CHAPTER 9: CHOICE OF LAW IN GENERAL
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 9:
CHOICE OF LAW IN GENERAL
Choice of law is immaterial if there are no laws to choose from. Insofar as the Philippine court itself is concerned, there are no options – only Philippine laws must be applied to a given case.
However, in a conflicts case, if the concerned party is successful in proving a relevant foreign law, options become available, especially if the municipal law of the Philippines points to the application of the municipal law of another country.
For example, after characterizing a conflicts dispute as falling under succession law, the forum may be tasked to study Article 829 of the New Civil Code of the Philippines, which states: “A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code.” If the case involves the revocation of the last will and testament of a North Carolinian domiciliary and citizen not domiciled in the Philippines, who performed the act of revocation in China where the will was made, such revocation may comply with the form and substance required by Chinese law – where the will was made, that required by Philippine law, or that required by North Carolinian law – where the testator was domiciled at the time of the revocation.
In the above example, the starting point of the forum is Philippine law; hence, the question is whether or not the testamentary revocation complies with the form and substance allowed by Philippine laws. However, considering the foreign element that the testator is not a domiciliary of the Philippines, the court is compelled to consider Article 829 as cited above.
Taking in account that Article 829 of the New Civil Code of the Philippines points to the application of a possible foreign law or laws – the law of the place where the will was made, the law of the place where the testator was domiciled at the time of revocation, and the law of the Philippines, choice of law commences in accordance with the facts of the case. If the domicile of the testator at the time of revocation was North Carolina over a last will that was executed in China, the choice-of-law analysis will revolve around the laws of those two countries. Philippine laws on the form and substance of revocation will only apply when the act of revocation takes place within Philippine territorial limits.
Notice that the rule on testamentary revocation in accordance with lex loci celebrationis, i.e., the law of the place where the will was made, does not require that the revocation be done in the same place. The same is true for lex domicilii, i.e., the law of the place in which the testator had his domicile, and the law requires that the revocation be done while the testator is still domiciled there “at the time.” Hence, if the testator’s domicile at the time of the execution of the will is different from his/her domicile at the time of the revocation of said will, it is his/her domicile at the time of revocation which will govern the form and substance of revocation.
Even if Philippine municipal law points to the application of the testator’s domiciliary law or the law of the place of the execution of the will, proof of the existence of, following the above example, the law of North Carolina or the law of China, as the case may be, must be adduced. Otherwise, these foreign laws shall be presumed as the same as Philippine municipal laws and Philippine law on revocation of wills shall govern.
Another example would be between two Filipinos who entered into a contract of sale over a motor vehicle located in Japan and the parties promised that the seller would deliver to the buyer the thing sold within 90 days from their arrival back in the Philippines. The contract was perfected, executed and notarized in South Africa; however, South African law on the forms and solemnities of notarization were not followed. If the buyer later sues for specific performance, praying for the delivery of the motor vehicle, the court may be confronted with two main issues: the extrinsic validity of the contract and the forum’s power to compel the seller to deliver into the Philippines a personal property located in a foreign jurisdiction.
In the example above, it would appear to the court that the case is one governed by the law on sales and the law on forms and solemnities of instruments. Hence, it would yield useful results for the court to study Article 17 of the New Civil Code which states: “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.” If in South Africa, for a contract to be extrinsically valid, it must be notarized and subjected to the flames of a burning tree, such solemnity must be followed. Naturally, if the seller is inclined to defeat his/her obligation under the contract, s/he would invoke the forms and solemnities observed in South African law but s/he must properly plead and prove the pertinent foreign law. If s/he fails to do so, South African law has to be presumed the same as Philippine laws; hence, the validity of a contract will not depend on its extrinsic features such as notarization because contracts shall be obligatory, in whatever form they may have been entered into, provided all the essential requisites for their validity are present.[1]
As to the question on specific performance, seller may be inclined to tell the court that, considering that the property is located abroad, the same shall be governed by the law of the place where it is situated, i.e., Japan. In invoking this, the seller would be citing Article 16 of the New Civil Code of the Philippines which states: “Real property as well as personal property is subject to the law of the country where it is situated.” In pursuing this line of reasoning, the seller would be wrong because the provision governs and determines all matters concerning the title and disposition of property by what is known as the doctrine of lex loci rei sitae, which can alone prescribe the mode by which a title can pass from one person to another, or by which an interest in the property can be gained or lost.[2]
Lex loci rei sitae means “the law of the place where the thing is situated.” In private international law, it is the principle that the law of the place where property is located governs the ownership and transfer of that property.
It is also safe to say that, under the lex rei sitae principle, it is the law of the place where property is situated determines whether the thing itself is licit or illicit, whether it is movable or immovable, whether it belongs to the public dominion or private ownership, whether ownership is exercised by whom, and such other incidences and circumstances surrounding the property, its ownership, possession, accession, easements burdening it, nuisances arising from it, registration and modes of acquiring the same. For example, under Philippine property law, animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it, are considered real or immovable property.[3] Other countries may adopt a definition different from what is provided by the New Civil Code of the Philippines and such different definition would probably have a different effect on related laws such as the law on theft, real property taxation and the like.
Hence, going back to the example of the seller who sold the buyer a motor vehicle located in Japan, the fact that the property is located in a foreign country does not mean that the action for specific performance should fail. Note that an action for specific performance is a remedy of requiring exact performance of a contract in the specific form in which it was made, or according to the precise terms agreed upon. It is the actual accomplishment of a contract by a party bound to fulfill it which is sought to be enforced by such an action.[4] Hence, an action for specific performance, if successful, will require a person such as the seller to perform the terms of a contract such as the delivery of the thing sold. It does not matter where the property is located.[5]
If, in the running example, the seller does not comply with the court’s order for him/her to delivery to the buyer the thing sold, s/he cannot interpose the defense that the motor vehicle is located in Japan. The seller, in such a situation, would be running the risk of being held in contempt by the court that issued the judgment or final order. In the case of Roberts v. Locke, it was held by the Supreme Court of Wyoming that: “For over a hundred years it has been settled black-letter law that a court lacks authority to directly determine and affect title to real property located outside the state in which the court sits. However, it is equally well-established that a court of equity having jurisdiction over a person may act indirectly upon that person's extraterritorial real estate by ordering him or her to act or to cease to act in some particular way in relation to the property. That is, courts distinguish judgments calculated to affect title to property itself from orders directing owners subject to their jurisdiction to take certain actions concerning property located outside the jurisdiction.”[6]
After characterizing a conflicts case and after following the logical conclusion of a municipal law pointing to the application or applicability of a foreign law, the court will then make a choice as to what law is properly applicable on the facts of the case. To review, the Philippine court’s starting point is the law of the forum; if the law of the forum points to a foreign law, proof must be adduced regarding the existence of such foreign law; if foreign law is properly pleaded and proved, the court will look into the contents of the applicable foreign law and, if justified, will apply the same to the conflicts case at hand. The problem is if the foreign law pointed to by the forum law actually points back to the forum law; this is a case of – more appropriately, a problem called – renvoi.
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[1] Article 1356 of the New Civil Code of the Philippines.
[2] Orion Savings Bank v. Suzuki, G.R. No. 205487, November 12, 2014.
[3] Article 415 of the New Civil Code of the Philippines.
[4] Ayala Life Assurance, Inc. v.Ray Burton Development Corporation, 515 Phil. 431, 438 (2006), citing Black's Law Dictionary, Sixth Centennial Edition, at 1138.
[5] Roberts v. Locke, 304 P.3d 116, (Wyo. 2013).
[6] Roberts v. Locke, 304 P.3d 116 (Wyo. 2013).
