CHAPTER 1: AN OVERVIEW OF CONFLICT OF LAWS
PRINCIPLES AND CASES IN PRIVATE INTERNATIONAL LAW:
A PROCEDURAL APPROACH
-oOo-
MARK ANGELO S. DELA PEÑA
To cite this online book, please use the following:
Dela Peña. 2023. "Principles and Cases in Private International Law: A Procedural Approach." Published by Project Jurisprudence - Philippines. Published: September 17, 2023. Link: [Insert link] Last accessed: [Insert date of access].
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CHAPTER 1:
AN OVERVIEW OF
CONFLICT OF LAWS
Conflict of laws is otherwise known as private international law. This subdivision of law, in this jurisdiction, is primarily a civil law subject that deals with the municipal laws of the Philippines, which point to the application of the laws of a foreign country. At this early stage, the student is reminded that the starting point from the eyes of Philippine courts is, of course, Philippine law.
The difficulty in the study of private international law is that it is not a codified set of rules but a web of statutory provisions and prevailing principles of law and equity. Conflict of laws principles may be found not only in statutes but also in the Constitution and in Supreme Court decisions.
Private international law is different from public international law in that, the former deals with municipal laws and the private transactions of private individuals while the latter generally deals with the community of nations and their rights, obligations, and interactions. “Private transactions” refers to contracts, property relations, marriage, and the like. “Interactions of nations” may refer to war, territorial or boundary matters, diplomatic and consular relations, and the like.
Due to technological advancements in human life, such as in the field of transportation and communication, courts are at times confronted with cases that involve the study or evaluation of the application of foreign laws. A contract, for example, may be entered into by a Filipino and a Canadian while staying in their respective countries but through the Internet.
As a general rule, only Philippine laws have force and effect within its territory and foreign laws do not extend their power beyond their own territories. This general rule admits, of course, of exceptions such as the principles of amity, comity, and cooperation with other nations.
The purpose of the study of private international law is to achieve stability, predictability, consistency, and the preservation of public policies of the laws of the states or forums involved and the expectations of the parties. The international character of conflicts cases often creates confusion as to what law – foreign or municipal – should apply and this confusion is precisely what private international law seeks to address.
For a case to be considered a conflict of laws case (“a conflicts case”), the dispute must have a foreign element. A foreign element is a factual situation that cuts across the territorial lines of two or more countries and involves the possible application of the laws of two or more countries. The laws of two or more countries are involved in such a dispute and, insofar as the Philippines is concerned, one of those two or more countries should be the Philippines; otherwise, there would be no need to involve Philippine law.
A foreign element may assume different forms such as but not limited to the citizenship of the parties involved, the location of the property, the place of injury, the place of perfection of contract, the intention of the parties as to the place of performance of contractual obligations, and the like. These are also known as “connecting factors” or “points of contact.”
If a dispute in the nature of a conflicts case arises, the first consideration is the existence of jurisdiction on the part of the court called upon to resolve the dispute. Simply because the case involves a foreign element does not mean that Philippine courts have no jurisdiction over the dispute.
Note that, in the Philippines, jurisdiction is conferred by law. Here, "law” means the Constitution, the statutes enacted by Congress, generally accepted principles of international law (as a result of the theory of incorporation), and treaties (as a result of the theory of transformation).
In proceeding with a conflicts case, the court may encounter different issues such as but not limited to the forum’s convenience (in relation to the doctrine of forum non-conveniens), the invocation of a foreign law, proof of the foreign law invoked, the proper characterization of the case, the proper choice of law, the resolution of a renvoi situation, if any, the determination of the rights and obligations of the parties, and the enforcement or recognition of the court’s judgment. In resolving these issues, courts have at their disposal not only statutory conflict-of-laws provisions such as Article 15, Article 16, and Article 17 of the New Civil Code of the Philippines but also prevailing principles, whether traditional or modern, in private international law as expressed in Supreme Court rulings and in the writings of experts in the field.
During the stage of joining of issues, the answering party may invoke certain private international law principles in order to prevent the case from proceeding. An example of this is forum non-conveniens. In other words, the party invoking this is saying that Philippine courts are not convenient to hear and decide the case. “Convenience” here does not carry the ordinary connotation of “comfort” or “ease” but is a term of art in this field of law. However, at this early stage, the student must remember and it must be pointed out that forum non-conveniens is not a proper ground for a motion to dismiss.
There are only four grounds for a motion to dismiss under the present state of the Rules of Court: lack of jurisdiction, prescription, litis pendentia, and res judicata. Other authors say that demurrer to evidence is also a form of a motion to dismiss on the grounds of insufficiency of evidence. What makes demurrer to evidence different is that, while a motion to dismiss on the ground, for example, of litis pendentia may be filed at any time and at any stage of the proceeding, and as they say, “even on appeal,” demurrer to evidence can only be filed by a defendant within a limited timeframe, i.e., after the plaintiff has rested his/her case.
The party invoking “forum non-conveniens” may raise such matter as an affirmative defense in his/her answer (also known as a responsive pleading), first because it is not a ground for a motion to dismiss and especially because the forum’s convenience is a factual question (question of fact) that requires the introduction of evidence to substantiate the claim of non-convenience. A question of fact is as opposed to a question of law.
Once issues are joined, the court may proceed to issue an order setting the case for pre-trial. During the pre-trial of the case, the parties may stipulate on certain factual matters such as but not limited to the circumstances surrounding the convenience of the court hearing the case, the availability of an alternative alien forum, or the existence of foreign law. Also, during the pre-trial of a conflicts case, in the same way as ordinary cases, parties may mark or reserve pieces of documentary evidence to prove certain factual matters such as documents related to the convenience of the court and certifications or publications showing the existence of foreign law. For example, about the invocation of foreign law, certifications as required by the Rule on Evidence may be marked to prove the existence of such foreign law.
The termination of the pre-trial will result in the issuance of a pre-trial order that will control the proceedings of the case, except when the same is amended for good cause. The pre-trial order contains all matters taken up during the pre-trial such as but not limited to factual stipulations agreed upon by the parties, documents marked, the names and number of witnesses enumerated, issues raised and the laws or authorities relied upon by the parties.
During the trial of the case, the plaintiff, of course, is interested in keeping the proceedings rolling. In other words, it is the defendant who normally invokes the forum’s inconvenience and who is usually interested in having the case thrown out of court. If the defendant successfully proves his/her claim of forum non-conveniens, the court, in the exercise of its sound discretion, may properly refuse to exercise its jurisdiction over the case. Note that lack of jurisdiction is different from refusal to exercise jurisdiction, which is the reason why the word “refusal” or “refusal” is used in this book, instead of “dismissal.”
Before proceeding further into the next pages of this book, the student must understand that when the term “plaintiff” or “defendant” is used herein, it may refer to the claiming party or the defending party in a case decided by a forum court if the dispute was brought to a foreign state. The term “petitioner” or “respondent,” on the other hand, may refer to the petitioning party or the responding party in a petition for recognition and enforcement of a foreign judgment, which petition is filed in a Philippine forum. Context is important in understanding the use of these terms.
As to the existence of foreign law, it is not unnatural to expect that both the plaintiff and the defendant may be interested in proving the same, especially if the said foreign law favors their version of the case. A foreign law, for example, if properly pleaded and proved, may contain legal provisions favorable to one party or another such as but not limited to a lower or higher maximum legal interest rate, a lower or higher maximum award of damages, and a more lenient or more stringent requirement to establish negligence. The plaintiff is usually inclined to invoke a law that sets a higher amount of damages while the defendant is usually inclined to say that another law should be applied to convince the court to award a minimal amount, if at all.
If the invoking party fails to convince the court of his/her claim of forum non-conveniens, the case ought to proceed as mandated by the Rules of Court. Hence, the plaintiff and thereafter the defendant will adduce evidence to support their respective claims and defenses. Evidence may be in the form of testimonial, documentary, or object proof.
During the presentation of evidence, the party invoking foreign law is allowed the opportunity to adduce proof of the existence of said foreign law. Procedural law provides for the manner in doing so such as the certification or certifications that would show such existence. However, there would be no need to show proof of foreign law if the same has already been stipulated by the parties during the pre-trial of the case or even during the trial proper.
If the party invoking the existence of foreign law fails to prove the same, the Philippine forum would be justified in presuming that Philippine laws are the same as foreign law. This is under the doctrine of processual presumption. If the existence and applicability of foreign law are properly established, however, the machinery of private international law starts to grind and the court would be in a position to undergo the process of characterization – a process of determining the proper category of law under which the dispute or the issues fall – and, thereafter, to determine the proper choice of law.
After the termination of the parties’ presentation of evidence, the case is submitted for resolution and the court will decide the case and determine the rights and obligations of the parties through a judgment. In the Philippines, the law mandates that the judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court.[1] Once judgment is rendered, the matter of enforcement or recognition of judgment becomes the focal point.[2]
In ordinary cases – that is, in cases not involving a foreign element, complex issues on enforcement or recognition hardly arise. For example, if the parties are both Filipinos residing in the Philippines, the prevailing party as a matter of right may move for the court to issue a writ of execution[3] which shall be implemented by the court sheriff against the losing party. All of these will occur within the territory of the Philippines.
It is said that complexity hardly arises in non-conflicts cases because the parties, the court that rendered the decision, and the satisfaction of the judgment arise within one state. Compare this to a case wherein the court that rendered the judgment is a Canadian court while enforcement of the decision is sought in the Philippines.
In conflicts cases, as already intimated, it may occur that the prevailing party will seek the recognition and enforcement of the court’s judgment in another jurisdiction. Also, the prevailing party in a judgment rendered by a foreign court may wish to have the foreign court decree recognized and enforced in the Philippines. In these cases, the obvious application of principles under private international law becomes not only material but also imperative.
If a party seeks to have a decision of a foreign court recognized and enforced in the Philippines, there are two schools of thought in relation to the manner by which this goal can be achieved. First, the party seeking such recognition or enforcement may file a petition for issuance of writ of execution, in which proceeding s/he must prove the existence and authenticity of the foreign judgment. Second, the party so seeking may file a petition for recognition and enforcement of a foreign judgment.
The prevailing school of thought is the second one but it is humbly submitted that the caption of a pleading does not control the case; rather, it is the prayer or relief sought that determines the propriety of the remedy.[4] Hence, even if a party files a pleading captioned as “petition for issuance of a writ of execution on a foreign judgment,” if the ultimate relief sought is the recognition and enforcement of a foreign judgment, it is this author’s humble submission that the relief should be considered controlling, not the caption of the pleading. Note, however, that the practice in the Philippines, as recognized by jurisprudence[5] and certain special rules,[6] is to file a petition for recognition and enforcement of a foreign judgment.
Philippine courts, of course, are not concerned about their judgments being proved and enforced in a different jurisdiction because that is for the foreign forum to manage under its own laws and rules (known as the lex fori principle). The main concern of this jurisdiction’s courts is the enforcement of its own judgments and final orders within the Philippines. Another of their concern is the recognition and enforcement in the Philippines of foreign judgments for which prevailing parties come to the local forum. In marriage cases, for example, a Filipino may come to a Philippine court to ask that a foreign divorce decree be recognized and made effective in this jurisdiction.[7]
In other more common cases such as those for the collection of a sum of money or for foreclosure of a real estate mortgage, a foreigner or a Filipino may come to a Philippine court to ask that the decision of a foreign court granting said collection or foreclosure be recognized and enforced in this jurisdiction. A possible issue, however, with a foreclosure proceeding conducted by a foreign court over real property located in the Philippines is that the opposing party may be inclined to invoke lack of jurisdiction over the property, it being outside the territorial limits of the foreign forum that granted the foreclosure. As to a foreign decree granting collection, the respondent’s possible defense is want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact as provided under Section 48 of Rule 39 of the Rules of Court.
In all cases involving the recognition or enforcement of foreign judgments, the procedural rules of the forum still govern while the substantive law of the forum is the starting point of a conflicts case analysis. For example, as to procedure, the basic requirements of notice and hearing are observed in this jurisdiction. Also, as to substantive law, the Family Code of the Philippines does not recognize divorce, which must be the initial step in the analysis of a conflicts case involving the dissolution of marriage. The first one is governed by the lex fori rule while the second one is governed by the lex nationalii rule.
Once a petition for recognition and enforcement of a foreign judgment is filed in a Philippine court and the same is granted, Rule 39 of the Rules of Court, otherwise known as “Execution, Satisfaction and Effect of Judgments,” primarily governs.
Under Section 48 of Rule 39 of the Rules of Court, the effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order, is as follows: (a) in case of a judgment or final order upon a specific thing, the judgment or final order, is conclusive upon the title to the thing; and, (b) in case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.
It must be noticed that there is a seeming inconsistency between the first part and the last part of Section 48 of the Rules of Court. The first part says that in-rem judgments of a foreign court are “conclusive” upon the res while the last part states that the foreign judgment may still be “repelled by” evidence. This seeming inconsistency will be clarified in other parts of this book.
If a party is successful in having a foreign judgment recognized in the Philippines through a proper proceeding, a writ of execution, if necessary, may forthwith be requested to enforce not the foreign judgment but the judgment of the Philippine court which recognized the foreign judgment. This is why, in the Philippines, for example, while Philippine laws do not recognize divorce, a foreign divorce decree may be recognized under Article 26 of the Family Code by a court in this jurisdiction and it is this recognition, not the foreign divorce decree itself, that is enforced. In other words, Philippine courts recognize in a very limited sense the divorce law of another state by simply recognizing and enforcing a foreign divorce decree in accordance with the above-stated provision of the Family Code. In other words, once a Philippine forum grants recognition to a foreign divorce decree, it is not the foreign judgment itself that will be used as the basis of entering the record of divorce in the civil registry; rather, it is the Philippine court’s judgment that has given a judicial stamp of approval to the foreign judgment.
Complications will also arise if, for example, a judgment issued by a Chinese court is sought to be recognized in a Malaysian court but enforcement is sought in a Philippine court. It is the author’s humble submission that, for simplicity and ease of procedure, the interested party should instead seek both recognition and enforcement in the Philippines. Otherwise, the case will go through the same process of recognition in the Philippines because, in the strictest sense, only Philippine court judgments may be enforced in the Philippines.
At the bottom of all these, in studying private international law, the law student should keep in mind certain basic concepts surrounding the resolution of a conflicts case. These are the following: (a) a conflicts case has a foreign element; (b) jurisdiction is different from choice of law and forum non conveniens; (c) the starting point of the forum is the laws of its state; (d) foreign law, without proof thereof, is presumed as the same as Philippine law; (e) forum non conveniens is a question of fact, thereby requiring proof; (f) if a municipal law points to a foreign law, that foreign law may or may not point back to the former, which is a renvoi situation; (g) lex nationalii, lex domicilii, lex rei sitae, lex situs, lex loci celebrationis, lex loci contractus, lex loci solutionis, lex loci delicti, lex loci arbitri, lex fori, and other such principles called “the lex rules” are traditional choice-of-law approaches; (h) the state of the most significant relationship test, the center of gravity test (also called “grouping of contacts”), the interest analysis test, and others are modern choice-of-law approaches; (i) public policy, public interest, constitutional policy, strong interest and others are possible justifications to reject the application of a foreign law or the recognition of a foreign court decision; (j) a foreign court’s decision may, following proper procedure, may be enforced in the Philippines; (k) it is the Philippine court’s judgment granting recognition that is enforced in the Philippines, not the foreign judgment itself; and, (l) want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact are grounds to repel the recognition and enforcement in the Philippines of a foreign court’s decision.
The next chapter will deal with the foregoing matters more specifically.
[1] Section 1 of Rule 36 of the Rules of Court.
[2] Primarily governed by Rule 39 of the Rules of Court on “Execution, Satisfaction and Effect of Judgments.”
[3] The writ of execution shall: (1) issue in the name of the Republic of the Philippines from the court which granted the motion; (2) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and (3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner provided under Section 8 of Rule 39 of the Rules of Court.
[4] Spouses Munsalud v. National Housing Authority, G.R. No. 167181, December 23, 2008. See also Spouses Genato v. Viola, G.R. No. 169706, February 5, 2010.
[5] See Fujiki v. Marinay, G.R. No. 196049, June 26, 2013.
[6] See Rules on Action for Support and Petition for Recognition and Enforcement of Foreign Decisions or Judgments on Support (A.M. No. 21-03-02-SC).
[7] Article 26 (b) of the Family Code of the Philippines.
