CHAPTER 8: PROOF OF FOREIGN LAW
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 8:
PROOF OF FOREIGN LAW
Once foreign law is involved (pleaded), the next step is to prove the same. Nonetheless, foreign law being a question of fact, the parties are allowed to stipulate on this during the pre-trial of the case or even during trial.
It is hornbook principle that the party invoking the application of a foreign law has the burden of proving the law, under the doctrine of processual presumption.
In the case of In Re Testate Estate of Bambao,[1] petitioners failed to discharge this burden of proof. This was a case for the allowance of a foreigner's last will and testament executed abroad, i.e., in Saudi Arabia. Having failed to prove the existence of foreign law that governs the extrinsic validity of the subject will, the petitioners were confronted by the Supreme Court’s ruling that the will should have been disallowed because it failed to comply with the legal formalities under Philippine laws. In short, the Court applied the doctrine of processual presumption, explaining that the foreign law was not alleged and proven, causing the Philippine judicial system on wills and succession to take effect; hence, the will should comply with the forms and formalities provided by Philippine succession law. Considering that the subject will in this case did not comply with Philippine laws, the Court was constrained to rule against allowing the same.
Towards the end of its decision, the Court said: “On this score, We stress that the requirements for proving foreign laws and judgments are not mere technicalities, and Our courts are not at liberty to exercise judicial notice without contravening Our own rules on evidence.”[2]
In the case of EDI-Staffbuilders v. NLRC,[3] the employment contract signed by the worker specifically stated that Saudi Labor Laws would govern matters not provided for in the contract (e.g., specific causes for termination, termination procedures, etc.). Being the law intended by the parties (lex loci intentiones) to apply to the contract, Saudi Labor Laws should govern all matters relating to the termination of the employment of the worker. However, in international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law. The foreign law is treated as a question of fact to be properly pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign law. Philippine courts and tribunals are presumed to know only domestic or forum law. Considering the failure to plead and prove Saudi Arabian law on this matter, the international law doctrine of presumed-identity approach or processual presumption was made to come into play. Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as forum law. Thus, the High Court applied Philippine labor laws in determining the issues regarding the worker’s case.
The Philippines does not take judicial notice of foreign laws, hence, they must not only be alleged; they must be proven. To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court.[4]
Procedure in Proving The
Existence of Foreign Law
The question now for the law student is how to prove foreign law. Over this, the Supreme Court has given guidance in the case of Yao Kee v. Sy-Gonzales.[5]
In the Yao Kee case,[6] Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then residing, leaving behind real and personal properties here in the Philippines worth P300,000.00 more or less. Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a petition for the grant of letters of administration. The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who alleged that: (a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19, 1931 in China; (b) the other oppositors are the legitimate children of the deceased with Yao Kee; and, (c) Sze Sook Wah is the eldest among them and is competent, willing and desirous to become the administratrix of the estate of Sy Kiat. It was argued by petitioners that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and custom was conclusively proven. To buttress this argument, they relied on testimonial and documentary evidence.
Ruling on the Yao Kee case,[7] the Supreme Court said that the documentary and testimonial evidence presented may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do not suffice to establish the validity of said marriage in accordance with Chinese law or custom. Although marriages celebrated abroad and valid there as such as likewise valid in the Philippines, proof must still establish a valid foreign marriage via a two-tiered approach, namely: (a) the existence of the foreign law as a question of fact; and (b) the alleged foreign marriage by convincing evidence.
In proving a foreign law the procedure to be observed is provided in the Rules of Court. With respect to an unwritten foreign law, the old Section 45 of Rule 130 provided that “[t]he oral testimony of witnesses, skilled therein, is admissible as evidence of the unwritten law of a foreign country, as are also printed and published books of reports of decisions of the courts of the foreign country, if proved to be commonly admitted in such courts.”[8]
When it comes to written foreign law, the present Section 24 of Rule 132 of the Rules of Court provides: “The record of public documents referred to in paragraph (a) of Section 19,[9] when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.”
In addition to the above, whenever a copy of a document or record is attested for the purpose of the evidence, 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. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.[10]
Despite the above rule on proof, the Supreme Court has had a history of allowing proof of foreign written law through the testimony of a witness.[11] However, note that these rulings were made prior to the removal of the old Section 45 of Rule 130. It is now up to the Supreme Court to reconcile the conflict between these old pieces of jurisprudence and the present state of the rules. Nonetheless, it is the humble submission of the author that, as to foreign written law, the present Section 24 of Rule 132 of the Rules of Court should be strictly applied[12] while, as to foreign unwritten law, testimonial evidence may be allowed.
In the case of ATCI Overseas Corporation v. Echin,[13] to prove the Kuwaiti law, petitioners submitted the following: MOA between respondent and the Ministry, as represented by ATCI, which provides that the employee is subject to a probationary period of one (1) year and that the host country’s Civil Service Laws and Regulations apply; a translated copy (Arabic to English) of the termination letter to respondent stating that she did not pass the probation terms, without specifying the grounds therefor, and a translated copy of the certificate of termination, both of which documents were certified by Mr. Mustapha Alawi, Head of the Department of Foreign Affairs-Office of Consular Affairs Inslamic Certification and Translation Unit; and respondent’s letter of reconsideration to the Ministry, wherein she noted that in her first eight (8) months of employment, she was given a rating of “excellent” albeit it changed due to changes in her shift of work schedule. However, the Supreme Court held that these documents, whether taken singly or as a whole, do not sufficiently prove that respondent was validly terminated as a probationary employee under Kuwaiti civil service laws. Instead of submitting a copy of the pertinent Kuwaiti labor laws duly authenticated and translated by Embassy officials thereat, as required under the Rules, what petitioners submitted were mere certifications attesting only to the correctness of the translations of the MOA and the termination letter which does not prove at all that Kuwaiti civil service laws differ from Philippine laws and that under such Kuwaiti laws, respondent was validly terminated.
In proving foreign written law of Japan, therefore, the party interested in showing the same to the court must present, mark, identity and offer an official publication thereof. A copy of the foreign law attested by the officer having the legal custody of the record of said Japanese law, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody, may also be utilized as proof. If the office in which the record is kept is in Japan, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in Japan in which the record is kept, and authenticated by the seal of his/her office, must be presented.
In short, the primary proof of the existence of foreign law is the official publication thereof. If this is not available, as when the foreign legal system does not require publication for the law’s effectivity, a copy of the foreign law may be used as evidence, but a certificate must accompany said copy issued by the officer having custody over the original copy if the record is not kept in the Philippines or issued by Philippine secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country whose laws are under consideration, authenticated by the seal of that secretary or agent’s office.
ASIAVEST V. COURT
OF APPEALS
In Asiavest v. Court of Appeals,[14] there was no objection on the part of Asiavest on the qualification of a witness, Mr. Lousich, as an expert on Hong Kong law. Under Rules of Court, the record of public documents of a sovereign authority, tribunal, official body, or public officer may be proved by (a) an official publication thereof or (b) a copy attested by the officer having the legal custody thereof, which must be accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. The certificate may be issued by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent, or any officer in the foreign service of the Philippines stationed in the foreign country in which 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. Nevertheless, it was held that the testimony of an expert witness may be allowed to prove a foreign law. Citing Salonga (1995), the Supreme Court quoted:
“Although it is desirable that foreign law be proved in accordance with the above rule, however, the Supreme Court held in the case of Willamette Iron and Steel Works v. Muzzal,[15] that Section 41, Rule 123 (Section 25, Rule 132 of the Revised Rules of Court) does not exclude the presentation of other competent evidence to prove the existence of a foreign law. In that case, the Supreme Court considered the testimony under oath of an attorney-at-law of San Francisco, California, who quoted verbatim a section of California Civil Code and who stated that the same was in force at the time the obligations were contracted, as sufficient evidence to establish the existence of said law. Accordingly, in line with this view, the Supreme Court in the Collector of Internal Revenue v. Fisher et al.,[16] upheld the Tax Court in considering the pertinent law of California as proved by the respondents’ witness. In that case, the counsel for respondent "testified that as an active member of the California Bar since 1951, he is familiar with the revenue and taxation laws of the State of California. When asked by the lower court to state the pertinent California law as regards exemption of intangible personal properties, the witness cited Article 4, Sec. 13851 (a) & (b) of the California Internal and Revenue Code as published in Derring’s California Code, a publication of Bancroft-Whitney Co., Inc. And as part of his testimony, a full quotation of the cited section was offered in evidence by respondents." Likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign country on reciprocity regarding the acquisition of citizenship, although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of the written proof offered."[17] Thus, in a number of decisions, mere authentication of the Chinese Naturalization Law by the Chinese Consulate General of Manila was held to be competent proof of that law.[18]”
Despite the ruling that expert testimony may be allowed to prove the existence of foreign law, the Supreme Court of the Philippines still ruled, however, that nothing in the testimony of Mr. Lousich touched on the specific law of Hong Kong regarding service of summons either in actions in rem or in personam, and in matters relating to whether the defendant was a resident or nonresident of Hong Kong. In view of the absence of proof of the Hong Kong law on this particular issue, the presumption of identity or similarity or the so-called processual presumption was made to apply, i.e., Hong Kong law was presumed to be similar to the Philippine law.[19]
Website Printouts as
Proof of Foreign Law
Taking advantage of the advents of recent technology, the Supreme Court has adopted a method of proving foreign law with ease. For example, the Supreme Court website, https://sc.judiciary.gov.ph/foreign-divorce-laws, now contains a list of foreign divorce laws, posting authenticated digital copies thereof, accompanied by certifications as required by the Rules of Court. Considering that the Supreme Court website is an official act of the Judicial Branch of the Philippine Government, the law student may be curious to ask whether the printouts of the said digital copies, if taken straight out of the Supreme Court website, falls within the scope of mandatory or discretionary judicial notice under Rule 129 of the Rules of Court.
For ease of reference, Section 1 and Section 2 of Rule 129 of the Rules of Court is quoted here in full: “Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions.”
To answer the question on the evidentiary value and admissibility of digital copies of foreign divorce laws posted on the Supreme Court website, Office of the Court Administrator (OCA) Circular No. OCA Circular No. 157-2022 (Compilation of the Laws of Foreign Countries On Marriage and Divorce) states:
“The growing migration, foreign employment and cross-border travel of Filipinos have resulted in significant numbers of intermarriages with foreign nationals. However, some of these marriages end up as the subject of divorce decrees obtained overseas. As a consequence, there is an increasing number of petitions filed before Philippine courts for recognition and enforcement of foreign decree of divorce.
“Recently, the Office of the Court Administrator (OCA) experienced a sudden influx of requests for certified true copies of divorce laws of foreign countries which the parties intend to use as supporting document to their petitions for recognition of a foreign decree of divorce.
“To address this matter, the Department of Foreign Affairs (DFA), upon request of the OCA, furnished the OCA with a compilation of several foreign laws on marriage and divorce, for reference and use of the judiciary, particularly the Family Court Judges, whether statutory or designated Family Courts, in resolving petitions for recognition and enforcement of foreign decree of divorce.
“The text of these laws, and/or their English translations, were officially transmitted to the Philippine Embassies and Consulates by the Ministry of Foreign Affairs of other agencies of the concerned foreign governments through Notes Verbale or official letters enclosing the text of these laws or indicating the official website or online link containing the authentic copies. In some states within the United States of America, the text of the laws provided were authenticated by the Secretary of State or by other competent officials having custody of authentic copies of these laws.
“In view thereof, the Family Courts are advised to take judicial notice of this compilation of the laws of foreign countries on marriage and divorce in the resolution of cases requiring the presentation of the laws of foreign countries on marriage and divorce. This could be accessed at https://sc. judiciary. gov .ph/foreign-divorce-laws/. For the information and guidance of all concerned.
“23 June 2022
“(Signed)
RAUL B. VILLANUEVA
Court Administrator[.]”
On the matter of website printouts, in the case of In Re Judicial Recognition of Divorce between Minoru and Moraña,[20] the Supreme Court held that “what petitioner offered in evidence were mere printouts of pertinent portions of the Japanese law on divorce and its English translation. There was no proof at all that these printouts reflected the existing law on divorce in Japan and its correct English translation. Indeed, our rules require more than a printout from a website to prove a foreign law. In Racho, the Japanese law on divorce was duly proved through a copy of the English Version of the Civil Code of Japan translated under the authorization of the Ministry of Justice and the Code of Translation Committee. At any rate, considering that the fact of divorce was duly proved in this case, the higher interest of substantial justice compels that petitioner be afforded the chance to properly prove the Japanese law on divorce, with the end view that petitioner may be eventually freed from a marriage in which she is the only remaining party. In Manalo, the Court, too, did not dismiss the case, but simply remanded it to the trial court for reception of evidence pertaining to the existence of the Japanese law on divorce.”
The cited case of “Racho” refers to Racho v. Tanaka,[21] in which the Supreme Court said: “Petitioner initially submitted a Manifestation, stating that a duly-authenticated acceptance certificate was not among the documents presented at the Regional Trial Court because of its unavailability to petitioner during trial. She also pointed out that the Divorce Certificate issued by ,the Consulate General of the Japanese Embassy was sufficient proof of the fact of divorce. She also manifested that Tanaka had secured a marriage license on the basis of the same Divorce Certificate and had already remarried another Filipino. Nevertheless, she has endeavored to secure the document as directed by this Court. On March 16, 2012, petitioner submitted her Compliance, attaching a duly authenticated Certificate of Acceptance of the Report of Divorce that she obtained in Japan. The Office of the Solicitor General thereafter submitted its Comment on the Petition, to which petitioner submitted her Reply.” Here, the High Court ruled that these submissions were sufificient to find that Racho is capacitated to remarry.
MANUFACTURERS HANOVER TRUST V. GUERRERO[22]
Guerrero filed a complaint for damages against petitioner Manufacturers Hanover Trust Co. and/or Chemical Bank, seeking payment of damages allegedly for (a) illegally withheld taxes charged against interests on his checking account with the Bank; (b) a returned check worth US$18,000.00 due to signature verification problems; and (c) unauthorized conversion of his account.
Under their account agreement, Guerrero’s account was governed by New York law and this law did not permit any of Guerrero’s claims, except actual damages. The affidavit of a New York lawyer, deposed abroad, was presented to prove New York law. The Philippine Consular Office in New York authenticated the affidavit. Citing Willamette Iron and Steel Works v. Muzzal,[23] the Bank argued that the Rules of Court does not exclude the presentation of competent evidence to prove the existence of a foreign law, other than the (a) official publication thereof and (b) copy attested by the officer having the legal custody thereof, as provided under Rule 132 of the Rules of Court.
The Supreme Court rejected the Bank’s argument because the case cited involved attorneys testifying in open court during the trial in the Philippines and quoting the particular foreign laws sought to be established. On the other hand, the New York lawyer’s affidavit was taken abroad ex parte and the affiant never testified in open court. Such an affidavit cannot be considered as proof of New York law on damages not only because it is self-serving but also because it does not state the specific New York law on damages. In fact, the Court found that the affidavit contained conclusions from the affiant’s personal interpretation and opinion of the facts of the case vis-à-vis the alleged laws and jurisprudence, without citing any law in particular. The citations in the affidavit of various United States court decisions did convince the Court that such could be used as proof of the official records or decisions of the United States courts.
The student of law can learn five things from this case. First, proof of foreign law must comply with Rule 132 of the Rules of Court. Second, in certain circumstances, even without compliance with the documentary proof required by said rule, an expert on foreign law may testify in open court to convince the Philippine forum of its existence. Third, in the same way that foreign laws are a question of fact, foreign court decisions must be proved as a matter of fact. Fourth, the affidavit of a lawyer in a foreign country, taken ex parte, without testifying in open court and without being subjected to cross examination, is not sufficient to justify and exception to the exception to the general rule. Fifth, in quoting or relying in jurisprudence, a lawyer must ensure that the case cited is on all fours, i.e., very similar in material respects, with the dispute at hand.
[1] G.R. No. 237449. December 02, 2020.
[2] G.R. No. 237449. December 02, 2020.
[3] G.R. No. 145587, October 26, 2007.
[4] G.R. No. 145587, October 26, 2007.
[5] G.R. No. L-55960, November 24, 1988.
[6] G.R. No. L-55960, November 24, 1988.
[7] G.R. No. L-55960, November 24, 1988.
[8] Note that this is no longer part of the Rules on Evidence. This does not mean, of course, that proof of unwritten law cannot be presented in Philppine courts because there are other jurisdictions that still adopt what is called “common law” and “unwritten law.”
[9] Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; etc.
[10] Section 25 of Rule 132 of the Rules of Court.
[11] See Collector of Internal Revenue v. Fisher 110 Phil. 686, 700-701 (1961) citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).
[12] In the Matter of the Testate Estate of Bambao, G.R. No. 237449, December 02, 2020.
[13] G.R. No. 178551, October 11, 2010.
[14] G.R. No. 128803, September 25, 1998, 357 Phil. 536.
[15] 61 Phil. 471 [1935].
[16] 1 SCRA 93 [1961].
[17] Citing Pardo v. Republic, 85 Phil. 323 [1950]; Delgado v. Republic, G.R. No. L-2546, January 28, 1950.
[18] Citing Yap v. Solicitor General, 81 Phil. 468; Yee Bo Mann v. Republic, 83 Phil. 749; Go v. Anti-Chinese League, 47 O.G. 716; Leelin v. Republic, 47 O.G. 694.
[19] Northwest Orient Airlines, Inc. v. Court of Appeals, 241 SCRA 192, 199 [1995].
[20] G.R. No. 227605, December 05, 2019.
[21] G.R. No. 199515, June 25, 2018.
[22] 445 Phil. 770 [ G.R. No. 136804. February 19, 2003 ].
[23] 61 Phil. 471 [ G.R. No. 42538. May 21, 1935 ].
