Conflict of Laws Notes_INTRODUCTION

7/30/2019 Conflict of Laws Notes_INTRODUCTION

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I. INTRODUCTION SCOPE OF CONFLICT OF LAWS

DEFINITION OF CONFLICT OF LAWS

Part of international law which deals with legal problems involving foreign elementconcerning the conflict in the application of local and foreign laws, raised in a proper

forum.

That part of of a state whichwhen confronted with a legal problem involving a , whether or not they

should (Paras).

That part of the law of each State or nation which determines whether, in dealing with alegal situation, the law or some other State or nation will be recognized, given effect, or

applied (16 Am Jur, 2d, Conflict of Laws, 1)

ELEMENTS FOR THE APPLICATION OF CONFLICT OF LAWS

1. Conflict of laws is that part of the municipal law of the State2. The direction to Courts and Administrative agencies3. A legal problem involving a foreign element4. The application or non-application of foreign law/foreign laws

If there is no foreign element, there is no conflict of law. Foreign elements is a factual situation that cut across territorial lines and affected by

diverse laws of two or more states -- Saudia vs Morada

1. One or both litigant is alien

2. Cause of action arises in foreign state

- location of the res

- place of celebration

- place of the act

- place of the crime

Cases involving COL, forum may:

1. Refuse - apply forum non conviniens, no COL


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2. Assume- forum may apply the following:

a. local law -- lex fori

b. Foreign law - lex causae

c. apply both -- Cadalin vs POEA

if there is no conflict between the two, there is nothing to resolve. court can apply foreign law if properly pleaded and proved, application discretionary to

the court.

Which law applies?

depends on the factual situation and connection of the foreign element, applycharacterization process of determining under what category a certain set of facts or

rules falls.

Purpose - to enable the forum to select the proper law

FUNCTIONS OF CONFLICT OF LAWS (IS 3 FOLD)

1. To prescribe the conditions under which a court or agency is competent to entertain a suit orproceeding involving facts containing a foreign element;

2. To determine the extent, validity and enforceability of foreign judgment (or to specify thecircumstances in which foreign judgment will be recognized as valid and binding in the

forum)

3. To determine for each class of cases the particular system if law by reference to which therights of the parties must be ascertained

In other words,

1. The determination of which country has jurisdiction

2. The applicability to a particular case of either the local or the foreign law

3. The determination of the force, validity and effectiveness of a foreign judgment

1. Rules of Private International Law, like all other rules of law, apply only to certain given factsnot characterized as creating some legal relationship


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2. The selection of legal systems open to the court is limited to those that are simultaneouslyvalid

3. The legal effects of a certain set of facts are not always determined by one single legasystem.

4. It is sometimes necessary to apply several systems, either cumulatively or alternatively

1. a given set of facts may produce legal effects each of which is governed by a differentlegal system,

2. or a given set of facts may produce legal effects only if certain conditions common to twolegal systems are fulfilled

Under the Philippine law, if an alien executes a will in the Philippines, the formal validity of the

will may be judged alternatively by the requirement of internal Philippine law or of his own

national law. If either law considers it formally valid, it may be admitted to probate

ALSO: Promoting the peaceable intercourse of private persons, made imperative by the

economic and social demands of an interdependent world, through rules that are eminently just

and workable, may well be the ultimate objective of Private International Law

protection of the justified and rational expectations of parties to a transaction, the application

of the law of the state having a dominant interest in a given set of facts, the promotion of

stability and predictability by achieving uniformity of solution to a case wherever the forum may

be situated, and of course, the dispensing of justice in individual cases.

SIGNIFICANCE/IMPORTANCE OF CONFLICT OF LAWS

1. To adjust conflicting rights in international mercantile and corporate transactions2. To solve personal, family, property and successional contractual problems, possessed o

facts or elements operating in two or more states.

States must of necessity observe the subject because it is part of their municipal law. Surelya government, anywhere and anytime, is duty bound to enforce and respect its own

municipal legislation


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individuals observe it because of fear of municipal sanctions

IDENTIFYING ISSUES IN CONFLICT OF LAWS

HISTORY OF CONFLICT OF LAWS

ORIGIN

Determined CoL rules by differentiating 3 types of statutes1. real statutes2. personal statutes3. mixed statutes

Doctrine: Parties to the contract could choose the law that was to govern their agreement

Doctrines

Whenever there was any doubt as to whether a statutory rule was personal or realpresumed it is real

In matters of succession, where a person leaves immovables in various countries, the law ofthe countries concerned should be applied respectively to the immovable therein situated

rather than for the latter to be regulated by one and only one law

The Doctrine of Comitas Gentium Doctrine: States are not obligated to take note of foreign laws unless imposed by treaty

Laws of every state operate within the territorial limits, and such is binding to alsubjects but not beyond those limits

Subjects of a state are all those who are found within the limits of its territory,whether they reside there permanently or whether their presence there is only

temporary


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Every sovereign, out of comity, admits that a law which has already operated in thecountry of origin shall retain its force everywhere, provided that this will not prejudice

the subjects of the sovereign by whom its recognition is sought

This doctrine merely states that the Theory of Statutes is subordinate to the idea ofComitas

Prussian General Code of 1794 made emphasis of res magis valet quam, which as applied to

Private International Law:

If a person has 2 domiciles, which is possible under European laws, that domicile is decisive

under the law of which the contract or act in question is valid

If a person domiciled abroad enters into contract within Prussian territory respecting chattels

there, the contract is valid if under the law is either (his domicile or that of Prussia) he is capable

of entering into contracts

1. -Deductive method- Begins with a set of priori principles to derive a body ofconsistent rules

2. - Inductive method- Studies actual rules in force and reduce them to systematicorder; do not claim universal validity

American judge, Commentaries on the Conflict of Laws (1834)

Approach was more positive than theoretical

Maxims:

1. Every nation possesses an exclusive sovereignty and jurisdiction within its own territory thatdirectly binds all properties within its territory, and all persons who are residents within it

(territorial sovereignty)

2. No state or nation can by its law directly affect or bind property out of its own territory, obind persons not resident therein, whether they are natural born subjects or others

Great German jurist, System of Modern Roman Law (1849) It is expedient that in cases containing a foreign element, the same legal relations have to

expect the same decision whether the judgment be pronounced in this state or in that


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It is essential to bear in mind the existence of an international community of nations havingintercourse with one another

Comity is beneficial and advantageous to all concerned, the state and the individuals The question is not W/N the rule is related to property, persons or acts but to classify lega

relationships so as to ascertain for every legal relation that law to which, in its proper nature, it

belongs or is subject and thus find out where a relation has its seat (the situs) the seat of a

particular legal relationship

Nationality as the Basis of the Law of Nations (1851) Opposing the rule on domicile, Mancini asserts the rule of nationality, the components of which

are: religion, customs of life, language, race of the people, historical traditions, even the

landscape of the country and its climate

Personality of an individual is determined only by his nationality; an individuals personality isrecognized only if his nationality is recognized

In every kind of legal system, there are 2 kinds of rulesi. those created in the interest of private individualsbinding to persons who belong to the

country by nationality

ii. those for the protection of public orderbinding to all within the territory

(other version:)

-law of nations in PIL

-governs relations of States

-body of rules developed by the PRAETOR PEREGRINUS to resolve disputes between

Foreigners and Roman Citizens

applied only to Roman Citizens

-Italy was divided into many city-states, each have own law so they have conflicts of law

problems

: formulated the

THEORY OF STATUTES

-the theory of statutes was used by the Italian city-states to resolve conflict of law issues


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1. applied to immovable property w/n the state

2. followed persons even outside his

domicile, governed all

questions concerning

o personal statuso capacityo movables

3. on contracts - depend on where entered

method to determine what law would govern CONTRACTS BETWEEN

DIFFERENT NATIONALS

PRINCIPLE OF UNIVERSAL SUCCESSION

State was

under no obligation to apply foreign law UNLESS imposed by

o treatyo COMITAS GENTIUM (Comity of Nations?)o on consideration of courtesy and expediency

no statue, real, personal or mixed, can act by itself beyond the territory of the

legislator nor can it have any effect elsewhere against the will of the legislator of another state

:

GR: laws of every state may operate ONLY WITHIN THE

TERRITORIAL LIMIT OF SUCH STATE

X: may recognize laws of another country PROVIDED that it the subjects o

the sovereign whose recognition is sought

(Comity of Nations) approach readily accepted

-most trans-jurisdictional disputes to be resolved by the application of IUS GENTIUM or IUS

COMMUNE


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:supranational law based on Roman Law, became continental European Common

Law

-nations began codifying their national laws to include conflict of laws provisions:

*Bavarian Code: theory of statutes

*Prussian Code: theory of efficacy of contracts

*French Civil Code: pattern for Civil Codes of Spain, Belgium, and

Romania: nationality principle

-adopted by RP: ART15, NCC

- territorial theory/comitas gentium

approach

-territorial sovereignty, founded conflict of laws on the principle of comity of nations

-adopted by JOSEPH BEALE, American Restatement of Conflict of Laws, developed

-advocated historical school of jurisprudence

-applicationof foreign law was to comity BUT the resultant benefits for everyone

concerned

-founder of MODERN PRIL

every element of a transaction be governed by the law

of the place with which said element has the most substantive connection

- on

o Statuso Capacityo Private interests of the individual

-NEW THEORY OF PRIL

MODERN VIEWS/DEVELOPMENTS

Assumption: 2 or more independent laws are applicable to conflicts problem Then proceed to devise some method to determine the law that shall prevail


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Many adhere to Mancinis theory

There exists or should exist, a single body of international rules that can and shouldsolve all legal problems that involve a foreign element

A juridical act should in all countries be governed by the law of the place in which theact has its seat (Savigny)

But while almost every adherent of the international system is agreed on this abstracprinciple, there are wide differences of opinion on the most appropriate law to govern

each legal relation

Only the law of a state applies to persons and things within its territory. Foreign law

is not applied in the forum

2 Factions only rights vested or acquired under the foreign law are recognized in the forum, but

not the foreign law itself

vested rights theory is illogical and is not true in practice

In the absence of statutory rules, it holds that the applicable law in a conflicts case is the law of

the most significant relationship which is determined by weighing the factors considered more

relevant

when two or more independent laws are applicable to a conflict of laws problem

the method so devised determines what law shall prevail

: there should be a single body of rules that can solve problems involving

foreign element

law of the State applied to persons and things within the State, no foreign law

should be applied

-branch: only rights vested or acquired under a foreign law are recognized but not the foreign

law itself


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* , William Reese: the law to be applied in a conflict of laws case is the law of

the most significant relationship

policy-centered Approaches

CONFLICT OF LAWS IN THE PHILIPPINES

-only when RP became sovereign state In NCC:

Article 15: nationality principle Art. 15. Laws relating to

*family rights and duties,

*or to the status,

*condition and

*legal capacity of persons are

binding upon citizens of the Philippines, even though living

abroad. (9a)

Article 16(1): lex situs rule Art. 16. Real property as well as personal property is subject to the law of the country where

it is stipulated.

Article 16(2): universal successionHowever, intestate and testamentary successions, both with respect to

the order of succession and to the amount of successional rights and to

the intrinsic validity of testamentary provisions, shall be regulated by the

national law of the person whose succession is under consideration

whatever may be the nature of the property and regardless of the country

wherein said property may be found.

Article 17(1): lex loci contractus Art. 17. 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.


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CONFLICT OF LAWS VS. PUBLIC INTERNATIONAL LAW

DISTINGUISH

SOURCES


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- Natural Moral Law

- Work of Writers

- Constitutions

- Codifications

- Special Laws

- Treaties and Conventions

- Judicial Decisions

- International Customs

- codified - so Civil Codes are primary sources of Conflic

of Laws rules

: codified in Roman Codes

: enforced in RP Dec7, 1889 until August 30, 1950

-Conflict of laws provisions adopted by RP NCC

: foreign transactions provisions - also enforced in Dec1, 1888

:

1. Corporation Code

2. General Banking Act

3. Act Instituting Foreign Currency System in the Philippines

4. Philippine Foreign Law Guarantee Corporation

5. Act Regulating Retail Business

6. Anti-Dummy Law

7. Nationalization of the Rice and Corn Industry

8. Insurance Code

9. Protection of Intellectual Property

10. Patent Law

11. Tradesmark Law

12. COGSA


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13. Salvage Law

14. Public Service Act

15. Civil Aeronautics Act

16. Philippine Overseas Shipping Act

17. Investment Incentives Act

18. Export Incentives Act

19. RA 7722 liberalizing entry of foreign banks in the Philippines

1. Convention on International Civil Aviation

2. Convention for the Unification of Certain Rules relating to international Carriage by Air - Warsaw

Convention

3. Convention on Offenses Committed on Board Aircraft

4. Convention for Suppression of Unlawful Acts against the Safety of Civil Aviation

5. UN COGSA

6. Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of

Marriages

7. Convention on Traffic of Person

8. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

9. Convention on Political Rights of Women

10. International Convention for the Suppression of the Traffic in Women and Children

11. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the

Prostitution of Others

12. Convention Establishing the World Intellectual Property Organization

13. Berne Conventions for the Protection of Literary and Artistic Works

14. Convention for the Protection of Industrial Property

15. Paris Convention for the Protection of Industrial Property

16. Hague Conventions on PRIL:

personal status

patrimonial family status

patrimonial status such as agency and trusts

17. Convention on Recognition of Foreign Judgment on Civil and Commercial matters

18. Convention in Respect of Inter Country Adoption

Ulrich Huber, De Conflicto Legum Diversarum in Diversia Impecis


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Mareas (di ba Manresa?), Comentarios al Codigo Civil Espanol

FK von Savigny, System des Beutigen Romishcen Rights, English translation by Guthrie Andre

Weiss, Traite Theorique et Pratique de Droit International Prive

JH Beale, Conflict of Laws

DF Cavers, The Choice of Law Process

E. Cheatham, Cases and Materials on Conflict of Laws

B. Currie, Selected Essays on the Conflict of Laws

A. Ehrenzweig,A Treatise on the Conflict of Laws

HF Goodrich, Conflict of Laws

AK Kuhn, Commentarieson PRIL

A Gussbaum, Principles of PRIL

E Rabel, The Conflict of Laws

J Story, Commentaries on the Conflict of Laws

F Wharton, Treatiese on the Conflict of Laws

GC Chesire, Private International LawRH Graveson, Conflict of laws

Restatement of the Conflicts of Laws Second Restatement

this branch of law is more completely judge-made Than almost any other

CONFLICT OF LAWS UNDER COMMON LAW AND PRIVATE INTERNATIONAL LAW UNDER CIVIL LAW


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CASES:

1. GUERREROS TRANSPORT SERICES, INC VS BLAYBLOCK TRANSPORT SERVICES, 71 SCRA 621 (1976)

In 1972, the US Naval Base authorities in Subic conducted a public bidding for a 5-year contracfor the right to operate and/or manage the transportation services inside the naval base.

This bidding was won by Santiago Guerrero, owner-operator of Guerreros Transport ServicesInc. (Guerrero), over Concepcion Blayblock, the then incumbent concessionaire doing business

under the name of Blayblock Transport Services Blayblock. Blayblocks 395 employees are

members of the union BTEA-KILUSAN (the Union).

When Guererro commenced its operations, it refused to employ the members of the Union. So the Union filed a complaint w/ the NLRC against Guerrero to compel it to employ its

members, pursuant to Art. 1, Sec. 2 of the RP-US Base Agreement. The case was dismissed by the NLRC upon Guerreros MTD on jurisdictional grounds, there

being no employer-employee relationship between the parties.

Upon appeal, the Sec. of Labor remanded the case to the NLRC. The NLRC issued aResolution ordering Guererro to absorb all complainants who filed their applications on o

before the deadline set by Guerrero, except those who may have derogatory records w/ the US

Naval Authorities in Subic. The Sec. of Labor affirmed.

Guerrero claims that it substantially complied w/ the decision of the Sec. of Labor affirming theNLRC Resolution, & that any non-compliance was attributable to the individual complainantswho failed to submit themselves for processing & examination.

The Labor Arbiter ordered the reinstatement of 129 individuals. The Union filed a Motion for Issuance of Writ of Execution. The order wasnt appealed so it was

declared final & executor

Subsequently, the parties arrived at a Compromise Agreement wherein they agreed to submit tothe Sec. of Labor the determination of members of the Union who shall be reinstated by

Guerrero, w/c determination shall be final. The agreement is deemed to have superseded the

Resolution of the NLRC. The Sec. of Labor ordered the absorption of 175 members of the Unionsubject to 2 conditions.

Whether or not the said members of the Union were entitled to be reinstated by Guerrero.

. Pursuant


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.

Aoo .

As part of the municipal law, the provision of the treaty enters into and forms part of the contracbetween Guerrero and the US Naval Base authorities.

In view of said stipulation, the). It is obviously

in recognition of such obligation that Guerrero entered into the aforementioned Compromise

Agreement.

Under the Compromise Agreement, the parties agreed to submit to the Sec. of Labor thedetermination as to who of the members of the Union shall be absorbed or employed by

Guerrero, and that such determination shall be considered as final.

The Sec. of Labor issued an Order directing the NLRC, through Labor Arbiter Francisco de losReyes, to implement the absorption of the 175 members into Guerrero's Transport Services

subject to the following conditions:

1. that they were bona fide employees of the Blaylock Transport Service at the time itsconcession expired; and

2. that they should pass final screening and approval by the appropriate authorities ofthe U.S. Naval Base concerned.

For this purpose, Guerrero is ordered to submit to and secure from the appropriate authorities ofthe U.S. naval Base at Subic, Zambales the requisite screening and approval, the names of the

members of the Union.

.

For it is settled that


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2. SAUDI ARABIAN AIRLINES VS. CA, 297 SCRA 469 (1998)

Jurisdiction is based on allegations on the pleading State of the Most Significant Relationship Theory Conflicts of Laws Problem Points of Contact

Plaintiff Morada is a flight attendant for defendant SAUDIAs airlines based in Jeddah. On Apri27, 1990, while on a lay-over in Jakarta, Indonesia, Morada became a victim of attempted rape

by fellow crewmembers, Thamer and Allah, who are both Saudi nationals.

The two were eventually arrested and deported back to Saudi Arabia while Morada wastransferred to Manila. On various dates after the incident, Morada was summoned to Jeddah by

her employer in order to sign documents, purporting to be statements dropping the case agains

Thamer and Allah.

However, it turned out that a case was in fact filed against her before the Saudi court, whichlater found her guilty of (1) adultery; (2) going to a disco, dancing and listening to the music in

violation of Islamic laws; and (3) socializing with the male crew, in contravention of Islamic

tradition.

Hence, Morada filed this complaint for damages based on Article 21 of the New Civil Codeagainst SAUDIA and its country manager.

1. Whether or not the trial court has jurisdiction over the case2. Whether the proper law applicable is Philippine law or the law of the Kingdom

of Saudi Arabia

3. Whether or not the case involves a conficts problem

A factual situation that cuts across territorial lines and is affected by the diverse laws of two or

more states is said to contain a foreign element. The presence of a foreign element is

inevitable since social and economic affairs of individuals and associations are rarely confined

to the geographic limits of their birth or conception.

The forms in which this foreign element may appear are many. The foreign element may simplyconsist in the fact that one of the parties to a contract is an alien or has a foreign domicile, or

that a contract between nationals of one State involves properties situated in another State. In

other cases, the foreign element may assume a complex form.


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In the instant case, the foreign element consisted in the fact that private respondent Morada is aresident Philippine national, and that petitioner SAUDIA is a resident foreign corporation. Also

by virtue of the employment of Morada with the petitioner SAUDIA as a flight stewardess

events did transpire during her many occasions of travel across national borders, particularly

from Manila, Philippines to Jeddah, Saudi Arabia, and vice versa, that caused a conflicts

situation to arise.

The Supreme Court held that private respondent aptly predicated her cause of action on Articles19 and 21 of the New Civil Code. Although Article 19 merely declares a principle of law, Article

21 gives flesh to its provisions. Thus, violations of Articles 19 and 21 are actionable, with

judicially enforceable remedies in the municipal forum.

Based on the allegations in the Amended Complaint, read in the light of the Rules of Court onjurisdiction, the Supreme Court found that the RTC of Quezon City possesses jurisdiction over

the subject matter of the suit. Its authority to try and hear the case is provided under Section 1

of RA 7691. Venue was also held to be proper. Furthermore, jurisdiction over the person of the

plaintiff and defendant were properly acquired.

Choice-of-law problems seek to answer two important questions

Before a choice can be made, it is necessary for us to determine under what category a certainset of facts or rules fall. This process is known as

Our starting point of analysis here is not a legal relation, but a factual situation, event oroperative fact. An

.

Note that one or more circumstances may be present to serve as the possible test for thedetermination of the applicable law. These test factors or points of contact or connecting

factors could be any of the following:

The nationality of a person, his domicile, his residence, his place of sojourn, or his origin; The seat of a legal or juridical person, such as a corporation; The situs of a thing, that is, the place where a thing is, or is deemed to be situated. In particular

the lex situs is decisive when real rights are involved;


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The place where an act has been done, the locus actus, such as the place where a contract hasbeen made, a marriage celebrated, a will signed or a tort committed. The lex loci actus is

particularly important in contracts and torts;

The place where an act is intended to come into effect, e.g. the place of performance ofcontractual duties, or the place where a power of attorney is to be exercised;

The intention of the contracting parties as to the law that should govern their agreement, the lexloci intentionis;

The place where judicial or administrative proceedings are instituted or done. The lex fori thelaw of the forum is particularly important because, as we have seen earlier, matters of

procedure not going to the substance of the claim involved are governed by it; and because the

lex fori applies whenever the content of the otherwise applicable foreign law is excluded from

application in a given case for the reason that it falls under one of the exceptions to the

applications of foreign law; and

The flag of the ship, which in many cases is decisive of practically all legal relationships of theship and of its master or owner as such. It also covers contractual relationships particularly

contracts of affreightment.

Considering that the complaint in the court a quo is one involving torts, the connecting factor orpoint of contact could be the place or places where the tortious conduct or lex loci actus

occurred. And applying the torts principle in a conflicts case, we find that the Philippines could

be said as a situs of the tort (the place where the alleged tortious conduct took place). This is

because it is in the Philippines where petitioner allegedly deceived private respondent, a Filipina

residing and working here. According to her, she had honestly believed that petitioner would, in

the exercise of its rights and in the performance of its duties, act with justice, give her her due

and observe honesty and good faith. Instead, petitioner failed to protect her, she claimed. That

certain acts or parts of the injury allegedly occurred in another country is of no moment. For in

our view what is important here is the place where the over-all harm or the fatality of the alleged

injury to the person, reputation, social standing and human rights of the complainant, had

lodged, according to the plaintiff below (herein private respondent). All told, it is not without

basis to identify the Philippines as the situs of the alleged tort.

Moreover, with the widespread criticism of the traditional rule of lex loci delicti commissi, moderntheories and rules on tort liability have been advanced to offer fresh judicial approaches to arrive

at just results. In keeping abreast with the modern theories on tort liability, we find here an

occasion to apply the State of the most significant relationship rule, which in our view should

be appropriate to apply now, given the factual context of this case.

In applying said principle to determine the State which has the most significant relationship, thefollowing contacts are to be taken into account and evaluated according to their relative


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importance with respect to the particular issue: (a) the place where the injury occurred; (b) the

place where the conduct causing the injury occurred; (c) the domicile, residence, nationality,

place of incorporation and place of business of the parties; and (d) the place where the

relationship, if any, between the parties is centered.

As already discussed, there is basis for the claim that over-all injury occurred and lodged in thePhilippines. There is likewise no question that private respondent is a resident Filipina national,

working with petitioner, a resident foreign corporation engaged here in the business of

international air carriage. Thus, the relationship between the parties was centered here

although it should be stressed that this suit is not based on mere labor law violations. From the

record, the claim that the Philippines has the most significant contact with the matter in this

dispute, raised by private respondent as plaintiff below against defendant (herein petitioner), in

our view, has been properly established.

On January 21, 1988 defendant SAUDIA hired plaintiff as a Flight Attendant for its airlinesbased inJeddah, Saudi Arabia. . . .

On April 27, 1990, while on a lay-over in Jakarta, Indonesia, plaintiff went to a disco dance withfellow crew members Thamer Al-Gazzawi and Allah Al-Gazzawi, both Saudi nationals. Because

it was almost morning when they returned to their hotels, they agreed to have breakfast

together atthe room of Thamer. When they were in te (sic) room, Allah left on some pretext

Shortly after he did, Thamer attempted to rape plaintiff. Fortunately, a roomboy and severa

security personnel heard her cries for help and rescued her. Later, the Indonesian police came

and arrested Thamer and Allah Al-Gazzawi, the latter as an accomplice.

When plaintiff returned to Jeddah a few days later, several SAUDIA officials interrogated heabout the Jakarta incident. They then requested her to go back to Jakarta to help arrange the

release of Thamer and Allah. In Jakarta, SAUDIA Legal Officer Sirah Akkad and base manage

Baharini negotiated with the police for the immediate release of the detained crew members bu

did not succeed because plaintiff refused to cooperate. She was afraid that she might be tricked

into something she did not want because of her inability to understand the local dialect. She

also declined to sign a blank paper and a document written in the local dialect. Eventually

SAUDIA allowed plaintiff to return to Jeddah but barred her from the Jakarta flights.

Plaintiff learned that, through the intercession of the Saudi Arabian government, the Indonesianauthorities agreed to deport Thamer and Allah after two weeks of detention. Eventually, they

were again put in service by defendant SAUDI (sic). In September 1990, defendant SAUDIA

transferred plaintiff to Manila.


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On January 14, 1992, just when plaintiff thought that the Jakarta incident was already behindher, her superiors requested her to see Mr. Ali Meniewy, Chief Legal Officer of SAUDIA

in Jeddah,Saudi Arabia. When she saw him, he brought her to the police station where the

police took her passport and questioned her about the Jakarta incident. Miniewy simply stood by

as the police put pressure on her to make a statement dropping the case against Thamer and

Allah. Not until she agreed to do so did the police return her passport and allowed her to catch

the afternoon flight out of Jeddah.

One year and a half later or on lune 16, 1993, in Riyadh, Saudi Arabia, a few minutes before thedeparture of her flight to Manila, plaintiff was not allowed to board the plane and instead ordered

to take a later flight to Jeddah to see Mr. Miniewy, the Chief Legal Officer of SAUDIA. When she

did, a certain Khalid of the SAUDIA office brought her to a Saudi court where she was asked to

sign a document written in Arabic. They told her that this was necessary to close the case

against Thamer and Allah. As it turned out, plaintiff signed a notice to her to appear before the

court on June 27, 1993. Plaintiff then returned to Manila.

Shortly afterwards, defendant SAUDIA summoned plaintiff to report to Jeddah once again andsee Miniewy on June 27, 1993 for further investigation. Plaintiff did so after receiving assurance

from SAUDIA's Manila manager, Aslam Saleemi, that the investigation was routinary and that it

posed no danger to her.

In Jeddah, a SAUDIA legal officer brought plaintiff to the same Saudi court on June 27, 1993Nothing happened then but on June 28, 1993, a Saudi judge interrogated plaintiff through an

interpreter about the Jakarta incident. After one hour of interrogation, they let her go. At the

airport, however, just as her plane was about to take off, a SAUDIA officer told her that the

airline had forbidden her to take flight. At the Inflight Service Office where she was told to go,

the secretary of Mr. Yahya Saddick took away her passport and told her to remain in Jeddah, at

the crew quarters, until further orders.

On July 3, 1993 a SAUDIA legal officer again escorted plaintiff to the same court where thejudge, to her astonishment and shock, rendered a decision, translated to her in English

sentencing her to five months imprisonment and to 286 lashes. Only then did she realize that

the Saudi court had tried her, together with Thamer and Allah, for what happened in Jakarta.

The court found plaintiff guilty of (1) adultery; (2) going to a disco, dancing and listening to the

music in violation of Islamic laws; and (3) socializing with the male crew, in contravention o

Islamic tradition.

Facing conviction, private respondent sought the help of her employer, petitioner SAUDIAUnfortunately, she was denied any assistance. She then asked the Philippine Embassy in

Jeddah to help her while her case is on appeal. Meanwhile, to pay for her upkeep, she worked

on the domestic flight of SAUDIA, while Thamer and Allah continued to serve in the internationa

flights.


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Because she was wrongfully convicted, the Prince of Makkah dismissed the case against herand allowed her to leave Saudi Arabia. Shortly before her return to Manila, she was terminated

from the service by SAUDIA, without her being informed of the cause.

On November 23, 1993, Morada filed a Complaint for damages against SAUDIA, and Khaled Al-Balawi ("Al-Balawi"), its country manager.

On January 19, 1994, SAUDIA filed an Omnibus Motion To Dismiss which raised the followinggrounds, to wit: (1) that the Complaint states no cause of action against Saudia; (2) that

defendant Al-Balawi is not a real party in interest; (3) that the claim or demand set forth in the

Complaint has been waived, abandoned or otherwise extinguished; and (4) that the trial court

has no jurisdiction to try the case.

: Whether of not the trial court can validly take cognizance and decide upon the case.

: Yes

Where the factual antecedents satisfactorily establish the existence of a foreign element, theproblem could present a "conflicts case". A factual situation that cuts across territorial lines and

is affected by the diverse laws of two or more states is said to contain a The

presence of a foreign element is inevitable since social and economic affairs of individuals and

associations are rarely confined to the geographic limits of their birth or conception.

The forms in which a foreign element may appear are many, such as the fact that one party is aresident Philippine National and that the other is a resident foreign corporation -

1. The foreign element may simply consist in the fact that one of the parties to a contact is an alienor has a foreign domicile, or

2. that a contract between nationals of one State involves properties situated in another state.3. it may assume complex form.4. in this case, the foreign element consisted in the fact that private respondent Morada is a

resident Philippine National and that petitioner SAUDIA is a resident foreign corporation.

5. by virtue of the employment, events transpire across national borders that caused "conflictsituation to arise.

1. Convenience of the Parties

2. Paramount is the Private Interest of the Parties.

3. Enforceablility of a judgment if one is obtained.

4. Relative advantages and obstacles to a fair trial are equally important.


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Plaintiff may not by choice of a inconvenient forum, vex, harass or oppress the defendant byinflicting upon him needless expense or disturbance.

Plaintiff's choice of forum should not be disturbed unless the balance is strongly in favor of thedefendant.

Forcing a party to seek remedial action in a place where she no longer maintains substantiaconnections would cause a fundamental unfairness to her.

1. Over the respondent / plaintiff ; by filing her Complaint and Amended Complaint, she hasvoluntarily submitted herself to the jurisdiction of the court.

2. Over the petitioner / defendant ; praying for the dismissal of the complaint on grounds other thanlack of jurisdiction

1. What legal system should control a given situation where some of the significant facts occurredin two or more states and

2. To what extent should the chosen legal system regulate the situation.

the process of deciding whether or not the facts relate to the kind of question specified ina conflicts rule. Determine under what category a certain set of facts or rules fall. The

purpose of "characterization" is to enable the forum to select the proper law.

An essential element of conflict rules is the indication of a "test" or "connecting factor" or"point of contact"

Our starting point of analysis is factual situation, event or operative fact. A factual relationship and a connecting factor or point of contact, such as the situs of the

res, the place of celebration, the place of performance, or the place of wrondoing.

"

any of the following: (1) the nationality of a person, his domicile, his residence, his place o

sojorn or his origin; (2) the seat of a legal or juridical person, such as a corporation; (3) the situs

of a thing, that is, the place where a thing is or is deemed to be situated, lex situs is decisive

when real reights are involved; (4) the place where an act has been done, the locus-actus, lex

loci actus is particularly important in contracts and torts; (5) the place where an act is intended

to come into effect; e.g., the place of performance of contractual duties or the place where a

power of attorney is to be exercised; (6) the intention of the contracting parties as to what law

should govern their agreement - lex loci intentionis; (7) the place where the judicial o

administrative proceedings are instituted or done, the lex fori (8) the flag ship, practically

decisive of all legal relationships of the ship and of its master or owner as such..


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However there is the widespread criticism of the traditional rule of lex loci delicti commissi.

Apply State of the Most Significant relationship Rule - appropriate theory on tort liability:

1) the place where the injury occurred

2) the place where the conduct causing the injury occurred

3) the domicile, residence, nationality, place of incorporation and place of business of the

parties;

4 The place where the relationship, if any, between the parties is centered

The Philippines is the situs of the tort complained of and the place " having the most interest in the

problem", the Philippine Law on tort liability should have paramount application to and control in the

resolution of the legal issues arising therein in view of the foregoing.

1) The respondent is a resident Filipina National

2) The petitioner is a resident foreign corporation engage here in the business of international air

carriage

3) The relationship was centered in the Philippines

4) The Philippines has the most significant contact with the matter in this dispute

5) The Philippines is the situs of the tort complained of

6) The Philippines has the most interest in the problem

7) The RTC has jurisdiction over the parties and the subject matter of the complaint


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3. NORTHERN P.R, CO VS. BABCOCK, 154 US 190

an action by Albert L. Babcock, as administrator of Hugh M. Munro, deceased, against theNorthern Pacific Railroad Company, .

plaintiff below, who was the administrator of the estate of Hugh M. Munro, sued in the districcourt of the fourth judicial district of Minnesota to recover $25,000 damages for the killing of

Munro

on Jan. 10, 1888, Munro was employed of the said NPRC, within the territory of Montana, in thecapacity of locomotive

the duty of running a locomotive engine upon said defendant's line of railway within Montanawas assigned to said Hugh M. Munro on Jan. 10, and defendant directed and ordered Munro to

run a certain locomotive engine owned by the defendant over and upon its said railway in said

territory;

prior to and at the time the said orders were so presented to Munro, there was a severesnowstorm in progress, and defendant's line of railway over and upon which said Munro was so

ordered to run said engine was covered with drifting snow theretofore accumulated thereon,

defendant corporation did willfully, improperly, negligently, and carelessly refuse and neglect tosend a snow plow ahead of said engine No. 161 to clear the snow and ice from said defendant's

said track, which had accumulated, so as to render the passage of said engine No. 161 safe

and proper.

there was attached to the forward part of said engine a certain attachment known as a 'pilotplow,' an appliance constructed thereon for the purpose of clearing the railway of snow and ice

accumulated thereon, and render safe the passage of the engine to which said plow was

attached over and upon said railway of defendant.

defendant corporation knowingly, willfully, negligently, and carelessly allowed Munro to be andremain upon said engine No. 161

attached to the engine, a certain pilot plow, the iron braces, bolts, and rods of which werebroken, imperfect, and insufficient, by reason of which condition the said plow was loose and

insufficiently secured to the pilot of said engine, allowing the said pilot to raise up and ride over

obstructing snow and ice instead of cutting through the same, as was the intention of its

construction, rendering the running of said engine upon said railway dangerous;

defendant well knew of the broken, defective, and dangerous condition of said engine No. 161at the time the said Hugh M. Munro was so ordered to run the same upon and over said railway

Munro was running said engine in performance of his duty as such engineer, and pursuant tothe orders of defendant, and before daylight on Jan. 10, in territory of Montana, the said engine

struck an accumulation of snow and ice which said defendant had carelessly and negligently


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allowed to accumulate upon its said railway track, and the pilot plow of said engine, by reason of

its broken, loose, and imperfect condition aforesaid, did ride upon said accumulation of snow

and ice, thereby derailing said engine, and throwing the same from said railway track, whereby

the said Hugh M. Munro was instantly killed.

Law in the territory of Montana:"Sec. 13. A father, or, in case of his death or desertion of his family, the mother, may

maintain an action for the injury or death of a child, or a guardian for the injury or death

of his ward.

"Sec. 14. Where the death of a person not being a minor is caused by the wrongful act

or neglect of another, his heirs or personal representatives may maintain an action for

damages against the person causing the death, or if such person be employed by

another person who is responsible for his action, then also against such other person. In

every action under this and the preceding section such damages may be given as under

all the circumstances of the case may be just."

The case was removed to the circuit court of the United States for the district of Minnesota,where an answer was filed by the defendant, denying the averments of the complaint, and

alleging that the death of Munro was caused solely by his negligence and carelessness, and no

by the negligence of the defendant or any of its servants or employes.

WON the court erred further in charging the jury as follows: 'Many states have different laws

The law in this state until recently was that only $5,000 could be given in a case of death. It has

lately been increased to $10,000.'

Or simply stated, was the amount of damage to be controlled by the law of the place of

employment and where the accident occurred, or by the law of the forum in which the suit was

pending?

The plaintiff's intestate was an engineer in the employ of the defendant corporation in theterritory of Montana, and the accident by which he lost his life occurred there. The law of the

territory of Montana at the time provided as follows:

'Where the death of a person not being a minor is caused by the wrongful act or neglect

of another his heirs or personal representatives may maintain an action for damages

against the person causing the death, or if such person be employed by another person

who is responsible for his action, then also against such other person. In every action


27/35

under this and the preceding section such damages may be given as under all the

circumstances of the case may be just.'

'But it by no means follows that, because the statute of one state differs from the law of anotherstate, therefore it would be held contrary to the policy of the laws of the latter state.

To justify a court in refusing to enforce a right of action which accrued under the law of anotherstate because against the policy of our laws, it must appear that it is against good morals or

natural justice, or that, for some other such reason, the enforcement of it would be prejudicial to

the general interests of our own citizens. If the state of Iowa sees fit to impose this obligation

upon those operating railroads within her bounds, and to make it a condition of the employment

of those who enter their service, we see nothing in such a law repugnant either to good morals

or natural justice, or prejudicial to the interests of our own citizens.'

We think there was no error in holding that the right to recover was governed by the lex loci, andnot by the lex fori.


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4. LAUREL VS. GARCIA, 187 SCRA 797 (1990)

:

This is a petition for prohibition seeking to enjoin respondents, their representatives and agentsfrom proceeding with the bidding for the sale of the 3,179 square meters of land at 306

Roppongi; 5-chome Minato-ku Tokyo, Japan scheduled on February 21, 1990. The subject property in this case is one of the four (4) properties in Japan acquired by the

Philippine government under the Reparations Agreement entered into with Japan on 9 May

1956.

The properties and the capital goods and services procured from the Japanese government fonational development projects are part of the indemnification to the Filipino people for their

losses in life and property and their suffering during World War II.

:

1. Whether or not the Roppongi property and others of its kind can be alienated by the Philippinegovernment.

2. Whether or not the Chief Executive, her officers and agents have the authority, and jurisdiction to sel

the Roppongi property.

:

The . The is expressly spelled out. It is dictated by the terms of the Reparations Agreement and the corresponding contract of

procurement which bind both the Philippine government and the Japanese government. There can be no doubt that . And the

(Ignacio vs. Director of Lands, 108 Phil 335).

It is not for the President to convey valuable real property of the government on his or her ownsole will. Any such conveyances must be authorized and approved by a law enacted by the

Congress. It requires executive and legislative concurrence.

Petition is granted.

PRIVATE INTERNATIONAL LAW: Before determining whether it is domestic or foreign law that

should be applied, one must first determine whether a conflict of laws situation exists.


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The Roppongi Property is one of the four properties in Japan acquired by the Philippinegovernment under the Reparations Agreement, as part of the indemnification to the Filipino

people for their losses in life and property and their suffering during WWII.

The.

Due to the failure of our government to provide necessary funds, the Roppongi property hasremained undeveloped since that time.

After many years, the Aquino administration advanced the sale of the reparation propertieswhich included the Roppongi lot.

This move was opposed on the ground that the Roppongi property is public in character. For their part, the proponents of the sale raised that Japanese law should apply, following the

doctrine of lex loci rei sitae.

:

Whether or not the conflict of law rule on lex loci rei sitae should apply

:

A conflict of law situation arises only when:(1) There is a , such that the capacity to take

and transfer immovables, the formalities of conveyance, the essential validity and effect of the

transfer, or the interpretation and effect of a conveyance, are to be determined (See Salonga,

Private International Law, 1981 ed., pp. 377-383); and

(2)

on the same matters. Hence, the need to determine which law should apply.

In the instant case, none of the above elements exists. The . There is no question that the property belongs to the Philippines. The issue is the authority of the respondent officials to validly dispose of property belonging to

the State. And the validity of the procedures adopted to effect its sale.

This is governed by Philippine Law. The rule of lex situs does not apply. The assertion that the opinion of the Secretary of Justice sheds light on the relevance of the lex

situs rule is misplaced.

The opinion does not tackle the alienability of the real properties procured through reparationsnor the existence in what body of the authority to sell them.

In


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.

We see no point in belaboring whether or not this opinion is correct. Why should we discusswho can acquire the Roppongi lot when there is no showing that it can be sold?


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5. HONG KONG AND SHANGHAI BANKING CORP. VS. SHERMAN, 176 SCRA 331 (1989) GR 72494,

8/11/89

Choice-of-forum clause

Jurisdiction and Venue

Parties can stipulate as to their choice of venue. But if the stipulation is not restrictive, it shall be treated

as merely permissive and will not bar the other party from airing the case in a different forum which has

jurisdiction over the subject matter.

Sometime in 1981, Eastern Book Supply PTE, Ltd. (Company), a company incorporated inSingapore, applied with and was granted by the Singapore Branch of HSBC an overdraft facility

To secure the overdraft facility, private respondents who were directors of the Company

executed a Joint and Several Guarantee in favour of HSBC, which provides that:

This guarantee and all rights, obligations and liabilities arising hereunder shall be construedand determined under and may be enforced in accordance with the laws of the Republic of

Singapore. We hereby agree that the Courts of Singapore shall have jurisdiction over al

disputes arising under this guarantee.

However, when the Company failed to pay its obligation, HSBC filed this action with thePhilippine courts. In a Motion to Dismiss, the private respondents raised the abovementioned

provision of the Joint and Several Guarantee. The trial court affirmed the plaintiffs but CA

reversed, citing said provision as basis.

Whether or not Philippine courts have jurisdiction over the suit

While it is true that the transaction took place in Singaporean setting and that the Joint andSeveral Guarantee contains a choice-of-forum clause, the very essence of due process dictates

that the stipulation that [t]his guarantee and all rights, obligations and liabilities arising

hereunder shall be construed and determined under and may be enforced in accordance with

the laws of the Republic of Singapore.


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o

o To be reasonable,

o Indeed, as pointed-out by petitioner BANK at the outset, the instant case presents a veryodd situation. In the ordinary habits of life, anyone would be disinclined to litigate before

a foreign tribunal, with more reason as a defendant.

o However, in this case, (afact which was not disputed by them) who would rather face a complaint against them

before a foreign court and in the process incur considerable expenses, not to mention

inconvenience, than to have a Philippine court try and resolve the case.

o Private respondents' stance is hardly comprehensible, unless their ultimate intent is toevade, or at least delay, the payment of a just obligation.

.

They did not even claim, much less prove, that the filing of the action here will cause them anyunnecessary trouble, damage, or expense.

On the other hand, there is no showing that petitioner BANK filed the action here just to harassprivate respondents.

The

Neither did the clause in question operate to divest Philippine courts of jurisdiction. In International Law, jurisdiction is often defined as the light of a State to exercise authority over

persons and things within its boundaries subject to certain exceptions.

Thus, a State does not assume jurisdiction over travelling sovereigns, ambassadors anddiplomatic representatives of other States, and foreign military units stationed in or marching

through State territory with the permission of the latter's authorities.

This authority, which finds its source in the concept of sovereignty, is exclusive within andthroughout the domain of the State.

A State is competent to take hold of any judicial matter it sees fit by making its courts andagencies assume jurisdiction over all kinds of cases brought before them.


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6. INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS VS. QUISUMBING, 333 SCRA 13 (2000)

:

International School (IS) pays its teachers who are hired from abroad, or foreign-hires, a highersalary than its local-hires, whether the latter are Filipino or not (most are Filipino, but some are

American).

It justifies this under the dislocation factor that foreigners must be given a higher salary bothto attract them to teach here, and to compensate them for the significant economic

disadvantages involved in coming here.

The Teachers Union cries discrimination.:

Discrimination exists.

1. Art. XIII, Sec. 1 of the Constitution (Social Justice and Human Rights) exhorts Congress togive the highest priority to the enactment of measures that protect and ennhance the right

od all people to human dignity, reduce social, economic, and political inequalitites. The

Constitution also provides that labor is entitled to humane conditions of work.. These

conditions are not restricted to the physical workplace, but include as well the manner by

which employers treat their employees. Lastly, the Constitution directs the State to promote

equality of employment opportunities for all, regardless of sex, race, or creed. It would

be an affront to both the spirit and the letter of these provisions if the State closes its eyes to

unequal and discriminatory terms and conditions of employment.

2.

.

The Universal Declaration of Human Rights and numerous other international Conventions

all embody the general principle against discrimination, the very antithesis of fairness and

justice.


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:

Receiving salaries less than their counterparts hired abroad, the local-hires of private respondentSchool, mostly Filipinos, cry discrimination.

the local-hires are paid more than their colleagues in other schools is, of course, beside the point.The point is that employees should be given equal pay for work of equal value.

Private respondent International School, Inc. (the School, for short), pursuant to Presidential Decree732, is a domestic educational institution established primarily for dependents of foreign diplomatic

personnel and other temporary residents.

To enable the School to continue carrying out its educational program and improve its standard ofinstruction, Section 2(c) of the same decree authorizes the School to employ its own teaching and

management personnel selected by it either locally or abroad, from Philippine or other nationalities,

such personnel being exempt from otherwise applicable laws and regulations attending their

employment, except laws that have been or will be enacted for the protection of employees.

Accordingly, the School hires both foreign and local teachers as members of its faculty, classifyingthe same into two: (1) foreign-hires and (2) local-hires.

The School grants foreign-hires certain benefits not accorded local-hires. These include housingtransportation, shipping costs, taxes, and home leave travel allowance.

. TheSchool justifies the difference on two "significant economic disadvantages" foreign-hires have to

endure, namely: (a) the "dislocation factor" and (b) limited tenure.

:

Whether or Not the grants provided by the school to foreign hires and not to local hires discriminative of

their constitutional right to the equal protection clause.

:

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legatruism of "equal pay for equal work." Persons who work with substantially equal qualifications, skill

effort and responsibility, under similar conditions, should be paid similar salaries. This rule applies

to the School, its "international character" notwithstanding.

The School contends that petitioner has not adduced evidence that local-hires perform work equato that of foreign-hires. The Court finds this argument a little cavalier. If an employer accords

employees the same position and rank, the presumption is that these employees perform equa

work. This presumption is borne by logic and human experience. If the employer pays one

employee less than the rest, it is not for that employee to explain why he receives less or why the

others receive more. That would be adding insult to injury. The employer has discriminated against

that employee; it is for the employer to explain why the employee is treated unfairly.


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While we recognize the need of the School to attract foreign-hires, salaries should not be used asan enticement to the prejudice of local-hires. The local-hires perform the same services as foreign-

hires and they ought to be paid the same salaries as the latter. For the same reason, the

"dislocation factor" and the foreign-hires' limited tenure also cannot serve as valid bases for the

distinction in salary rates.

The Constitution enjoins the State to "protect the rights of workers and promote their welfare," "toafford labor full protection." The State, therefore, has the right and duty to regulate the relations

between labor and capital. These relations are not merely contractual but are so impressed with

public interest that labor contracts, collective bargaining agreements included, must yield to the

common good. Should such contracts contain stipulations that are contrary to public policy, courts

will not hesitate to strike down these stipulations.

In this case, we find the point-of-hire classification employed by respondent School to justify thedistinction in the salary rates of foreign-hires and local hires to be an invalid classification. There is

no reasonable distinction between the services rendered by foreign-hires and local-hires.

Wherefore, the petition is given due course. The petition is hereby granted in part. The orders of thesecretary of labor and employment dated June 10, 1996 and march 19, 1997, are hereby reversed

and set aside insofar as they uphold the practice of respondent school of according foreign-hires

higher salaries than local-hires

Conflict of Laws Notes_INTRODUCTION

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