Alegado, Gem Loren S.

De Guzman, Mark
Choice-of-Law in Torts and Crimes
A.

Policies Behind Conflicts Tort Law

B.

Lex Loci Delicti Commissi

Lex Loci delicti commisi is the prevailing rule that is followed by the
international community. Under this rule, the law of where the tort is committed
is the governing law. This rule stems from the obligation theory and the vested
rights theory. The vested rights theory states that once a person has committed a
tort under a law of a certain state, that obligation follows him even though he
leaves that state. It does not dissipate, nor does the obligation come under a new
jurisdiction. The obligation is vested in him.
The case of Loucks vs. Standard oil depicts this rule. IN this case Everett
Loucks was a resident of New York but he died in a motorcycle accident due to
the defendants negligence. The court ruled that the law of Massachusetts would
apply and they may enforce the law in their forum as stated in the case:
We may even have no legislation on the subject. That is not enough to
show that public policy forbids us to enforce the foreign right. A right of action
is property. If a foreign statute gives the right, the mere fact that we do not give
a like right is no reason for refusing to help the plaintiff in getting what belongs
to him. We are not so provincial as to say that every solution of a problem is
wrong because we deal with it otherwise at home. Similarity of legislation has
indeed this importance; its presence shows beyond question that the foreign
statute does not offend the local policy. But its absence does not prove the
contrary. ... The courts are not free to refuse to enforce a foreign right at the
pleasure of the judges, to suit the individual notion of expediency or fairness.
They do not close their doors, unless help would violate some fundamental
principle of justice, some prevalent conception of good morals, and some deeprooted tradition of the common weal.
C.

Modern Theories on Foreign Tort Liability

1.

The Most Significant Relationship

The Theory of the most significant relationship is a principle which embodies the
concept of a situs. Under this principle the forum must consider
1) The place where the injury occurred
2) The place where the conduct causing the injury occurred
3) The domicile, residence, nationality, place of incorporation and place of
business of the

Parties
4) The place where the relationship, if any, between the parties is centered
In Saudi Arabia vs. CA, this principle was applied. The plaintiff in this case was
subject to several counts of deceit by the defendant which was the cause of her
being subject to a judgment penalizing her to 5 months in jail in a foreign
country. The court ruled that the situs was the Philippines; this was where the
deceit was committed and where the plaintiff was employed with the defendant.
The fact that some of the acts happened beyond the jurisdiction of the Philippines
is of no moment to the court.
2.

Interest Analysis

Government Interest Analysis concerns which state is interested in

applying their laws. The court examines the substantive law of each
jurisdiction to determine whether the laws differ as applied to the relevant
transaction.
If the laws do differ, the court determines whether a true conflict exists in
that each of the relevant jurisdictions has an interest in having its law
applied.
If only one jurisdiction has a legitimate interest in the application of its
rule of decision, there is a false conflict and the law of the interested
jurisdiction is applied. On the other hand, if more than one jurisdiction
has a legitimate interest, the courts move to the third stage of the analysis
The third stage focuses on the comparative impairment of the interested
jurisdictions. At this stage, the court seeks to identify and apply the law of
the state whose interest would be the more impaired if its law were not
applied.
3.

Cavers Principle of Preference

D.

The Principle of Preference claims that the state of injury sets

higher standards of conduct/financial protection vs. injury than
state where the defendant resides.
The forum looks at the intent of the substantive law of each state
but it is eventually the state of the injury which governs

Foreign Tort Claims

1.
Conditions for the Enforcement of Tort Claims
In order that a foreign tort may be enforced in the forum: (1) the claim
should not be penal in nature; (2) its enforcement should not violate the
public policy of the forum; and (3) the local machinery should be adequate
for the purpose of enforcement.
In Anglo-American law, and other legal systems, and action for an alleged
Foreign tort which is transitory may nevertheless be refused enforcement

In any of these cases:

a) where the foreign tort is in nature penal. As stated earlier, a state
will generally refuse to enforce penalties imposed by another state.
b) where the enforcement of the tort right would infringe the public
policy of the forum, an obstacle which maybe be present in
practically all conflicts problems. The real difficulty with public
policy as a limitation is that it is incapable of measurement.
c) where the local judicial machinery is inadequate for its proper
enforcement. This is the substance of the decision in the leading
case of Slatter vs. Mexican National Railway Co., an action of a
wrongful death in Mexico, where the court decided that it would be
preferable to dismiss the plaintiffs action rather than to give him a
substitute the remedy in the forum, since the letter might be more
burdensome to the defendant than the Mexican award.
2.

Products Liability of the Foreign Manufacturer

Product Liability
The responsibility of a manufacturer or vendor of goods to
compensate for injury caused by defective merchandise that it has
provided for sale.
When individuals are harmed by an unsafe product, they may have
a Cause of Action against the persons who designed, manufactured, sold,
or furnished that product. In the United States, some consumers have
hailed the rapid growth of product liability litigation as an effective tool for
Consumer Protection. The law has changed from caveat emptor ("let the
buyer beware") to Strict Liability for manufacturing defects that make a
product unreasonably dangerous. Manufacturers and others who
distribute and sell goods argue that product liability verdicts have enriched
plaintiffs' attorneys and added to the cost of goods sold. Businesses have
sought tort reform from state legislatures and Congress in hopes of
reducing damage awards that sometimes reach millions of dollars
Theories of Liability
In most jurisdictions, a plaintiff's cause of action may be based on
one or more of four different theories: Negligence, breach of Warranty,
Misrepresentation, and strict tort liability.
Strict Tort Liability
Strict liability involves extending the responsibility of the vendor or
manufacturer to all individuals who might be injured by the product, even

in the absence of fault. Injured guests, bystanders, or others with no direct

relationship to the product may sue for damages caused by the product. An
injured party must prove that the item was defective, the defect
proximately caused the injury, and the defect rendered the product
unreasonably dangerous.
Hence, The rule of strict liability applied in product liability suits
makes a seller responsible for all defective items that unreasonably
threaten the personal safety of a consumer or the consumer's property.
The vendor is liable if he or she regularly engaged in the business of selling
such products, which reach the consumer without any substantial changes
having been made in their condition. The vendor is liable even if he or she
exercised care in handling the product and if the consumer bought the
product somewhere else and had no direct dealings with the vendor.

3.

The Alien Tort Act

Cases:
Hilao vs Estate of FM (434, Coquia)
In Hilao vs Estate of Marcos, the petitioner was subject to several
Human rights abuses which was done in the Philippines under the
administration of the Former President. The estate claims that the
court has no jurisdiction because the acts were committed outside
of the US. The court ruled that under the alien tort claims act, the
law gives the US District Court jurisdiction over torts committed
abroad and affirmed the decision of the lower courts.
Filartiga vs Pena-irala (440, ibid.)
FAST FACTS: This is a suit that was brought by an alien residing in
the United States against a former official of Paraguay then visiting
the United States where the court found that torture perpetrated by
a person invested with official authority violates universally
accepted human rights norms, regardless of the nationality of the
parties.
RATIO-DECIDENDI: U.S. federal courts has jurisdiction. United
States federal courts to punish non-American citizens for tortious
acts committed outside the United States that were in violation of
public international law (the law of nations) or any treaties to which
the United States is a party. It thus extends the jurisdiction of
United States courts to tortious acts committed around the world.
Torture was clearly a violation of the law of nations, and the United
States did have jurisdiction over the case since the claim was lodged

when both parties were inside the United States. .

Guinto vs Marcos (446, ibid.)
In Guinto vs Marcos, the petitioners here were residents and
nationals of the Philippines who filed a case against the former
president Ferdinand Marcos for the confiscation of a certain film
named 100 days of September which was eventually returned to
them. The Court here limited the application of ATCA and said that
it is only limited to violations of treaties of the US or the law of
nations. While the court has acknowledged a wide variety of
violations of the law of nations, it would stretch out its classification
if they considered the taking of the movie as such,
Trajano vs Marcos (445, ibid.)
In Trajano vs Marcos, the petitioner was once again subject to
several human rights abuses under the administration of the former
president. The defendants claim defense against the Foreign
Services Immunity Act claiming that since they used the military as
an instrumentality of the state, the jurisdiction of the FSIA should
pre-empt the ATCA. The court ruled that the use of the military in
such a way that is beyond its scope of duty will not fall under the
protection of the FSIA.
4.

Philippine Rule on Foreign Torts

Case: Asahi Metal Industry Co. vs Superior Court of
California
FAST FACTS: Mr. Zurcher lost control of his motorcycle and
collided with a tractor. He was seriously injured and Mrs. Zurcher,
was killed. Zurcher alleged that the accident was the result of a
defective tire tube which caused his rear wheel to lose air rapidly
and explode.
Zurcher brought suit and named as defendants Cheng Shin, the
Taiwanese manufacturer of the tire tube, and Asahi Metal Industry
Co., the Japanese tire valve assembly manufacturer. Asahi Metal
had sold tire valve assemblies directly to Cheng Shin in Taiwan and
Cheng Shin then incorporated the valves into motorcycle tires.
Cheng Shin sought indemnity from Asahi Metal in the Zurcher suit
and filed a cross claim against Asahi and the other defendants.
Zurcher eventually settled out of court with all of the defendants
leaving Cheng Shins cross claim as the only remaining issue to be

decided. Asahi Metal moved to quash the service of summons,

claiming that California could not exercise jurisdiction over it
because sales to Cheng Shin took place in Taiwan and shipments
were sent from Japan to Taiwan. Asahi Metal did no business in
California and did not directly import any products to California.
RATIO-DECIDENDI: Jurisdiction is unreasonable. Mere awareness
that a product may reach a remote jurisdiction when put in the
stream of commerce is not sufficient to satisfy the requirement for
minimum contacts under the Due Process Clause. Minimum
contacts require that there be some act by a party which would
purposefully avail itself of the privilege of conducting activities
within the forum state.
The substantial connection with the forum state necessary for a
finding of minimum contacts must come about by an action of the
defendant purposefully directed toward the forum state. Even if
minimum contacts were to be found, traditional notions of fair play
and substantial justice must be examined. Under these facts it
would be fundamentally unfair to require Asahi Metal to defend
after Californias interest in the suit has been terminated. Zurcher
settled the suit and the dispute is now between two nonresident
defendants. Jurisdiction is therefore unreasonable.
E.

Distinguishing Between Torts and Crimes

Torts and crimes are wrong but; but while a tort is a wrong committed
against a private person, a crime is a wrong committed against the state.
Because of this difference, the mental attitude of the wrongdoer as well as
the remedy afforded by law also differs in each case. A tort action is a civil
proceeding, commenced and maintained by the injured person against the
wrongdoer, for the purpose of obtaining compensation for the damage

suffered. On the other hand, it is the state, as the representative of the

public, that brings a criminal action against the offender, for the purpose
of protecting and vindicating the interests of the public as a whole.
Criminal liability is essentially based on intention, that there can be no
criminal without a criminal mind. However, the law of torts does not
depend upon intention.
The prevailing principle in the laws on tort is the lex loci delicti principle,
or the law of the place at which the tort or wrong was committed, that
governs the existence, conditions, and effects of a tort unless the
application of said law contravenes an established public policy of the
forum.
While on the other hand, the situs of crimes, the generally accepted
principle is that crimes are to be punished only by the state in whose
territory they are committed, although it is likewise recognized that a state
has the power to enact criminal law which punish the citizens for violation
thereof even if the violation occurs in the other states.
Cases:
Liang (Huafeng) vs People of the Philippines (460, Coquia)
FAST FACTS: Petitioner is an economist working with the Asian
Development Bank (ADB). He was charged before the Metropolitan
Trial Court (MeTC) of Mandaluyong City with two counts of grave
oral defamation for allegedly uttering defamatory words against
fellow ADB worker Joyce Cabal. MeTC judge received an "office of
protocol" from the Department of Foreign Affairs (DFA) stating
that petitioner is covered by immunity from legal process under
Section 45 of the Agreement between the ADB and the Philippine
Government regarding the Headquarters of the ADB (hereinafter
Agreement) in the country. Based on the said protocol
communication that petitioner is immune from suit, the MeTC
judge without notice to the prosecution dismissed the two criminal
cases.
RATIO-DECIDENDI: Courts cannot blindly adhere and take on its
face the communication from the DFA that petitioner is covered by
any immunity. The DFA's determination that a certain person is
covered by immunity is only preliminary which has no binding
effect in courts. In receiving ex-parte the DFA's advice and in motu
propio dismissing the two criminal cases without notice to the
prosecution, the latter's right to due process was violated.
Under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this
Article experts and consultants performing missions for the Bank
shall enjoy the following privileges and immunities:
a.) immunity from legal process with respect to acts performed by
them in their official capacity except when the Bank waives the
immunity.
the immunity mentioned therein is not absolute, but
subject to the exception that the acts was done in
"official capacity." It is therefore necessary to
determine if petitioner's case falls within the ambit of
Section 45(a).
The Vienna Convention on Diplomatic Relations, a diplomatic
agent, assuming petitioner is such, enjoys immunity from criminal
jurisdiction of the receiving state except in the case of an action
relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving state outside his official
functions.5 As already mentioned above, the commission of a
crime is not part of official duty.
People vs Wong Cheng (465, ibid.)
FAST FACTS: Appellee is accused of having illegally smoked opium,
aboard the merchant vessel Changsa of English nationality while
said vessel was anchored in Manila Bay two and a half miles from
the shores of the city. The demurrer filed by said appellee alleged
lack of jurisdiction on the part of the lower court, which so held and
dismissed the case.ISSUE: Whether the courts of the Philippines
have jurisdiction over crime, like the one herein involved,
committed aboard merchant vessels anchored in our jurisdiction
waters.
RATIO-DECIDENDI: There are two fundamental rules on this
particular matter in connection with International Law; to wit, the
French rule, according to which crimes committed aboard a foreign
merchant vessels should not be prosecuted in the courts of the
country within whose territorial jurisdiction they were committed,
unless their commission affects the peace and security of the
territory; and the English rule, based on the territorial principle and
followed in the United States, according to which, crimes
perpetrated under such circumstances are in general triable in the
courts of the country within territory they were committed.
Of this two rules, it is the last one that obtains in this jurisdiction,
because at present the theories and jurisprudence prevailing in the

United States on this matter are authority in the Philippines which

is now a territory of the United States.
Mere possession of opium aboard a foreign vessel in transit was
held by this court not triable by or courts, because it being the
primary object of our Opium Law to protect the inhabitants of the
Philippines against the disastrous effects entailed by the use of this
drug, its mere possession in such a ship, without being used in our
territory, does not being about in the said territory those effects that
our statute contemplates avoiding. Hence such a mere possession is
not considered a disturbance of the public order.But to smoke
opium within our territorial limits, even though aboard a foreign
merchant ship, is certainly a breach of the public order here
established, because it causes such drug to produce its pernicious
effects within our territory.
US vs Look Chaw (467, ibid.)
FAST FACTS: Several persons went aboard the steamship Erroll to
inspect and search its cargo. Steamship Erroll is of English nationality and
it came from HongKong bound for Mexico via the call ports of Manila and
Cebu. These persons found sacks of opium.
According to the testimony of the internal-revenue, the opium seized in
the vessel had been bought by the defendant in HongKong, at P3.00 for
each round can and P5.00 for each of the others, for the purpose of selling
it, as contraband, in Mexico and Puerto de Vera Cruz; that the vessel
arrived at Cebu and on the same day he sold opium. The issue relies on
whether the Philippine courts have jurisdiction.
RATIO-DECIDENDI: Philippine courts have jurisdiction. Mere possession
of a thing of prohibited use in the Philippine Islands, aboard a foreign
vessel in transit, in any of their ports, does not, as a general rule, constitute
a crime triable by the courts of the Philippines. However, in the case at
bar, a can of opium is landed from the vessel upon Philippine soil, thus
committing an open violation of the Philippine laws.
F.

Lex Loci Delicti

Lex Loci Delicti means place of wrong. The civil law rule considers the
place where the alleged tortious conduct was carried out by the defendant
as the locus delicti. The American rule adopts the view that the place
where the last event necessary to make an actor liable for an alleged tort
takes place.

Matters governed by the Lex Loci Delicti:

1) Capacity to commit tort
2) Whether the conduct was licit or not
3) Causation and fault
4) Who are the proper parties
5) The effect of marriage on the capacity of one spouse to sue the other for
tort
6) The extent of liability of one person for the harm resulting from
conduct of another person
7) The measure of damages and other sanctions for the tort committed
8) The time for bringing the suit
9) The burden of proof