CHARACTERIZATION AS THE INITIAL STEP IN RESOLVING CONFLICTS CASES - 34 PJP 21

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Characterization as the initial step in resolving a conflicts case

I am aware that, in one case,[1] the Supreme Court held that, in the judicial resolution of conflicts problems, three consecutive phases are involved: (a) jurisdiction; (b) choice of law; (c) and recognition and enforcement of judgments. However, it is humbly submitted that the matter of jurisdiction is and should be a given. In other words, the question of whether a conflicts case could be “resolved” is out of the window if the court hearing the case has no jurisdiction.

Given that the forum has jurisdiction, the power to hear and decide the case, characterization is the initial step in resolving a conflicts case, not choice of law, for there is nothing to choose from if the court is confronted only with domestic laws. The forum ought to characterize the case under its proper legal category in order to determine the general system of laws that should govern the case. After characterizing the case, the court should look into whether the relevant law points to the application of foreign law.

For example, if the case is characterized as falling under property law, the court may find, based on the factual circumstances, that the property in question is governed by the law of the place where it is situated. This is in accordance with Article 16 of the NCC which provides:

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

Characterization as a court’s internal thought process

Characterization is the court’s internal thought process by which it determines the proper branch or system of laws under which the dispute falls. Literally, the court has to characterize or qualify the case into family law, contracts law, torts law, succession law, criminal law, insurance law, and so on.

After determining the proper system of laws that governs the dispute, if the case contains a foreign element, the court will then determine the applicable private international law rules, if any, inherent in the system it has characterized the case into. In short and for example and as mentioned above, if the dispute falls under property law, the court may find that the lex loci rei sitae rule under Article 16 of the NCC applies. Also, if the case falls under family law, Article 26 of the FCP may find application, viz:

All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.[2]

After determining the proper conflict of laws rules applicable to the case, the court will then await proper proof of the foreign law involved, if any. It is then and only then that court can engage in “choice of law” as there would then be two options to choose from: (a) foreign law or (b) domestic law. Without proper proof of foreign law, the court is bound to apply the forum state’s laws in accordance with the doctrine of processual presumption.

To recapitulate, proof of foreign law is necessary because, insofar as the forum is concerned, only municipal laws may be taken judicial notice of. In the eyes of the forum, only the forum state’s laws exist and there is no other option but to apply the same. When proper in a conflicts case, proof of foreign law gives the court options between the forum state’s laws and some foreign state’s laws.

It must be emphasized that, despite sufficient proof of foreign law, its application remains an “option” to the forum. There are considerations that may override the application of foreign law, even if proper, such as the forum state’s public policy or overarching constitutional concerns.

[1] Hasegawa v. Kitamura, G.R. 149177, 23 November 2007.

[2] As amended by Executive Order 227.