CHAPTER 7: CHARACTERIZATION
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 7:
CHARACTERIZATION
Assuming that there is no clear and convincing evidence to show that the forum should refuse to exercise jurisdiction because of an alleged forum non conveniens, the court is now tasked with the duty to characterize the dispute.
During the pre-trial of the case, the court, with the assistance of the litigants, normally assists itself in qualifying or classifying the case under its proper category, whether family law, torts law and the like. It is the practice in courts to require the parties to submit pre-trial briefs containing the laws, jurisprudence or authorities they rely upon in their claims and defenses, or to annouce the same in open court during the pre-trial conference. It is these matters that guide the court in the proper characterization of a case.
For example, during the pre-trial of a conflicts case, if parties cite the provisions of the New Civil Code on property law, the court is justified in charaterizing the case as falling under property law. Considering that the case involves a foreign element, it is now the court’s duty to look into the provisions of property law, if any, that point to the application of the law of another country. Another example is, if the court in characterizing the dispute, it finds that the case falls under succession law, it may find useful Article 1039 of the New Civil Code, which provides: “Capacity to succeed is governed by the law of the nation of the decedent.”
In characterization, complications may arise because municipal law may be further classified into substantive law and procedural law. For example, a municipal law on prescription of actions is sui generis in private international law in the sense that it may be viewed either as procedural or substantive, depending on the characterization given such a law.[1]
From the above, therefore, it can be inferred that the process of characterization starts from the question as to whether a dispute or an issue therein falls under procedural law or substantive law. If it is substantive law, the next step is to determine under which branch or umbrella of law it belongs – whether political law, labor law, civil law, criminal law, commercial law or taxation law. If it falls under civil law, yet another step is to ask whether it falls under persons law, family law, property law, succession law or others. If it falls under family law, the final step in the process of characterization is to determine which statutes or provisions of law under family law are applicable in this case.
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, period and requisites for appeal, 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.[2] However, the characterization of a statute into a procedural or substantive law becomes irrelevant when the country of the forum has a “borrowing statute.”
In the LWV Construction case,[3] the High Court ruled that “a borrowing 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. Section 48 of our Code of Civil Procedure is of this kind. Said Section provides that, 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. In the light of the 1987 Constitution, however, Section 48 of the Code of Civil Procedure cannot be enforced ex proprio vigore insofar as it ordains the application in this jurisdiction of Article 156 of the Amiri Decree No. 23 of 1976. The courts of the forum will not enforce any foreign claim obnoxious to the forum’s 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 to labor.”
A borrowing statute, in the context of the Philippines, is a municipal law that points to the application of a foreign law in resolving a dispute. However, the forum may refuse to apply the foreign law pointed to by the municipal law if the former is obnoxious to or violative of the public policy of the forum. For example, in the case of Del Socorro v. Van Wilsem,[4] Norma A. Del Socorro and Ernst Johan Brinkman Van Wilsem contracted marriage in Holland on September 25, 1990. On January 19, 1994, they were blessed with a son named Roderigo Norjo Van Wilsem, who at the time of the filing of the case was sixteen (16) years of age. Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by the appropriate Court of Holland. At that time, their son was only eighteen (18) months old. Thereafter, she and her son came home to the Philippines. Because Van Wilsem refused to provide support to the child, she filed a criminal action for violation of Republic Act No. (RA) 9262.[5] Van Wilsem invoked Article 195[6] of the Family Code of the Philippines, which provides the parent’s obligation to support his child. He added that, by reason of the divorce decree, he was not obligated to provide any financial support to the child.
In the Del Soccorro case,[7] the Supreme Court agreed with the wife that, notwithstanding that the national law of Van Wilsem states that parents have no obligation to support their children or that such obligation is not punishable by law, said law would still not find applicability in this case because, assuming that the foreign law were properly pleaded and proved in accordance with Section 24 of Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee v. Sy-Gonzales,[8] said foreign law would still not find applicability in this jurisdiction. Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the said foreign law, judgment or order shall not be applied. Additionally, 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. Here, the Supreme Court cited Article 17 of the New Civil Code of the Philippines, which provides in full: “The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. 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.”
After characterizing the case, the court will proceed to the process of choice of law. Classic or traditional approaches may be used by the court, as well as modern ones. In a torts case, for example, the court may take the position that the doctrine of lex loci delicti commissi should be applied, i.e., the law of the place where the injury occurred. On the other hand, the court may also take the route of applying the doctrine of most significant relationship.
In contracts law, the court may rule that the law of the place of intended performance or the place of breach should apply. Also, another approach is to apply the doctrine of center of gravity.
The problem about tradition theories in choice of law is that they are usually territory-oriented. As a result, they at times fail to serve the interests of justice.[9] It may happen that the parties are dragged to litigate in an unrelated state simply because the breach occurred there.
As a consequence of these concerns regarding failure of justice, “courts and parties [have] resorted to so-called “escape devices” that yielded better, more appropriate results. Among these is the recharacterization of a set of facts—e.g., the recasting of a question of contract as a tort or a tort question as one of family law. For example, what law governs the question of whether spouses have the capacity to sue each other or whether they have immunity? In a personal-injury case, is this a question of tort law (i.e., the law of the place of injury) or family law (law of the state of the marital domicile)? If the two laws differ, the characterization of the issue may produce different outcomes. The escape from rigid rules by means of recharacterization resulted in a period of considerable uncertainty, especially in the United States.”[10]
Another example of a choice-of-law problem would be if there are two laws, foreign to each other, while one provides a longer statute of limitations and the other, shorter.[11] To quote Singer (2022), if “the forum allows the claim while the situs of the wrong bars the claim, it may be that the situs bars the claim simply to unclog its court system. If so, that state might be happy that the forum has a longer statute of limitations and is altruistically opening its courts to the foreign claim. Applying the longer forum statute of limitations would vindicate the situs's substantive policies without burdening its court system. However, if the forum statute of limitations is shorter than that of the situs, it may make sense to apply the longer statute of limitations of the situs because the forum is not entitled to refuse to hear a claim simply because it is based on the law of another state. If the situs recognizes a claim and the forum does not, the forum must apply the law of the situs if the forum has no legitimate interest in applying its law. Even if the forum has an interest in applying its shorter statute of limitations to protect one of the parties from a stale claim, that interest cannot outweigh the interests of the situs in vindicating the claim; nor can there be any unfair surprise since the lawsuit could have been brought at the site of the wrong in any event.”
LWV CONSTRUCTION V. DUPO[12]
The Court of Appeals ruled that under Article 87 of the Saudi Labor and Workmen Law (Saudi labor law), Marcelo Dupo was entitled to a service award or longevity pay amounting to $12,640.33. On the other hand, petitioner, a domestic corporation which recruited Filipino workers for work abroad, questioned said ruling, invoking the defenses of payment and prescription.
It was alleged by petitioner that, under the said Saudi labor law, an 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. On the other hand, the Labor Code of the Philippines provides a period of three years. The Supreme Court applied the latter law because a foreign procedural law will not be applied in the forum. Procedural matters, such as service of process, joinder of actions, period and requisites for appeal 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.[13]
A law on prescription of actions is sui generis in conflict of laws in the sense that it may be viewed either as procedural or substantive, depending on the characterization given such a law. Although it is true that, 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, the constitutional policy – a public policy – on protection to labor cannot be defeated by a foreign law that gives the worker a shorter period to lodge his/her claims in court.
[1] LWV Construction v. Dupo, G.R. No. 172342, July 13, 2009.
[2] LWV Construction v. Dupo, G.R. No. 172342, July 13, 2009, citing Restatement of the Conflict of Laws, Sec. 685 and Salonga, Private International Law, 131 (1979).
[3] G.R. No. 172342, July 13, 2009, citing Goodrich, Conflict of Laws, 152-153 (1938), Siegel, Conflicts, 183 (1975), and Paras, Philippine Conflict of Laws, 104 (7th ed.).
[4] G.R. No. 193707, December 10, 2014.
[5] Otherwise known as the Anti-Violence Against Women and Their Children Act of 2004.
[6] Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; (2) Legitimate ascendants and descendants; etc.
[7] G.R. No. 193707, December 10, 2014.
[8] G.R. No. L-55960 November 24, 1988.
[9] Max Rheinstein, Ulrich M. Drobnig, & Peter Hay. “Choice of law.” Britannica. https://www.britannica.com/topic/conflict-of-laws/Choice-of-law. Last accessed: September 09, 2023.
[10] Max Rheinstein, Ulrich M. Drobnig, & Peter Hay. “Choice of law.” Britannica. https://www.britannica.com/topic/conflict-of-laws/Choice-of-law. Last accessed: September 09, 2023.
[11] Singer, J. W. (2022). Property. Aspen Publishing, mentioned in “Conflict of Laws -- Textbook,” https://opencasebook.org/casebooks/421-conflict-of-laws-textbook/sections/4-3-escape-devices-and-procedure. Last accessed: September 09, 2023.
[12] 610 Phil. 164 [ G.R. No. 172342. July 13, 2009 ].
[13] Citing Restatement of the Conflict of Laws, Sec. 685; Salonga, Private International Law, 131 [1979]).
