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Coquia and Pangalangan

Chapter VIII (Notice and Proof of Foreign Law)
Part III (Personal Law)
Part IV (Choice of Law Problems), EXCEPT Chapter XVII (Juridical Entities)

4. Proof of foreign legal act

Step 4: Proof of foreign legal act (in general)
a. Existence
GR: Foreign law is treated as a question of fact to be properly pleaded and proved in conformity with the
law of evidence of the state where it is presented
PROOF
• foreign law
1. An official copy of the law or
2. A copy of the law attested by the officer having the legal custody of the record, or by his
deputy. If such record is not kept in the Philippines, it must be accompanied with a
certificate that such officer has the custody
• Public document executed abroad
(1) authenticated “duly authenticated by the Philippine consul”
(2) consularized “Philippine consul attaching his consular seal”
• Depositions of nonresidents
ROC 23, Section 11. Persons before whom depositions may be taken in foreign countries. — In
a foreign state or country, depositions may be taken:
(a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul,
or consular agent of the Republic of the Philippines,
(b) before such person or officer as may be appointed by commission or under letters
rogatory; or
(c) the person referred to in section 14 hereof.
→ Section 14. Stipulations regarding taking of depositions. — If the parties so
stipulate in writing, depositions may be taken before any person authorized to
administer oaths, at any time or place, in accordance with these Rules and when so
taken may be used like other depositions.
• Will proved and allowed outside the Philippines (Suntay vs. Suntay 1952)
(1) That the foreign court is a probate court
(2) The foreign law on procedure in the probate or allowance of wills
(3) The legal requirements for the execution of a valid will under foreign law

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 EXCEPTIONS:
• FAMILIARITY with the law because (a) generally known such as a Spanish or American law from
which Philippine law was derived or (b) the judge had previously ruled upon it in other cases
• “in rare exceptions when the said laws are already within the actual knowledge of the court, such
as when they are well and generally known or they have been acutally rueld upon in other case
before it and none of the parties concerned claim otherwise.” PCIB vs. Escolin (1974)
• Section 275 of the Code of Procedure in Civil Actions (Act No. 190) provides:
Matters judicially recognized.—The existence and territorial extent of states, and of the
several islands forming the Philippine Archipelago, their forms of government, and symbols
of nationality, the laws of nations, the admirality and maritime and history of the United
States and of the Philippine Islands, the seals of the several departments of the Government
of the United States, and of the States of the Union, and of the Philippine Islands, public and
private, and officials acts of the legislative, executive, and judicial departments of the
United States and of the Philippine Islands, the laws of nature, and the measure of
time, the geographical divisions and of political history of the world, and all similar matters
of public knowledge shall be judicially recognized by the court without the introduction of
proof; but the court may receive evidence upon any of the subjects in this section stated,
when it shall find it necessary for its own information, and may resort for its aid to
appropriate books, documents, or evidence.
→ “authorizes the courts here to take judicial notice, among other things, of the acts of the
legislative department of the United States. These words clearly have reference to Acts of the
Congress of the United States; and we would hesitate to hold that our courts can, under this
provision, take judicial notice of the multifarious laws of the various American States. Nor do we
think that any such authority can be derived from the broader language, used in the same action,
where it is said that our courts may take judicial notice of matters of public knowledge "similar"
to those therein enumerated. The proper rule we think is to require proof of the statutes of the
States of the American Union whenever their provisions are determinative of the issues in any
action litigated in the Philippine courts.” In Re Estate of Johnson (1918)

b. Content
TRADITIONAL APPROACH: The party relying on the foreign law has the burden of introducing proof of the
contents of such law. The forum court, upon proof of law, will enforce a right existing under the foreign
law.

c. Consequence
FAILURE TO PLEAD AND PROVE FOREIGN LAW
1. DISMISSAL
o Failure to prove the contents of the foreign law by the party relying upon it results in failure to
establish a prima facie case.
2. APPLY LAW OF THE FORUM
o Failure to introduce proof as to the contents of a foreign law means that the party acquiesces to
the application of the forum law.

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 o THEORY: basic law is the law of the forum and when the claimed applicable foreign law is not
proved, then the court has no reason to displace the basic law
3. PROCESSUAL PRESUMPTION or “Presumed-identity approach”
o To presume that the foreign law is the same as the forum law.
o “In the absence of evidence on such [foreign] laws, they are presumed to be the same as those of
the Philippines” Miciano vs. Brimo (1924) citing Lim vs. Collector

Step 5: Determination of whether foreign legal act shall be recognized

a. Grounds for not recognizing the relevant foreign legal act
NOTE: The courts have been urged to take into account the following factors in deciding whether to apply the
domestic law or decide the case against the party who has the burden of proving the contents of the foreign
law:
(1) The degree of public interest involved in the dispute
(2) The accessibility of the foreign law materials to the parties
(3) The possibility that the plaintiff is merely forum-shopping
(4) The similarities between the forum law and the foreign law on the issue on point
It is significant that consideration of these factors will not likely result in the application of forum law except in
some cases involving marriage and family relations.

EXCEPTIONS TO THE APPLICATION OF FOREIGN LAW

(1) When the local law expressly so provides
(2) When there is failure to plead and prove the foreign law or judgement (see above)
(3) When the case falls under any of the exceptions to the rule of comity.
1. The foreign law is contrary to an important public policy of the forum
• NCC, Article 17, par. 3 “Prohibitive laws concerning persons, their acts or property, and those
which have, for their object, public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon
in a foreign country.”
• Pakistan International Airlines vs. Ople (1990) – illegal dismissal case
“The first clause of paragraph 10 cannot be invoked to prevent the application of Philippine
labor laws and regulations to the subject matter of this case, i.e., the employer-employee
relationship between petitioner PIA and private respondents. We have already pointed out
that the relationship is much affected with public interest and that the otherwise applicable
Philippine laws and regulations cannot be rendered illusory by the parties agreeing upon
some other law to govern their relationship. Neither may petitioner invoke the second clause
of paragraph 10, specifying the Karachi courts as the sole venue for the settlement of dispute;
between the contracting parties.”
2. The foreign law is procedural in nature. → for judicial convenience
3. Issues are related to property (Lex Situs)

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 • NCC, Art. 16. Real property as well as personal property is subject to the law of the country where
it is stipulated. xxx
• REASONS:
(a) Land and everything attached to it are within the exclusive control of the State, and the
officials of the State are the only ones who can lawfully deal with them physically.
(b) Policy-centered approach, immovable are of greatest concern to the state in which they
are situated.
(c) Demands of certainty and convenience.
• NOTE: there are exceptions to the rule
4. The issue involved in the enforcement of foreign claim is fiscal or administrative
• The general view is that a State is not obliged to enforce the revenue law of another. Thus, courts
have denied enforcement of tax claims brought by foreign countries on local residents.
• Judge Learned Hand in Moore vs. Mitchell equated tax laws to penal laws. Professor Leflar rejects
this view based on the Benefits-protection theory (Symbiotic relationship)
5. The foreign law or judgement is contrary to good morals (Contra Bonos Mores)
• Criticized because the determination of what is contra bonos mores is usually left for the forum
court to decide and is thus inherently subjective
6. The application of foreign law will work undeniable injustice to the citizens of the forum
7. The foreign law is penal in character
• “the courts of no country execute the penal laws of another” – US Supreme Court Chief Justice
Marshall, The Antelope (1925)
• Lorenzo vs. Posadas (1937)
“a statute is penal when it imposes punishment for an offense committed against the state which,
under the Constitution, the Executive has the power to pardon. In common use, however, this
sense has been enlarged to include within the term "penal statutes" all statutes which command
or prohibit certain acts, and establish penalties for their violation, and even those which, without
expressly prohibiting certain acts, impose a penalty upon their commission. Revenue laws,
generally, which impose taxes collected by the means ordinarily resorted to for the collection of
taxes are not classed as penal laws, although there are authorities to the contrary.
• Partly remedied by extradition treaties.
8. The application of the foreign law might endanger the vital interests of the State.

2. Exercise: Civil law

a. Civil Code e. Laws on protection of women, children
and senior citizens
b. Family Code
f. Civil registry laws
c. Code of Muslim Personal Law
g. Property registry laws
d. Laws and treaties on adoption
h. Other property laws

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