Proof of Foreign Law

CHAPTER VIII
NOTICE AND PROOF

OF FOREIGN LAW
DEFINITION OF TERMS:
Lex Domicilii - law of the domicile; in conflicts, the law of

one's domicile applied in the choice of law questions
Lex Fori - law of the forum; that is, the positive law of the
state, country or jurisdiction of whose judicial system of the
court where the suit is brought or remedy is sought is an
integral part. Substantive rights are determined by the law
where the action arose (lex loci) while the procedural rights are
governed by the law of the place of the forum (lex fori)
Lex Loci - law of the place

Lex Loci Contractus - the law of the place where the contract was
made or law of the place where the contract is to be governed
(place of performance) which may or may not be the same as that
of the place where it was made
Lex Loci Rei Sitae - law of the place where the thing or subject
matter is situated; the title to realty or question of real estate law
can be affected only by the law of the place where it is situated
Lex Situs - law of the place where property is situated; the general
rule is that lands and other immovables are governed by the law of
the state where they are situated
Lex Loci Actus - law of the place where the act was done
Lex Loci Celebrationis - law of the place where the contract is

made
Lex Loci Solutionis - law of the place of solution; the law of the
place where payment or performance of a contract is to be made
Lex Loci Delicti Commissi - law of the place where the crime took
place
Lex Mereatoria - law merchant; commercial law; that system of laws

which is adopted by all commercial nations and constitute as part of
the law of the land; part of common law
Lex Non Scripta - the unwritten common law, which includes

general and particular customs and particular local laws
Lex Patriae - national law

Renvoi Doctrine - doctrine whereby a jural matter is presented
which the conflict of laws rules of the forum refer to a foreign law
which in turn, refers the matter back to the law of the forum or a third
state. When reference is made back to the law of the forum, this is
said to be "remission" while reference to a third state is called
"transmission.“
Nationality Theory - by virtue of which the status and capacity of an

individual are generally governed by the law of his nationality. This is
principally adopted in the RP
Domiciliary Theory - in general, the status, condition, rights,

obligations, & capacity of a person should be governed by the law of
his domicile.
Long Arm Statutes - Statutes allowing the courts to exercise

jurisdiction when there are minimum contacts between the non-
resident defendant and the forum.
THEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT
•Theory of Comity – foreign law is applied because of its convenience &
because we want to give protection to our citizens, residents, & transients in
our land
•Theory of Vested Rights – we seek to enforce not foreign law itself but the
rights that have been vested under such foreign law; an act done in another
state may give rise to the existence of a right if the laws of that state crated
such right.
•Theory of Local Law- adherents of this school of thought believe that we
apply foreign law not because it is foreign, but because our laws, by
applying similar rules, require us to do so; hence, it is as if the foreign law
has become part & parcel of our local law
•Theory of Harmony of Laws – theorists here insist that in many cases we
have to apply the foreign laws so that wherever a case is decided, that is,
irrespective of the forum, the solution should be approximately the same;
thus, identical or similar solutions anywhere & everywhere. When the goal
is realized, there will be “harmony of laws”
•Theory of Justice – the purpose of all laws, including Conflict of Laws, is
the dispensing of justice; if this can be attained in may cases applying the
proper foreign law, we must do so
A. EXTENT OF JUDICIAL NOTICE
When the court is called upon to decide a case based
on a· foreign law the common law practice, which has
been adopted in the Philippines, is that the party whose
cause of action or defense depended upon the foreign
law has the burden of proving the foreign law.
Such foreign law is treated as a question of fact to be
properly pleaded and proved in conformity with the law
of evidence of the state where it is presented.
Rationale: a judge is not authorized to take judicial

notice of a foreign law and is presumed to know only
domestic law.
B. PROOF OF FOREIGN LAW
Foreign law may be proved by presenting either

of the following:
an official publication of the law; or
a copy of the law attested by the officer having

the legal custody of the record or by his deputy.
If such record is not kept in the Philippines, it
must be accompanied with a certificate that
such officer has the custody.
Aside from the official publication or a copy
of the foreign law, there are also other
documents which may be required to be
presented in court in order to prove a cause of
action.
In the case of proof documents executed
abroad, it is mandated by law that any public
document executed abroad to be used in the
Philippines must be duly authenticated by the
Philippine consul attaching his consular seal.
This mandatory requirement must first be
complied with before such document will be
received by the court.
In some case, it may1 be necessary to take
depositions of nonresidents.
Sec. 11, Rule 23 of the Rules of Court provides

for the list of persons before whom depositions may be
taken in foreign countries. In a foreign state or country,
depositions may be taken:
a. on notice before a secretary of embassy or

legation, consul general, consul, vice-consul or
consular agent of the Republic of the Philippines;
b. before such person or officer as may be appointed

by commission or under letters rogatory; or
c. before such person which the parties have stipulated

in writing.
EFFECTS OF FAILURE TO PLEAD AND PROVE
FOREIGN LAW
In the absence of proof of the applicable foreign law,
forum courts have three (3) alternatives:
1. To dismiss the case for the inability to establish a

cause of action;
2. To assume that the foreign law is the same as the law

of the forum; or
c. To apply the law of the forum.

C. EXCEPTIONS TO THE APPLICATION OF FOREIGN LAW
Under the principles of comity and reciprocity, the

court or administrative agency should look into the application
of foreign law and apply it. There are instances, however,
when the law of forum must be applied in spite of the
presence of a foreign element. The exceptions fall under
three main categories:
1.When the local law expressly so provides;

2. When there is failure to plead and prove the
foreign law or judgment; and
3.When the case falls under any of the exceptions
to the rule of comity.
Some of the exceptions are stated in Article
17 (3)Philippine Civil Code which provides:
“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”
1. The foreign law is contrary to an important public
policy forum
“Dismissal of a case on grounds of public policy is not a dismissal on

the merits and the plaintiff can go elsewhere to file another suit. It
has been pointed out that in reality, the plaintiff cannot get
jurisdiction in any court and the result of the said dismissal is usually
the same as denying a defense on public-policy grounds.
2. The Foreign Law is Procedural in Nature
It would be impractical for the court of the forum to

adopt the procedural machinery of another state such
as rules on venue, forms, pleadings and service of
processes, rules of evidence, and competency of
witnesses. Any individual who submits himself to the
jurisdiction of the law of the forum must follow the
forum's rules of procedure. He cannot invoke another
law of procedure to take advantage of the adverse
party.
3. Issues are Related to Property (Lex Situs)
The lex situs rule applies in cases of sale, exchange, barter,

mortgage or any form of alienation of property.·There are three
reasons why the lex situs governs property:
1. Land and everything attached to it are within the exclusive control

of..the State, and the officials of the State are the only ones who
can lawfully deal with them physically. Since interest in
immovablescannot be affected without the consent of the State of
the situs, it is natural that the latter's law should be applied by the
courts of other States.
2. Following a policy centered approach, immovables are of

greatest concern to the state in which they are situated.
3. Found in the demands of certainty and convenience.

4. The Issue Involved in the Enforcement
of Foreign Claim is Fiscal or Administrative
It is the general view that a State is not obliged to

enforce the revenue law of another. This reasoning
has led courts to deny enforcement of tax claims
brought by foreign countries on local residents.
5. The Foreign Law or Judgment is Contrary

to Good Morals (Contra Bonos Mores)
6. The application of foreign law will work

undeniable injustice to the citizens of the
forum.
7. The Foreign Law is Penal in Character
The penal law exception has its roots in a
statement of U.S. Supreme Court Chief Justice
Marshall that "the Courts of no country execute the
penal laws of another. "
8. The application of the foreign law might

endanger the vital interests of the State.
END OF PRESENTATION

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CHAPTER VIII

NOTICE AND PROOF

Lex Domicilii - law of the domicile; in conflicts, the law of

Lex Loci - law of the place

Lex Loci Celebrationis - law of the place where the contract is

Lex Mereatoria - law merchant; commercial law; that system of laws

Lex Non Scripta - the unwritten common law, which includes

Lex Patriae - national law

Nationality Theory - by virtue of which the status and capacity of an

Domiciliary Theory - in general, the status, condition, rights,

Long Arm Statutes - Statutes allowing the courts to exercise

Rationale: a judge is not authorized to take judicial

Foreign law may be proved by presenting either

an official publication of the law; or

a copy of the law attested by the officer having

Sec. 11, Rule 23 of the Rules of Court provides

a. on notice before a secretary of embassy or

b. before such person or officer as may be appointed

c. before such person which the parties have stipulated

1. To dismiss the case for the inability to establish a

2. To assume that the foreign law is the same as the law

c. To apply the law of the forum.

Under the principles of comity and reciprocity, the

1.When the local law expressly so provides;

“Prohibitive laws concerning persons, their acts or

“Dismissal of a case on grounds of public policy is not a dismissal on

It would be impractical for the court of the forum to

The lex situs rule applies in cases of sale, exchange, barter,

1. Land and everything attached to it are within the exclusive control

2. Following a policy centered approach, immovables are of

3. Found in the demands of certainty and convenience.

It is the general view that a State is not obliged to

5. The Foreign Law or Judgment is Contrary

6. The application of foreign law will work

8. The application of the foreign law might

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