Tuesday, February 28, 2006

Conflict of Laws – Part 1 (The Basic Principles)

This will be a two-part reviewer on the very difficult subject of Conflicts of Law. The first part will cover basic principles while the second part will deal with Philippine conflict rules found in the Civil Code.

Conflict of Laws is that part of municipal law of the state which directs its courts and administrative agencies, when confronted with legal problems involving a foreign element, to determine whether to apply foreign law or foreign laws.
Breaking it down, the elements are as follows:
It is a part of municipal law of the a state;
There is a directive to courts and administrative agencies;
There is a legal problem involving foreign element; and
There is either an application or non-application of a foreign law or foreign laws.
Steps in dealing with a problem in Conflict of Laws:
1. Determine whether the court has jurisdiction over the case;
2. Determine whether it should assume jurisdiction; and
3. Determine whether to apply the law of the forum or the foreign law.
Forum non conveniens – even if the court has jurisdiction over the case, it will dismiss the case because it will cause great and unnecessary inconvenience on the court or on the parties as well.
Examples: (ABCDEOFF)
1. The local judicial machinery is not adequate for effectuating the right sought to be enforced by the plaintiff;
2. Belief that it can be tried and decided in other court;
3. Court docket is clogged;
4. Difficulty in ascertaining the applicable foreign law;
5. Evidence and witness not available in the forum;
6. Other courts are open and the case may be better tried in said courts;
7. Forum has no particular interest over the case;
8. To curb the evil of forum-shopping.
When do we apply Internal or Domestic Law:
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 involved any of the exceptions to the application of the proper foreign law:
a) When the foreign law, judgment, or contract is contrary to a sound and established public policy of the forum;
b) When the foreign law, judgment, or contract is contrary to almost universally conceded principles of morality;
c) When the foreign law, judgment or contract involves procedural matters;
d) When the case involves penal laws, contracts, judgments;
e) When the case involves purely fiscal or administrative matters;
f) When the application of the foreign law, judgment or contract may work undeniable injustice to the citizens or residents of the forum;
g) When the application of the foreign law, judgment or contract may work against the vital interests and national security of the state of the forum; and
h) When the case involves real or personal property situated in the forum.
Rationale why foreign law needs to be pleaded and proved
It is because our courts cannot take judicial notice of foreign laws.
Processual presumption of law – this means that foreign law is the same as the law of the forum when the former is either not alleged or if alleged, it is not proved.
Theories on Application of Foreign Law:
1. Theory of Comity – no foreign law would be allowed to operate in another state except by the comity of nations.
a) Comity based on reciprocity – if the laws and judgments of the forum are recognized in a foreign state, the forum in turn will recognize the laws and judgment emanating from said foreign state.
b) Comity based on persuasiveness of foreign judgment – 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.
2. Vested Rights Theory - our courts enforce the vested right under the foreign law or judgment.
3. Theory of Local Law – our own law requires us to apply foreign law.
4. Theory of Harmony of Law – identical/similar problems should be given identical/similar solutions.
5. Theory of Justice – logical since the purpose of all law is to give justice.
How do purely internal provision of law differ from conflicts provision in conflict of law?
The former is without a foreign element while the latter involves foreign element.
Requisites Before Foreign Judgments May Be Recognized and Enforced in the Philippines:
1. There must be proof of foreign judgment;
2. 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;
4. The judgment must not contravene a sound and established public policy of the forum; and
5. Judgment must be res judicata in the state that rendered it.
Conflict Rules – provisions found in a country’s own law which govern factual situations possessed of a foreign element.
1. one-sided rule – indicates when Philippine internal law will apply;
2. all-sided rule – indicates when foreign law is to be applied.
1. factual situation – problem involving a foreign elemeny;
2. connecting factor – the law of the country with which the factual situation is most likely connected.
Characterization – is the process of assigning a factual situation to its proper or correct legal category.
1. Determination of the facts involved;
2. Characterization of the factual situation;
3. Determination of the conflicts rule which is to be applied;
4. Characterization of the point of contact or the connecting factor;
5. Characterization of the problem as procedural or substantive;
6. Pleading and proving of the proper foreign law; and
7. Application of the proper foreign law to the problem.
Theories on Characterization:
1. Lex Fori – forum merely considers its own concepts and its own characterization;the law of the forum;
2. Lex Causea – follows the characterization of the foreign state which is the principal contact point; the law of the state with which the act or transaction is most closely connected.
… to be continued


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