CONFLICT OF LAWS (29-01-19) D.

Sources of Private International Law

Direct sources:

 bilateral and multilateral treaties

I. NATURE, DEFINITION AND SCOPE
 international conventions
 codifications and statutes
 judicial decisions
A. Definition: Conflicts of law is that part of municipal  international customs
law which comes into play when: I FETFR
Indirect sources:
 the issue before a court affects some fact,
event or transaction  natural law and moral law
 so connected with a foreign system of law  writings and treatises of famous writers and
 as to necessitate recourse to that system jurists on the subject

B. Nature: It is municipal in nature; although there is

the presence of a foreign element in conflict of laws
cases, it still remains to be part of the internal or local
laws of each state.

Fucntion: to aid in deciding cases which involve

facts occurring in more than one state, through
making a choice between applying the laws of one
state or the other’s.

C. Private v Public International Law

Public IL Private IL
Persons Governs sovereign Governs private
involved states and entities individuals or
internationally corporations
recognized or
possessed of
international
personality
Nature International in Municipal in
character character
Transactions Transactions Transactions
involved concerning states strictly private; not
and internationally of general interest
recognized
entities; generally
affect public
interest
Remedies Diplomatic Judicial or
applied negotiations, administrative
mediation, tribunals in
arbitration or accordance to
judicial settlement the rules of
by international procedure of the
tribunals; country where
severance of they sit.
diplomatic
relations, reprisals,
embargo, boycott
or war.
II. JURISDICTION
Jurisdiction is the power and authority of the court to
hear, try and decide a case; it includes the power to
execute decisions.
In Conflict of Laws: Jurisdiction is the power of the
court to render a decision that will create legal rights
and interests which other states will recognize and
enforce.
NEW CIVIL CODE
ART 14. Penal laws and laws on public security and
safety: obligatory upon all who live or sojourn in PH
territory. LIMITATION: principles of PIL and treaty
stipulations.
ART 15. Laws relating to the ff are binding upon PH
citizens, even though living abroad:
 family rights and duties
 status, condition and legal capacity
ART 17. GR: Forms and solemnities of contracts, wills
and other public instruments: governed by laws of
country of execution.
EXC: when the same are executed before the
consular or diplomatic officials of the RP, PH laws
apply.
The ff shall not be rendered ineffective by laws or
judgments promulgated, or determination or
conventions agreed upon in a foreign country.
 prohibitive laws concerning persons, their
acts or properties
 laws which have for their object:
o public order
o public policy
o good customs
REVISED PENAL CODE
ART 2. GR: Provisions of the RPC shall be enforced
only within the PH archipelago, including its
atmosphere, interior waters and maritime zone.
EXC: May be enforced outside PH jurisdiction against
those who:
 commit an offense on PH ship or airship
 forge or counterfeit
o coin or currency note of PH islands
o obligations and securities issued by
the government of PH islands
 are liable for acts connected with the
introduction into these islands of the
obligations and securities mentioned
 are public officers or employees, and
commit and offense in the exercise of their
functions
 commit any crime against national security
and the law of nations
RULES OF COURT
RULE 14. Defendant whose identity or whereabouts
are unknown – service may, BY LEAVE OF COURT, be
effected by publication in a newspaper of general
circulation.
RULE 15. Extraterritorial service, when allowed:
 defendant does not reside and is not found
in PH, and action affects personal status of
the plaintiff
 defendant does not reside and is not found
in PH, and action relates to property (real or
personal) within PH, in which defendant has
a claim or interest, actual or contingent
 defendant is non-PH resident but the subject
of the action is property located in the PH,
the relief for which demands exclusion of
defendant from any interest therein
 property of the non-resident defendant has
been attached in the PH
How extraterritorial service is effected: BY LEAVE OF
COURT;
 personal service
 publication, and copy of the summons and
order of the court must be sent by mail to the
defendant’s last known address
 any other manner deemed sufficient by the
court
Any order granting leave of court shall specify a
reasonable time for defendant to answer, which
shall not be less than 60 days after notice.
RULE 17. Leave of court, how made:
 in writing
 supported by affidavit of the plaintiff or some
person in his behalf, setting forth the grounds
for application
Jurisdiction over the SUBJECT MATTER
It is the power conferred by law to hear and
determine a case of the general class to which the
proceeding in question belongs.
 cannot be conferred by consent or voluntary
submission
 jurisdiction over the subject matter may be
found in the Constitution and the Judiciary
Reorganization Act, as amended
 invoked by filing the proper complaint;
allegations in the complaint or petition read
in light of jurisdictional law confer jurisdiction
 additional element in Conflict: possible
enforceability of the court’s decision in
foreign states.
Jurisdiction over the PERSON
Competence or power of the court to render a
judgment that will bind the parties involved.
 over plaintiff: acquired the moment he
invokes the power of the court by instituting
the action. Consent to jurisdiction includes
original cause of action and all
counterclaims that may arise therefrom.
 over defendant: the moment he enters his
appearance or by the coercive power of
legal process exerted over him by the court.
EXC: if the sole purpose for his appearance is
to question jurisdiction over his person.
o coercive power refers to personal or
substituted service of summons under
the RoC.
o substituted service is allowed in case
the defendant cannot be served
within a reasonable time, with
justifiable reason. How done:
 Leaving copy of summons at
the defendant’s residence
with some person of suitable
age and discretion residing
therein
 Leaving copy at the
defendant’s office or regular
place of business, with some
competent person in charge
thereof
o strict compliance over these rules is
required.
Jurisdiction over the RES
Jurisdiction over the particular subject-matter in
controversy, regardless of the persons interested
therein.
 basis: presence of the property within the
territorial jurisdiction of the forum
Actions in rem Actions quasi in rem
Purpose: not to impose Purpose: not to impose
personal liability but to personal liability nor affect
affect interests of all interests of all persons in a
persons in a thing. thing, but to affect the
interests of particular
persons in a thing.
No need for jurisdiction Jurisdiction over particular
over persons. persons whose interests
are affected is needed.
REFUSAL TO ASSUME JURISDICTION: The principle of
forum non conveniens
The court, by invoking the principle of FNC, refuse to
assume jurisdiction in view of the ff reasons:
 unavailability of the witnesses and evidence
 court dockets already too clogged; speedy
administration of justice will be hampered
 matter can be better tried and decided in
another jurisdiction because:
o main aspects of the case transpired
there
o material witnesses reside there
 curb the evils of forum shopping (case filed
to merely harass or annoy defendant)
 lack of interest in the case by the forum
o parties involved are non-residents
o subject matter involved is elsewhere
 other courts are open and can try the case
better
 inadequacy of the local judicial machinery
 difficulty in ascertaining the foreign law
applicable
NOTES:
In actions in personam, service of summons by
publication is never allowed; only personal or
substituted service is allowed.
Service by publication is allowed only in:
 actions in rem
 actions quasi in rem
 actions involving the personal status of the
plaintiff
Extraterritorial service, when allowed:
 defendant does not reside and is not found
in PH, and action affects personal status of
the plaintiff
 defendant does not reside and is not found
in PH, and action relates to property (real or
personal) within PH, in which defendant has
a claim or interest, actual or contingent
 defendant is non-PH resident but the subject
of the action is property located in the PH,
the relief for which demands exclusion of
defendant from any interest therein
 property of the non-resident defendant has
been attached in the PH
How extraterritorial service is effected: by leave of
court;
 personal service
 publication, and copy of the summons and
order of the court must be sent by mail to the
defendant’s last known address
 any other manner deemed sufficient by the
court