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Dean Emerson B. Aquende | Private International Law 1

I. Jurisdiction

1. Lotus Case

2. Asaali v. Commissioner (1968)

It is a well-settled doctrine of International Law that goes back
to Chief Justice Marshalls opinion in Church v. Hubbart, an 1804
decision, that a state has the right to protect itself and its
revenues, a right not limited to its own territory but extending
to high seas.

In the language of Chief Justice Marshall: The authority of a
nation within its own territory is absolute and exclusive. The
seizure of a vessel within the range of its cannon by a foreign
force is an invasion of that territory, and is a hostile act which is
its duty to repel. But its power to secure itself from injury may
certainly be exercised beyond the limits of its territory.

3. US v. Look Chaw (1910)

Although the mere possession of a thing of prohibited use in
these Islands aboard a foreign vessel in transit, in any of their
ports, does not, as a general rule, constitute a crime triable by
the courts of this country, on account of such vessel being
considered as an extension of its own nationality, the same rule
does not apply when the article, whose use is prohibited within
the Philippine Islands, in the present case a can of opium, is
landed from the vessel upon Philippine soil, thus committing an
open violation of the laws of the land, with respect to which, as
it is a violation of the penal law in force at the place of the
commission of the crime, only the court established in the said
place itself has competent, in the absence of an agreement
under an international treaty.

4. People v. Wong Cheng (1922)

We have seen that the mere possession of opium aboard a
foreign vessel in transit was held by this court not triable by our
courts, because it being the primary object of our Opium Law to
protect the inhabitants of the Philippines against the disastrous
effects entailed by the use of its drug, its mere possession in
such a ship, without being used in the territory, does not bring
about in the said territory those effects that our statute
contemplates avoiding. Hence such a mere possession is not
considered a disturbance of the public order.

But to smoke opium within our territorial limits, even though
aboard a foreign merchant ship, is certainly a breach of public
order here established, because it causes such drug to produce
its pernicious effects within our territory.

5. US v. Bull (1910)

French Rule: Matters happening on board a merchant ship
which do not concern the tranquillity of the port or persons
foreign to the crew are justiciable only by the courts of the
country to which the vessel belongs.

English Rule: The United States has adhered consistently to the
view that when a merchant vessel enters a foreign port it is
subject to the jurisdiction of the local authorities, unless the
local sovereignty has by act of acquiescence or through treaty
arrangements consented to waive a portion of such jurisdiction.

6. Perkins v. Dizon (1939)

Jurisdiction over the subject-matter: acquired by concession of
the sovereign authority which organizes a court and determines
the nature and extent of its powers in general and thus fixes its
jurisdiction with reference to actions which it may entertain and
the relief it may grant.

Jurisdiction over the persons of the parties: acquired by their
voluntary appearance in court and their submission to its
authority, or by coercive power of legal process exerted over
their persons.

Pennoyer v. Neff: jurisdiction over the person cannot be
acquired by publication and notice is no longer open to
question.

Reason: may be found in a recognized principle of public law to
the effect that no State can exercise direct jurisdiction and
authority over persons or property without its territory.

In actions in rem and quasi in rem in connection with property
located in the Philippines: the court acquires jurisdiction over the
res, and its jurisdiction over the person of the non-resident is
non-essential xxx and if the law requires in such case that the
summons upon the defendant be served by publication, it is
merely to satisfy the constitutional requirement of due process.

Reason: [based] upon the principle that a State, through its
tribunals, may subject property situated within its limits owned
by non-residents to the payment of the demand of its own
citizens against them; and the exercise of this jurisdiction in no
respect infringes upon the sovereignty of the State where the
owners are domiciled.

7. Gemperle v. Schenker (1967)

Syllabus; Acquisition of jurisdiction upon non-resident defendant
through service of summons upon attorney-in-fact: Where a
Swiss citizen, residing in Switzerland, was served with summons
through his wife, who was residing here and who was his
representative and attorney-in-fact in a prior civil case, which
was apparently filed, in the Rizal CFI, at her behest in her
aforementioned capacity, the lower court acquired jurisdiction
over the non-resident husband by means of the said service of
summons.

In other words, Mrs. Schenker had authority to sue, and had
actually sued, on behalf of her husband, so that she was, also,
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empowered to represent him in suits filed against him,
particularly in a case, like the one at bar, which is a consequence
of the action brought by her on his behalf.

II. Choice of Law

8. Bank of America v. CA (2003)

The doctrine of forum non conveniensshould 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.

While it is within the discretion of the trial court to abstain from
assuming jurisdiction on this ground, it should do so only after
the vital facts are established, to determine whether special
circumstances require the courts desistance; and that the
propriety of dismissing a case based on the principle of forum
non conveniensrequires factual determination, hence it is more
properly considered a matter of defense.

9. Hasegawa v. Kitamura (2007)

Analytically, jurisdiction and choice of law are two distinct
concepts. Jurisdiction considers whether it is fair to cause the
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 the constitutional authority to apply forum law.

While jurisdiction and choice of the lexfori will often coincide,
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: 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 allegations 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
dismissal 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 submitted to it because no
law grants it the power to adjudicate the claims.

Lex loci celebrationis relates to the law of the place of the
ceremony or the law of the place where a contract is made.

Lexcontractus/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 impliedly.

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.

Petitioners premature invocation of choice-of-law rules is
exposed by the fact that they have not yet pointed out any
conflict between the laws of Japan and ours. Before
determining which law should apply, first there should exist a
conflict of laws situation requiring the application of the conflict
of laws rules.

10. Fluemer v. Hix (1930)

The laws of a foreign jurisdiction do not prove themselves in our
courts. The courts of the Philippine Islands are not authorized
to take American Union. Such laws must be proved as facts.

11. Phil. Trust Co. v. Bohanan (1960)

The law of Nevada, being a foreign law can only be proved in
our courts in the form and manner provided for by our Rules
(Rule 132/Sec. 24).

III. Proof and Application of Foreign Law

12. In re: Estate of Johnson (1918)

Nevertheless, even supposing that the trial court may have
erred in taking judicial notice of the law of Illinois on the point in
question, such error is not now available to the petitioner, first,
because the petition does not state any fact from which it
would appear that the law of Illinois is different from what the
court found, and, secondly, because the assignment of error
and argument for the appellant in this court raises no question
based on such supposed error.

13. Miciano v. Brimo (1924)

Syllabus; Succession; Conditional Legacy; Condition Contrary to
Law: If the condition imposed upon the legatee is that he
respect the testators order that his property be distributed in
accordance with the laws of the Philippines and not in
accordance with the laws of his nation, said condition is illegal
because, according to article 10 (now article 16) of the Civil
Code, said laws govern his testamentary disposition, and, being
illegal, shall be considered unwritten, thus making the
institution unconditional.

14. Suntay v. Suntay (1954)

Application of the rule on proof of foreign law

15. Phil. Trust Co. v. Bohanan (1960)

The law of Nevada, being a foreign law can only be proved in
our courts in the form and manner provided for by our Rules
(Rule 132/Sec. 24).
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Rule 132, Sec. 24:

16. Collector of Internal Revenue v. Fisher (1961)

Doctrine of Processual Presumption: In the absence of proof, the
Court is justified in indulging in what Wharton calls processual
presumption, in presuming that the law of England on the
matter is the same as our law.

Syllabus; Proof of foreign laws: The provisions of the Rules of
Court on proof of foreign laws do not exclude the presentation
of other competent evidence to prove the existence of a
foreign law. The testimony of a lawyer, practising in California,
together with a quotation from a publication of Bancroft-
Whitney, is sufficient to prove the certain provisions of the
California Internal Revenue Code. (The quotation was offered in
evidence as Exhibit V-2.)

Willamette Iron v. Muzzal (61 Phil. 471): In [this] case, we
considered the testimony of an attorney-at-law of San
Francisco, California who quoted verbatim a section of the
California Civil Code and who stated that the same was in force
at the time the obligations were contracted, as sufficient
evidence to establish the existence of said law.

17. PCIB v. Escolin (1974)

On Estoppel

Relative precisely to the question of how much of Mrs. Hodges'
share of the conjugal partnership properties may be considered
as her estate, the parties are in disagreement as to how Article
16 of the Civil Codeshould be applied.

On the one hand, petitioner claims that inasmuch as Mrs.
Hodges was a resident of the Philippines at the time of her
death, under said Article 16, construed in relation to the
pertinent laws of Texas and the principle of renvoi, what should
be applied here should be the rules of succession under the Civil
Code of the Philippines, and, therefore, her estate could consist
of no more than one-fourth of the said conjugal properties, the
other fourth being, as already explained, the legitime of her
husband (Art. 900, Civil Code) which she could not have
disposed of nor burdened with any condition (Art. 872, Civil
Code).

On the other hand, respondent Magno denies that Mrs. Hodges
died a resident of the Philippines, since allegedly she never
changed nor intended to change her original residence of birth
in Texas, United States of America, and contends that, anyway,
regardless of the question of her residence, she being
indisputably a citizen of Texas, under said Article 16 of the Civil
Code, the distribution of her estate is subject to the laws of said
State which, according to her, do not provide for any legitime,
hence, the brothers and sisters of Mrs. Hodges are entitled to
the remainder of the whole of her share of the conjugal
partnership properties consisting of one-half thereof.

it is now beyond controversy for all future purposes of these
proceedings that whatever be the provisions actually of the
laws of Texas applicable hereto, the estate of Mrs. Hodges is at
least, one-fourth of the conjugal estate of the spouses; the
existence and effects of foreign laws being questions of fact,
and it being the position now of PCIB that the estate of Mrs.
Hodges, pursuant to the laws of Texas, should only be one-
fourth of the conjugal estate, such contention constitutes an
admission of fact, and consequently, it would be in estoppel in
any further proceedings in these cases to claim that said estate
could be less, irrespective of what might be proven later to be
actually the provisions of the applicable laws of Texas

Syllabus: When, with respect to certain aspects of the foreign
laws concerned, the parties in a given case do not have any
controversy or are more or less in agreement, the Court may
take it for granted for the purposes of the particular case
before it that the said laws are as such virtual agreement
indicates, without the need of requiring the presentation of
what otherwise would be competent evidence on the point.

Syllabus: PCIBs representations in regard to the laws of Texas
virtually constitute admissions of fact which the other parties
and the court are being made to rely and act upon. PCIB is not
permitted to contradict them or subsequently take a position
contradictory to or inconsistent with them.

18. Board of Commissioners v. Dela Rosa (1991)

It is the postulate advanced by petitioners that for the said
marriages to be valid in this country, it should have been shown
that they were valid by the laws of China wherein the same
were contracted. There being none, petitioners conclude that
the aforesaid marriages cannot be considered valid.

After a careful consideration of petitioners argument, We find
that it cannot be sustained. In Miciano v. Brimo, etc., this Court
held 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. In the case at bar, there being no proof
of Chinese law relating to marriage, there arises the
presumption that it is the same as that of Philippine law.

Bearing in mind the processual presumption enunciated in
Miciano and other cases, he who asserts that the marriage is not
valid under our law bears the burden of proof to present the
foreign law.

19. Zalamea v. CA (1993)

Foreign laws do not prove themselves nor can the courts take
judicial notice of them. Like any other fact, they must be alleged
and proved [in accordance with the rules of court (Rule 132/Sec.
24)].

Respondent TWA relied solely on the statement of its customer
service agent, in her deposition, that the Code of Federal
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Regulations of the Civil Aeronautics Board allows overbooking.
Aside from said statement, no official publication of said code
was presented as evidence. Thus, respondent courts finding
that overbooking is specifically allowed by the US Code of
Federal Regulations has no basis in fact.

Note: Compare with CIR v. Fisher (16).

20. Pakistan International Airlines v. Ople (1990)

When the relationship between the parties is much affected by
public interest, the otherwise applicable Philippine laws and
regulations cannot be rendered illusory by the parties agreeing
upon some other law to govern their relationship.

21. Lorenzo v. Posadas (1937)

IV. The Problem of Characterization

22. Gibbs v. Govt of the Philippines (1933)

A Californian wife dies. Her Californian husband claims the
entire properties acquired by the spouses during their marriage
as his alone by accretion, following the California law on
property relations of spouses. Under Philippine law, however,
this is a problem in succession, so that inheritance taxes should
be paid by the husband as the lands in question were located in
the Philippines. The Supreme Court held that the properties
inherited by the husband were subject to inheritance taxes,
categorizing the problem as one of the succession. (Digest from
Sempio-Diy)

Note: The Court based its decision on Cal. Jur.: In accord with the
rule that real property is subject to the lexreisitae, the respective
rights of the husband and wife in such property, in the absence of
an antenuptial contract, are determined by the law of the place
where the property is situated, irrespective of the domicile of the
parties or of the place where the marriage was celebrated.

23. Cadalin v. POEA (1994)

On Characterization

As a general rule, a foreign procedural law will not be applied in
the forum. Procedural matters, such as service of process,
joinder of actions, 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 a procedural or
substantive, depending on the characterization given such a
law.

However, the characterization of a statute into a procedural or
substantive becomes irrelevant when the country of the forum
has a borrowing 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 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 has not run against it. Sec. 48 of the Code of Civil
Procedure is of this kind. Said Section provides: If by the laws
of the state or country where the cause of action arose, the action
is barred, it is also barred in the Philippine Islands.

Section 48 has not been repealed or amended by the Civil Code
of the Philippines. Article 2270 of said Code repealed only those
provisions of the Code of Civil Procedure as to which were
inconsistent with it. There is no provision in the Civil Code of the
Philippines which is inconsistent with or contradictory to
Section 48 of the Code of Civil Procedure.

However, the courts of the forum will not enforce any foreign
claim obnoxious to the forums public policy. To enforce the
one-year prescriptive period of the Amiri Decree No. 23 of 1976
as regards the claims in question would contravene the public
policy on the protection of labor.

On Contractual Stipulations

Parties to a contract may select the law by which it is to be
governed, and 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 incorporated into their
contract as a set of terms.

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 to the parties or their
transaction.

24. Saudi Arabian Airlines v. CA (1998)

On Choice of Forum

Plaintiff may not, by choice of an inconvenient forum, "vex",
"harass", or "oppress" the defendant, e.g. by inflicting upon
him needless expense or disturbance. But unless the balance is
strongly in favor of the defendant, the plaintiffs choice of forum
should rarely be disturbed.

Paramount is the private interest of the litigant. Enforceability
of a judgment if one is obtained is quite obvious. Relative
advantages and obstacles to a fair trial are equally important.

On Characterization

Before a choice [of law] 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 "characterization", or the
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"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 situation, event, or operative fact. An essential element
of conflict rules is the indication 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
thesitus 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 sojourn, or his origin;

(2) the seat of a legal or juridical person, such as a corporation;

(3) thesitus of a thing, that is, the place where a thing is, or is
deemed to be situated. In particular, thelexsitus 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, thelex loci intentionis;

(7) the place where judicial or administrative proceedings are
instituted or done. Thelexfori the law of the forum is
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 thelexfori applies whenever the
content 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 applications 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 contractual relationships
particularly contracts of affreightment.