CHOICE OF LAW OR JURISDICTION

AND ENFORCEMENT OF FOREIGN

JUDGMENTS
By: Bettina P. Barrion
COL-SPL 1
CONFLICTS OF LAW CASE
involves transactions or situations that have a foreign
element

involves transactions that cuts across territorial lines

and is affected by the diverse laws of two or more
States
CONFLICTS CASE

 Marriage between Ed
and Rose could result
to a possible conflicts
case since Ed is a
foreigner and Rose is
a Filipino. The foreign
element is the fact of
Ed being a foreign
national
CONFLICTS CASE

 If Vice Ganda and Ion

Perez would get married
in New York City, a
possible conflicts case
may arise. Although
both of them are Filipino
citizens, there is still a
foreign element (i.e., the
marriage being
celebrated in a foreign
country).
NOT A CONFLICTS CASE

 Marriage between
Matteo and Sarah
would not result in a
conflicts case since
they are both Filipino
citizens and the
marriage was
celebrated in the
Philippines
 The foreign element may simply consist in the fact
that one of the parties to a contract is an alien or has a
foreign domicile, or that a contract between nationals
of one State involves properties situated in another
State.

 The presence of a foreign element is inevitable since

social and economic affairs of individuals and
associations are rarely confined to the geographic
limits of their birth or conception.
PHASES IN JUDICIAL RESOLUTION OF
CONFLICTS PROBLEMS

1) Jurisdiction
2) Choice of law
3) Enforcement of judgments
QUESTIONS BY THE COURT IN RESOLVING
CONFLICTS OF LAW PROBLEMS
1) “Under the law, do, I have jurisdiction over
the subject matter and the parties to this
case?”
2) “If the answer is yes, is this a convenient
forum to the parties, in light of the facts?”
3) “If the answer is yes, what is the conflicts
rule for the particular problem?”
QUESTIONS BY THE COURT IN RESOLVING
CONFLICTS OF LAW PROBLEMS

4) “If the conflicts rule points to a foreign law,

has said law been properly pleaded and
proved by the one invoking it?”
5) “If so, is the application or enforcement of
the foreign law in the forum one of the basic
exceptions to the application of the foreign
law?”
JURISDICTION
 WHAT IS
JURISDICTION?
It is the power of the
court of the forum to
render a decision that will
create legal rights and
interests which other
states will recognize and
enforce.
JUDICIAL
JURISDICTION
It is the power or
authority of a
court to try a case,
render judgment
and execute it in
accordance with
law.
LEGISLATIVE
JURISDICTION
It is the ability of
the state to
promulgate laws
and enforce them
on all persons and
property within its
territory.
1) Jursidiction over the
subject matter

KINDS OF JURISDICTION
2) Jurisdiction over the
IN JUDICIAL
person JURISDICTION

3) Jurisdiction over the res

It is conferred by law and is defined
as the power to hear and determine
cases of general class to which the
proceedings in question belong.
1) JURISDICTION
It cannot be conferred by consent of OVER THE SUBJECT
the parties or by their voluntary MATTER
submission.

It is the allegations of the complaint

that confer jurisdiction on the court
2) JURISDICTION OVER THE PERSON

 It is the competence or
power of a court to
render a judgment that
will bind the parties to
a case. It is particularly
required in in personam
proceedings.
On the part of the plaintiff or the
petitioner
- acquired by the filing of the complaint,
petition, or initiatory pleading before the
court by the plaintiff or the petitioner HOW IS JURISDICTION
OVER THE PERSON
ACQUIRED?
On the part of the defendant or
respondent
- acquired by the voluntary appearance or
submission by the defendant or respondent
to the court or by coercive process issued by
the court to him, generally by service of
summons.
3) JURISDICTION OVER THE RES

It is acquired either
through the seizure of
the property under a
legal process or
institution of legal
proceedings wherein
the court’s power over
the property is
recognized and made
effective.
Direct jurisdiction answers
the question whether or not
a court can try and decide a
case whereas DIRECT VS INDIRECT
JURISDICTION
Indirect jurisdiction answers
the question of whether or
not a court can recognize
and/or enforce a judgment
 ASSUME
JURISDICTION COURT ACTION ON
JURISDICTION

DISMISS CASE
OUTRIGHT
 If the court finds that it does not have
jurisdiction over the case, it will dismiss the
case outright
 If the court finds that it has jurisdiction over
the case, it MAY assume jurisdiction.
Although the court may have jurisdiction, it
may still dismiss the case on the ground of
forum non conveniens
WHAT IS FORUM NON
CONVENIENS?
It literally means “forum is
inconvenient.” Thus, even if
the court assumes
jurisdiction over the parties
and the subject matter, it
may decline to try the case
on the ground that the
controversy may be more
suitably tried elsewhere.
ELEMENTS OF FORUM NON CONVENIENS

a) the forum state is one to which the parties may

conveniently resort to
b) it is in a position to make an intelligent decision
as to the law and the facts; and
c) it has or is likely to have power to enforce its
decision
RATIONALE OF DISMISSAL ON THE
GROUND OF FORUM NON CONVENIENCE
1)The belief that the matter can be better tried and decided elsewhere,
either because the main aspects of the case transpired in a foreign
jurisdiction or the material witnesses have their residence there
2) The belief that the non-resident plaintiff sought the forum merely to
secure procedural advantages or to convey or harass the defendant
3) The unwillingness to extend local judicial facilities to non-residents
or aliens when the docket may already be overcrowded
4) The inadequacy of the local judicial machinery for effectuating the
right sought to be maintained; and
5) The difficulty of ascertaining foreign law.
ILLUSTRATION NO.1

Filipino flight attendants question the

legality the termination of their employment
with Saudi Arabian Airlines (Saudia) on the
ground of their pregnancy. Saudia anchored
its demand for their resignation on its
employment contract which provides that
the employment of a Flight Attendant who
becomes pregnant is rendered void. Saudia
invokes forum non conveniens to effectuate
the stipulations of the Cabin Attendant
contracts that require the application of the
laws of Saudi Arabia.
HELD: FORUM NON CONVENIENS NOT
APPLICABLE
First, all the parties are based in the Philippines and all the
material incidents transpired in this jurisdiction. Thus, the parties
may conveniently seek relief from Philippine tribunals.
Second, Philippine tribunals are in a position to make an
intelligent decision as to the law and the facts.
Third, Philippine tribunals are in a position to enforce their
decisions. There is no compelling basis for ceding jurisdiction to a
foreign tribunal. Quite the contrary, the immense public policy
considerations attendant to this case behoove Philippine
tribunals to not shy away from their duty to rule on the case.
(Saudi Arabian vs Rebesencio January 14,2015)
ILLUSTRATION NO.2

Plaintiffs were German nationals and residents of Germany.

Defendant on the other hand was a corporation or an entity
organized in New York. Plaintiffs brought an action against the
defendants for the recovery of insurance claims on insurance
contracts issued by the defendant corporation. But the action
was brought not in New York nor in Germany but in Oregon, USA.
Plaintiffs contends that the court should take cognizance of the
case because anyway it has acquired jurisdiction over the subject
matter, over the plaintiffs and over the defendant.
HELD: FORUM NON CONVENIENS
APPLICABLE
The Oregon court can refuse to take cognizance or to
assume jurisdiction over the case on the ground of forum
non-conveniens, were both parties are not residents of
the place where the court was located and exercising
jurisdiction and especially the courts of Germany and
New York are open and functioning. But it may also take
cognizance of the case in the exercise of its sound
discretion.
CHOICE OF LAW
Once the court decides to assume
jurisdiction, it will next determine
whether to apply the internal law
of the forum or the proper foreign
law, considering the attendant
circumstances.
JURISDICTION VS CHOICE OF LAW
Jurisdiction considers
whether it is fair to cause
a defendant to travel to a
state.
It asks the question of
whether the courts of that
state have jurisdiction to
enter a judgment
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.
  It is the process of assigning a
certain set of facts or factual
situation to its proper or legal
category. These legal categories
may be family relations,
WHAT IS contracts, torts, succession,
CHARACTERIZATION? property, etc. By characterizing
the legal problem, the court or
the parties involved reach the
proper solution whether to apply
the local law or the proper foreign
law.
PROBLEM OF CHARACTERIZATION

 It is the fact that a conflicts situation or problem may

be characterized by the lex fori differently from the
characterization of the lex causae (i.e., the law of the
state with which the act or transaction is most likely
connected). The lex fori might regard the problem as
tort while the lex causae regards it as contract. Or
the lex fori might regard the problem as a crime,
while the lex causae considers it only as a tort.
KINDS OF  Subject-matter characterization
CHARACTERIZATION -assignment of a disputed question to
its proper legal category (e.g., family
relations or succession); the legal
category determines the applicable law
 Substance-procedure characterization
-Determination of whether the issue is
substantive or procedural
-If substantive, apply the foreign law; if
procedural, the law of the forum.
The determination of the facts involved

The characterization of the factual

situation

The determination of the conflicts rule

which is to be applied
STEPS IN
The characterization of the point of CHARACTERIZATION
contract or the connecting factor

The characterization of the problem as

substantive or procedural

The pleading and proving of the proper

foreign law

The application of the proper foreign

law to the problem
STEP 1:
DETERMINATION OF  Determine whether or not foreign element is
FACTS INVOLVED involved

STEP 2:  Process of assigning facts into their particular

CHARACTERIZATIO category. In the absence of an express conflicts rule
N OF THE FACTUAL on the matter, it is suggested that the
characterization of the forum should be adhered to
SITUATION unless there would result a clear case of injustice
STEP 3: What conflicts rule must be followed?
DETERMINATION OF
APPLICABLE
CONFLICTS RULE
Whose characterization of the point of contact
should be adhered to?
The characterization of the forum must prevail
STEP 4: except if:
CHARACTERIZATION a)Problems dealing with real or personal property:
OF THE lex situs govern
CONNECTING b)The common characterization will uphold the
FACTOR efficacy of the contract
STEP 5: CHARACTERIZATION OF THE
PROBLEM AS SUBSTANTIVE OR PROCEDURAL
 It is substantive if the words of the law relate to
forbidding the creation of the obligation. It is procedural if
it is one that forbids the enforcement of the obligation
 Procedural matters are governed by the law of the forum
 A law on prescription of actions is sui generic in the sense
that it may be viewed either as procedural or substantive,
depending on the characterization given to such law
ILLUSTRATION

AAA filed a complaint for payment of service award against

petitioner BBB before NLRC invoking Saudi labor Workmen’s
Law. Petitioner offered payment and prescription as
defenses that under Art. 13 of the Saudi Labor Law, action to
enforce payment of the service award must be filed within
one year from the termination of a labor contract for a
specific period. However, the one year prescriptive period
lapsed.

Will the Saudi Labor Law apply?

HELD: PH LAW WILL APPLY

No. The applicable law is Art. 291 of the Phil. Labor Code
which provides that “all money claims arising from employer-
employee relations shall be filed within 3 years from the time
the cause of action accrued otherwise they shall be forever
barred.” Such provision also applies to claims of overseas
contract workers. Procedural matters are governed by the
laws of the forum even if the action is based upon a foreign
substantive law. Thus, respondent’s action has not
prescribed.
(LWV Cons. Corp vs Marcelo Dupo July 13,2009)
STEP 6: PLEADING
AND PROVING OF
THE PROPER  If a duly proved foreign law has already
FOREIGN LAW
been given a judicial interpretation in
the country of origin, it must generally
be given an identical interpretation in
the Philippines, unless, we already
STEP 7: APPLICATION have similar or identical internal law
OF THE PROPER and said internal law has received a
FOREIGN LAW TO diametrically opposite construction
THE PROBLEM before our own tribunals
WHEN COURT BOUND TO APPLY
MUNICIPAL LAW
 When the law of the forum expressly so provides in its conflicts
rules
 When the proper foreign law has not been properly pleaded and
proved
 When the case involves any of the exceptions to the application
of the proper foreign law
 When it is the law of the state of the most significant relationship
 The court of the forum accepted the application renvoi
EXAMPLES OF CASES WHICH REQUIRE THE
APPLICATION OF MUNICIPAL LAW
 Whenever land involved in the suit is located in the Philippines,
Philippine law or lex situs is applied
 Regarding property relations of the spouses, Article 80 of the Family
Code provides that in the absence of a contrary stipulation in a marriage
settlement, the property relations of the spouse shall be governed by
Philippine laws, regardless of the place of the celebration of the
marriage and their residence . The only exception is when both spouses
are aliens
 When a Filipino father with American children dies, his succession shall
be governed by Philippine law
 If a will executed by an alien abroad is revoked in our country, the
revocation must comply with the formalities of the Philippine law
  If the law is WRITTEN, it may be proved by:
An official publication thereof, or
A copy of the law attested by the officer
having legal custody of the record or by his
deputy, accompanied by a certificate of any
Philippine embassy, consular, or foreign
HOW TO PROVE service officer in the foreign country where
FOREIGN LAW? the record is kept, and authenticated by the
seal of his office. The attestation must state,
in substance, that the copy is a correct copy
of the original, or a specific part thereof, as
the case may be, and must be under the
official seal of the attesting officer.
  If the law is UNWRITTEN, it may be proved by:
The oral testimony of the expert witness, or
HOW TO PROVE By printed and published books of reports of
FOREIGN LAW? decisions of the country involved, if proved to
be commonly admitted in courts.
INTERPRETATION OF FOREIGN LAW

 As a general rule, a foreign law that has been duly

pleaded and proved should be given by our courts the
same interpretation as that given by the foreign
tribunals of the country where the law comes from.
 An exception is a case where somewhere in our laws,
there is a statute worded identically as the foreign law,
so that our courts cannot be blamed if they disregard the
foreign interpretation of said foreign law and give it the
same interpretation previously given by our courts
DOCTRINE OF
PROCESSUAL
PRESUMPTION
 When the proper foreign law
has not been properly proved,
the court of the forum may
presume that said foreign law
is the same as its local or
domestic law, which it can
now apply
 Otherwise known as the
presumed identity approach
 INSTANCES WHERE DOMESTIC LAW
PREVAILS DESPITE DULY PROVING THE
FOREIGN LAW
APPLICATION OF THE FOREIGN LAW WOULD
RUN COUNTER TO A SOUND AND ESTABLISHED
PUBLIC POLICY OF THE FORUM
 We cannot enforce in the Philippines, a divorce law of a
foreign country if the parties are both Filipinos
 A joint will executed by Filipinos locally or in a foreign
country is not valid
 Incestuous marriages under the Family Code and those
considered void by the Code by reason of public policy
are null and void, even if they are valid in other
countries. However, this apply only to Filipinos
THE FOREIGN LAW IS  Foreign laws recognizing prostitution, contracts
CONTRARY TO THE ALMOST under foreign laws to corrupt public officials, all
UNIVERSALLY CONCEDED transactions that infringe good morality as
understood by the forum and those inconsistent
PRINCIPLES OF MORALITY with the best interest of the people
(CONTRA BONOS MORES)

 There are no vested rights in rules of procedure;

THE FOREIGN LAW INVOLVES hence, a party to an action must submit himself
PROCEDURAL MATTERS to the procedural formailities of the forum.
Hence, an American cannot insist in the
application of American procedural laws in a
case in the Philippines where he is a party
THE FOREIGN LAW IS PENAL IN
CHARACTER
THE FOREIGN LAW IS PURELY
FISCAL (I.E., REVENUE-
PRODUCING) OR
ADMINISTRATIVE IN NATURE
 Crimes committed in foreign countries
cannot be prosecuted here, especially as
we follow the principle of territoriality in
criminal law
 We are not bound to enforce foreign
revenue or administrative laws. We are not
concerned with the collection of taxes by
foreign countries or with foreign laws
relating to governmental functions or
matters
THE FOREIGN LAW MIGHT  An example is a foreign law putting the age
WORK UNDENIABLE INJUSTICE of majority at 21 and refusing to recognize
TO THE CITIZENS OR RESIDENTS contracts of Filipinos abroad who are above
OF THE FORUM 18 but below 21

THE FOREIGN LAW WOULD  The national interests and security should
ENDANGER THE VITAL not be jeopardized by foreign laws, nor
INTERESTS OF THE STATE should we enforce foreign laws that
undermine the governmental processes

THE CASE INVOLVES REAL OR

PERSONAL PROPERTY  We apply lex situs or lex rei sitae to all
LOCATED IN OUR COUNTRY properties, whether real or personal, found
or located in the Philippines
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.
 In contracts, the court should consider the following:
a) Law chosen by the parties
b) Place where the contract was made
c) Place of negotiation
d) Place of performance
e) Domicile, residence, nationality, place of incorporation and place
of business of the parties
STATE OF THE MOST SIGNIFICANT
RELATIONSHIP RULE
 In tort cases, the court should consider the following:
a) Place where the injury occurred
b) Place where the conduct causing the injury occurred
c) Domicile, residence, nationality place of incorporation and
place of business of the parties, and
d) Place where the relationship, if any, between the parties is
centered.
DEPECAGE

 It literally means “to dissect”

 It is a situation where different aspects of a case
involving a foreign element is governed by the laws of
the different systems of law
 Different issues within a case involving a foreign
element is governed by the laws of different states
ILLUSTRATION

A and B are former Filipinos and they are cousins. They became
naturalized Canadian citizens. They then decided to get married in Las
Vegas Nevada. While they are vacationing in the Philippines, A made a
will bequeathing all of his properties to his brother X. A then died in a car
accident.

As to extrinsic validity of the will, PH law shall govern as it is the law of

the place of the execution. As to intrinsic validity, California law shall
govern it being A’s national law. As to whether or not the wife is entitled
to legitime under the will, then the validity of marriage is to be
determined under the law of Las Vegas Nevada where the marriage was
celebrated.
RENVOI

 “Renvoi” is a French word which means refer back or return

 Procedure whereby a jural matter is presented which the conflict
of laws rules of the forum refer to a foreign law, the conflict of
law of which in turn, refers the matter back to the law of the
forum (remission) or a third state (transmission)
 The problem of renvoi arises when there is doubt as to whether
the reference by the lex fori (the law of the country where the
problem arises) to the foreign law involves 1) a reference to the
internal law of the foreign law or 2) reference to the entirety of
the foreign law, including its conflicts rules.
ILLUSTRATE

 A, is a California citizen who had resided in the Philippines for 50 years and
who dies here, leaving a sizeable estate. Article 16 of the Civil Code provides
that in testate or intestate succession, we should apply the national law of the
deceased which in this case, is California law. But California law has one rule
for its own citizens who reside there, and another rule for its citizens who have
their domiciles abroad. In the latter case, the California law provides that the
law of the domicile its deceased citizen should apply. Thus, while our Civil
Code refers the matter to California law (the national law of the deceased),
California law refers the matter back to us, telling us to apply the law of the
deceased’s domicile which is Philippine law. Should the Philippine court
tasked to settle the estate of the deceased accept the “renvoi” and apply
Philippine law, or insist that California law should be applied, the same being
the deceased’s national law? This is the “renvoi” problem.
WAYS OF DEALING WITH THE RENVOI
PROBLEM
1) Reject the renvoi
2) Accept the renvoi
3) Follow the desistment theory or the mutual-disclaimer of
jurisdiction theory
4) Apply the foreign court theory
 REJECT RENVOI

 Meaning, we do not want the problem to be

sent back to us; that we do not want the matter
to be referred back to us
 If the conflicts rules of the forum refer the case
to the law of another state, it is deemed to
mean only the internal law of the state. Thus,
the court will apply the foreign law
 In the case of testate or intestate succession of
a foreigner but domiciled in our country, we
would simply apply his national law or the
internal law of his country
ACCEPT RENVOI

 Apply or accept it by reference to the whole law, including the

conflicts rule of the foreign law
 If the conflicts rules of the forum refer the case to the law of
another state, it is deemed to include the totality of the foreign law
(internal law and conflicts of laws rule). Thus, the court will
recognize the referral back and apply local law.
 A classic example is the case of Aznar vs Garcia where the Supreme
Court accepted the renvoi so that instead of applying the California
law, the Philippine law was applied, being the law of the
deceased’s domicile, as directed by our own law
DESISTMENT THEORY

 Meaning, we desist or refrain from applying the foreign law because

it is inadequate as it is founded on a different basis.
 The reason for the desistance is that the forum court upon reference
to another state’s law sees that such law is limited in application to its
own national and has no provision for application to a non-national
 The forum court upon reference to another state’s law sees that such
law is limited in application to its own nationals domiciled in its
territory and has no provision for application to nationals domiciled
outside of the territory. Hence, the local court will apply local law.
This has the same result as the acceptance of the renvoi but the
process used by the forum court is to desist applying the foreign law.
FOREIGN COURT THEORY

 Meaning, the local forum, in deciding the case, will put itself in the
position of the foreign court and whatever it does respecting the case,
the Philippine court will likewise do.

 Under this theory, we would simply do what the foreign court would do
if confronted with the same case. So that if the California court (as in
the Aznar case) would apply California internal law, we would do the
same. If however, said court would apply Philippine law, we would
follow suit. The advantage of this theory is that regardless of forum, the
applicable law will be the same. But it can also result in international
pingpong if we do what the California court would do, but the California
court would do what we do.
DOUBLE RENVOI  It is that which occurs when the local
court, in adopting the foreign court
theory, discovers that the foreign court
accepts the renvoi

THEORY OF TRANSMISSION  the process of applying the law of a

foreign state thru the law of a second
foreign state
ENFORCEMENT OF
FOREIGN
JUDGMENTS
  These are all decisions rendered
WHAT IS A outside the forum. They encompass
judgments, decrees, and orders of
FOREIGN foreign governments and sister
JUDGMENT states in a federal government
 Recognition Enforcement

Courts will allow the Plaintiff wants courts

foreign judgment to positively carry out
to be presented as a and make effective in
defense to a local the state a foreign
litigation judgment

Involves merely the Virtually implies a DISTINGUISH

sense of justice direct act of
sovereignty RECOGNITION FROM
Merely a passive act Necessitates a
ENFORCEMENT
of giving effect to a separate action or
foreign judgment. It proceeding brought
does not require precisely to make the
either an action of a foreign judgment
special proceeding effective

May exist without Necessarily carries

enforcement with it recognition
BASES OF RECOGNITION AND
ENFORCEMENT OF FOREIGN JUDGMENT
Comity- in order to obtain a
reciprocal treatment from the
courts of other countries, State
are compelled to take foreign
judgments as they stand and to
give them full faith and credit
Obligation of foreign judgment
– derived from the vested
rights theory. It considers the
foreign judgment as imposing
a duty or obligation on the
losing litigant.
EFFECT OF  In case of a judgment or final order upon a
specific thing:
FOREIGN the judgment or final order, is conclusive
JUDGMENTS OR upon the title to the thing
FINAL ORDERS  In case of a judgment or final order against
UNDER a person:
PHILIPPINE LAW the judgment or final order is
presumptive evidence of a right as
between the parties and their successors
in interest by a subsequent title.
  Rendered by a court with jurisdiction over the
REQUISITES FOR parties and the case
RECOGNITION OR  Judgment must be valid under the laws of the court
ENFORCEMENT that rendered it
 Judgment must be final and executory to constitute
res judicata in another action
 There is reciprocity
 Judgment must be for a fixed sum of money
 Judgment must not be contrary to the public policy
or good morals of the country where it is to be
enforced. Judgement must not have been obtained
by fraud, collusion, mistake of fact or mistake of law
An ordinary action
to enforce the
foreign judgment
may be filed in court WAYS OF GIVING
EFFECT TO A FOREIGN
JUDGMENT
It may be pleaded in
an answer or a
motion to dismiss
THANK YOU!