EXCEPTION TO THE APPLICATION OF FOREIGN LAW - AGUILAR

NATURE AND BASIS OF EXCEPTIONS

Under the traditional view, foreign law is not applied in the forum in the following cases:
Where its enforcement would run counter to some important public policy of the forum
Its application would lead to an infringement of good morality in the wider sense of the term
as understood in the forum
1. When foreign law is penal in nature
2. When the foreign law is procedural in nature
3. When the question relates to immovable property in the forum
4. When the foreign law is fiscal or administrative in nature
5. When the application of foreign law would involve injustice or injury to the nationals or
residents of the forum
6. When the application of foreign law would endanger the foreign relations or vital interests
of the state
7. These exceptions are not mutually exclusive as most overlap each other

The list is not mutually exclusive.

What are the exceptions recognized by Philippine Law?

Art.17 par. 3 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.

Article 14. Penal laws and those of public security and safety shall be obligatory upon
all who live or sojourn in the Philippine territory, subject to the principles of public
international law and to treaty stipulations.

Two provisions cited impose a duty on our courts to examine the underlying purposes of our
laws to determine whether in a conflicts case, a domestic rule of the forum or a rule of
another State should be applied in the decision of a particular issue.

What are the Exceptions Recognized by RP law?

Philippine laws which restrain or prohibit the doing of certain acts within the country and
other local laws designed to uphold public order etc cannot be displaced by foreign
laws or judgments or by determination or conventions agreed upon

The general rule is that our penal laws are territorial and due to territorial sovereignty—
should apply to all persons and things within our territory. The exceptions to this are in the
limits on territorial jurisdiction, under Law of Nations, treaties, heads of State,
diplomats, foreign public vessels, merchant vessels exercising innocent passage and foreign
state property.

Where enforcement of foreign law is contrary to an important public policy of the

forum
• Public policy is relative (what may be true now, may be false tomorrow)
• Public policy has been identified with the civil law idea of public order however today,
Where enforcement of foreign law is contrary to an important public policy of the
forum
1. Where enforcement of foreign law is contrary to an important public policy of
the forum
 Most important
 The public policy of the State is manifested primarily in its Constitution and
legislative measures enacted by the policy making body of the State.
 The public policy of the forum must be so strong or of great importance or rigorously
coercive, so as to warrant refusal to apply the proper foreign law normally applicable.
A mere dissimilarity between the foreign law and the local law will not render the
enforcement og the foreign law violative of the forum’s public policy.

2 kinds of Public Policy

 One which operates no matter where the event or transaction takes place
 Operates only where the event or transaction takes place in the forum and is
not offended if the transaction is completed abroad

What public policy is would not be difficult where the law so clearly worded as to
govern acts occurring abroad (e.g. Article 818 of the Civil Code, p. 115)

It is in cases where the law or statute contains no definite reference to transactions

involving a foreign element that the difficulty arises because courts have to weigh the
requirements of another state as against the desirability of enforcing what is conceived to be
the local public policy

Public policy May be Used by a Court in Different Ways

Refuse to entertain the case because enforcement of the action is against public
policy, and dismiss it without prejudice (parties may pursue litigation in another forum)
Entertain the case but apply its own domestic law to decide the controversy in favor
of
the plaintiff (unfair to the defendant who did not choose the forum. The public policy thus is
used to defeat a defense that may be available in foreign law)

Forum which has sufficient connection with the factual event or transaction may entertain
the case but invoke its own public policy in order to apply the forums domestic law
Denying recognition to a foreign law because of public policy means that in case and only in
case of strongly conflicting policies should a forum – which has a significant
relationship to
the occurrence or the parties follow the local public policy than a policy of another state
Local public policy is superior to foreign law only to the extent that it actually and materially
infringes the forums public policy (polygamous marriage may be void but the children
–
incidents and consequences—should be recognized as successors)

Dangers of Using Public Policy as An Excuse Not to Apply Foreign Law

May be no more than an intolerable affectation of superior virtue
May provide an easy excuse for the forum to apply internal law and defeat the purpose of this
subject

2. Where application of foreign law would be against good morality in the wider
sense of the term as understood in the forum

The qualification indicated by the word “wider” is used in order to obviate the danger of
affectation of superior virtue on the part of the forum. Our distinctive concepts of morality
may have to give way to the necessity of dispensing justice in individual cases, particularly
where the operative facts have arisen abroad, or where the contact with the forum is
negligible, or where to disturb the situation of the parties by refusal to apply the proper
foreign law would result in unfairness.

This exception includes contracts which, though valid under their proper law, would be
considered illegal or immoral if they were governed by the lex fori.

Examples:
A. Contract of sale of slaves concluded in State X, to be performed in the Philippines
B. Contract with an entertainer for the price of her prostitution in Japan
C. Marriages between ascendants and descendants

3. Foreign Penal Law

When  a  foreign  law  sought  to  be  applied  is  penal,  the  forum  may  refuse  its 
application. The underlying reason is summed up in a statement of Justice Marshall in the
Antelope. “No  society  takes  concern  in  any  crime but what  is  hurtful  to  itself”.

The assumption is that in the enforcement of the rules of public order of a State, other States
are not concerned and should not, as a general rule, interfere. It is an obvious principle that
“an act of sovereignty can have no effect in the territory of another State.”

Implies that courts will refuse foreign judgments which are penal in nature
 
But  how  do  you  determine  if  law  is  penal?
When  it  imposes  punishment  for  an  offense committed against the public justice of the
state, or to afford a private remedy to a person injured by the wrongful act. If the purpose is
the former, the statute is penal, if the latter, the statute is not penal

4. Foreign Procedural Law

As a general proposition, matters of remedy or procedure are to be determined by the
internal law of the forum, regardless of where the transaction occurred out of which the
claim in question arose.

Foreign procedural law is generally not enforced or recognized in the forum because it is the
forums procedural law that is applied in conflicts cases. for practicality’s sake. The reason for
this is practical. If the foreign procedural law were to be applied, it would “involve a making
over of the machinery for the administration of justice in the forum.”
It  is  impractical  and impossible for  one  court  to   adopt wholesale the  trial  machinery  of 
another  state including rules on service of process, venue, form of pleadings, and related
matters.

In all conflicts cases, therefore, the  forum  is  charged  with  the  task  of  making  a 
distinction  between  the  rules  that  are procedural and those that are substantive. The rule is
that all the procedural aspects of a given case are to be determined by the internal law
of the forum. The problem of which law to choose turns exclusively on matters of
substantive law.

5. Questions relating to immovable property in the forum

Practically  all  legal  systems  are  in  accord  on  the principle  that  ownership  of  an 
immovable and  other  rights  in  immovables  are  subject  to  the lex situs. Developed  in 
the  Italian  doctrine of the Middle ages, it has become the law for all European countries and
is followed in England and America.

The immovables are part of the country and are so closely connected with it that all rights
over them have their natural center of gravity there. 

Hence, a court, when confronted by a conflicts case involving questions of ownership and
other rights in immovable property situated in the forum, will usually refuse to recognize and
apply foreign law. It will normally apply lex rei sitae or the law of the place where the
immovable is situated.

6. Foreign Fiscal or administrative law

Where  the  foreign  law  is  fiscal  or  administrative  in  nature,  the  forum  may  refuse  its
enforcement. This exception refers in particular to foreign revenue law, such as tax law, local
rates, and the like.  The  reason  is  that  a sovereign  has  no  legal  duty  to  assist  foreign 
governments  in  the financing of their activities.

Lord Mansfield: No country takes notice of the revenue laws of another. However it does not
mean that a foreign revenue law is to be totally ignored

Cheshire and North: circumstances may require that the existence of a foreign fiscal
law be recognized. Court may give particular importance to the policy of the forum in
maintaining harmonious relations with another State and may not countenance any
transaction, such as a fraudulent tax evasion scheme

7. Where application of foreign law would involve injustice or injury to the

residents of the forum

The traditional rule is to the effect that foreign law will not be applied where it would involve
injustice/injury to the people of the forum
 
Where  the  application  of  a  foreign  law  would  expose  the  residents  of  the  forum  to  a 
just liability, even tradition bound writers admit that the exception would not hold; on the
other hand. If the enforcement will result in injustice or injury to the forum’s residents, the
first exception grounded on public policy may be enough to bar application of foreign law
The lack of emphasis on this exception is that it brings the fear of constant reference to it —
which curtails the development of choice of law rules.

8. Where application of foreign law would endanger the foreign relations or vital
interests of the state

A  contract  raising  a  loan  to  further  a  revolt  against  a  foreign  government  of  a 
friendly  State though valid by the law of the place where entered into will be declared void
in the forum.

Likewise, a contract which aims to assist the enemy state, though valid under the proper
foreign law, will not be enforced in the forum.
 
Many  courts  consider  this  particular  exception  as  included  in  the  first  exception since 
it  is clear that it would also be against public policy

CASES:

1. Dacanay v. Florendo

FACTS:
Isabel V. Florendo and Tirso Dacanay executed a joint and reciprocal will on October 20,
1940;
Isabel died. In a special proceeding commenced in the Court of First Instance of La Union 
Tirso Dacanay sought to probate their joint and reciprocal will, which provides that whoever
of the Spouses, joint testators, shall survive the other, shall inherit all the properties of the
latter, with an agreement as to how the surviving spouse shall dispose of the properties in
case of his or her demise
The relatives of the deceased Isabel Florendo opposed the probate of said will on various
statutory grounds
After receiving from the counsels written arguments but before hearing the evidence, the trial
court issued an order dismissing the petition on the ground that the will is null and void ab
initio for having been executed in violation of Article 669 of the Civil Code or the prohibition
against the execution of joint wills
Tirso Dacanay appealed. He argues that Art 669 of the Civil Code is repealed by Act No.
190, Code of Civil Procedure, which provides for and regulates the extrinsic formalities of
wills.
Dacanay further contends that whether two wills should be executed jointly or separately is
but a matter of extrinsic formality

ISSUE:

RULING:
The question raised by appellant has recently been decided by this court in In re Will of
Victor Bilbao. In that case that on October 6, 1931, the spouses Victor Bilbao and Ramona
M. Navarro executed a will conjointly, whereby they directed that "all of our respective
private properties both real and personal, and all of our conjugal properties, and any other
property belonging to either or both of us, be given and transmitted to anyone or either of us,
who may survive the other, or who may remain the surviving spouse of the other." That will
was denied probate by the Court of First Instance of Negros Oriental on the ground that it
was prohibited by article 669 of the Civil Code. The surviving spouse as proponent of the
joint will also contended that said article of the Civil Code has been repealed by sections 614
and 618 of the Code of Civil Procedure, Act No. 190 In deciding that question this court,
speaking through Mr. Justice Montemayor, said:

"We cannot agree to the contention of the appellant that the provisions of the Code of
Civil Procedure on wills have completely superseded Chapter I, Title III of the Civil
Code on the same subject matter, resulting in the complete repeal of said Civil Code
provisions. In the study we have made of this subject, we have found a number of
cases decided by this court wherein several articles of the Civil Code regarding wills
have not only been referred to but have also been applied side by side with the
provisions of the Code of Civil Procedure.

"The provision of article 669 of the Civil Code prohibiting the execution of a will by
two or more persons conjointly or in the same instrument either for their reciprocal
benefit or for the benefit of a third person, is not unwise and is not against public
policy. The reason for this provision, especially as regards husband and wife, is that
when a will is made jointly or in the same instrument, the spouse who is more
aggressive, stronger in will or character and dominant is liable to dictate the terms of
the will for his or her own benefit or for that of third persons whom he or she desires
to favor. And, where the will is not only joint but reciprocal, either one of the spouses
who may happen to be unscrupulous, wicked, faithless or desperate, knowing as he or
she does the terms of the will whereby the whole property of the spouses both
conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of
the other.

General Rule: Apply Article 17 of the Civil Code which provides that the forms and
solemnities of wills is governed by the laws of the country in which they are executed
(Lex Loci Celebrationis)

Exception: Article 818 of the Civil Code which provides that joint wills executed by
Filipinos are void, regardless of the place of execution. A joint will is void even when
executed by Filipinos in a foreign country, and such foreign country authorizes joint
wills.

2. Yao Kee v. Sy-Gonzales

FACTS:
1. Sy Kiat, a chinese national, died on January 17, 1977, in Caloocan City where
he was then residing.
2. He left behind real and personal properties here in the Philippines worth
P300,000.00
3. Thereafter, Aide Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe, and Rodolfo
Sy filed a petition for the grant of letters of administration alleging that:

A. They are the children of deceased with Asuncion Gillego;

 B. that Sy Kiat died intestate

C. they do not recognize Sy Kiat’s marriage to Yao Kee nor the filiation of he
children to him; and

D. they nominate Aida Sy-Gonzales for appointment as administratrix of the

intestate estate of the deceased

4. The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho, and Sy Yun
Chen who alleged that:

A. Yao ee is the lawful wife of Sy Kiat whom he married on January 19, 1931 in
China;
B. The other oppositors are the legitimate children of the deceased with Yao Kee;
and
C. Sze Sook Wah is the eldest among them and is competent, willing, and
desirous to become the administratrix of the estate of Sy Kiat

Probate Court held in favor of the petitioners Yao Kee et al and appointed Sze Sook
Wah as administratrix

CA modified: 1. Respondents as acknowledged natural children of Sy Kiat with

Asuncion Gillego; 2. Legality of the alleged marriage of Sy Kiat to Yao Kee in China
had not been proven to be valid to the laws of the Peoples Republic of China

ISSUE:
Whether or not marriage of sy kiat to yao kee was conclusively proven valid in accordance
with the laws of Peoples Republic of China?

RULING:
NO. The law on foreign marriages is provided by Article 71 of the Civil Code which
states that:

Art. 71. All marriages performed outside the Philippines in

accordance with the laws in force in the country where they were
performed, and valid there as such, shall also be valid in this country,
except bigamous, polygamous, or incestuous marriages, as determined by
Philippine law.

This court held that To establish a valid foreign marriage two things must be
proven, namely:
(1) the existence of the foreign law as a question of fact; and
(2) the alleged foreign marriage by convincing evidence

In proving a foreign law the procedure is provided in the Rules of Court. With
respect to an unwritten foreign law, Rule 130 section 45 states that:
 SEC. 45. Unwritten law. — The oral testimony of witnesses, skilled
therein, is admissible as evidence of the unwritten law of a foreign country,
as are also printed and published books of reports of decisions of the courts
of the foreign country, if proved to be commonly admitted in such courts.
Proof of a written foreign law, on the other hand, is provided for under Rule 132
section 25, thus:
SEC. 25. Proof of public or official record. — An official record or
an entry therein, 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 a foreign country, the
certificate may be made by a secretary of 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.

In the case at bar petitioners did not present any competent evidence relative to the
law and custom of China on marriage. The testimonies of Yao and Gan Ching cannot
be considered as proof of China's law or custom on marriage not only because they are
self-serving evidence, but more importantly, there is no showing that they are
competent to testify on the subject matter. For failure to prove the foreign law or
custom, and consequently, the validity of the marriage in accordance with said law or
custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this
jurisdiction.  
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Furthermore, well-established in this jurisdiction is the principle that Philippine courts

cannot take judicial notice of foreign laws. They must be alleged and proved as any
other fact
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Accordingly, in the absence of proof of the Chinese law on marriage, it should be

presumed that it is the same as ours. Since Yao Kee admitted in her testimony that
there was no solemnizing officer as is known here in the Philippines when her alleged
marriage to Sy Kiat was celebrated, it therefore follows that her marriage to Sy Kiat,
even if true, cannot be recognized in this jurisdiction ||