Salonga

Analysis of the Three Methods

1. Dismissing the case—Principle of forum non conveniens

a. If the court has no jurisdiction over conflicts case (subject matter or
parties); THERE IS NO ELEMENT OF DISCRETION
b. Even where exercise of jurisdiction is authorized by law, some courts, by
invoking this principle, refuse to entertain a conflicts case for any of the
following reasons:
i. Matter can be tried and decided elsewhere
1. Main aspect transpired in a foreign jurisdiction
2. Material witness have their residence there
ii. Non-resident plaintiff sought the forum (“forum shopping) merely to
secure procedural advantages or to annoy or harass the defendant
iii. Unwillingness to extend local judicial facilities to non-residents or
aliens when the docket may already be overcrowded
iv. Inadequacy of the local judicial machinery for effectuating the right
sought to be maintained
v. Difficulty of ascertaining foreign law
c. The rule has been developed that a court, even though it has
jurisdiction, will not entertain the suit if it believes itself to be a
SERIOUSLY INCONVENIENT FORUM, provided that a more convenient
forum is available to plaintiff
d. Considerations of justice and convenience to all concerned may lead the
court in its discretion to refuse to exercise jurisdiction and to force the
plaintiff to sue the defendant in a more appropriately available forum
e. The principle is designed to avoid the hardship on the defendant and on the
court that can result from undue forum shopping possible under accepted
concepts of jurisdiction
f. In considering what is the most convenient forum, 3 factors are taken into
account:
i. Whether the forum is one to which the parties may conveniently
resort
ii. Where it is in a position to make an intelligent decision as to the
law and facts
iii. Whether it has or is likely to have power to enforce its decision
1. “principle of effectiveness”—a judge has no right to
pronounce judgment if he cannot enforce it within its own
territory
g. Other important considerations:
i. Relative ease of access to sources of proof
ii. Availability of compulsory processes for attendance of willing
witnesses
iii. Possibility of view of premises, if view would be appropriate to the
action
iv. All other practical problems to make the trial of a case easy,
expeditious and inexpensive
 v. Enforceability of the judgment if one is obtained
h. Whether a suit should be entertained or dismissed on the basis of such
principle depends largely upon the facts of each case and is addressed to
the sound discretion of the court
i. Philippine courts may dismiss a conflicts case on the ground of such
principle in cases where no substantial basis exists for the plaintiff’s
choice of forum
i. Principle will only be applied when the court is satisfied that there is
some other available forum having jurisdiction, which is the
appropriate forum for trial of the action
2. Application of internal or domestic law
a. Assume jurisdiction over the case and apply the forum’s internal law—the
law applied by the court to purely domestic cases
b. No PIL would be violated if the courts should decide to dispose of all case,
whether domestic or conflicts cases, according to the internal law of the
forum
i. A sovereign is supreme within his own territory, and, according to the
universal maxim of jurisprudence, he has exclusive jurisdiction over
everybody and everything within that territory and over every
transaction that is there effected
c. EXCEPTION:
i. Foreign sovereign
ii. Diplomatic official
iii. Public vessel
iv. Property of another State is involved
v. State has, by treaty, accepted limitations upon its jurisdiction over
certain persons or things
d. There are 3 instances when the forum HAS TO APPLY the internal or
domestic law, in cases involving conflicts problems:
i. Where application of internal law is DECREED
1. Where the conflicts rule of the forum decrees the application of
its internal or domestic law
ii. Where there is failure to plead and prove foreign law
1. Our courts do not take judicial notice of foreign law
2. Foreign law must be involved in the pleadings and proved
during the trial of the case
3. If not properly pleaded and proved, the presumption is that
foreign law is the same as local or internal law
4. The mode of proving law – see rules on evidence
a. “written law” = official publications or by a copy attested
to by the office having custody of the record, or by his
deputy, and must be accompanied w/ a certificate of
custody
b. “unwritten law” = judicial decisions and customary rules
of law; proved by oral testimony of expert witness, or by
publications
iii. Where a case involves any exceptions to the application of foreign
law
 1. The following are the exceptions:
a. Run counter to an important public policy of the forum
b. Where the application of the foreign law would infringe
good morality as understood in the forum
c. When the foreign law is penal in nature
d. Where the foreign law is procedural in nature
e. When the question involves immovable property in the
forum
f. When the foreign law is fiscal of administrative in nature
g. Where the application of foreign law would involve
injustice or injury to the citizens or residents of the forum
h. Where the application of foreign law would endanger the
vital interests of the state

3. Application of foreign law and the various choice of law theories

a. Negative aspect: instead of being subject to the law of the particular State
that has the dominant interest in a particular act or event, parties will be
induced to shop for a forum whose internal law favors their own interests,
thereby encouraging evasion and frustrating the goals of predictability and
uniformity of result
b. Application of the foreign law having the closest and most dominant
connection with an act or event permits the parties to plan their
transactions accordingly and discourage shopping by plaintiff for a
favorable forum
c. The Theory of Comity
i. No law has any effect, of its own force, beyond the limit of the
sovereignty from which its authority is derived
ii. The extent to which the law of one nation shall be allowed to operate
in within the dominion of another nation, depends upon comity of
nations
iii. Comity—recognition which one nation allows within its territory, to
the legislative, executive or judicial acts of another another nation,
having due regard to international duty and convenience, and to the
rights of its own citizens, or of other persons who are under the
protection of its laws
iv. Involves one state stepping back, and, as a matter of courtesy,
allowing the law of another state to operate within its territory
v. “reciprocal courtesy”—it assumes the prevalence of equality and
justice
vi. fallacies of this theory:
1. based on erroneous idea that a state has a great interest in the
application of its law in other states
2. application of foreign law does not spring from the desire of the
sovereign of one state to show courtesy to the other state whose
law is being applied
 a. it flows from the impossibility of otherwise determining
whole classes of cases without gross inconvenience and
injustice to litigants, whether natives or foreigners
3. if the application of foreign law were a matter of option, it
would be impossible to build up a definite body of rules of PrIL
a. the determination of when foreign law should be
recognized and applied would not be settled by rules, but
by unregulated discretion