Jurisdiction on Private International Law.pptx

This presentation tackles the wide concept of jurisdiction in international settings.

1. ELEMENTS OF PHILIPPINE PRIVATE INTERNATIONAL LAW MA. CRISEL QUIBEL- INOCANDO Presenter

2. CHAPTER I – THE CONCERNS OF CONFLICT OF LAWS

3. THE TERMS CONFLICT OF LAWS AND PRIVATE INTERNATIONAL LAW

4. Private international law It is misleading because the subject matter does not lie in the area of international law at all but has traditionally been considered part of civil law, mercantile law, and other areas of domestic law such as law on torts and remedial law. Parties that enjoy right of standing in private international law cases are not states, quasi-states or international legal persons, as in public international law, but private individuals and entities. It usually points out the transnational concerns of the subject. The subject has been dealt with as a set of rules belonging to the municipal law system determining which laws are govern cases involving foreign elements Comity which figures prominently in traditional treaties

5. DEFINITION OF CONFLICT OF LAWS

6. CONFLICT OF LAWS Conflict of laws is that part of the private law of a country which deals with cases having a foreign element. McClean, Morris: Conflict of Laws, 4 th Ed.

7. Private International Law and public international law Public International Law  governs the relationships between states, international organizations and entities with global legal personalities, while  Private International Law , often known as Conflict of Laws, navigates the intricate web of legal conflicts involving individuals and entities across diverse jurisdictions.

8. Former president Duterte’s icc case Rodrigo Duterte is accused of crimes against humanity, specifically murder, relating to extrajudicial killings during his anti-drug campaign (2016–2019) and earlier as Mayor of Davao City (2011–2016) (Rome Statute art. 7(1)(a); Situation in the Philippines, ICC-01/21, Pre-Trial Chamber I, Decision Authorizing Investigation (Sept. 15, 2021)).

9. Prospects for private international law Conflict of Laws thrives when there is mobility Increasing mobility today is truism – export and import of goods, increasing number of overseas workers Filipino entrepreneurs have also reached other states – trans-boundary contracts and transactions Countervailing movement like homogenization of law has triggered the counter-movement towards the protection not the integrity of national law Purchases can be made from anywhere in the world by a click of a mouse and paid for by credit card

10. SAMPLE CASES Changes in jurisdictional rules and applicable law after Brexit Post-Brexit, the UK no longer adheres to the EU’s Brussels I Regulation, leading to significant changes in jurisdictional rules and applicable law. This shift impacts how courts determine which jurisdiction is appropriate for disputes involving UK and EU parties. The primary change involves the reliance on domestic legislation, notably the Hague Convention, to establish jurisdiction. UK courts now have greater freedom to decide cases based on traditional principles rather than EU-specific rules. Navigation of jurisdictional issues requires understanding the following key points: The removal of automatic jurisdiction rules previously governed by the Brussels I Regulation. Increased importance of the UK’s Domestic Civil Procedure Rules for cross-border cases. Greater emphasis on contractual agreements to specify jurisdiction and applicable law. These modifications influence legal strategies and dispute resolution processes, highlighting the need for precise legal drafting and an awareness of the evolving legal landscape affecting private international law. BREXIT

11. Areas of private international law Choice of Law Jurisdiction Recognition and Enforcement of Foreign Judgement

12. CHOICE OF LAW By Choice of Law, the most trying of the areas of private international law, the law deals with arises when two or more states have a connection to cases about which their respective laws differ. Substantive issues are concern of Conflict of Laws.

13. JURISDICTION Under Jurisdiction, the law deals with the bases of jurisdiction a state enjoys over its non- domiciliaries and with foreign nationals. Obviously, it addresses questions of jus standi as well as amenability to suit. Consequently, it also deals with the issue of personality and the recognition of personality.

14. HASEGAWA vs. Kitamura, g.r . 149177, November 23, 2007 Analytically, jurisdiction and choice of law are two distinct concepts. Jurisdiction considers whether it is fair to cause a defendant to travel to this state; choice of law asks further the question whether the application of a substantive law which will determine the merit of the case is fair to both parties. The power to exercise jurisdiction does not automatically give a state constitutional authority to apply forum law. While jurisdiction and the choice of the law lex fori will often coincide, the minimum contacts for one do not always provide the necessary significant contacts for the other. The question of whether the law of a state can be applied to a transaction is different from the question of whether the courts of the state have jurisdiction to enter a judgment.

15. RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT Recognition and enforcement of foreign judgments is the context within which reference to comity – the habitual, reciprocal courtesy between States is made.

16. RACHO vs. Tanaka, G.R. 199515, June 25, 2018 This case involved Rhodora Racho, a Filipina, seeking judicial recognition of her divorce from her Japanese husband Seichi Tanaka that was obtained in Japan. The trial court denied her petitions, finding she did not sufficiently prove the divorce was valid under Japanese law. The Supreme Court reversed, finding that under an interpretation of Article 26 of the Family Code and Japanese civil law, the divorce certificate presented was sufficient evidence that Racho's marriage to Tanaka was legally terminated in Japan, and thus she had the capacity to remarry under Philippine law.

17. Republic vs. Kikuchi, G.R. 243646, June 22, 2022 The Philippines v Jocelyn Kikuchi the Supreme Court reversed and set aside a Court of Appeals decision recognizing a foreign divorce procured in Japan and ruling that foreign law was sufficiently proven as fact. In this case, the respondent had presented a photocopy of the Civil Code of Japan in English in order to prove that Japanese law was complied with by the respondents in procuring the divorce. The Supreme Court ruled that the document was insufficient to prove the law of Japan on divorce and was devoid of any probative value. The case was then remanded to the court of origin for further proceedings and reception of evidence on the Japanese law on divorce.

18. Republic vs. bayog-saito , G.R. 247297, AUGUST 17, 2022 Helen, a Filipino citizen, and Toru, a Japanese national, were married on August 30, 1999 in Pasay City, Metro Manila. They did not have any children nor did they have conjugal properties. Due to differences in culture and nationality, their marriage did not last. After years of living separately, Toru asked Helen to sign the divorce notification papers; Helen acquiesced. Toru submitted the divorce documents to Takashi Yamaguchi (Mayor Takashi), Mayor of Minami­- ku , Yokohama City. The Notice of Divorce accepted as shown by the authenticated Japanese-language "Certificate of Acceptance of Divorce Notification" and its English translation duly authenticated by the Department of Foreign Affairs (DFA). The fact of the divorce of Helen and Toru, as well as the Japanese law on divorce, had been sufficiently and satisfactorily proven by Helen. Hence, the Court finds that the CA was correct in affirming the RTC's grant of the petition for judicial recognition of foreign divorce decree of respondent and her Japanese husband. More importantly, the dissolution of their marriage under the laws of Japan, has capacitated her former husband, Toru, to remarry, and in fact, he has already remarried. Hence, the Court finds no reason to deprive Helen of her legal capacity to remarry under our national laws.

19. “state” and geography For purposes of Private International Law, there is no need to go through laborious process of defining the elements of statehood as is incumbent on constitutional law and public international law classes: Several states in the United States, for example, are “states” for purposes of private international law. The same thing is applicable in the United Kingdom. Great Britain refers to England and Scotland. United Kingdom refers to Britain and Northern Ireland. British Isles refers to the United Kingdom. For purposes of Private International Law, Scotland is a state, although it is not for the purposes of public international law.

20. CONFLICT OF LAWS IN THE PHILIPPINES THE CIVIL CODE, THE FAMILY CODE AND THE MUSLIM CODE

21. The Philippines is a unitary state, and therefore conflicts issues so common in multijural jurisdictions. Legal system exists side-by-side with the Family Code of the Philippines and the Civil Code. This is Presidential Decree No. 1083 also known as “Code of Muslim Personal Laws of the Philippines.”

22. The following are the general laws on conflicts embodied in the code: In case of a conflict between the provisions of the Code and the laws of general application, the code shall prevail. In case of conflict between the provisions of the Code and special laws or laws of local application, the latter shall prevail.

23. Republic Act No. 1154 (2018) is the organic law for the Bangsamoro Autonomous Region of Muslim Mindanao. Section 4 of Article X of the same law grants to the BARMM Parliament the power to enact laws on “personal, family, and property law jurisdiction,” as well as “commercial and other civil actions not provided under Presidential Decree No. 1083.” For this reason conflicts cases become conceivable and have in fact, arisen.

24. Malaki vs. people, g.r . 221075, November 15, 2021 This case affirmed the settled doctrine  - that the non-Muslim male party to a subsisting civil marriage who converts to Islam and subsequently marries another woman in accordance with the Code of Muslim Personal Laws of the Philippines commits the crime of bigamy -  but also suggests a novel proposition that a Muslim husband who contracts a subsequent marriage without the consent of the wife or permission of the Shari’ah court in case of wife’s refusal to consent is also bigamous; therefore, the subsequent marriage is void from the beginning under the Family Code of the Philippines and penalized as a crime under the Revised Penal Code of the Philippines. After analyzing the case, this article concludes that the subsequent marriage of a Muslim husband who has subsisting Muslim marriage should not constitute the crime of bigamy, as there is no legal framework in the Qur’an or Sunnah which requires the consent of the wife for the Muslim husband to contract a subsequent marriage. It further concludes that this novel doctrine should be treated as an  obiter dictum  to avoid its practical effect of criminalizing what the Qur’an and Sunnah have made legal and permissible. Nonetheless, existing legal provisions against abuse of the privilege to contract subsequent marriage may be enhanced.

25. Malang vs. mason, g.r . 119064, august 20, 2000 This case involved a complex estate dispute over the properties of Hadji Abdula Malang, a Muslim man who had multiple marriages and acquired various properties. The court's decision addressed several issues, including: Validity of Muslim Marriages: The court discussed the validity of Muslim marriages celebrated before the effectivity of the Muslim Code (P.D. 1083). Property Regime: The court ruled that the property regime applicable to Muslims married prior to the effectivity of the Muslim Code is not necessarily conjugal partnership of gains. I nheritance and Succession: The court laid down guidelines for determining the heirs and their shares in the estate of a deceased Muslim, emphasizing the application of the Muslim Code in such cases.   The Supreme Court ultimately set aside the decision of the Shariaa District Court and remanded the case for further p r oceedings to gather more evidence and resolve the issues based on the guidelines provided in the decision.

26. Malang vs. mason, g.r . 119064, august 20, 2000 The Court in this case held that the Civil Code governs the validity of marriages celebrated before the Muslim Code’s effectivity and determines property relations of those marriages. The decision emphasizes the need to consider the specific circumstances of each marriage and the applicable laws at the time of the marriage and property acquisition, highlighting complexities arising from plural marriages recognized under Muslim Law but not under the Civil Code.

27. Zamoranos vs. people, g.r . 193902, June 01, 2011 This is a consolidated case involving Atty. Marietta D. Zamoranos and Samson R. Pacasum , Sr. The Supreme Court ruled that Zamoranos ' marriage to Pacasum was valid, and her prior Islamic divorce from her first husband, Jesus de Guzman, negated bigamy claims.   Case Background: Zamoranos , a Muslim, was previously married to De Guzman, also a Muslim, under Islamic law. They later divorced through talaq, a form of Islamic divorce. Bigamy Charges: Pacasum filed a bigamy complaint against Zamoranos , claiming her marriage to him was invalid due to her existing marriage to De Guzman. J urisdiction : The Supreme Court ruled that the Shari'a Circuit Court has exclusive original jurisdiction over matters governed by the Muslim Personal Laws (PD No. 1083), including marriages and divorces of Muslims. Ruling: The Supreme Court reversed the Court of Appeals' decision and quashed the bigamy charge against Zamoranos , citing the validity of her Islamic divorce and subsequent marriage to Pacasum .  

28. Viilagracia vs. FIFTH (5th) SHARI'A DISTRICT COURT and ROLDAN E. MALA This is a petition for certiorari with application for issuance of temporary restraining order and/or preliminary injunction to set aside the Fifth (5th) Shari'a District Court's decision 1 dated June 11, 2008 and order 2 dated May 29, 2009 in SDC Special Proceedings Case No. 07-200. Roldan Mala, a Muslim, purchased a 300 sqm parcel of land in Parang, Maguindanao. Vivencio Villagracia, a non-Muslim, occupied the land and secured a title from the Land Registration Authority. Mala filed an action to recover possession of the land with the Fifth Shari'a District Court, which took cognizance of the case and summoned Villagracia. Villagracia argued that the Shari'a District Court had no jurisdiction over the case since he is a non-Muslim. The Supreme Court granted Villagracia's petition for certiorari and set aside the decision of the Fifth Shari'a District Court. According to Article 143 of the Muslim Code, Shari'a District Courts only have concurrent jurisdiction with civil courts over real property cases where both parties are Muslims. Since Villagracia is a non-Muslim, the Fifth Shari'a District Court should have dismissed the case.

29. .Municipality of tangkal vs. balindong , g.r . 193340, January 11, 2017 The private respondents, heirs of the late Macalabo Alompo , filed a Complaint with the Shari'a District Court of Marawi City ( Shari'a District Court) against the petitioner, Municipality of Tangkal , for recovery of possession and ownership of a parcel of land with an area of approximately 25 hectares located at Barangay Banisilon , Tangkal , Lanao del Norte. They alleged that Macalabo was the owner of the land, and that in 1962, he entered into an agreement with the Municipality of Tangkal allowing the latter to "borrow" the land to pave the way for the construction of the municipal hall and a health center building. The agreement allegedly imposed a condition upon the Municipality of Tangkal to pay the value of the land within 35 years, or until 1997; otherwise, ownership of the land would revert to Macalabo . Private respondents claimed that the Municipality of Tangkal neither paid the value of the land within the agreed period nor returned the land to its owner. Thus, they prayed that the land be returned to them as successors-in-interest of Macalabo .

30. Municipality of tangkal vs. balindong , g.r . 193340, January 11, 2017 The Supreme Court ruled in favor of the respondents, heirs of Macalabo Alompo , represented by Sultan Dimnang B. Alompo , and against the Municipality of Tangkal , with Justice Jardeleza presiding over the case. The court held that the Shari’a District Court of Marawi City, presided over by Judge Rasad B. Blindong , lacked jurisdiction to hear a land dispute cased filed by the heirs of Macalabo Alompo against the Municipality of Tangkal . The court clarified that only cases where all real parties in interest are Muslims fall under Shari’a court jurisdiction, and since the Municipality of Tangkal , as a municipal corporation, is not a Muslim entity, the Shari’a court could not hear the case.

31. CHAPTER II – BASIC PREMISES OF PRIVATE INTERNATIONAL LAW

32. There are express provisions of Philippine law that direst the application of foreign law. Provisions on the law governing property, the formalities of wills and of contracts, on the validity of testamentary provisions, on the controlling law in the issue of damages arising from the loss, damage or deterioration of goods shipped to another jurisdiction all refer to the case of foreign law. The court, in such cases, has no option but to apply foreign law. Philippine law itself directs the application of foreign law.

33. Internal rules and conflict rules Internal Rules: These are provisions of law that set forth rights or exact obligations. Conflict Rules: These are rules that consider the involvement of a foreign element.

34. Structural elements of conflict rules SUPPOSITION OF FACTS (TATBETSTAND) POINT OF CONTACT JURIDICAL CONSENQUENCE

35. SUPPOSITION OF FACTS Set of facts presenting a conflicts problem. The factual situation defines its objects, that is, certain operative facts. The Tatbetstand supposition of facts is a category that is keyed to certain situation or social relations that the law considers significant. It is because the tatbetstand that one conflict rule to a multiplicity of situations. The supposition of fact is the problem of “characterization” about which is more will be taken subsequently.

36. POINT OF CONTACT OR THE CONNECTING FACTOR Law of the country with which the factual situation is most intimately connected. The connecting factor determines the legal consequences of the factual situation.

37. POINT OF CONTACT OR THE CONNECTING FACTOR Collier believes that the list of connecting factors is rather uncomplicated: Personal, which can be either: The law of one’s nationality: where the nationality theory is followed, as in the Philippines; The law of one’s domicile: where the domicile is considered the more controlling factor

38. POINT OF CONTACT OR THE CONNECTING FACTOR Collier believes that the list of connecting factors is rather uncomplicated: 2. The Place of Transaction The place of celebration; The place of perfection of contract . 3. The place of performance: such as the place of the performance of contract ( Lex loci contractus ).

39. POINT OF CONTACT OR THE CONNECTING FACTOR 4. The Situs: The status of the property; The place where the court sits.

40. Connecting factors indicate the applicability of foreign law on the following bases: Proximity: Points of connection indicate the applicability of the law that has the greatest connection with the case. General interest: The law that safeguards general or common interest is applied. Intention of the parties or autonomy. Materiality: The law that safeguards a material or concrete value or a specific condition. Sovereignty: The law is applied that best safeguards the sovereignty of the State involved, such as the state within whose territory the property is found.

41. SAUDI ARABIAN VS. COURT OF APPEALS, G.R. 122191, October 08, 1998 Milagros P. Morada, a Filipino flight attendant, was hired by Saudi Arabian Airlines (SAUDIA) in January 1988 for its operations based in Jeddah, Saudi Arabia. Morada was later accused of immoral conduct and was subjected to arrest, detention, and prosecution in Saudi Ar abia . Morada filed a complaint against SAUDIA for damages arising from her alleged mistreatment and wrongful conviction in Saudi Arabia. SAUDIA questioned the jurisdiction of the Philippine courts, arguing that the incident occurred in Saudi Arabia and therefore, Saudi Arabian law should apply. The Supreme Court ruled that the Regional Trial Court of Quezon City has jurisdiction over the case, citing Section 19 of Batas Pambansa Blg . 129 and Section 2(b), Rule 4 of the Revised Rules of Court. The Court also determined that Philippine law, specifically Articles 19 and 21 of the Civil Code, governs the dispute.

42. Application of structural elements of conflict rules in the case 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; the place where an act has been done, the locus actus, such as the place where a contract has been made, a marriage celebrated, a will signed or a tort committed. The lex loci actus is particularly important in contracts and torts;

43. Application of structural elements of conflict rules in the case 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; the intention of the contracting parties as to the law that should govern their agreement, the lex loci intentionis ; the place where judicial or administrative proceedings are instituted or done. The lex fori — the law 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 otherwisemapplicable 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 a ship, which in many cases is decisive of practically all legal relationships of the ship and of its master or owner as such. It also covers contractual relationships particularly contracts of affreightment.

44. THEORIES JUSTIFYING THE APPLICATION OF FOREIGN LAW Comity: States act with courtesy and with consideration towards others. Vested Rights: When, in foreign state, a person contracts and debt and correspondingly assumes the obligation to pay, the enforcement of the obligation in another jurisdiction does not constitute, by one version of the theory, the introduction of foreign law into the domestic system of law. Conflict rules as domestic law: There is an extension here of the theory in public international law, especially, has force and effect only insofar as it has been transformed by domestic legislation into part of municipal law system. Demands of Justice and Fairness: Justice is fairness. The only trouble however is defining what is fair and describing its demands.

45. Juridical consequence Some jurists identify the juridical consequence with lex causae . In view of the characterization of the case and the points of contact, it is the applicable law.

46. Characterization of law Definition The process of determining under what category a certain set of facts or rules fall. The process of deciding whether or not the facts relate to the kind of question specified in a conflicts rule. The ultimate purpose is to enable the forum to select the proper law.

47. Factors which gives rise to the problem of characterization Different legal systems attach to the same legal terms with different meanings (An identity of name covers a difference of nature or content of a legal idea.) Different legal systems may contain ideas or conceptions completely unknown to one another. Different legal systems apply different principles for the solution of problems which, in general terms, are of a common nature

48. Steps in Characterization 1. The determination of the facts involved 2. The characterization of the factual situation 3. the determination of the conflicts rule which is to be applied 4. The characterization of the point of contact or the connecting factor 5. The characterization of the problem as procedural or substantive 6. The pleading and providing of the proper foreign law 7. The application of the proper foreign law to the problem.

49. THANK YOU MA. CRISEL QUIBEL-INOCANDO [email protected] [email protected]