CHAPTER II

CHOICE OF LAW

When parties enter into an agreement, their relationship is usually governed by a particular law.
The default law is almost always the local law since the minds of the parties are set on the local
law upon entering into the agreement. This is especially true in cases when there is no foreign
element involved.

There are instances, however, when this is not the case, as when the parties stipulate a foreign
law to govern their relationship. Parties are free to stipulate their choice of law that will govern
their relationship. There are also instances when the law of the domicile of a person applies, as
are instances when a foreign law offers more benefits to a person. In these instances, the
foreign law shall be applied except when there are compelling reasons not to apply the same.
These instances usually involve a foreign element necessitating the application of several
principles to determine the law applicable to the case.

Choice of Law Principles

Choice of Law is governed by several principles. These principles are the underlying reasons why
a particular law is made to apply to a certain case.

Section 6 of the U.S. Restatement (Second) of Laws provides the underlying principles in
determining the law applicable to a conflicts case. Section 6 of the U.S. Restatement (Second) of
Laws states:

6. Choice-Of-Law Principles

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state
on choice of law. (2) When there is no such directive, the factors relevant to the choice of the
applicable rule of law include

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the
determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Principle 1: Local Law

This principle looks to the statutory directive of the state on choice of law. This is the general
rule and it provides the local law to be the default law that will govern the relationship of the
parties to a dispute. Most states have conflicts of law rules specified in their civil codes, and
they must be applied before one even considers the application of foreign law. When there is
such a specification, and provided these directives comply with the constitution of the state, the
statutory directive must be followed.

An example is Article 15 of the Civil Code:

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.

This article specifies that national law governs family rights, duties, status, and condition of
Filipinos, even if they are not in the Philippines. This statutory directive is implicit and
mandatory for Philippine citizens and reveals the legislative intent of extraterritorial application
of the law.

Another example is Article 16 of the Civil Code:

Art. 16. Real property as well as personal property is subject to the law of the country where it
is situated. However, 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 16 directs the application of the lex rei sitae or the law of the place where the property is
situated for real or personal properties. This article also specifies that intestate and
testamentary successions are governed by the national law of the deceased.

The problem of renvoi. While a state has to follow its statutory directive as to choice of law,
there are times when the statutory directive, instead of applying local law, actually directs the
application of a foreign law on the matter. When this happens, a local court must look to the
totality of the foreign law under consideration. Here, foreign law refers to all the laws of the
foreign state and not merely the law closely related to the case in dispute. In this case, the most
important laws to be looked into are the conflict-of-law rules of the foreign state. Do the
conflict-of-law rules require the application of its laws or the law of some other country? If the
directive is the application of another country's laws, this must be followed.

This is precisely the problem of renvoi. A local law requires the forum court to apply a foreign
law to the case in dispute. The foreign law, in turn, directs the application of the laws of the
forum court to the case under consideration. Thus, there is a reference back to the local laws of
the forum court.

This situation, if strictly followed, will result in an endless reference to two laws, breeding a
situation where the reference never stops. To solve this problem, the local court must, after
looking at the conflicts-of-law rules of the foreign state, apply the directive of the latter's laws.
Thus, if the directive is the application of the forum court's laws, the court must then follow this
to put an end to the endless throwing back of the case.

Aznar v. Garcia

G.R. No. L-16749, January 31, 1963

Facts: Edward E. Christensen, a U.S. citizen from the state of California, died in the Philippines
while domiciled therein. He left a will where he bequeathed the sum of P3,600 to Helen
Christensen Garcia and the rest of the estate to Mary Lucy Christensen Daney. Helen is an
illegitimate child who, under the laws of the Philippines, is entitled to receive a legitime worth
more than the sum that she received under the will. Helen opposed the project of partition of
her father's estate contending that it should be Philippine law that should govern the
distribution of his estate. The Court of First Instance ruled that "the successional rights and
intrinsic validity of the provisions in his will are to be governed by the law of California, in
accordance with which a testator has the right to dispose of his property in the way he
desires..."

Issue: Whether California law or Philippine law governs the testamentary dispositions of the
deceased Edward E. Christensen.

Held: Philippine law governs the testamentary dispositions of the deceased Edward E.
Christensen.

1. The law that governs the validity of his testamentary dispositions is defined in Article 16 of
the Civil Code of the Philippines, which is as follows:

ART. 16. Real property as well as personal property is subject to the law of the country where it
is situated.

However, 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 where said property
may be found.
The application of this article in the case at bar requires the determination of the meaning of
the term "national law" as used therein.

2. There is no single American law governing the validity of testamentary provisions in the
United States, each state of the Union having its own private law applicable to its citizens only
and in force only within the state. The "national law" indicated in Article 16 of the Civil Code
above quoted cannot, therefore, possibly mean or apply to any general American law. So it can
refer to no other than the private law of the State of California.

3. The next question is: What is the law in California governing the disposition of personal
property? The decision of the court below sustains the contention of the executor-appellee that
under the California Probate Code, a testator may dispose of his property by will in the form and
manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952.
But appellant invokes the provisions of Article 946 of the Civil Code of California, which is as
follows:

"If there is no law to the contrary, in the place where personal property is situated, it is deemed
to follow the person of its owner, and is governed by the law of his domicile."

4. The existence of this provision is alleged in appellant's opposition and is not denied. We have
checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the
case cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly
cited.) It is argued on executor's behalf that as the deceased Christensen was a citizen of the
State of California, the internal law thereof, which is that given in the above-cited case, should
govern the determination of the validity of the testamentary provisions of Christensen's will,
such law being in force in the State of California of which Christensen was a citizen. Appellant,
on the other hand, insists that Article 946 should be applicable, and in accordance therewith
and following the doctrine of the renvoi, the question of the validity of the testamentary
provision in question should be referred back to the law of the decedent's domicile, which is the
Philippines.

5. The theory of doctrine of renvoi has been defined by various authors, thus:

XXX

This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the
forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back
again to the law of the forum. This is renvoi in the narrower sense. The German term for this
judicial process is 'Ruckverweisung.' (Harvard Law Review, Vol. 31, pp. 523-571)

After a decision has been arrived at that a foreign law is to be resorted to as governing a
particular case, the further question may arise: Are the rules as to the conflict of laws contained
in such foreign law also to be resorted to? This is a question which, while it has been considered
by the courts in but a few instances, has been the subject of frequent discussion by text writers
and essayists; and the doctrine involved has been descriptively designated by them as the
"Renvoyer" to send back, or the "Ruchversweisung," or the "Weiterverweisung," since an
affirmative answer to the question postulated and the operation of the adoption of the foreign
law in toto would in many cases result in returning the main controversy to be decided
according to the law of the forum... (16 C.J.S. 872)

Another theory, known as the "doctrine of renvoi," has been advanced. The theory of the
doctrine of renvoi is that the court of the forum, in determining the question before it, must
take into account the whole law of the other jurisdiction, but also its rules as to conflict of laws,
and then apply the law to the actual question which the rules of the other jurisdiction prescribe.
This may be the law of the forum. The doctrine of the renvoi has generally been repudiated by
the American authorities. (2 Am. Jur. 296)

6. Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the
national law is the internal law of California. But as above explained, the laws of California have
prescribed two sets of laws for its citizens, one for residents therein and another for those
domiciled in other jurisdictions. Reason demands that we should enforce the California internal
law prescribed for its citizens residing therein, and enforce the conflict of laws rules for the
citizens domiciled abroad. If we must enforce the law of California as in comity we are bound to
go, as so declared in Article 16 of our Civil Code, then we must enforce the law of California in
accordance with the express mandate thereof and as above explained, i.e., apply the internal
law for residents therein, and its conflict-of-laws rule for those domiciled abroad.

7. It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place
where the property is situated" in Section 946 of the California Civil Code refers to Article 16 of
the Civil Code of the Philippines and that the law to the contrary in the Philippines is the
provision in said Article 16 that the national law of the deceased should govern. This contention
cannot be sustained. As explained in the various authorities cited above the national law
mentioned in Article 16 of our Civil Code is the law on conflict of laws in the California Civil
Code, i.e., Article 946, which authorizes the reference or return of the question to the law of the
testator's domicile. The conflict of laws rule in California, Article 946, Civil Code, precisely refers
back the case, when a decedent is not domiciled in California, to the law of his domicile, the
Philippines in the case at bar. The court of the domicile cannot and should not refer the case
back to California; such action would leave the issue incapable of determination because the
case will then be like a football, tossed back and forth between the two states, between the
country of which the decedent was a citizen and the country of his domicile. The Philippine
court must apply its own law as directed in the conflict of laws rule of the state of the decedent,
if the question has to be decided, especially as the application of the internal law of California
provides no legitime for children while the Philippine law, Articles 887(4) and 894, Civil Code of
the Philippines, makes natural children legally acknowledged forced heirs of the parent
recognizing them.

Bellis v. Bellis

G.R. No. L-23678, June 6, 1967

Facts: Amos G. Bellis was a citizen of the United States from the state of Texas. He had five
legitimate children from his first wife, three legitimate children from his second wife, who
survived him, and he also had three illegitimate children. In his will, he bequeathed the amount
of P120,000 for his three illegitimate children, $240,000 to his first wife, and the rest of his
estate to his legitimate children. Two of the illegitimate children opposed the project of
partition on the ground that they were deprived of their legitimes. The lower court denied the
opposition and approved the project of partition on the ground that Texas law, which is the
national law of the decedent and which did not provide for legitimes, governed his successional
rights.

case. Issue I: Whether the doctrine of renvoi applies in this

Held: No, because the reference to laws will always be the laws of Texas.

1. Said doctrine is usually pertinent where the decedent is a national of one country, and a
domicile of another. In the present case, it is not disputed that the decedent was both a
national of Texas and a domicile thereof at the time of his death. So that even assuming Texas
has a conflict of law rule providing that the domiciliary system (law of the domicile) should
govern, the same would not result in a reference back (renvoi) to Philippine law, but would still
refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei
sitae) calling for the application of the law of the place where the properties are situated, renvoi
would arise, since the properties here involved are found in the Philippines. In the absence,
however, of proof as to the conflict of law rule of Texas, it should not be presumed different
from ours. Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they
never invoked nor even mentioned it in their arguments.

Issue II: Whether the application of Texas law is violative of public policy.

Held: No.

1. Appellants would however counter that Art. 17, paragraph three of the Civil Code, stating
that -

Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.
Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Article 11 of the old Civil Code as Art. 17 of the new
Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the
old Civil Code as Art. 16 in the new. It must have been their purpose to make the second
paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate
succession. As further indication of this legislative intent, Congress added a new provision,
under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of
the decedent.

2. It is therefore evident that whatever public policy or good customs may be involved in our
system of legitimes, Congress has not intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to
the decedent's national law. Specific provisions must prevail over general ones.

3. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, since
the intrinsic validity of the provision of the will and the amount of successional rights are to be
determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of
Amos G. Bellis.

When there is no local law applicable, or when the parties specify a foreign law in their
agreement, or when the foreign law is held inapplicable, the U.S. Restatement (Second) of Laws
provides other principles in determining the applicable law to a particular case. These principles
are considered in no particular order with each other.

Principle 2: Needs of the Interstate and International Systems

Courts must consider the needs of the interstate and international systems in determining the
applicable law. Technological advances and free trade have brought about numerous
international commercial transactions spawning disputes that cut across national borders.
Where we apply only local laws that favor the interest of the forum state, this would unduly
stifle the growth of free trade and discourage people from trading with their counterparts in
other countries. To prevent this from happening, courts must formulate principles and reconcile
multistate laws with the end in view of encouraging international trade among people.

Principle 3: Relevant Policies of the Forum

The policies of the forum take primordial consideration when considering the applicable law to
a case. Each forum considers certain values to be of highest import to them. For example, the
United States may take fairness and due process to be the cornerstone of their judicial system.
In considering a foreign law, U.S. courts may look at the fundamental fairness of a law before
recognizing its validity. In the Philippines, courts consider protection for labor to be of highest
import. If a case implicates a foreign law which is prejudicial to the interest of labor, courts are
quick to strike down the foreign law in favor of the applicability of local law. Also, state policy
does not recognize divorce in our jurisdiction. When a foreign law is involved which will weaken
the family as a social unit, courts will strike this down as against public policy.

But what is public policy? Public policy is a term often used by our local courts but which has
never been defined with precision. So that when a foreign law or foreign custom conflicts with
local law, courts are quick to set them aside as against public policy. But what exactly does the
term "public policy" mean? In one case, the California Supreme Court had occasion to delineate
the elements of fundamental public policy. Hence, it stated that policies are fundamental public
policies when (1) they cannot be contractually waived; (2) they protect against otherwise
inequitable results; and (3) they promote the public interest.

Pitzer College v. Indian Harbor Insurance Company

447 P.3d 669 (2019)

Facts: Plaintiff Pitzer College ("Pitzer") had an insurance policy from defendant Indian Harbor
Insurance Company (Indian Harbor). The policy insured Pitzer for legal and remediation
expenses resulting from pollution conditions during the policy period of July 23, 2010, to July
23, 2011. The policy designated New York law as the choice of law of the parties. New York law
commands denial of coverage where timely notice is not provided by the insured. After
discovering darkened soils at the construction site for a new dormitory on campus, Pitzer
determined that remediation was required. Without the consent of Indian Harbor, Pitzer
commenced remediation work which was successfully completed one month later at a total cost
of nearly $2 million. Pitzer only informed Indian Harbor of the remediation work three months
later. Because of Pitzer's failure to give notice as soon as practicable and its failure to obtain
Indian Harbor's consent before commencing the remediation process, Indian Harbor denied
coverage. Pitzer filed suit against Indian Harbor in Los Angeles County Superior Court for
declaratory relief and breach of contract. The case was later removed to a federal district court
which granted a motion for summary judgment filed by Indian Harbor. The court held that
Indian Harbor had no obligation to indemnify Pitzer, that New York law was applicable, and that
New York law did not supplant California public policy. Upon appeal, the Ninth Circuit Court of
Appeals certified the case to the California Supreme Court.

Issue: Whether New York law contravenes California's fundamental public policy.

Held: Yes, New York law contravenes California's fundamental public policy.

an 1. California's notice-prejudice rule requires insurer to prove that the insured's late notice of
a claim has substantially prejudiced its ability to investigate and negotiate payment for the
insured's claim. A finding of substantial prejudice will generally excuse the insurer from its
contractual obligations under the insurance policy, unless the insurer had actual or constructive
knowledge of the claim.

2. Although no case has referred to California's notice-prejudice rule as a fundamental rule of

public policy, we have called the rule "the public policy of this state," favoring compensation of
insureds over technical forfeiture.

3. Namely, rules have been found to be fundamental public policies when (1) they cannot be
contractually waived; (2) they protect against otherwise inequitable results; and (3) they
promote the public interest.

4. The first reason for establishing the notice-prejudice rule as a fundamental policy of our state
is that the notice- prejudice rule cannot be contractually waived and, thus, restricts freedom of
contract. When it applies, the rule prevents enforcement of a contractual term. It overrides the
parties' express intentions for a defined notice term, preventing a technical forfeiture of
insurance benefits unless the insurer can show it was prejudiced by the insured's late notice.

5. To this end, we have already pointed out that the notice-prejudice rule is designed to restrict
freedom of contract because it is intended to prevent inequitable technical forfeitures that may
otherwise result from the contract's terms.

6. Second, the notice-prejudice rule protects insureds against inequitable results that are
generated by insurers' superior bargaining power. We have consistently recognized that
insurance contracts typically are "inherently unbalanced" and "adhesive," which "places the
insurer in a superior bargaining position."

7. The third criterion for establishing a fundamental policy is also satisfied in this case: The
notice-prejudice rule promotes objectives that are in the general public's interest because it
protects the public from bearing the costs of harm that an insurance policy purports to cover.

8. Based on the foregoing reasoning, we conclude that California's notice-prejudice rule is a

fundamental public policy of California. The rule is based on the rationale that the essential part
of the contract is insurance coverage, not the procedure for determining liability, and that 'the
notice requirement serves to protect insurers from prejudice,...not ... to shield them from their
contractual obligations' through 'a technical escape-hatch.' Prejudice is a question of fact on
which the insurer has the burden of proof. The insured's delay does not itself satisfy the burden
of proof. The insurer establishes actual and substantial prejudice by proving more than delayed
or late notice. It must show 'a substantial likelihood that, with timely notice, and
notwithstanding a denial of coverage or reservation of rights, it would have settled the claim for
less or taken steps that would have reduced or eliminated the insured's liability.' Cadalin, et al.
v. POEA Administrator
G.R. Nos. L-104776, 104911-14, and 105029-32, December 5, 1994

Facts: Cadalin et al., were recruited by AIBC and

employed by BRII to work in several countries. Some of the petitioners were deployed to work
in Bahrain. They were prematurely terminated from their work and upon their return to the
Philippines, they sued AIBC and BRII for illegal dismissal and monetary claims. Bahrain had a law
governing prescription of actions. Article 156 of Amiri Decree No. 23 of 1976 provided that "[a]
claim arising out of a contract of employment shall not be actionable after the lapse of one year
from the date of the expiry of the contract."

The POEA Administrator ruled that the prescriptive period for the filing of claims was 10 years.
However, the NLRC reversed the ruling of the POEA Administrator and held that the prescriptive
period for the filing of claims was three years as provided under the Labor Code and not ten
years under the Civil Code or one year under Amiri Decree No. 23.

Issue: Whether Amiri Decree No. 23 could be applied in our jurisdiction.

Held: No, Amiri Decree No. 23 is contrary to our public policy on the protection of labor.

1. First to be determined is whether it is the Bahrain law on prescription of action based on the
Amiri Decree No. 23 of 1976 or a Philippine law on prescription that shall be the governing law.

2. The courts of the forum will not enforce any foreign claim obnoxious to the forum's public
policy. To enforce the one-year prescriptive period of the Amiri Decree No. 23 of 1976 as
regards the claims in question would contravene the public policy on the protection to labor.

3. In the Declaration of Principles and State Policies, the 1987 Constitution emphasized that:

The state shall promote social justice in all phases of national development. (Sec. 10) The state
affirms labor as a primary social economic force. It shall protect the rights of workers and
promote their welfare. (Sec. 18)

In Article XIII on Social Justice and Human Rights, the 1987 Constitution provides:

SEC. 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.

Bank of America NT & Asia v. American Realty Corporation

G.R. No. 133876, December 29, 1999

Facts: Bank of America ("BANTSA") granted multi-million dollar loans to several borrowers who
were not able to pay. Both creditor and debtors entered into restructuring agreements secured
by real estate mortgages executed by American Realty Corporation ("ARC") over its properties
located in the Philippines. The borrowers failed to pay their loan obligations upon maturity. The
creditor forthwith filed collection cases in England and Hong Kong. It also filed an extrajudicial
foreclosure of real estate mortgages before the Provincial Sheriff of Bulacan. The properties
under the real estate mortgages were subsequently sold at public auction. ARC subsequently
filed an action for damages against BANTSA before the Regional Trial Court of Pasig City ("RTC")
for the latter's act of foreclosing extrajudicially the real estate mortgages despite the pendency
of collection suits before foreign courts. The RTC ruled in favor of ARC which ruling was affirmed
by the Court of Appeals. BANTSA appealed to the Supreme Court, contending "that the mere
filing filing of a personal action to collect the principal loan does not suffice; a final judgment
must be secured and obtained in the personal action so that waiver of the remedy of
foreclosure may be appreciated."

Issue: Whether or not the petitioner's act of filing a collection suit against the principal debtors
for the recovery of the loan before foreign courts constituted a waiver of the remedy of
foreclosure. Held: Yes, the petitioner's filing of collection suits in foreign countries constituted a
waiver of the remedy of foreclosure.

1. In our jurisdiction, the remedies available to the mortgage creditor are deemed alternative
and not cumulative. Notably, an election of one remedy operates as a waiver of the other. For
this purpose, a remedy is deemed chosen upon the filing of the suit for collection or upon the
filing of the complaint in an action for foreclosure of mortgage, pursuant to the provision of
Rule 68 of the 1997 Rules of Civil Procedure. As to extrajudicial foreclosure, such remedy is
deemed elected by the mortgage creditor upon filing of the petition not with any court of
justice but with the Office of the Sheriff of the province where the sale is to be made, in
accordance with the provisions of Act No. 3135, as amended by Act No. 4118.

2. Contrary to petitioner's arguments, we therefore reiterate the rule, for clarity and emphasis,
that the mere act of filing of an ordinary action for collection operates as a waiver of the
mortgage-creditor's remedy to foreclose the mortgage. By the mere filing of the ordinary action
for collection against the principal debtors, the petitioner in the present case is deemed to have
elected a remedy, as a result of which a waiver of the other necessarily must arise. Corollarily,
no final judgment in the collection suit is required for the rule on waiver to apply.

3. Incidentally, BANTSA alleges that under English law, which according to petitioner is the
governing law with regard to the principal agreements, the mortgagee does not lose its security
interest by simply filing civil actions for sums of money.

4. This argument shows desperation on the part of petitioner to rivet its crumbling cause. In the
case at bench, Philippine law shall apply notwithstanding the evidence presented by petitioner
to prove the English law on the matter.
5. In the instant case, assuming arguendo that the English Law on the matter were properly
pleaded and proved in accordance with Section 24, Rule 132 of the Rules of Court and the
jurisprudence laid down in Yao Kee, et al. v. Sy-Gonzales, said foreign law would still not find
applicability. 6. Thus, when the foreign law, judgment or contract is contrary to a sound and
established public policy of the forum, the said foreign law, judgment or order shall not be
applied.

7. Additionally, prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions agreed
upon in a foreign country.

8. The public policy sought to be protected in the instant case is the principle imbedded in our
jurisdiction proscribing the splitting up of a single cause of action. Section 4, Rule 2 of the 1997
Rules of Civil Procedure is pertinent:

"If two or more suits are instituted on the basis of the same cause of action, the filing of one or
a judgment upon the merits in any one is available as a ground for the dismissal of the others."

9. Moreover, foreign law should not be applied when its application would work undeniable
injustice to the citizens or residents of the forum. To give justice is the most important function
of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental
principles of Conflict of Laws.

Clearly then, English law is not applicable.

Dacasin v. Dacasin

G.R. No. 168785, February 5, 2010

Facts: Harold, an American, and Susan, a Filipino, were married in Manila in 1994. They had a
daughter named Stephanie who was born in 1995. Harold and Susan were divorced in the
United States in June 1999. In 2002, they executed in Manila an Agreement for the joint custody
of Stephanie.

Issue: Is the Agreement valid and enforceable in the Philippines?

Held: No, the agreement contravenes Philippine law. 1. In this jurisdiction, parties to a contract
are free to stipulate the terms of agreement subject to the minimum ban on stipulations
contrary to law, morals, good customs, public order, or public policy. Otherwise, the contract is
denied legal existence, deemed "inexistent and void from the beginning." For lack of relevant
stipulation in the Agreement, these and other ancillary Philippine substantive law serve as
default parameters to test the validity of the Agreement's joint child custody stipulations.
2. At the time the parties executed the Agreement on 28 January 2002, two facts are
undisputed: (1) Stephanie was under seven years old (having been born on 21 September
1995); and (2) petitioner and respondent were no longer married under the laws of the United
States because of the divorce decree. The relevant Philippine law on child custody for spouses
separated in fact or in law (under the second paragraph of Art. 213 of the Family Code) is also
undisputed: "no child under seven years of age shall be separated from the mother x x x." (This
statutory awarding of sole parental custody to the mother is mandatory, grounded on sound
policy consideration, subject only to a narrow exception not alleged to obtain here.) Clearly
then, the Agreement's object to establish a post-divorce joint custody regime between
respondent and petitioner over their child under seven years old contravenes Philippine law.

This decision in Dacasin is controversial insofar as it sanctions the Philippine law that awards
custody of a child under seven years to the mother. No such law or similar law exists in foreign
countries, and this law may be unique in the Philippine setting. However, if ever there is a
dispute between a foreigner father and a Filipino mother over the custody of a child below
seven years old, what law will apply? If the case is decided in the United States, there will be no
automatic custody in favor of the mother. It will be another matter if the case is decided in the
Philippines. The problem with such automatic custody is that there is gender discrimination
written all over the face of the law. It operates upon the stereotype that mothers are kind, soft,
and caring while fathers are hard, unfeeling, and irresponsible. Of course, this is not all true, as
fathers are also capable of raising children with the same love and compassion of a mother.
Culturally, it is justifiable since the mother is always the center of a Filipino family. However, to
say that joint custody of a child below seven years to be against public policy may be a bit of a
stretch. This policy of the Philippines with respect to the custody of minors may also violate
international conventions and agreements. In one of the well-publicized cases in the United
States where a Fil-American mother brought her minor child, below seven years old, to the
Philippines, without the permission of the American father and the court where divorce
proceedings were pending. Philippine authorities, when requested, refused to give assistance to
California authorities for the repatriation of the child. Said refusal was based on public policy
since our laws mandated automatic custody for the mother if the child was below seven years
old. In the United States, they have no such policy and the mother may even be liable for
kidnapping under their laws. California authorities even went to the extent of characterizing
Philippine law on custody to be barbaric and uncivilized.

In this respect, Article I of the Convention on the Civil Aspects of International Child Abduction
mandates member states "to secure the prompt return of children wrongfully removed to or
retained in any Contracting State" and "to ensure that rights of custody and of access under the
law of one Contracting State are effectively respected in the other Contracting States." Article 4
thereof provided that "[t]he Convention shall apply to any child who was habitually resident in a
Contracting State immediately before any breach of custody or access rights."

The Philippines is not a signatory to the Convention for obvious reasons: it could not comply
with the obligations of member countries. It is obviously based on our public policy that
mothers should never be separated from their young children, seven years and below, to "avoid
a tragedy where a mother has seen her baby torn away from her." Dacasin stated that this is a
matter of wisdom, not a matter of enforceability or validity. To the contrary, however, it is
believed that this is a matter of substantive due process and equal protection, matters which
are within the competence of the court to resolve. For if the U.S. Supreme Court can validly
adjudge same-sex unions to be valid, what more with respect to law that implicates gender
discrimination?

With respect to labor cases, the trend now is to favor Philippine law over foreign labor laws.
Filipino laborers enjoy more protection under our laws than foreign laws. With respect to
divorce cases, the Supreme Court has expressed a disfavor for laws that dignify the separation
of families, or that sanction divorce. There is a tilt toward protecting the family as a social unit
which means keeping the family members together. With respect to other cases, the decision
will depend on the facts of the case. There are times when foreign law is applied, but there are
more times that Philippine law is applied. There is always that bias for local law and residents. In
sports, this is called the "home" advantage.

Principle 4: Relevant Policies of Other Interested States

Principle 4 indulges courts to engage in a governmental interest analysis when two states have
conflicting laws and interests. In governmental interest analysis, courts compare the laws and
interests of two states, determine if there is a real conflict, and if a real conflict exists, apply the
law of the state whose interest is more impaired. It is important to consider the interest of
other states since commercial transactions involve people located in several jurisdictions which
have conflicting interests in a transaction. This interest may have been a motivating factor in the
agreement of the parties and so should be properly considered. In torts cases, too, a state may
have an interest in the dispute due to its closer connection to the parties. Hence, the need to
favor its laws over those of another state.

Kearney v. Salomon Smith Barney

137 P.3d 914 (2006)

Facts: Kearney and Levy are California residents

employed with WorldCom. They were granted stock options which could only be exercised
through Salomon Smith Barney ("SSB"). They filed claims against SSB with the National
Association of Securities Dealers for malfeasance, fraud, and breach of fiduciary duties. During
the hearing of their claims, they learned that SSB employees recorded their telephone
conversations without their consent. They then filed a complaint with the district court of
California seeking injunctive relief, damages, and restitution. SSB filed a demurrer to the
complaint, which demurrer was sustained on the ground that "under both Georgia and federal
law recordings may lawfully be made in Georgia with one party's consent." The Court of Appeals
affirmed the lower court's decision, holding that "Georgia has the greater interest in having its
law applied."

Issue: Whether California law or Georgia law governs Kearney and Levy's claims.

Held: California law governs Kearney and Levy's claims. (Note: For purposes of clarity, the
relevant portions of the California Supreme Court's decision are reproduced below.)

III

Beginning with Chief Justice Traynor's seminal decision for this court in Reich v. Purcell, supra,
67 Cal.2d 551, 63 [Link]. 31, 432 P.2d 727 (hereafter Reich), California has applied the so-
called governmental interest analysis in resolving choice-of-law issues. In brief outline, the
governmental interest approach generally involves three steps. First, the court determines
whether the relevant law of each of the potentially affected jurisdictions with regard to the
particular issue in question is the same or different. Second, if there is a difference, the court
examines each jurisdiction's interest in the application of its own law under the circumstances
of the particular case to determine whether a true conflict exists. Third, if the court finds that
there is a true conflict, it carefully evaluates and compares the nature and strength of the
interest of each jurisdiction in the application of its own law "to determine which state's interest
would be more impaired if its policy were subordinated to the policy of the other state,"
(Bernhard v. Harrah's Club, supra, 16 Cal.3d 313, 320, 128 [Link]. 215, 546 P.2d 719) and then
ultimately applies "the law of the state whose interest would be the more impaired if its law
were not applied." (Id.)

IV

Keeping in mind the choice-of-law principles and methodology set forth in these prior cases, we
turn to the choice-of-law issue presented by the facts of this case. Here, the two potentially
affected jurisdictions are California and Georgia, and the initial question is whether a conflict
exists between the applicable laws of each jurisdiction. In resolving that initial question, we
must determine not only whether California law and Georgia law differ from one another, but
also whether each state's law was intended to apply to a telephone conversation that occurs in
part in California and in part in Georgia.

A
We begin with the California statutory scheme.

The recording of telephone conversations is governed by the provisions of Section 632, one of
the original provisions of the 1967 legislation. Under subdivision (a) of Section 632, "[e]very
person who, intentionally and without the consent of all parties to a confidential
communication, by means of any electronic amplifying or recording device,....records the
confidential communication, whether the communication is carried on among the parties in the
presence of one another or by means of a telegraph, telephone, or other device" (Italics added),
violates the statute and is punishable as specified in the provision. Section 632, subdivision (b)
provides in relevant part that "[t]he term 'person' includes an individual, business
association, ...corporation, ...or other legal entity, ...but excludes an individual known by all
parties to a confidential communication to be...recording the communication." (Italics added)
Section 632, subdivision (c), in turn, provides that "[t]he term 'confidential communication'
includes any communication carried on in circumstances as may reasonably indicate that any
party to the communication desires it to be confined to the parties thereto, but excludes a
communication made in a public gathering...or in any other circumstance in which the parties to
the communication may reasonably expect that the communication may be overheard or
recorded." (Italics added)

The language of Section 632 does not explicitly address the issue whether the statute was
intended to apply when one party to a telephone call is in California and another party is
outside California. The legislatively prescribed purpose of the 1967 invasion of privacy statute,
however, is "to protect the privacy of the people of this state" (§ 630), and that purpose
certainly supports application of the statute in a setting in which a person outside California
records, without the Californian's knowledge or consent, a telephone conversation of a
California resident who is within California. Furthermore, the companion wiretapping provision
of the 1967 act set forth in Section 631, subdivision (a) -specifically applies to any person who
attempts to learn the content of any communication "while the same is in transit... or is being
sent from, or received at any place within this state." (Italics added) Nothing in the language or
purpose of the 1967 legislation suggests that the related provisions of Section 632 should not
similarly apply to protect against the secret recording of any confidential communication that is
sent from or received at any place within California.

SSB contends that Section 632 should not be interpreted to apply in such a situation, because
application of the statute in this setting would constitute a disfavored "extraterritorial"
application of the statute. (see e.g., North Alaska Salmon Co. v. Pillsbury (1916) 174 Cal. 1, 4,
162 P. 93) Interpreting that statute to apply to a person who, while outside California, secretly
records what a California resident is saying in a confidential communication while he or she is
within California, however, cannot accurately be characterized as an unauthorized
extraterritorial application of the statute, but more reasonably is viewed as an instance of
applying the statute to a multistate event in which a crucial element the confidential
communication by the California resident occurred in California. The privacy interest protected
by the statute is no less directly and immediately invaded when a communication within
California is secretly and contemporaneously recorded from outside the state than when this
action occurs within the state. A person who secretly and intentionally records such a
conversation from outside the state effectively acts within California in the same way a person
effectively acts within the state by, for example, intentionally shooting a person in California
from across the California-Nevada border. (See, for example, State v. Hall (1894) 114 N.C. 909,
19 S.E. 602, 602-606; see generally Leflar, American Conflicts Law [4th Ed.1986] § 111, pp. 309-
311) Because there can be no question but that the principal purpose of section 632 is to
protect the privacy of confidential communications of California residents while they are in
California, we believe it is clear that Section 632 was intended, and reasonably must be
interpreted, to apply in this setting. Unlike the conduct at issue in the cases cited by SSB (see,
for example, North Alaska Salmon Co. v. Pillsbury, supra, 174 Cal. 1, 4, 162 P. 93; Norwest
Mortgage, Inc. v. Superior Court [1999] 72 [Link].4th 214, 222-223, 85 Cal. Rptr.2d 18), here
SSB's employees allegedly acted to record conversations that were occurring
contemporaneously in California. Although, as explained below in connection with the
discussion of the relevant Georgia privacy statute, the privacy statute of another state also may
apply to an interstate telephone call between California and the other state, we conclude that
section 632 clearly is applicable in the present setting. Accordingly, construing Section 632 in
light of the language and purpose of the relevant statutory scheme as a whole, we conclude
that section 632 applies when a confidential communication takes place in part in California and
in part in another state.

We turn next to the applicable Georgia law. Georgia, like California, has enacted a broad statute
addressing eavesdropping upon or recording of private conversations. The basic provision of the
Georgia privacy statute provides in relevant part that "[i]t shall be unlawful for: (1) Any person
in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear,
transmit, or record the private conversation of another which shall originate in any private
place..." ([Link] Ann. § 16-11-62) The Georgia Supreme Court, in a decision concluding that
the statute applied to one spouse's secret recording of telephone conversations of the other
spouse, quoted a provision setting forth the general legislative intent underlying the statute: "It
is the public policy of this State and the purpose and intent of this Chapter to protect the
citizens of this State from invasions upon their privacy. This Chapter shall be construed in light of
this expressed policy and purpose. The employment of devices which would permit the
clandestine overhearing, recording or transmitting of conversations or observing of activities
which occur in a private place has come to be a threat to an individual's right of privacy and,
therefore, should be prohibited." (Ransom v. Ransom [1985] 253 Ga. 656, 324 S.E.2d 437, 438-
439; see also Bishop v. State, supra, 241 [Link]. 517, 526 S.E.2d 917 [interpreting Georgia
statute to prohibit parents from recording their teenage child's telephone conversations
without the teenager's consent])

At the same time, however, another provision of the relevant Georgia statutory scheme
explicitly provides that "[n]othing in Code Section 16-11-62 [that is, the foregoing statutory
provision] shall prohibit a person from intercepting a wire, oral, or electronic communication
where such person is a party to the communication or one of the parties to the communication
has given prior consent to such interception." (Italics added) ([Link]. § 16-11-66) Georgia
decisions long have interpreted the relevant Georgia privacy statutes as not applicable to a
situation in which a conversation is recorded by one of the participants in the conversation.
(See, for example, Mitchell v. State (1977) 239 Ga. 3, 235 S.E.2d 509, 510-511) In this respect, of
course, Georgia law differs from California law.

With regard to the further question whether the Georgia privacy statutes are intended to apply
to a telephone call in which one of the parties is in Georgia and one of the parties is in another
state, there is nothing in the language of the Georgia statutes that expressly addresses this
issue. In light of the underlying purpose of the Georgia statute, however, we believe that as we
have concluded with regard to the California statute - the applicable Georgia statutes were
intended, and reasonably should be interpreted, to apply to such a call.

A hypothetical example may help explain our conclusion in this regard. Consider a situation in
which a third party located in a state other than Georgia or California were to wiretap or
intercept a telephone call between a person in Georgia and a person in California without the
knowledge or consent of either party to the conversation. In that setting, the wiretapping would
violate the relevant privacy law of both California and Georgia, and each state clearly would
have a legitimate and substantial interest in applying its statute to the unlawful invasion of
privacy of the person located within its state, whereas the state in which the person who
committed the wiretapping was situated would not have that interest (although it still might
have an interest in permitting an action against the wiretapper if the conduct were unlawful
under its state's law). As this example demonstrates, in light of the principal purpose underlying
the kind of privacy provisions here at issue, it is most reasonable to conclude that a state's
privacy statute should be interpreted to apply to a telephone call in which one or more of the
parties to the call are located within the state.

Accordingly, we conclude that the Georgia statute, as well as the California statute, applies to
the telephone calls at issue in this case, and that the law of each state differs with regard to the
legality of such conduct. Although it is unlawful under California law for a party to a telephone
conversation to record the conversation without the knowledge of all other parties to the
conversation, such conduct is not unlawful under Georgia law.

Plaintiffs maintain, however, that although California law and Georgia law differ, there
nonetheless is no true conflict in this situation. Although it is evident that California has a
legitimate interest in having its law applied in the present setting because plaintiffs are
California residents whose telephone conversations in California were recorded without their
knowledge or consent, plaintiffs contend that Georgia does not have an interest in having its law
applied here, because the fundamental purpose of the Georgia statute is to protect the privacy
of conversations that have some relationship to Georgia and in this case there is no claim that
the privacy of any Georgia resident or any person or business in Georgia has been violated.

Although plaintiffs are correct that the facts of this case do not implicate the privacy interests
protected by the Georgia statute, the Georgia statute also can reasonably be viewed as
establishing the general ground rules under which persons in Georgia may act with regard to
the recording of private conversations, including telephone calls. Because Georgia law prohibits
the recording of such conversations except when the recording is made by one of the parties to
the conversation or with such a party's consent, persons in Georgia reasonably may expect, at
least as a general matter, that they lawfully can record their own conversations with others
without obtaining the other person's consent, and Georgia has a legitimate interest in not
having liability imposed on persons or businesses who have acted in Georgia in reasonable
reliance on the provisions of Georgia law. Because the conduct of SSB that is at issue in this case
involves activity that its employees engaged in within Georgia, we believe that Georgia
possesses a legitimate interest in having its law applied in this setting.

Accordingly, we conclude that this case presents a true conflict of laws.

We proceed to evaluate the relative impairment of each state's interests that would result were
the law of the other state to be applied in this setting, beginning with California's.

We also believe that the failure to apply Section 632 in the present context would substantially
undermine the protection afforded by the statute. Many companies who do business in
California are national or international firms that have headquarters, administrative offices, or in
view of the recent trend toward outsourcing - at least telephone operators located outside of
California. If businesses could maintain a regular practice of secretly recording all telephone
conversations with their California clients or customers in which the business employee is
located outside of California, that practice would represent a significant inroad into the privacy
interest that the statute was intended to protect. As noted above (ante, 45 [Link].3d at pp.
737-738, 137 P.3d at pp. 920-921), an out-of-state company that does business in another state
is required, at least as a general matter, to comply with the laws of a state and locality in which
it has chosen to do business. (See, e.g., Watson v. Employers Liability. Assurance Corp., supra,
348 U.S. 66, 72, 75 [Link]. 166, 99 L..Ed. 74.) As this court determined in Bernhard, supra, 16
Cal.3d 313. 322-323, 128 [Link]. 215, 546 P.2d 719, with regard to the need to apply California
law relating to the liability of tavern owners to the out-of-state tavern owner at issue in that
case, the failure to apply California law in the present context seriously would undermine the
objective and purpose of the statute.

Moreover, if Section 632 and, by analogy, other similar consumer-oriented privacy statutes that
have been enacted in California could not be applied effectively to out-of-state companies but
only to California companies, the unequal application of the law very well might place local
companies at a competitive disadvantage with their out-of-state counterparts. To the extent
out-of-state companies may utilize such undisclosed recording to further their economic
interests perhaps in selectively disclosing recordings when disclosure serves the company's
interest, but not volunteering the recordings' existence (or quickly destroying them) when they
would be detrimental to the company California companies that are required to comply with
California law would be disadvantaged. By contrast, application of Section 632 to all companies
in their dealings with California residents would treat each company equally with regard to
California's concern for the privacy of the state's consumers.

In sum, we conclude that the failure to apply California law in the present context would result
in a significant impairment of California's interests.

By contrast, we believe that, for a number of reasons, the application of California law rather
than Georgia law in the context presented by the facts of this case would have a relatively less
severe effect on Georgia's interests. First, because California law, with regard to the particular
matter here at issue, is more protective of privacy interests than the comparable Georgia
privacy statute, the application of California law would not violate any privacy interest protected
by Georgia law. In addition, there is, of course, nothing in Georgia law that requires any person
or business to record a telephone call without providing notice to the other parties to the call,
and thus persons could comply with California law without violating any provision of Georgia
law.

Second, with respect to businesses in Georgia that record telephone calls, California law would
apply only to those telephone calls that are made to or received from California, not to all
telephone calls to and from such Georgia businesses. In considering the practicability of singling
out California calls for distinct treatment, there would appear to be little question that it would
be feasible for a business to identify those calls that its own employees are making to current or
potential California clients. Similarly, with regard to calls received by a business in Georgia, it
appears likely that technical tools such as "caller ID" - are available that readily would make it
possible to identify which calls received by the Georgia office are coming from California, and,
even in the absence of such technological devices, there would appear to be no reason why an
SSB employee, when answering a call, could not simply inquire where the client is calling from.
Thus, application of California law would appear to affect only those telephone calls to or from
California.

Furthermore, applying California law to a Georgia business's recording of telephone calls

between its employees and California customers will not severely impair Georgia's interests. As
discussed above (ante, 45 [Link].3d at p. 749, 137 P.3d at p. 930), California law does not
totally prohibit a party to a telephone call from recording the call, but rather prohibits only the
secret or undisclosed recording of telephone conversations, that is, the recording of such calls
without the knowledge of all parties to the call. Thus, if a Georgia business discloses at the
outset of a call made to or received from a California customer that the call is being recorded,
the parties to the call will not have a reasonable expectation that the call is not being recorded
and the recording would not violate section 632. Accordingly, to an extent, Georgia law is
intended to protect the right of a business to record conversations when it has a legitimate
business justification for doing so, the application of California law to telephone calls between a
Georgia business and its California clients or customers would not defeat that interest. The
Court of Appeals, in reaching the conclusion that Georgia law should apply, thought it important
to emphasize that Georgia has a legitimate interest in permitting a financial services entity, such
as SSB, to routinely record telephone calls "for the perfectly understandable purpose of
protecting themselves from the customer who might later claim the institution misunderstood
his or her investment instructions," but the appellate court failed to recognize that the
application of California law would not thwart that interest. Although the application of
California law to telephone calls between Georgia and California would impair Georgia's
interests to the extent Georgia law is intended to protect a business' ability secretly to record its
customers' telephone calls, we believe that, particularly as applied to a business' blanket policy
of routinely recording telephone calls to and from California customers, this consequence would
represent only a relatively minor impairment of Georgia's interests.

For the foregoing reasons, we conclude that, as a realistic matter, the application of California
law in this context would not result in a severe impairment of Georgia's interests.

C
Accordingly, because we have found that the interests of California would be severely impaired
if its laws were not applied in this context, whereas Georgia's interest would not be significantly
impaired if California law rather than Georgia law were applied, we conclude that, with the one
exception we discuss below, California law should apply in determining whether the alleged
secret recording of telephone conversations at issue in this case constitutes an unlawful
invasion of privacy.

Butler v. Adoption Media, LLC

486 F. Supp. 2d 1022 (2007)

Facts: Michael and Richard Butler ("Butlers") were registered domestic partners in California
since 2000. In 2002, they applied to have their profile posted on ParentProfiles. com, an
internet adoption website operated by Adoption Media, LLC ("Adoption Media"). The Butlers'
application was denied on the ground that the website's service was not available to same-sex
partners. The Butlers then sued Adoption Media for violation of the Unruh Civil Rights Act.

Issue: Whether California law or Arizona law govern the claim of the Butlers.

Held: California law governs the claim of the Butlers.

i. whether the laws of Arizona differ from the laws of California

The parties agree though for different reasons that Arizona law differs from California law.
Defendants assert that the issue for choice-of-law analysis is not merely whether Arizona and
California treat sexual orientation and marital status discrimination differently, but whether the
acts about which plaintiffs complain could support a claim under Arizona law. They argue that
Arizona does not permit same-sex couples to adopt jointly, and that same-sex couples have no
claim for discrimination based on being treated differently than married couples when it comes
to adoption or marriage. They also contend that because a same-sex couple cannot jointly
adopt in Arizona, there can be no claim for discrimination in Arizona based on the refusal to
"publish" a profile for a same-sex couple.

Plaintiffs, on the other hand, focus on the fact that while California law prohibits discrimination
on the basis of sexual orientation and marital status, Arizona law does not affirmatively permit
Arizona businesses to discriminate against gays or lesbians or domestic partners, Arizona's
public accommodation statute is silent with regard to discrimination on the basis of sexual
orientation and marital status, and Arizona courts have not ruled on the question whether the
state's public accommodation statute forbids discrimination against same-sex couples. Plaintiffs
contend that while Arizona has no state law prohibiting sexual orientation discrimination by
business establishments, it does not condone such discrimination. They also note that various
localities in Arizona have promulgated local policies prohibiting discrimination based on sexual
orientation or marital status in public accommodation and other areas. Both Arizona and
California have enacted anti-discrimination laws, and laws governing adoption and marriage.
California's Unruh Act is discussed at length above. The Arizona Civil Rights Act of 1965 prohibits
discrimination in places of public accommodation, "against any person because of race, color,
religion, sex, national origin or ancestry." (Ariz. Rev. Stat. § 41-1442) It is unlawful under this
statute to deny or withhold "accommodations, advantages, facilities, or privileges thereof"
based on the enumerated characteristics, or to make any distinction "with respect to any
person" based on the enumerated characteristics, "in connection with the price or quality of
any item, goods or services offered by or at any place of public accommodation." Id.

On March 8, 2000, the voters passed Proposition 22, an initiative providing that "[o]nly marriage
between a man and a woman is valid or recognized in California." This law is codified as
California Family Code § 308.5. Pursuant to this statute, California will not recognize same-sex
marriages even if those marriages are validly formed in other jurisdictions that permit same-sex
marriage. Thus, like Arizona, California does not allow same-sex couples to marry.

However, unlike Arizona, the California Legislature has enacted legislation allowing civil unions
(domestic partnerships). California created a "domestic partner registry" in 1999. See Cal. Fam.
Code § 297 (effective January 1, 2000). The statute was subsequently amended to expand the
rights and obligations of domestic partners. In 2001, the California Legislature enacted AB 25,
which became effective on January 1, 2002. Among other things, AB 25 provided that registered
domestic partners were entitled to use the streamlined step-parent adoption procedures. See
Cal. Fam. Code § 9000(g) Thus, AB 25 equalized registered domestic partners with married
spouses with regard to the issue of adoption in California.

As of January 1, 2005, California's domestic partner law provides most of the same rights and
responsibilities of spouses under California law, such as complete inheritance rights, community
property, joint responsibility for debt, and the right to request support from the other partner
upon dissolution of the partnership. Cal. [Link] 297.5. While Arizona law does not authorize
civil unions, the voters of the state recently rejected an attempt to make the enactment of such
laws impossible in the future, by rejecting Proposition 107 in the Arizona November 2006 state-
wide election. Proposition 107 would have amended the Arizona Constitution to state that
marriage consists of a union of one man and one woman, and to prohibit the state and its
political subdivisions from creating or recognizing any legal status for unmarried persons that is
similar to that of marriage. See
[Link]

Thus, as of 2002, when the Butlers sought to have their profile posted on [Link],
Arizona state law did not prohibit discrimination on the basis of sexual orientation or marital
status; any single person could petition to adopt in Arizona; there was no prohibition against
single homosexual persons becoming adoptive parents; there was no law prohibiting joint
adoptions by same-sex couples, although the law explicitly provided for joint adoptions only by
"husband and wife" and there was no law explicitly prohibiting same-sex second-parent
adoptions. The law regarding adoptions is the same today plus, the Arizona Legislature recently
defeated a bill that would have given preference to married couples over single people in
adoption.

As of 2002, California prohibited discrimination in public accommodations on the basis of sexual

orientation; it was an open question whether discrimination on the basis of marital status was
also prohibited; any single person could adopt in California; there was no law prohibiting
adoptions by same-sex couples; and California allowed stepparent and second-parent adoptions
without reference to sexual orientation or marital status, and had equalized registered domestic
partners with married spouses with regard to the issue of adoption.

Having determined that the laws of the two states differ in some respects, as explained above,
the court now considers whether a true conflict exists.

ii. whether a true conflict exists

The California Supreme Court found a "true conflict" in Bernhard, in Offshore Rental, and in
Kearney because in each of those cases, the laws of two states were in conflict, and that conflict
reflected competing state interests. In Bernhard, Nevada law held that tavern owners were not
liable for injuries caused by drunk drivers who had obtained alcohol from the tavern owners,
while California law imposed liability on the tavern owners for such injuries. In Offshore Rental,
Louisiana law held that a corporate plaintiff could not bring a claim for the loss of services of
one of its officers, while California law arguably allowed such a claim. In Kearney, it was legal
under Georgia law to record a telephone conversation if only one of the participants knew it
was being recorded, but illegal under California law to record such a conversation unless both
participants were aware of the recording.

In the present case, neither the Arizona Civil Rights Law nor the Unruh Act specifically
prohibited discrimination on the basis of sexual orientation or marital status in 2002. However,
while there are no reported Arizona cases holding (even up to the present) that either of those
characteristics can provide a basis for a claim of discrimination in public accommodations under
the Arizona Civil Rights Law, a number of California cases had held by 1984, at least with regard
to discrimination on the basis of sexual orientation, that such discrimination was prohibited by
the Unruh Act. As of January 2006, of course, the Unruh Act unambiguously prohibits
discrimination on the basis of both sexual orientation and marital status.

Also, as of October 2002, both Arizona and California allowed any single person to adopt.
Neither Arizona nor California had a law prohibiting adoptions by same-sex couples although
Arizona law explicitly provided for joint adoptions only by "husband and wife," and defined
"stepparent" adoption as adoption by the "spouse" of the child's parent; while California
allowed both stepparent and second-parent adoptions, regardless of the gender of the adoptive
parents.

While the differences between the laws of Arizona and California are not as distinct as the
differences at issue in Bernhard, Offshore Rental, and Kearney, this case arguably presents a
true conflict, if only for the reason that it is unlikely that plaintiffs could have brought a similar
discrimination claim under Arizona law. California has a strong interest in enforcing its anti-
discrimination laws. It is less clear what interest Arizona might have in allowing discrimination in
public accommodations on the basis of sexual orientation or marital status, or in applying its
own law to California residents. The only interest plaintiffs have articulated is Arizona's interest
in protecting its resident businesses from uncertainty.

Plaintiffs have supported their position with citations to the Unruh Act and the cases that have
interpreted it, while defendants have provided no support for their claim that Arizona has a
strong interest in protecting its businesses from "surprise" penalties in the form of liability
under the anti-discrimination laws of other states. It is true that the courts in Kearney, Offshore
Rental, and Bernhard considered a similar interest under the facts of those cases with regard to
Georgia, Louisiana, and Nevada, respectively. See Kearney. 39 Cal.4th at 128-29, 45 [Link].3d
730, 137 P.3d 914: Offshore Rental, 22 Cal.3d at 168, 148 [Link]. 867, 583 P2d 721; and
Bernhard, 16 Cal.3d at 318, 128 Cal. Rptr. 215, 546 P.2d 719. But defendants have not pointed to
any Arizona statute or judicial decision establishing that Arizona has a paramount interest in
ensuring certainty in business dealings for Arizona businesses. Moreover, as the court in
Kearney pointed out, "a company that conducts business in numerous states ordinarily is
required to make itself aware of and comply with the law of a state in which it chooses to do
business." Kearney, 39 Cal.4th at 105, 45 [Link].3d 730, 137 P.3d 914; see also Bernhard, 16
Cal.3d at 322-23, 128 [Link]. 215, 546 P.2d 719.

Nevertheless, in view of this finding that the interests of the two states are not entirely in
accord, the court will consider the "comparative impairment" of each state's interest.

iii. which state's interest would be more impaired if its law were not applied

Once it has determined that a true conflict exists, the court must carefully evaluate and
compare the nature and strength of the interest of each jurisdiction in the application of its own
law "to determine which state's interest would be more impaired if its policy were subordinated
to the policy of the other state," and must apply the law of the state whose interest would be
more impaired if its law were not applied. See Kearney. 39 Cal.4th at 107-08, 45 [Link].3d 730,
137 P.3d 214.
Plaintiffs argue that California's interest would be more impaired if California law were not
applied in this case. They argue that California's strong interest is shown in this case by the fact
that the principal purpose underlying the Unruh Act is the protection of California residents
from discrimination in California business transactions, and that the Legislature has continued
to modify the Act and the courts have vigorously enforced it. Plaintiffs also contend that
California has a significant interest in this case because this case involves family and adoption-
related issues issues that traditionally lie in the domain of the states. Plaintiffs claim that in light
of these strong public policies, California's interests would be significantly impaired by the
failure to apply California law.

In sum, plaintiffs argue that the factors that led the Kearney court to find that California law
applied to the recording of telephone conversations between California residents and persons
located in other states also apply in this action, while defendants maintain that California's
interest does not come into play because this case does not involve discrimination against
California residents in California. Defendants submit that all the activity occurred in Arizona,
where defendants and [Link]'s server are located. They argue that plaintiffs, in
contacting defendants via the Internet, "traveled" from California to Arizona, and were
therefore "in" Arizona at the time of the alleged discrimination. They argue that California has
no interest in having its law applied extraterritorially.

The court finds that the failure to apply California law in the present case would undermine the
Unruh Act for the same reasons. If businesses with headquarters in other states could maintain
a regular practice of discriminating against California residents, that practice would substantially
impair the protection afforded by the statute.

The court is not persuaded by defendants' argument that Arizona's interests would be seriously
impaired by applying California law. In Kearney, the court found that because California law was
more protective of privacy interests than the comparable Georgia statute, "the application of
California law would not violate any interest protected by Georgia law." Id., at 126-27, 45
[Link].3d 730, 137 P.3d 914. Moreover, the court noted, because there was "nothing in
Georgia law that requires any person or business to record a telephone call without providing
notice to the other parties to the call...persons could comply with Georgia law without violating
any provision of Georgia law." Id., at 127, 45 [Link].3d 730, 137 P.3d 914.

Similarly, in the present case, the Unruh Act is more protective of consumers than the
comparable Arizona law. Application of California law would not violate any right protected by
Arizona law, and the Unruh Act merely provides protections in addition to those specifically
enumerated protections in Arizona. Arizona law does not require, or even permit,
discrimination by businesses against same-sex couples.
Thus, defendants can comply with California law while doing business in California without
violating any provision of Arizona law, and any interest Arizona may have in its own law would
not be seriously impaired by the application of California law. As in Kearney, where the court
found that it would be feasible for a business located outside California to identify the calls that
its employees were making to California residents, or were taking from California residents, it
would be feasible in the present case for defendants to identify those potential customers of
[Link] who were living in, and certified to adopt in, California.

Steps in Governmental Interest Analysis Test

The governmental interest analysis approach involves the following steps:

1. The court determines whether the relevant law of the affected jurisdictions with regard to
the issue in question is the same or different.

2. If there is a difference, the court examines each jurisdiction's interest in the application of its
own law to determine whether a true conflict exists.

3. If the court finds that there is a true conflict, it carefully evaluates and compares the nature
and strength of the interest of each jurisdiction to determine which state's interest would be
more impaired if its policy were subordinated to the policy of the other state. The governmental
interest analysis is the approach applied in most Western countries in determining the
applicable law where a true conflict exists. However, in the Philippine setting, rarely is this
approach employed. The standard practice of local courts, especially the Supreme Court, is to
declare the foreign law to be against public policy where the foreign law conflicts with a
Philippine law. Thus, if Kearney and Butler were decided here, our courts would have held the
foreign laws to be violative of our public policy. Incidentally, our jurisdiction follows the
California practice that recording of conversations must be with the consent of all parties to the
conversation.

Criticism of Governmental Interest

Analysis Approach

A fundamental defect of the governmental interest analysis approach is that it tends to favor
the laws and interests of the forum court. There is inherent bias for forum courts to favor their
own laws over that of others. This could be a matter of training, upbringing, or even culture as
judges are apt to apply what they have been taught in law school promoting their state's values
and interests. For example, it is highly possible that the Kearney and Butler cases would have
been decided differently had the cases been filed before Georgia or Arizona courts. Thus, there
is a tendency to lean towards directives provided by local laws and even customs. Quite simply,
this is comparable to the "home advantage" in sports competition where the home state has a
specific advantage over visiting teams due to their familiarity with the venue and their support
from the local fans.

Principle 5: Protection of Justified Expectations

Parties enter into contracts or into legal relations with the objective of achieving a desired
result. Parties would usually specify a particular law to govern their relationship with each
other. They may choose the law of one state over another for tax and regulatory benefits. When
the parties specify a particular law to govern their legal relations, courts must enforce this
choice of law, unless it is contrary to a statutory directive of the forum court, or contravenes
public policy. Parties are free to stipulate the terms and conditions of their agreement, which
terms and conditions become part of the law of the contract.

Francisco v. Stolt Achievement MT

293 F.3d 270 (2002)

Facts: Francisco, a Philippine national, was employed aboard the M/T Stolt Achievement, which
was a vessel operated by Stolt-Nielsen Transportation Group, Inc. ("Stolt"). Francisco was
injured while working onboard the vessel and he sued Stolt before a Louisiana state court. Stolt
removed the case to federal district court on the ground that Francisco signed an employment
contract with the stipulation that in the event of "claims and disputes arising from this
employment," the parties agree to arbitrate their disputes in the Philippines. Same contract also
provided that "[a]ny unresolved dispute, claim or grievance arising out of or in connection with
this Contract...shall be governed by the laws of the Republic of the Philippines, international
conventions, treaties and covenants where the Philippines is a signatory." Francisco filed a
motion to remand the case to state court, while Stolt filed a motion to compel arbitration.
Francisco's motion was denied, while Stolt's motion was granted. Francisco's suit was thereafter
dismissed.

Issue: Whether Francisco was compelled to arbitrate his claims against Stolt.

Held: Yes, per his employment contract, Francisco was compelled to arbitrate his claims with
Stolt.

1. The contract clearly provides remedies for work-related personal injuries, and states in
paragraph 29 that "claims and disputes arising from this employment" are subject to arbitration
in the Philippines. The arbitration provision is not by its language limited to contract claims but
covers all claims "arising from this employment." Francisco alleged in his original petition that
his injuries were sustained "in the course and scope of his employment." In Marinechance
Shipping, Ltd. v. Sebastian, we addressed whether a forum selection clause in a seaman
employment contract applied to tort claims. We held that the clause providing that "any and all
disputes or controversies arising out of or by virtue of this Contract" shall be litigated in the
Philippines applied to tort claims brought by two Philippine seamen injured aboard a vessel
while it was located in the Mississippi River. We do not agree that the language of the forum
selection clause in Marinechance is meaningfully different from the language of the arbitration
clause in the pending case for purposes of deciding whether tort claims are covered, and note
that "foreign arbitration clauses are but a subset of foreign forum selection clauses in general."
2. Francisco also contended at oral argument that an employee like himself who was not subject
to a collective bargaining agreement ("CBA") is not required to submit his claim to arbitration in
the Philippines. Assuming that this argument was timely made, we reject it. Paragraph 29 of the
Terms and Conditions states that parties subject to a CBA shall submit the claim or dispute to
arbitration, but that parties not subject to a CBA may submit the claim or dispute "to either the
original and exclusive jurisdiction of the" NLRC "or to the original and exclusive jurisdiction of
the voluntary arbitrator or panel of arbitrators." As explained above in our footnote 1, cases
submitted to the NLRC are resolved by arbitration. Accordingly, even though the contract uses
the word "may" when describing the procedures available to an employee not covered by a
CBA, the only two options available to such an employee both require arbitration. Especially in
light of our general rule, recognized in a Convention Act case, that "whenever the scope of an
arbitration clause is in question, the court should construe the clause in favor of arbitration," we
read the contract as mandating arbitration of this dispute in the Philippines.

Courts must look at justified expectations in adjudicating a case. Parties have reasons why they
choose a particular law as their choice of law or why they choose a particular forum in litigating
their case. For example, parties usually sue a national of another state in their home countries
for reasons of convenience, fairness, and justice. Justice may also be easier to get in countries
with democratic systems or where judges are free from corruption and pressure. Sometimes, a
party may have more rights in his home country than in another so this must be looked into
when deciding the case.

Principle 6: Basic Policies Underlying the Particular Field of Law

This simply means that the reason and objectives of the laws in question should be given
consideration. Hence, courts should look to the type of law involved. If it is contracts law, what
are the rights intended to be protected? If it is torts law, what are the damages available to the
parties? Where did the tort happen? Contracts have for their purpose the validity of the terms
and conditions of the contract. Tort laws have for their object the redress of damages and the
reliefs that may be awarded. By looking at the particular laws involved, courts may be in a better
position to decide which rights to uphold and protect. Hancock v. Watson

962 So.2d 627 (2007)

Facts: David and Lori are residents of Tennessee. They

had been married for several years when Lori started sexual relations with Roger Hancock in
1999. The affair lasted until the year 2000. David learned of the affair only in 2003. In 2003,
David filed a complaint for alienation of affection against Roger before the circuit court of Hinds
County, Mississippi. Roger claimed that Tennessee law applied and that under Tennessee law,
the tort of alienation of affection had already been abolished. Hence, the suit should be
dismissed. David, on the other hand, asserted that Mississippi law applied because the tort was
committed in Mississippi where alienation of affection remains a tort. The trial court denied
Roger's claims and he appealed the decision.

Issue: What law is applicable to suit for alienation of affection filed by David against Roger?

Held: The law that is applicable is the law of the place where the tort occurred.

1. Choice of law analysis is a three step process. First, the Court must determine whether the
conflicting laws are substantive or procedural. The Court must then classify the substantive area
of law contract, tort, or property -applicable to the conflicting laws, as each area of law has its
own choice of law provisions. Finally, the Court must apply the appropriate analytical provisions
to the conflict. In the case before the Court, the first two steps in the process are easily
resolved. Clearly, the conflicting laws are substantive, as the outcome will determine whether
Watson has a viable cause of action. If Tennessee law applies, the suit must be dismissed, as
alienation of affection has been abolished in Tennessee. Categorizing the substantive area of
law for an alienation of affection claim is also a simple step. Alienation of affection claims are
tort actions.

2. After reviewing the limited facts available in the record, given that this appeal is before the
Court as an interlocutory appeal of the trial court's denial of Hancock's motion to dismiss, the
Court finds that it is unable to complete the conflict of law analysis due to the lack of factual
information available from the record. Although the amended complaint alleges that Lori
Watson conducted her affair with Hancock in the State of Mississippi, those allegations do not
end the inquiry as to the place where the injury or the conduct causing the injury occurred.

3. Accordingly, the Court remands this case to the trial court so that the trial court may direct
the parties to engage in discovery on the details of the communications and actions between
Hancock and Lori which Watson contends led to the alienation of Lori's affections. After that
discovery is complete, the trial court should then be able to apply "the most significant
relationship" test and complete the conflicts of law analysis.

Principle 7: Certainty, Predictability, and Uniformity of Result

Most judicial systems favor stability in judicial decisions that is why they have formulated
principles like res judicata and stare decisis. When the facts of a case fall squarely with the facts
of a previously decided case, the doctrine in the latter case is usually applied to the case in
dispute. In the area of torts, courts usually choose between lex loci delicti and most significant
relationship. Once they choose between either of the two, they usually follow this approach in
deciding future cases; this approach usually becomes the applicable doctrine in the jurisdiction
concerned. The rationale behind this is to provide stability in judicial decisions so judges will
stick to their functions of interpreting the laws instead of setting policies.

In Dowis v. Mud Slinger, the Supreme Court of Georgia decided to stick with the doctrine of lex
loci delicti on the basis of "stability and certainty in the law." The Court found stare decisis to be
"a valid and compelling argument for maintaining the doctrine." In rejecting the approach of
"most significant relationship," the Dowis Court found the latter approach to be problematic,
characterizing it as merely a tool for "contact counting" resulting in erratic applications due to
the difficulty of predicting what a court will do in other similar cases. The Court concluded that
a change in its approach would result in judges becoming "judicial policymakers." Principle 8:
Ease in the Determination and Application of the Law to be Applied

Simplicity is always a virtue in determining which law to apply. If a court is bound by a particular
doctrine by virtue of stare decisis, it is usually simpler for the court to apply the same doctrine
in future cases. There is no more need to adopt new and more complicated analyses for what
only needs to be done is to apply the law which has been applied before. Some legal
approaches also involve more complicated analyses than other approaches. For example, in
torts cases, the lex loci delicti approach is a much simpler approach than most significant
relationship for the latter requires a more elaborate analysis of each state's connection to a
particular case.

Dowis was precisely concerned with this principle. The Court in Dowis applied the doctrine of
lex loci delicti because of the relative ease in its application. Hence, all a court had to do in lex
loci delicti was apply the law of the place where the tort occurred and that ended the inquiry
unlike in "most significant relationship" where a court still had to do Home contact-counting.

This is not to say, however, that the approach in Dowis is necessarily the correct or best
approach. As has been stated in principles 2 and 4, there is also value in considering the needs
of the interstate and International systems as well as the relevant policies of other interested
states. These differences will be discussed in more detail under the chapter on Torts.

Other Principles Affecting Choice of Law

Proof of Foreign Law and Processual Presumption

Foreign laws have to be properly proved before they are admitted Into evidence. Failure to
prove foreign law will result to the exclusion of the foreign law and a presumption will arise that
foreign law is the same as local law. The effect of a failure to prove foreign law is that local law
will become the governing law of the contract or dispute of the parties. This is the doctrine of
processual presumption and it presumes the foreign law to be the same as local law when there
is failure to prove foreign law.

In the same vein, foreign documents also need to be proved before they can be admitted into
evidence. Foreign documents will be excluded if they are not properly proved. They will be
nothing but scraps of paper which the court cannot consider as part of the evidence of the case.
Sections 24 and 25 of Rule 132 of the 2019 Proposed Amendments to the Revised Rules on
Evidence ("2019 Revised Rules on Evidence") prescribe the rules governing proof of foreign law.
They state:

Sec. 24. Proof of official record. The record of public

documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody.

If the office in which the record is kept is in foreign country, which is a contracting party to a
treaty or convention to which the Philippines is also a party, or considered a public document
under such treaty or convention pursuant to paragraph (c) of Section 19 hereof, the certificate
or its equivalent shall be in the form prescribed by such treaty or convention subject to
reciprocity granted to public documents originating from the Philippines.

For documents originating from a foreign country which is not a contracting party to a treaty or
convention referred to in the next preceding sentence, the certificate may be made by a
secretary of the embassy or legation, consul general, consul, vice-consul, or consular agent or by
any officer in the foreign service of the Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office.

A document that is accompanied by a certificate or its equivalent may be presented in evidence

without further proof, the certificate or its equivalent being prima facie evidence of the due
execution and genuineness of the document involved. The certificate shall not be required
when a treaty or convention between a foreign country and the Philippines has abolished the
requirement, or has exempted the document itself from this formality.

Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is
attested for the purpose of evidence, the attestation must state, in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the case may be. The attestation must
be under the official seal of the attesting officer, if there be any, or if he or she be the clerk of a
court having a seal, under the seal of such court. (26a) The first paragraph of Section 24 states
the general rule concerning proof of official record. The succeeding paragraphs delineate the
special rules concerning documents or records coming from foreign countries.
There are two types of foreign records or documents referred to in Section 24. The first type of
documents are those kept or originating from foreign countries which are signatories to the
Apostille Convention. These are governed by the second paragraph of Section 24. The other
types are those coming from foreign countries which are not signatories to the Apostille
Convention. These are governed by the provisions of the third paragraph of Section 24.

Thus, if a foreign law is involved in a case, it may be evidenced by an official publication thereof,
like the Official Gazette. If only a copy is present, it must be attested by the officer having legal
custody thereof. If the record is kept in a foreign country, the copy must be accompanied with a
certificate that the officer has custody thereof. The certificate may be made by a secretary of
the embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer
in the foreign service of the Philippines stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office.

The attestation will state that the copy is a correct copy of the original and must contain the
official seal of the attesting officer or if he is the clerk of a court having a seal, then it must be
under the seal of such court.

If the foreign documents or record are accompanied with any of the certificates mentioned in
paragraphs two and three of Section 24, the documents "may be presented in evidence without
further proof, the certificate or its equivalent being prima facie evidence of the due execution
and genuineness of the document involved." This is a new addition to the Rules on Evidence,
meant to simplify proceedings in court. It dispenses with further proof, and the clarity of the
provision prevents counsel and even judges from further inquiring on the authenticity of foreign
documents.

Wildvalley Shipping v. Court of Appeals

G.R. No. 119602, October 6, 2000

Facts: The Philippine Roxas was in Puerto Ordaz, Venezuela, to load iron ore. When it was ready
to leave port, Mr. Ezzar del Valle Solarzano Vasquez, an official pilot of Venezuela, was assigned
by harbor authorities to navigate the vessel through the Orinoco River. Due to his negligence,
the Philippine Roxas ran aground in the Orinoco River and obstructed the ingress and egress of
vessels. One of these vessels was the Malandrinon, a vessel owned by Wildvalley Shipping
Company, Ltd. Subsequently, Wildvalley filed suit with the RTC of Manila, against the Philippine
President Lines, Inc. which was the owner of the Philippine Roxas, for damages. Wildvalley
wanted Venezuela law to apply, since under Venezuela law, the owner of the vessel is liable for
the negligence of the compulsory pilot, which is not so under Philippine law.

Issue: Whether Venezuela law is applicable to the case at bar.

Held: No, Venezuela law was not properly proved.

1. Nevertheless, we take note that these written laws were not proven in the manner provided
by Section 24 of Rule 132 of the Rules of Court.

2. The Reglamento General de la Ley de Pilotaje was published in the Gaceta Oficial of the
Republic of Venezuela. A photocopy of the Gaceta Oficial was presented in evidence as an
official publication of the Republic of Venezuela. The Reglamento Para la Zona de Pilotaje No. 1
del Orinoco is published in a book issued by the Ministerio de Comunicaciones of Venezuela.
Only a photocopy of the said rules was likewise presented as evidence.

3. For a copy of a foreign public document to be admissible, the following requisites are
mandatory: (1) It must be attested by the officer having legal custody of the records or by his
deputy; and (2) It must be accompanied by a certificate by a secretary of the embassy or
legation, consul general, consul, vice-consular or consular agent or foreign service officer, and
with the seal of his office. The latter requirement is not a mere technicality but is intended to
justify the giving of full faith and credit to the genuineness of a document in a foreign country.

4. It is not enough that the Gaceta Oficial, or a book published by the Ministerio de
Comunicaciones of Venezuela, was presented as evidence with Captain Monzon attesting it. It is
also required by Section 24 of Rule 132 of the Rules of Court that a certificate that Captain
Monzon, who attested the documents, is the officer who had legal custody of those records
made by a secretary of the embassy or legation, consul general, consul, vice-consul or consular
agent or by any officer in the foreign service of the Philippines stationed in Venezuela, and
authenticated by the seal of his office accompanying the copy of the public document. No such
certificate could be found in the records of the case.

5. With respect to proof of written laws, parol proof is objectionable, for the written law itself is
the best evidence. According to the weight of authority, when a foreign statute is involved, the
best evidence rule requires that it be proved by a duly authenticated copy of the statute.

6. At this juncture, we have to point out that the Venezuelan law was not pleaded before the
lower court.

A foreign law is considered to be pleaded if there is an allegation in the pleading about the
existence of the foreign law, its import and legal consequence on the event or transaction in
issue.

Manufacturers Hanover Trust Co. v. Guerrero

G.R. No. 136804, February 19, 2003

Facts: Guerrero filed a complaint for damages against

Manufacturers Hanover Trust with the RTC of Manila for damages arising from illegally withheld
taxes, returned check, and unauthorized conversion of his account. In its Answer, Manufacturers
Hanover Trust alleged that Guerrero's account is governed by New York law which does not
permit any of his claims. Manufacturers Hanover Trust presented the affidavit of a New York
attorney, Allyssa Walden, which essentially stated that New York was the governing law for the
contract and that said law barred Guerrero's claims.

Issue: Was New York law proved by the Walden affidavit?

Held: No, the Walden affidavit failed to prove New York law.

1. Under Section 24 of Rule 132, the record of public documents of a sovereign authority or
tribunal may be proved by (1) an official publication thereof or (2) a copy attested by the officer
having the legal custody thereof. Such official publication or copy must be accompanied, if the
record is not kept in the Philippines, with a certificate that the attesting officer has the legal
custody thereof. The certificate may be issued by any of the authorized Philippine embassy or
consular officials stationed in the foreign country in which the record is kept, and authenticated
by the seal of his office. The attestation must state, in substance, that the copy is a correct copy
of the original, or a specific part thereof, as the case may be, and must be under the official seal
of the attesting officer.

2. The Walden affidavit states conclusions from the affiant's personal interpretation and opinion
of the facts of the case vis-à-vis the alleged laws and jurisprudence without citing any law in
particular. The citations in the Walden affidavit of various U.S. court decisions do not constitute
proof of the official records or decisions of the U.S. courts. While the Bank attached copies of
some of the U.S. court decisions cited in the Walden affidavit, these copies do not comply with
Section 24 of Rule 132 on proof of official records or decisions of foreign courts.

3. The Bank's intention in presenting the Walden affidavit is to prove New York law and
jurisprudence. However, because of the failure to comply with Section 24 of Rule 132 on how to
prove a foreign law and decisions of foreign courts, the Walden affidavit did not prove the
current state of New York law and jurisprudence. Thus, the Bank has only alleged, but has not
proved, what New York law and jurisprudence are on the matters at issue.

Edi-staff Builders International v. NLRC

G.R. No. 145587, October 26, 2007

Facts: Gran, a Filipino, was recruited by EDI to work for OAB, in Riyadh, Saudi Arabia. Gran
signed an employment contract which specified that Saudi Labor laws shall govern matters not
provided for in the contract. Gran was terminated from work and upon his return to the
Philippines, he filed a case for illegal dismissal and underpayment of wages with the NLRC. EDI
contended that Saudi Labor laws should apply in the resolution of Gran's complaint.

Issue: Whether Saudi Labor laws should govern Gran's dismissal from employment.

Held: No, Saudi Labor laws were not properly proven by petitioner.

1. In cases involving OFWs, the rights and obligations among and between the OFW, the local
recruiter/agent, and the foreign employer/principal are governed by the employment contract.
A contract freely entered into is considered law between the parties; and hence, should be
respected. In formulating the contract, the parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided they are not contrary to law,
morals, good customs, public order, or public policy.

2. In the present case, the employment contract signed by Gran specifically states that Saudi
Labor laws will govern matters not provided for in the contract (e.g., specific causes for
termination, termination procedures, etc.). Being the law intended by the parties (lex loci
intentiones) to apply to the contract, Saudi Labor laws should govern all matters relating to the
termination of the employment of Gran.

3. In international law, the party who wants to have a foreign law applied to a dispute or case
has the burden of proving the foreign law. The foreign law is treated as a question of fact to be
properly pleaded and proved as the judge or labor arbiter cannot take judicial notice of a
foreign law. He is presumed to know only domestic or forum law.

4. Unfortunately for petitioner, it did not prove the pertinent Saudi laws on the matter; thus, the
International Law doctrine of presumed-identity approach or processual presumption comes
into play. Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption
is that foreign law is the same as ours. Thus, we apply Philippine labor laws in determining the
issues presented before us.

The Apostille Convention

On October 5, 1961, several states concluded and ratified the Convention Abolishing the
Requirement of Legalization for Foreign Documents. Otherwise known as the Apostille
Convention, the Philippines ratified it on September 12, 2018 and entered into force in our
country on May 14, 2019. Article 2 of the Convention states:

Each Contracting State shall exempt from legalisation documents to which the present
Convention applies and which have to be produced in its territory. For the purposes of the
present Convention, legalisation means only the formality by which the diplomatic or consular
agents of the country in which the document has to be produced certify the authenticity of the
signature, the capacity in which the person signing the document has acted and, where
appropriate, the identity of the seal or stamp which it bears.

The practical effect of the Apostille Convention is that it eliminates the need for legalization of
documents to be used abroad. In the same manner, documents originating from another
Apostille country do not need to be authenticated anymore with Philippine consulates before
the documents could be used here in the Philippines. An Apostille certificate need only to be
attached and the public document may then be used in the Philippines.

In a public advisory dated May 7, 2019, the Department of Foreign Affairs advised the public
that it will no longer issue Authentication Certificates and that it will just "affix an Apostille to
documents for use abroad as proof of authentication for use in Apostille-contracting parties."
The Apostille dispenses the "need for authentication (legalization) by the concerned Foreign
Embassies or Consulates General if the country or territory of destination of the authenticated
document is already a member of the Apostille Convention." In addition, public documents
executed in Apostille-contracting countries (except Austria, Finland, Germany and Greece) to be
used in the Philippines no longer have to be authenticated by the Philippine Embassy or
Consulate General once Apostillized by the foreign country. However, for non-Apostille
countries, there is still a need for authentication by the Philippine Embassy/Consulate General
or by the concerned Foreign Embassies/Consulates General depending on where the
documents will be used." Apostille Certificates have made simpler the process of authenticating
documents before they can be used in a foreign jurisdiction. It is also cheaper, with fees pegged
at P100 per document for regular processing and P200 per document for expedited processing."

Exceptions to Proof of Foreign Laws

There are certain exceptions to the requirement that foreign laws must be properly pleaded and
proved before they can be considered by the court. One of these is the presentation of a
foreign-licensed attorney who will testify in open court concerning her knowledge of the law in
question. (See Willamette Iron and Steel Works v. Muzzal, G.R. No. L-42538, May 21, 1935.)
Another exception is the case of administrative agencies recognizing foreign laws without proof
thereof. Administrative agencies are not bound by technical rules of procedure and may
properly recognize the existence of a foreign law by judicial notice. Third exception is the lack of
objection to the improper presentation by one party of proof of foreign law. (See Republic v.
Manalo, G.R. No. 221029, April 24, 2018; See also Moraña v. Republic, G.R. No. 227605,
December 5, 2019) If a party starts presenting objectionable proof of foreign law, and the other
party does not object, the court may properly consider as proved the foreign law in question. It
is also believed that a tribunal may properly recognize the existence of a universally known law
or a law whose existence is known to most men due to its universal application. Lastly, laws
appearing in official websites like those of the Office of the President or the Library of Congress
may be properly recognized since these are official sites of government agencies which have
custody of laws.

Norse Management Co. v. National Seamen Board

G.R. No. L-54204, September 30, 1982

Facts: Abordo was employed by Norse Management

as Second Engineer of MT Cherry Earl. He died from a stroke while in the course of his
employment. Abordo's surviving spouse, Restituta, filed a complaint for death compensation
benefits, accrued leave pay and time-off allowances, funeral expenses, and attorney's fees in
connection with the death of her husband. She contended that the law of Singapore should
govern the grant of benefits to her husband. Both the National Seamen Board and the Ministry
of Labor upheld her contention that Singapore law governs the grant of benefits to her
deceased husband.

Issue I: Whether Singapore law or Philippine law governs the grant of benefits to Abordo's wife.

Held: Singapore law governs the grant of benefits to Abordo's wife.

1. In the aforementioned "Employment Agreement" between petitioners and the late Napoleon
B. Abordo, it is clear that compensation shall be paid under Philippine Law or the law of registry
of petitioners' vessel, whichever is greater. Since private respondent Restituta C. Abordo was
offered P30,000 only by the petitioners, Singapore law was properly applied in this case. Issue II:
Whether the National Seamen Board can take judicial notice of Singapore law absent proof
thereof.

Held: Yes, administrative agencies are not bound by technical rules of procedure.

1. The "Employment Agreement" is attached to the Supplemental Complaint of Restituta C.

Abordo and, therefore, it forms part thereof. As it is familiar with Singapore Law, the National
Seamen Board is justified in taking judicial notice of and in applying that law.

2. Furthermore, Article 20, Labor Code of the Philippines, provides that the National Seamen
Board has original and exclusive jurisdiction over all matters or cases including money claims,
involving employer-employee relations, arising out of or by virtue of any law or contracts
involving Filipino seamen for overseas employment. Thus, it is safe to assume that the Board is
familiar with pertinent Singapore maritime laws relative to workmen's compensation.
Moreover, the Board may apply the rule on judicial notice and, "in administrative proceedings,
the technical rules of procedure particularly of evidence applied in judicial trials, do not strictly
apply." (Oromeca Lumber Co., Inc. v. Social Security Commission, 4 SCRA 1188)

Scrivener's Error
This means failure of the agreement to express the intention of the parties. This failure could be
attributed to wrong terminology, missing terminology, or simply clerical error. Because the
agreement does not embody the intention of the parties, the chosen law is often disregarded
resulting in a course of action which the parties may not have contemplated or wanted.

Parties to an agreement often specify a particular law to govern their legal relations. However,
they may not be careful enough in crafting the terms of their agreement that a different
meaning is obtained. It may be simple oversight, negligence, or plain lack of skill on the part of
the person drafting the contract. Because there is failure to express the true intent of the
parties, the agreement is interpreted according to its plain or obvious meaning.

Hong Kong and Shanghai Banking Corporation v. Sherman, et al.

G.R. No. 72494, August 11, 1989

Facts: Eastern Book Supply ("Eastern") obtained a loan from Hong Kong and Shanghai Bank
("HSBC") guaranteed by two directors of the corporation. The Joint and Several Guarantee
executed by the directors provides that:

This 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. We hereby agree that the Courts of Singapore shall have jurisdiction over all disputes
arising under this guarantee....

Eastern failed to pay its obligation and the creditor bank filed a collection case before the RTC of
Quezon City. The director-guarantors filed a motion to dismiss on the ground of lack of
jurisdiction. The RTC denied the motion but this was subsequently reversed by the Court of
Appeals which held that Singapore was the proper forum for the collection case.

Issue: Whether Philippine courts have jurisdiction over the collection suit.

Held: Yes, Philippine courts have jurisdiction to entertain the collection suit.

1. While it is true that "the transaction took place in Singaporean setting" and that the Joint and
Several 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. We hereby agree that the Courts in Singapore shall have
jurisdiction over all disputes arising under this guarantee" be liberally construed. One basic
principle underlies all rules of jurisdiction in International Law: a State does not have jurisdiction
in the absence of some reasonable basis for exercising it, whether the proceedings are in rem,
quasi in rem or in personam. To be reasonable, the jurisdiction must be based on some
minimum contacts that will not offend traditional notions of fair play and substantial justice. (J.
Salonga, Private International Law, 1981, p. 46) Indeed, as pointed out by petitioner BANK at the
outset, the instant case presents a very odd situation. In the ordinary habits of life, anyone
would be disinclined to litigate before a foreign tribunal, with more reason as a defendant.
However, in this case, private respondents are Philippine residents (a fact 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. Private respondents' stance is hardly comprehensible,
unless their ultimate intent is to evade, or at least delay, the payment of a just obligation.

2. Applying the foregoing to the case at bar, the parties did not thereby stipulate that only the
courts of Singapore, to the exclusion of all the rest, has jurisdiction. Neither did the clause in
question operate to divest Philippine courts of jurisdiction. In International Law, jurisdiction is
often defined as the right 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 and diplomatic 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 and throughout the domain of the State. A State is competent to take hold of any judicial
matter it sees fit by making its courts and agencies assume jurisdiction over all kinds of cases
brought before them. (J. Salonga, Private International Law, 1981, pp. 37-38)

(Note: To be enforceable, the forum selection clause should have read: We hereby agree that
the Courts of Singapore shall have exclusive jurisdiction over all disputes arising under this guar
guarantee.)

Carnival Cruise Lines, Inc. v. Shute 499 U.S. 585 (1990)

Facts: Spouses Shutes of Washington State purchased a seven-day cruise ticket with Carnival
Cruise. The ticket stipulated that disputes under the Contract shall be litigated exclusively in the
State of Florida. The spouses boarded the cruise ship of Carnival Cruise in Los Angeles, CA.
However, Mrs. Shute slipped, fell, and suffered injuries during the cruise. They then instituted
an action for damages against Carnival Cruise before the United States District Court for the
Western District of Washington. Carnival Cruise moved for summary judgment. The district
court granted the motion on the ground that "petitioner's contacts with Washington were
constitutionally insufficient to support the exercise of personal jurisdiction." The Shutes
appealed to the Court of Appeals which reversed the order of the district court on the ground
that the forum selection clause was not freely bargained for, that they would have difficulty
litigating in Florida, and that enforcement of the clause would deprive them of their day in
court.

Issue: Whether the forum selection clause is enforceable.

Held: Yes, the forum selection clause is valid and binding.

1. In evaluating the reasonableness of the forum clause at issue in this case, we must refine the
analysis of The Bremen to account for the realities of form passage contracts. As an initial
matter, we do not adopt the Court of Appeals' determination that a non-negotiated forum
selection clause in a form ticket contract is never enforceable simply because it is not the
subject of bargaining. Including a reasonable forum clause in a form contract of this kind well
may be permissible for several reasons: first, a cruise line has a special interest in limiting the
fora in which it potentially could be subject to suit. Because a cruise ship typically carries
passengers from many locales, it is not unlikely that a mishap on a cruise could subject the
cruise line to litigation in several different fora. See The Bremen, 407 U.S. at 407 U.S. 13 and n.
15. Additionally, a clause establishing ex ante the forum for dispute resolution has the salutary
effect of dispelling any confusion about where suits arising from the contract must be brought
and defended, sparing litigants the time and expense of pretrial motions to determine the
correct forum, and conserving judicial resources that otherwise would be devoted to deciding
those motions. See Stewart Organization, 487 U.S. at 487 U.S. 33 (concurring opinion) Finally, it
stands to reason that passengers who purchase tickets containing a forum clause like that at
issue in this case benefit in the form of reduced fares reflecting the savings that the cruise line
enjoys by limiting the fora in which it may be sued. Cf. Northwestern Nat. Ins. Co. v. Donovan,
916 F.2d 372, 378 (CA7 1990).

2. We also do not accept the Court of Appeals' "independent justification" for its conclusion that
The Bremen dictates that the clause should not be enforced because "[t] here is evidence in the
record to indicate that the Shutes are physically and financially incapable of pursuing this
litigation in Florida." 897 F.2d, at 389. We do not defer to the Court of Appeals' findings of fact.
In dismissing the case for lack of personal jurisdiction over petitioner, the District Court made no
finding regarding the physical and financial impediments to the Shutes' pursuing their case in
Florida. The Court of Appeals' conclusory reference to the record provides no basis for this
Court to validate the finding of inconvenience. Furthermore, the Court of Appeals did not place
in proper context this Court's statement in The Bremen that,

"the serious inconvenience of the contractual forum to one or both of the parties might carry
greater weight in determining the reasonableness of the forum clause."

407 U.S. at 407 U.S. 17. The Court made this statement in evaluating a hypothetical "agreement
between two Americans to resolve their essentially local disputes in a remote alien forum." Ibid.
In the present case, Florida is not a "remote alien forum," nor given the fact that Mrs. Shute's
accident occurred off the coast of Mexico is this dispute an essentially local one inherently more
suited to resolution in the State of Washington than in Florida. In light of these distinctions, and
because respondents do not claim lack of notice of the forum clause, we conclude that they
have not satisfied the "heavy burden of proof," ibid. required to set aside the clause on grounds
of inconvenience.

3. It bears emphasis that forum selection clauses contained in form passage contracts are
subject to judicial scrutiny for fundamental fairness. In this case, there is no indication that
petitioner set Florida as the forum in which disputes were to be resolved as a means of
discouraging cruise passengers from pursuing legitimate claims. Any suggestion of such a bad
faith motive is belied by two facts: petitioner has its principal place of business in Florida, and
many of its cruises depart from and return to Florida ports. Similarly, there is no evidence that
petitioner obtained respondents' accession to the forum clause by fraud or overreaching.
Finally, respondents have conceded that they were given notice of the forum provision and,
therefore, presumably retained the option of rejecting the contract with impunity. In the case
before us, therefore, we conclude that the Court of Appeals erred in refusing to enforce the
forum selection clause.