VIII.

Notice and Proof of Foreign Law

EXTENT OF JUDICIAL NOTICE

*the party whose COA or defense depended upon the foreign law HAS THE BURDEN OF PROVING THE
FOREIGN LAW.

*foreign law treated as a QUESTION OF FACT to be properly pleaded and proved in conformity with the
law of evidence of the state where it is presented.

*why treat it as a question of fact: the judge is not authorized to take JN of a foreign law and is presumed
to know ONLY DOMESTIC LAW

X: Delgado v. Republic: JN may be taken of a foreign law with which the court is evidently familiar.
Familiarity with the foreign law may be because

(1) the law is generally known, e.g. Spanish or American law from which RP law was derived

(2) judge had previously ruled upon it in other cases

US: courts are allowed to take JN of the law of sister states as required by the full faith and credit clause
of US Consti

PROOF OF FOREIGN LAW

Present either of the following:

(1) official publication of the law (R130.46)

(2) a copy of the law

attested by the officer having the legal custody of the record, or by his deputy

if record not kept in the Philippines: must be accompanied w/ a CERTIFICATE that such officer has the
custody.

*if actionable document executed abroad comprise the COA:

>public document: duly authenticated by Philippine consul attaching his consular seal to be admissible
before RP Courts

>depositions (R23.11): list of persons before whom depositions may be taken in foreign countries

On NOTICE: secretary of embassy/legation

consul general

consul

vice consul

consular agent of RP
Person/officer appointed by COMMISSION or under letters rogatory

Person which parties have stipulated IN WRITING

PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK (PCIB) V. ESCOLIN

*this is a case discussed in Succession under Fideicommisary Substitution (which Sir Danicon said to
have been ruled correctly, i.e. no fideicommisary substitution)

Facts:

-Charles and Linnie Jane Hodges (husband and wife) provided mutually in their respective will a provision
wherein they would give all their estate to the surviving spouse, and upon the death of the surviving
spouse, the remainder of what has been inherited by the surviving spouse from the earlier deceased
spouse would be bequeathed to the brothers and sisters of the later deceased.

-Mrs. Hodges died first. Mr. Hodges was appointed special administrator and later executor of the will. No
liquidation was made.

-Upon death of Mr. Hodges, Magno was appointed Administratix of Mrs. Hodges estate and was initially
also Mr. Hodges' estate but PCIB took over. Probate proceedings for both estate initiated, the two
administrators (PCIB and Magno) differed in the alleged share of Mrs. Hodges in their conjugal
partnership property that she could have bequeathed to her heirs.

PCIB

Magno

The estate left by Mrs. Hodges < 1/2 of her share in the conjugal estate (Apply Philippine law),
notwithstanding Art16 of our Civil code which mandates the application of Texas law, Mr.Hodges being a
citizen of Texas

Texas law applicable, wherein no system of legitime provided so estate of Mrs. Hodges could not be less
than her share or (?) >1/2

-there was also an allegation on the part of Magno (for the brothers and sisters of Mrs. Hodges) that Mr.
Hodges made a renunciation of the inheritance in a manifestation to the US inheritance tax authorities
(probably to escape inheritance tax liabilities), which was allegedly ratified by the heirs in the Philippines.

(court, though, did not rule on alleged renunciation. For purposes of the discussion, Court assumed that
renunciation was not upheld)

WON Philippine Law, as alleged by PCIB, should be applied and not Texas law?

Texas law applies, but because of estoppel (?) and it is yet to be proven

*note: in Succession, it was held in this case that there was no fideicommissary substitution so the 1st
heir instituted (Mr. Magno) had no obligation to preserve the properties inherited from his wife for the
benefit of the latter's other heirs (the siblings)
*no proof yet of what Texas law is, but PCIB allegedly averred that under the laws of Texas (although it
was arguing that RP laws apply), there is such legitime of 1/4 of the said conjgal estate

>>>so PCIB would be estopped to claim that the estate of Mrs. Hodges should be less than as contended
by it (which is initially at least 1/2 of the estate), for admissions by a party related to the effects of foreign
laws, which have to be proven in our courts like any other controverted fact, create estoppel.

ISSUES THAT CAN BE DECIDED BY THE COURT:

Regardless what law is applicable and WON Mr. Hodges did renounce his share, it is clear from the
inventory submitted by Mr. Hodges himself as executor of his wife's estate that there are properties which
constitute the estate of Mrs. Hodges which should be distributed among her heirs pursuant to her will

It is now beyond controversy that whatever be the provisions of Texas Law applicable, the estate of Mrs.
Hodges is AT LEAST 1/4 OF THE CONJUGAL ESTATE OF THE SPOUSES

-Existence and effects of foreign laws being questions of fact, and it being the position now of PCIB that
the estate of Mrs. Hodges, pursuant to the law of Texas, should only be 1/3 of the conjugal estate, such
contention constitutes and admission of fact, and consequently, it would be in estoppel in any further
proceedings in these cases to claim that said estate could be less, irrespective of what might be proven
later to be the actual provisions of Texas law...

Special Proceeding for the settlement of testate estate of Mrs. Hodges cannot be closed, should proceed,
there having no proper and legal adjudication or distribution yet of the estate

Magno remains to be the Administratrix of Mrs. Hodges's estate

WHAT CANNOT BE DECIDED:

WON Mr. Hodges renounced his share

WON estate of Mrs. Hodges is more than 1/4 of the conjugal property

>>>case is remanded to trial court to allow the parties to present evidence in relation to these issues

RULING THAT MRS. HODGES'S ESTATE CANNOT BE LESS THAN 1/4 OF THE CPP VS. FINDING
THAT NO EVIDENCE YET OF TEXAS LAWS? Court said that evidence should still be presented re: what
Texas law contains but PCIB now cannot allege that the estate is less than 1/4

*Elementary is the rule that foreign laws may not be taken judicial notice of and have to be proven like
any other fact in dispute between the parties in any proceeding, with the rare exceptional n instances
when the said laws are already within the actual knowledge of the court, such as when they are well and
generally known, or they have been actually ruled upon in other cases before it and none of the parties
concerned claim otherwise.

IN RE ESTATE OF JOHNSON

Emil Johnson (decedent)

-native of Sweden
-Citizen of US (Illinois)

-resident of RP at time of death

-made a WILL

>holographic

>signed and written by him

>only 2 witnesses signed (so did not conform with Section 618 of the Code of Civil Procedure of the
Philippines, which required 3 witnesses)

-probate of his will initiated, arguing the will was executed in accordance with the laws of Illinois (he was a
citizen of Illinois)

TC: declared the will to be legal and admitted it to probate

--after will probated, her alleged daugher, Ebba Ingeborg, moved for the annulment of the decree, saying
that the will was not executed in accordance with Illinois law, and that the decedent was not a resident of
the state of Illinois

WON Decedent a national of Illinois (to warrant the application of Illinois law)

YES. Proof adduced before TC showed he was indeed a national of Illinois. Petition merely contests the
residence of the decedent to be in the Philippines, but not the nationality

WON will executed in conformity with the State of Illinois

NOT REALLY SURE, BUT THE PETITIONER CANNOT DO ANYTHING ABOUT IT.

-Courts cannot take JN of Foreign laws: TC merely relied on the presentation of Section 1874 of the
Revised Statutes of Illinois as exhibited in a volume of an annotation and assumed that he could take JN
of the laws of Illinois. But it was WRONG!!!

-proper rule is to require proof of the statutes of the States of the American Union whenever their
provisions are determinative of the issues in any action litigated in the Philippine courts.

-still,

(1) petition does not state any fact from which it would appear that the law of Illinois is different from what
the court found

(2)petition did not raise any assignment of error to question the supposed taking of JN of the court

***

EFFECTS OF FAILURE TO PLEAD AND PROVE FOREIGN LAW

3 alternatives to the forum courts:

Dismiss the case for inability to establish a COA

Assume that the foreign law is the same as the law of the forum

Apply the law of the forum

DISMISS THE CASE FOR INABILITY TO ESTABLISH COA

-court rests on the party relying on the foreign law the burden of introducing proof of the contents of such
law.

-forum court would, upon proof of law, enforce a right existing under that foreign law. Hence, failure to
prove its content results in failure to establish a prima face case

WALTON V. ARABIAN AMERICAN OIL CO.

Walton

-citizen and resident of Arkansas

-seriously injured while temporarily in Saudi Arabia by a truck owned by Saudi ARAMCO

Saudi ARAMCO

-incorporated in Delaware

-licensed to do business in NY

-engaged in extensve business activities in Saudi Arabia

-Walton sued Saudi Aramco in NY.

-no evidence of Saudi Arabian law alleged by plaintiff, nor did the defendant offered to prove it.

NY TC: no JN of Saudi Arabian law, directed verdict in favor of defendant

(so labo, di ba NY law ang basis nya or something? Is Walton claiming under Saudi Arabian law???)

HELD: Affirm. Absolve defendant Saudi Aramco

Apply NY Conflict of law rules

-substantive law applicable to alleged tort is the LAW OF THE PLACE WHERE THE ALLEGED TORT
OCCURRED - so should apply Saudi Arabian law

BUT Saudi Arabian law was not proved.

-A federal court must receive evidence if it is admissible according to the rules of evidence of the state in
which the court sits.

-Siegelman v. Cunard White Star: in this case, Court took JN of foreign law but this is an exception
because US Court can easily comprehend of ENGLISH decisions, which are like those of any state in US

-IN THIS CASE HOWEVER, it involved Saudi Arabian Law: Comprehension of foreign "law" is, to say the
least, not easy, then, according to the somewhat narrow interpretation of the NY Statute by NY courts, a
court "abuses" its discretion under that statute perhaps if it takes judicial notice of foreign "law" when it is
not pleaded, and surely does so unless the party, who would otherwise have had the burden of proving
that "law", has in some way adequately assisted the court in judicially learning it

NO PROCESSUAL PRESUMPTION: In countries where the common law does not prevail, our doctrines
relative to negligence, and to a master's liability for his servant's acts, may will not exist or be vastly
different. So Walton can't argue that the rudimentary tort principles should have been presumed to be
recognized in Saudi Arabia.

May hugas kamay paragraph from the court: though it deemed unjust, as this involves both US citizens,
the court said it should strictly enforce its laws

APPLY FORUM LAW

-parties who fail to introduce proof as to the content of a foreign law acquiesce to the application of the
forum law

-theory: basic law is forum law; when foreign law not proved, then apply forum law

LEARY V. GLEDHILL

-both parties were acquainted in the military service

-in the past, they had corresponded, resulting to Leary purchasing $1,000 worth of stock

-Gledhill invited Leary to France, wherein Gledhill told him that he needed $4,000 and he could already
raise $2,000, but needed Leary's help to raise the $4,000. No mention of selling plaintiff shares of stock

-Leary returned to Germany. From there, he sent Gledhill $1,500 w/o indicating on the check or in the
accompanying letter what the money was for.

-Later, Leary sued Gledhill for recovery of the $1,500 before NJ courts, which was allegedly a loan to
Gledhill

-Gledhill's defense: he didn't borrow money from Leary

>Moved to dismiss:

(1) no promise to repay

(2) no demand for repayment

(3) no pleading or proof of the law of France where the transaction occured

HELD: Apply NJ law

-transaction occurred in France

-France is not a common law jurisdiction (Court took JN): so inappropriate to presume that the principles
of common law prevail there.
*BUT HERE (cf. Walton v. Saudi Aramco): even if did not present French law, not deemed to have lost
COA and the court could presume any the ff:

(1) French law same as law of forum

(2) French law recognizes certain fundamental principles, e.g. that the taking of a loan creates an
obligation upon the borrower to make repayment

(3) parties by failing to prove the law of France have acquiesced in having their dispute determined by the
law of the forum

-so TC presumed that the law of France in common with that of other civilized countries recognizes a
liability to make repayment under the facts here present, and its decision is not w/o substantial merit

-CON: difficult to determine WON the question presented was of such a fundamental nature as
reasonably to warrant the assumption that it would be similarly treated by the laws of all civilized countries

-here: the presumption # 2 (that forum law applies when parties fail to prove foreign law) is universally
applied regardless of the nature of controversy

***

ZALAMEA V. CA. Court rigorously applied the rule requiring proof of foreign law, held that since foreign
law pleaded but not proven, private respondent's conduct was excused

ZALAMEA V. CA

(case of bumping off, WON overbooking is allowed in US)

-Zalamea spouses and their daughter purchased 3 airline tickets from Manila agent of Tans World Airlines
Inc. - 2 on 75% discount, and one full-fare. All tickets confirmed in Manila and re-confirmed in NY

-Probably in NY, the 3 were wait-listed as their seats were already taken. As Mr. Zalamea was holding the
full-fare ticket, he was allowed to board the plane and Mrs. Zalamea and their daughter were compelled to
buy tickets back to Manila from other airlines

-Zalameas filed ACTION FOR DAMAGES based on breach of contract of carriage before RTC Makati

-RTC: for Zalameas, refund ticket price + MD + Atty's fees

-CA: MD cannot be recovered, overbooking being an accepted practice in US Airlines so no fraud nor bad
faith on the part of TransWorld Airlines

WON MD should have been awarded for BF on part of TransWorld Airlines? YES. Overbooking = BF

US law allowing overbooking never proved. Just presented statement of Ms. Gwendolyn Lather (customer
service agent) in her deposition wherein she said that OVERBOOKING WAS ALLOWED based on the
Code of Federal Regulations fo the Civil Aeronautics Board.

-what is required to be able to prove foreign law:

*official publication
*copy of the written law attested by the officers having the legal custody of the record, or his deputy +
certificate that such officer has custody + seal of the office of the officer who made the certification

>who can make the certification:

secretary of an embassy or legation

consul general

consul

vice consul

consular agent

any officer in the foreign service of the Philippines

-here, none presented to prove contents of the Code of Federal Regulations for the Civil Aeronautics
Board

-so CA erred in finding that overbooking is allowed under US laws

Even if there is such US law existing allowing overbooking, it's irrelevant!

-lex loci contractus applies: tickets sold, issued in RP so RP law applicable

Overbooking = BF

-where an airline had deliberately overbooked, it took the risk of having to deprive some passengers of
their seats in case all of them would show up for check in. For the indignity and inconvenience of being
refused a confirmed seat on the last minute, said passenger is entitled to an award of moral damages

-even if overbooking allowed, TWA still guilty for not informing its passengers beforehand

***

PROCESSUAL PRESUMPTION/ PRESUMED-IDENTITY APPROACH

-forum presumes that the foreign law is the same as forum law

MICIANO V. BRIMO

*this is also a case in succession where decedent wants RP law, instead of Turkish law, to apply, and one
of brothers was threatened to be disinherited

Joseph Brimo

-Turkish National

-but had properties in the Philippines

-and executed will in the Philippines, which contained a provision which provided that the disposition of
his properties should be done in accordance with Philippine laws, and that an heir who opposes such will
would be deprived of his share.

-Andre Brimo, his brother, opposed the scheme of partition submitted by the judicial administrator of
Joseph's estate on the ground that the will was not in accordance with the laws of Turkey, thus void for
violating Art. 10, NCC:

"Nevertheless, legal a testamentary successions, in respect to the order of succession as well as to the
amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the
national law of the person whose succession is in question, whatever may be the nature of the property or
the country in which it may be situated."

-no proof presented

that the will was not executed in accordance with Turkish laws

of the Turkish laws applicable

HELD: Turkish law should be applied so provision in the will void. Brimo would not be disinherited,
because of the impossibility of the condition imposed upon him.

Court presumed that Turkish laws were the same as RP laws (processual presumption)

Since under our law, the project partition was valid, it should be upheld.

However, provision of the will with regards application of RP law instead of Turkish laws is void (but still
used RP laws in distributing the estate of the decedent, but with the excuse that the Court was just
presuming Turkish laws to be the same as RP laws)

Xxx

*use of most significant relationship theory/disingenuous characterization: same conclusion w/o flouting
testator's intention (to use RP law)

Xxx

SUNTAY V. SUNTAY

*again, a succession casebut I cannot find the digestmaybe it's under another subjecthmmm

Jose Suntay

-Filipino Citizen

-resident of the Philippines

-died in Amoy, Fookien, China

-left properties in RP, and a house in China

-survived by children of 1st marriage and 2nd wife and child of 2nd marriage
-2 proceedings:

*intestate proceedings, one of the children of the 1st marriage appointed as administrator of the estate

*Testate proceedings, by the widow showing a will allegedly executed in 1929 in RP

>denied: loss of will before hearing

>appealed: further proceedings, deposition of witnesses to a will taken : still dismissed

-Pacific war ensued

-after war: child of 2nd marriage (Silvino) presented the alleged will of his father in Chinese Characters
executed and signed by him in 1931 and that the same was filed, recorded and probated in Amoy, China

-presented petition for probate of either the 1929 will (executed in RP) or the 1931 will - both
DISALLOWED

WON EITHER OF THE WILL COULD BE PROBATED? NONONE COULD BE PROBATED

AS TO THE 1929 PHILIPPINE WILL: not proved by Credible witnesses

-Silvino failed to present 2 credible witnesses to prove the provisions of the lost 1929 will

-CREDIBLE Witnesses: competent witnesses, not rely on hearsay

AS TO THE ALLEGED PROBATED 1931 WILL: was not established

-Rule 78.1: if will probated in another country, if could be allowed, filed and recorded by proper CFI

-Rule 78.2: copy of will + allowance is filed before CFI, court shall fix time and place for hearing, and
cause notice to be given as in case of original will

-Rule 78.3: if will allowed in RP, court shall issue certificate of allowance, signed by Judge, attested by the
seal of the court, filed and recorded by clerk, and will would have same effect as if originally proved and
allowed in such court

-in this case: failed to prove

Municipal district court of Amoy, China is a probate court

law of China on procedure in probate or allowance of wills in 1931

here, just presented the unverified answers of Consul General of RC (depositions) which are
INADMISSIBLE:

>Consul General does not qualify and make the person who holds the Chinese law an expert of Chinese
law on procedure in probate matters

>if admitted, adverse party would be deprived of his right to confront and cross-examine witnesses

-plus: proceeding in Amoy, China court were not probate proceedings, but was conducted for the taking of
the testimony of 2 attesting witnesses to the will
PROCESSUAL PRESUMPTION: in the absence of proof that the municipal district court of Amoy is a
probate court, it may be presumed that the proceedings in the probating or allowing a will in the Chinese
courts are the same as those in RP Courts

-probate: proceeding in rem: can send notices through personal service or service by publication

-so since no notice of the proceedings before Amoy, China that it was a probate proceeding, it cannot be
deemed as a probate proceeding and is deemed as merely a deposition or perpetuation of testimony

Xxx

COLLECTOR OF INTERNAL REVENUE V. FISHER

WATLTER STEVENSON

-born in RP

-but parents both Brit

-married to Beatrice Mauricia Stevenson (also British) in 1909

-instituted his wife as sole heiress

-initially field inheritance and estate tax returns covering the whole estate but later filed an amended
return (made it smaller)

-CIR: assessed taxable net deduction: used Article 124, NCC: property relation of spouses determined by
national law (law of England)

And English law does not recognize legal partnerships between husband and wife, all properties acquired
during marriage belong to husband exclusively

BOTTOMLINE: assess estate tax based on the whole property of Walter (which would have been just 1/2
if based on RP law)

CTA: apply RP Law - no proof of English law, no prenuptual agreement: so applying laws of RP,
contracting parties presumed to have adopted the system f conjugal partnership as to properties acquired
during the marriage

WON RP law should be applied? Presume that English law is the same as RP laws = only asses estate
and inheritance tax on 1/2 of the estate.

When stevensons married during 1909, old civil code still applies.

Old civil code

New civil code

Nationality theory of determining property relation of spouses where one is a foreigner, no prenuptual
agreement: follow husband's nationality

Same
Limited to marriages contracted in a foreign land

Includes marriages celebrated in RP and aborad

but both only applies to mixed marriages. Here, both spouses are Brits!

Manresa said English law (the law of the husband's nationality) should be used.

But no proof of English law presented by CIR. So apply processual presumption, presume English law =
RP laws

Xxx

BOARD OF COMMISIONERS (CID) V. DELA ROSA

-deportation proceedings where initiated against WILLIAM GATCHALIAN, with CID alleging that he failed
to prove the legality of the marriages of his Filipino grandfather (Santiago) to his grandma as well as the
marriage of his Father (Francisco) to his mom, both of which were celebrated in China (his grandma and
mom were Chinese citizens).

-no evidence to prove that under Chinese law (which was not also proved), the marriages were valid.

-as no evidence that William Gatchalian was born in a valid marriage(ie born outside marriage), he is
deemed to have followed the citizenship of his mom (CHINESE) - same thing with his dad!

WON William Gatchalian is a Chinese citizen? NO.

Apply processual presumption: in the absence of evidence to the contrary, foreign laws on particular
subject are presumed to be the same as RP laws

-here, no proof of Chinese laws applicable, so use RP laws

Why no evidence presented:

*granddad's marriage certificate was allegedly destroyed or lost during the Japanese occupation, and
Citizenship Investigation Bureau just listened to his testimony.

*Francisco was also just required to give testimonies before Philippine consular and immigration
authorities regarding their marriages, birth, and relationship to each other

-the said testimonies are ADMISSIBLE as statements or declarations regarding family tradition or
reputation in matters of pedigree (in accordance with the NCC, FC and ROC)

Philippine law: Lex loci celebrationis

-all marriages performed outside RP in accordance with the laws in force in the country were performed
and valid there shall also be valid in this country

-all presumptions favor the solidarity of the family

-he who asserts that the marriage is not valid under our laws bear the burden of proof to present the
foreign law
MARRIAGE OF GRANDPA AND PAPA VALID: CID failed to prove that it was invalid in accordance with
Chinese laws

-since the rule is that a legitimate child follows the citizenship of is father, his father is a Filipino citizen as
the marriage of his grandpa with grandma is valid. As his father's marriage to his mother is also valid,
William Gatchalian is also a legitimate child, thus would follow citizenship of dad, thus Filipino

****

(note: at first, it was Gatchalian who was required to prove the existence of Chinese law to prove that the
marriages of his grandpa and papa were valid. But with the presumption in favor of the solidarity of
families, the burden of proving that the marriages were not valid, thus, of proving the Chinese law which
says so, was transferred to CID)

FACTORS TO CONSIDER IN DECIDING EITHER TO APPLY DOMESTIC LAW OR TO DECIDE CASE

AGAINST PARTY WHO FAILED TO PROVE FOREIGN LAW FROM WHICH HIS CLAIM ARISES:

Degree of public interest involved in the dispute

Accessibility of foreign law materials to the parties

Possibility that plaintiff is merely forum shopping

Similarities between forum laws and foreign law on the issue in point

(usually forum law only applied when issue involves marriage and family relations)

EXCEPTIONS TO THE APPLICATION OF FOREIGN LAW

GR: look into application of foreign law and apply it

Basis: comity and reciprocity

X: 3 MAIN CATEGORIES (look at previous notes)

(1) local law expressly provides

Civil Code

Article 16: makes real and personal proerty subject to the law of the country where they are situated

Intestate and testamentary succession: governed by lex nationale of the person whose succession is
under consideration

Article 829: makes revocation done outside the Philippines valid according to the law of the place where
the will was made or lex domicilli

Article 819: prohibits Filipinos from making joint wills even if valid in the country where they were
executed

(2) failure to plead and prove foreign law or judgments

-as seen above

(3) case falls under exceptions to rule of comity

-Art17, Par3: PROHIBITIVE LAWS concerning

*persons

*their acts

*or property0

*and those which have for their object

public order

public policy

and good customs

shall not be rendered inefffective by laws or judgments promulgated,

or by determinations or conventions agreed upon

In a foreign country

UNDER EXCEPTIONS:

FOREIGN LAW IS CONTRARY TO IMPORTANT PUBLIC POLICY OF THE FORUM

Public policy:

-principle of law

...which holds that no subject or citizen

...can lawfully commit any act

...which has a tendency to be

>injurious to the public or

>against public good.

Public Policy Technique

-situation in which the court declines to give due course to a claim existing under a foreign law

..because it considers the nature of the claim unconscionable

or its enforcement would "violate a

>fundamental principle of justice,

>some prevalent concept of good morals,

>some deep-rooted tradition of the commonwealth.

-dismissal through this method is technically not dismissal on the merits BUT in reality, plaintiff cannot get
jurisdiction in any other court

PAKISTAN INTERNATIONAL AIRLINES CORPORATION (PIA) V. OPLE

PIA

-foreign corporation licensed to do business in RP

-hired IN THE PHILIPPINES 2 FILIPINAs as stewardess, the contract containing provisions

...that they have a right to terminate the services of the Filipinas upon notice and

...that the agreements shall be construed under and by laws of Pakistan and ONLY THE COURT OF
KARACHI, PAKISTAN shall have jurisdiction to consider any matter arising out of or under the agreement

-instead of the 3year contract, the 2 stewardess were terminated 1y4m before the expiration of their
contract

-2 Filipina employees filed a COMPLAINT FOR ILLEGAL DISMISSAL AND NONPAYMENT OF

COMPANY BENEFITS AND BONUSES vs. PIA before Ministry of Labor and Employment

-as defense, PIA invoked the provisions of its contract (that Pakistani law should apply, and that the case
should have been filed before Karachi courts)

WON the contract provisions should be followed (i.e. WON Pakistani law should apply and the case
brought before Pakistani Courts)? NO

PIA cannot invoke Par10 (venue and applicable law) of its contract to prevent application of labor laws
and regulations of the Philippines because

*the EER is a relationship affected w/ public interest

*In accordance with Art17.3: RP Labor laws cannot be rendered illusory by parties agreeing upon some
other law to govern their relationship

PIA cannot invoke that Karachi court is the sole venue for the dispute: court used place of significant
contacts approach

*contract executed in RP

*contract was between Philippine citizens and a corporation licensed to do business in the Philippines
(therefore a Resident Company)

*though the Filipina stewardesses were assigned in the Middle East and Europe, they were based in the
Philippines in between assignments
-Par10 cannot be given effect so as to oust Philippine agencies and courts of the jurisdiction vested upon
them by Philippine law

PIA did not invoke the Pakistani law applicable: so presume as same as Philippine law (applied
Processual Presumption)

Xxx

CRITIQUES TO THE PUBLIC POLICY EXCEPTION

*ulitimate escape device: Court can disregard the applicable law to arrive at its desired result without
having to provide the rigorous level of analysis required to explain the shift

*intolerable affectation of superior virtue

*court of the forum sits in judgment over the wisdom and soundness of the applicable foreign law

Test when the public policy exception is properly invoked: WHEN THE FOREIGN COURT IS
ABSOLUTELY CONVINCED THAT THE FOREIGN LAW IS

*BARBAROIUS IN ITS PROVISIONS OR

*FRIGHTFULLY UNJUST IN THE PARTICULAR CASE

XXX

THE FOREIGN LAW IS PROCEDURAL IN NATURE

Why: Judicial convenience

-impractical for the court of the forum to adopt the procedural machinery of another state

Problems: characterization of the foreign law into procedural or substantive

e.g. Statute of Frauds and Statute of Limitaitions

ISSUES ARE RELATED TO PROPERTY (LEX SITUS)

*IMMOVABLE PROPERTY ARE GOVERNED BY THE LAW OF THE PLACE WHERE IT IS LOCATED

-in the NCC: we included Personal property in the Lex Situs rule (Art17)

When Lex situs applicable:

*sale

*exchange

*barter

*mortgage

*any form of alienation of property (SEBMA)

3 reasons why lex situs governs property:

Land and everything attached to it are w/n the exclusive control of the state: only State officials can
lawfully deal with them physically - their consent necessary

Immovables are of greatest concern to state

Demands of certainty and convenience

Exceptions to lex situs rule: to follow

THE ISSUES INVOLVED IN THE ENFORCEMENT OF FOREIGN CLAIM IS FISCAL OR

ADMINISTRATIVE

GR: state is not obliged to enforce the revenue law of another

e.g. BANCO DE BRAZIL V. AC ISRAEL COMMUNITY CO: court deny enforcement of tax claims by
foreign countries on local residents

View that Fiscal laws = Penal laws (JUDGE LEARNED HAND)

MOORE V. MITCHELL: Revenue laws fall within the same reasoning (as penal laws); they affect a state
in matters as vital to its existence as its criminal laws. No court ought to undertake an inquiry which it
cannot prosecute w/o determining whether these laws are consonant w/ its own notions of what is proper

View that Fiscal law Penal laws: (PROFESSOR LEFLAR)

Tax laws are not passed to punish people. Its an obligation of the citizen who enjoys the protection of
government to share the expense of maintaining the government.

FOREIGN LAW OR JUDGMENT IS CONTRARY TO GOOD MORALS (CONTRA BONOS MORES)

-the determination of what is contrary to good morals is left to the forum court trying a particular case

Contra Bonos Mores (American definition): acts

*having mischievous or pernicious consequences

*against true principles of morality

e.g.

>hiring for killing

>bribery of public officers

>marriage between ascendants and descendants (incest!)

CRITIQUE: inherent subjectivity

APPLICATION OF FOREIGN LAW WILL WORK UNDENIABLE INJUSTICE TO THE CITIZENS OF THE
FORUM
THE FOREIGN LAW IS PENAL IN CHARACTER

Chief Justice Marshall: Courts of no country execute penal laws of another.

What is penal? HUNTINGTON V. ATTRILL: whether it appears to the tribunal which is called upon to
enforece it to be, in its essential character and effect, a pubishment of an offense against the public

LOZADA V. POSADAS: when it imposes punishment for an offense committed against the state which
under the Constitution, the Executive has the power to pardon

>>>this definition however was broadened in common use as penal statutes were understood to include

>"all statutes which command or prohibit certain acts, and establish penalties for their violation"

> impose a penalty for their commission

What is a penalty? Restatement of Conflicts of laws: a sum of money exacted as punishment for a civil
wrong (there's a claim or right)

Vs. compensation: for loss suffered by injured party

Penal laws and Revenue laws: deemed as different, but there are views holding Revenue laws as penal
in character

EXTRADITION

Basis: jurisdictional cooperation + assistance among States in the enforcement of their criminal laws

Scope: all offenses except Political or religious

What happens: when a person indicted for a penal offense or a convict serving sentence ESCAPES to
another country, the receiving country has legal obligation to surrender escapee to the State from which
he escaped

APPLICATION OF FOREIGN LAW MIGHT ENDANGER THE VITAL INTERESTS OF THE STATE