIPPINE CONFLICT OF LAWS. foreign element in involved) this rule is the ‘expression of our public policy on the matter, "Therefore, any foreign law, judgment, or con: tract that contravenes our conflicts rule on the stter is clearly VIOLATIVE of our public (2) When we do not have a conflicts rule on the matter, the mere fact that a foreign law is different from or dissimilar to our own internal law on the matter does not mean that said foreign law is contrary to our public policy. Otherwise stated, while the foreign law may be contrary to our law, it is not necessarily con: trary to our public policy. In a case like this we thereon. Indeed, if we a foreign law that is NOT ‘on the pretext that otherwise be violated, necessity for conti On this point, Prof. Goodrich furnishes us with the following comment: “The mere fact that the law of the forum and the law of the place of the foreign operative facts differ is CLEARLY NOT a sufficient reason for the former to deny enforcement. Ifit were, rules in conflict of laws calling for the application of foreign law in a particular set of facts would be practically nullified" (Goodrich, Conflict of Laws, p. 22). On his part, Mr, Justice Cardozo, in Loucks v, Standard Oil Company of New York, 224N.¥. 99, eloquently says: “Our own scheme of legisla~ tion may be different. We may even have no legislation on the subject. That is not enough ... We are not so provincial as to say that every solution of a problem is wrong, because we deal with it otherwise at home. Similarity of legisla- tion has indeed this importance: its presence WHAT THE TRIBUNALS OF THE FORUM MUST DO a shows beyond question that the foreign statute does not offend local policy. But its absence does not prove the contrary.” (a) Examples Where We Have Confticts Rules yD ‘Two Filipinos made joint wills (wills made in the same instrument) while they were in Germany. In said country joint wills are valid. May the Joint wills be successfully probated in the Philip pines? ANS. No, because they are contrary to Philippine policy. The Civil Code pro- vides: “Art. 818. Two or more persons cannot make a wil olny, o in he same inate benefit of a third person.” “Art, 819. Wills, prohibited by the preced- ‘even though authorized by the laws of the ‘country where they may have been executed.” “(NOTE: If the joint wills in Germany, had been executed by Germans, they maybe consid- cred valid in our country, for itis clear that the prohibition indicated in Art. 819 refers exclu sively to Filipino citizens.) An American dies, leaving properties in the Philippines. In his will, he gave nothing to his children (inasmuch as in his own state, there are no compulsory heirs). Can his will be given 1s, despite the fact that in the Philippines it is our policy to grant children their legitimes? ANS: Yes, his will can be given effect. After all, since he was an American our public policy on the matter is enunciated in Art. 16, ar, 2, of the Civil Code (a conflicts rule). Inasmuch as under his national laa, children3) PHILIPPINE CONFLICT OF LAWS are not entitled to any legitime we should ‘respect said law. (See also Testate Estate of Amos G. Bellis, et al. v. Edward A. Bellis, 123678, sFune 6, 1967. Facts are found in the Chapter on Renwi.) May a decree of absolute divorce obtained abroad by Filipinos today be given effect in the Philippines? ANS: No, be nos wherever they may provides: capacity of persons are bin ‘the Philippines, even thoug! Querubin v. Querubin (Supp. 12) p. 316 10 married an American h whom he subsequently had a daugh- ter obtained a California divorce ‘on account of his wife's adultery with another ‘man. The custody of the daughter was awarded to the innocent husband. However, the court stata could not be brought out of ‘out judicial permission. A year {ater the Pilipino eame back to the Philippines bringing the child with him to his residence in Hocos Sur, In the meantime, the wife had married her former paramour and had been able to obtain an amendment of the divorce decree, this time, granting the custody of the child to her. To obtain enforcement of this ‘amendment in the Philippines she brought a petition for the writ of habeas corpus in Hlocos Sur. The lower court denied her petition, hence, WHAT THE TRIBUNALS OF THE FORUM MUST DO 4) this appeal to the Supreme Cot she be awarded the custody oft HELD: No, she should not be given the child's custody. Under Philippine law, two important things stand out, namely: (a)_ Preference in parental authority is given to the father, not her, (b)__ ‘The guilty spouse generally loses parental authority. ‘The law, good customs, and the interests of public order imperatively demand that ‘must not be placed under the care of a separation from the motl compelling reasons th (Note: Art.117 ofthe Code provides {'separation of his parents, no child under five years of ageshall be his mother, unless the court reasons to do so.”) Even the adultery, according to the Code upon the baby who is as yet stand the situation.” (Report of the Code Com- ‘mission, p. 12)] \s got married in Califor. is considered valid, May the marriage be recognized in the Philippines? ANS. No, the marriage is not regarded as ‘effective here, for while it is valid in the place ofPHILIPPINE CONFLICT OF LAWS. ration it is considered incentuous under Philippine law. Art. 71 of the Givil Code says: “All marriages performed outside the nes in accordance with the laws in [NOTE: Marriages betwe sidered incestuous under wr law. (Art z ther marries his Filipino stepsister in California, and the marri- heir marriage not bigamous, polygamous, or incestuous (Art. 71, Civil Code). Statutes which at the capacity of a elawseven ifhe ino step-brother cannot marry his step-sister here, should not this incapacity follow him wherever he may go? And how about Art. 17 ofthe Civil Code, which state that prohibitive Philippine laws shall not be rendered ineffective by foreign laws or con- ventions? Is not the prohibition of marriage hetween a step-brother and a stepsister a prokibitory Philippine law? Finally, ifwe render nugatory said Arts. of the'Givil Code, are we not encouraging the parties to ‘evade” our laws by the simple expedient of marrying abroad? WHAT THE TRIBUNALS OF THE FORUM MUST DO a REFUTATION: It is humbly believed that. in the particular problem presented — a marri- age between Filipinos in a foreign country — the abovecited Arts. of the Civil Code, should NOT. apply because: 1) Said art compared with Art, 71, ONLY law on foreign marri- ages, are merely general provisions. It is in case of conflict between general and particular provisions, the particular provisions should prevail. 2) 3) legal hermeneutic a statute must be effect to it. 4) In case of doubt, the doubt must be resolved in favor of the validity of a marri- Art. 149 nily Code, being the foundation of the a basic social institution which public policy cherishes and protects. Con- sequently, family relations are governed by law and no custom, practice or agreement destructive if the family shall be recog- nized or given effect.” Also, Art. XV, Sec. 2 of the Philippine Constitution provi ‘that ‘marriage, as an inviolable social insti- the foundation of the family and .” In other ‘words, every intendment of law or facts leans toward the validity of marriage.PHILIPPINE CONFLICT OF LAWS charge of evasion,” how can ity of evasion when they are IMPLICITLY WED to marry under the provisions of Art, 71, which, itis reiterated, is, the only applicable article on the subject?” Regarding t the parties be {NOTE: What has been said about a for- ipino step- ‘eign valid marriage between a Filipino step-sister “The following marriages from the beginning for reaso. up to the fou (2) Between step-parents and step- children; (3) Between parents-in-law and children-in-law; (4) Between theadopting parent and the adopted c! (5) Between the surviving spouse of the adopting parent and the adopted child (6) Between the surviving spouse of the adopted child and the aopter; (1) Between an adopted child and a legitimate child of the adopter; (8). Between adopted cl same adopter; and ldren of the (9) Between parties where one, with, the intention to marry the other, killed that other person’s spouse, or his or her own spouse.") WHAT THE TRIBUNALS OF THE FORUM MUST DO s (©) Examples Where We Do Not Have Explicit Conflicts Rules 1 ) Under our Usury Law, the maximum interest that may lawfully be charged are 14% per he debt is unsecured, and 12% per debt is secured by a mortgage on should the be enforei fixed in our Usury Law, still not every deviation from our internal rules should rged is considered usurious is so1 nations of the world still have to agree upon. It should be noted that although maximum rates are fixed in our Usury Law, the same law does ‘not say that said rates apply even when the contract had been agreed upon in a foreign state. Stated differently, Secs, 2 and 3 of the Usury Law can hardly be considered conflict rales. (NOTE: Under Central Bank Circular No. 905, effective January 1, 1983, there are no more ‘maximum rates forloans. In effect therefore the Usury Law has already been repealed; in Liam Law v. Olympic Sawmill Co. & Elino Lee Chi, L-30771, May 28, 1984, the Supreme Court held that “for sometime now, usury has been legallyPHILIPPINE CONFLICT OF LAWS non-existent, Interest ean now be charged as ender and borrower may agree upon.”] 2) See. 1 ofthe Negotiable Instruments Law enum- quisites for a negotiable instru: , suppose the instrument is a ible one, does it have to adhere requirements for negotiabil ANS: It would seem that we have no ‘explicit conflicts rules on the matter. Therefore, iggested that the negotiability of the paper be tested by the criterion imposed under Japa- nese laws, Under the American Restatement of he law of (2). Second Exception tot Law — When the for contrary morality ( Man, beinga rational animal, has a two- the physical and the moral. These are the features of every human being: in case of contfiet the moral nature must prevai ‘There are thingsso inherently vicious, so demoralizing to civilized existence that almost everywhere they are condemned: the sale of human flesh for human pleasure (prostitution); contracts to corrupt the due administra tice; agreements to reward crime; transactions: ead to human slavery or involuntary servitude. All these even if valid in the place where agreed ‘upon — surely will not be counternanced in any civilized forum. ‘The question has been asked: are the standards of ‘morality immutable? I believe a distinction must be made; objectively, the standards of morality can never change — for anything that militates against man’s rational nature is WHAT THE TRIBUNALS OF THE FORUM MUST DO % @) ‘change — for what may appear as pleasant and nat one state may be regarded with abhorrence ‘Third Exception to the Appl Law — the foreign law, judgment, or contract involves procedural matters: (a) Basis ‘ompletely unjustified in demanding an application of English rules of court in a litigation which she may commence before our tribunals, 8) In general, it may be stated that the following are governed by the internal rules of the forum: a) forms of the proper action i \d misjoinder of parties yy and probable effect of evi 4) certain defenses ©) periods within wh 1) cost of the st 8) the various modes of discovery (NOTE: ‘There are certain rules which to appeal[PHILIPPINE CONFLICT OF LAWS WHAT THE TRIBUNALS OF THE FORUM MUST DO 5 although regarded as purely procedural in one ; ‘ forum are considered substantive in another. 2 a coer ttc Perit cere How this problem is usually resolved will be | Acenters into a contract with B in State C. dealt on in a subsequent Chapter.) ‘The contract. among other things, categorically ipulates that in the event of default, forfeiture wy advance payment. would ensue. One of (4) Fourth Exception to the Application of the Proper Foreign Law — When the case involves penal laws, judgments, | Spee ene contracts: | IL Issue: - (a) “Penal laws, judgments, contracts” Defined t May the“penaltyclausebeenfarced Jaws, when is a law, judgment, or 1? The answer if it be penal, the law, judgment or contract that arises in a foreign jurisdiction will | cen aren eoramee ordinarily be rejected (not enforced) in our forum. a anaEASie ‘question is not casy: nonetheless, (©) Rutes Regarding Penalties in Divorces ye made: » 1) Criminal statutes and judgments are no doubt penal 2) Inallother cases, ifthe purpose of the*penalty’ is to remedy an act o' ve against the ‘general public, it clearly should be regarded as | 2) “penal!” in character; if, on the other hand, what | a particular indi ‘not penal [see Huntington v, Attrill, 146 U.S. policy of the forum which decre 657 (1892).) hence, the prohibition (b) Examples: | 1) Criminal statutes tons tothe application of the proper foreign Ifa Filipino murders a friend in New York, ! 7 a he cannot be prosecuted in the Philippines for Examples ie crime he comnmnttcd in 9 Sorcien ste | 1) Acitizen of State X was divorced insaidstate by criminal statutes of New York are deemed penal, even in an international sense; hence, they will be denied enforcement in the local forum. Iwill be noted that in our country, a in any other states, we believe in the principle of territoriality as @ cardinal maxim of criminal law. arty. No prohibition was imposed on his former wife. If he should come to the Philippines, and should desire to remarry here within the prohibited period, doyou believe that@ PHILIPPINE CONFLICT OF LAWS he will be granted a marriage license in this country? ANS: Yes, because the prohibition is PENAL in character, and will thus be refused enforcement in our forum, OBJECTION: But is it not a fact that inasmuch as he is a foreigner in our shores he must first obtain a certificate of legal cap: from his 2) ycent spouses has been prol answer be the sazme? ANS: No ity should be given effect in our forum, since the same is NOT PENAL in character. Observations on the Principle of Territoriatity in Criminal Law. Ashas already been commented on, is territorial in character: thus, when our territorial jurisdiction, the ‘criminals are generally exempted from penal liability country. The reason why we ordinarily refuse a penal law has been aptly stated by Marshall: “No society takes concern hurtful to itselt (The “Antelope, 10 Wheat, 65 123). How valid is this principle of “territoriality?” tis, believed that: WHAT THE TRIBUNALS OF THE FORUM MUST DO @ 1) ifaperson has already been convicted in State A given the right to hold him liable, even in the absence of an extradition treaty between the two states. After all, State B has the right to protect its own citizens from the danger posed by the intruder; moreover, ifrape is committed for instance in California, is this not a vi rape ay bery takes place in Argentina, virtual transgr ners all over the world? this nots ights of pro: 2) sr hand, there has as yet been and conviction, it would be very hard to le of territoriatity in view instanee therefor as to our country. Under our he escapes criminal present penal stati purely fiseal (that is matters: ippines has every right in the world to refuse enforcement of foreign laws and judgments that involve purely fiscal orrevenue-producing matters, for afterall we should not be burdened with the task of implementing the financing activities of other countries. Henee, ifa Filipino doing business in New York is assessed for his income tax liability there, and he decides to abandon his business and instead comes back to the Philippines to escape from the New York tax, the state of New York cannot successfully sue him in our courts for said liability. After all, a tax liability does not arise from a contract entered into witho PHILIPPINE CONFLICT OF LAWS. the government concerned: it is a unilateral demand, a legal imposition which can be successfully enforced only so Jong as he remains within the territorial jurisdiction of the foreign state. Similarly the administrative codes of alien govern- ments are ofno use to us: moreover, we cannot be expected to assist in the implementation of foreign governmental or contract may work undeniable injustice to the citizens or residents of the forum: ‘To give justice is the most important function of law; ly years of age are considered void. inos, sojourning in country X, enter into a contract there despite the fact that both are only 24 years old, should our tribunals give effect to such a the age of 21 is the age of majority; and when we c that when the parties agreed ‘not havein mind the laws of country X, we are faced wi alternative except to the efficacy of the meeting of the minds. A contrary answer would presuppose not seriously intend to comply with their stipul Let us now take another exam State Y,a person of age can validly contract. A Filipino boy, 15 years racts with another in said state. Ifwe assume the contract to be binding on the boy, we shall be doing violence to our sense of justice. (On the other hand, if a just liability is i ‘ought not to hesitate on its enforcement. Prevailing eir- ‘cumstances should naturally determine the justness of a claim. (See Minor, Conflict of Laus, pp. 13-14.) Seventh Exception to the Application of the Proper Foreign Law — When the application of the foreign law, | | WHAT THE TRIBUNALS OF THE FORUM MUST DO a Judgment, or contract may work against the vital interests, and national security of the state of the forum: snot: conceivably be countenanced by our courts even if in the country where the agreement ‘was entered into the contract is regarded as ‘country to war, can have no validity in our forum. L property has always been governed by the "LEX SITUS" (that is, if the Jand is situated in the Philippines, Philippine law controls its alienation, its disposition, its eneumbrance). The rea- is part and parcelof our country, to apply foreign law to it would generally render nugatory torial sovereignty; moreover, in view of our interest in the property, good sense dictates the enforcement not of any foreign law but of our own peculiarly chosen law. With reference to PERSONAL property, our rule used, to be “mobilia sequuntur personam” (the thing follows the law of the owner). (Art, 10, old Civil Code.) The old rule ‘grew up in the Middle Ages when movable property could easily be carried from place to place (Pullman's Palace