Notice and Proof of Foreign Law
Extent of Judicial Notice
•
It
is the party whose cause of action or defense depended upon the foreign law who
has the burden of proving the foreign law.
•
Foreign
law is treated as a question of fact that should be properly pleaded and proved
•
Rationale:
A judge is not authorized to take judicial notice of a foreign law and is
presumed to know only domestic law
•
In
the Philippines:
•
The
traditional rule is that a judge cannot decide a case on the basis of his own
knowledge and information. He can only act upon the evidence before his court
in the actual case.
•
Delgado
v. Republic:
•
Judicial
notice may be taken of a foreign law with which the court is “evidently
familiar.” Familiarity with the foreign law may be because the law is generally
known such as a Spanish or American law from which Philippines law was derived
or the judge had previously ruled upon it in other cases.
•
In
the United States:
•
Full
faith and credit clause: “Courts are allowed to take judicial knowledge of the
law of sister states.” It was “designated to transform the several sovereignties
into a single, unified nation.”
Proof of Foreign Law
•
Foreign
law may be proved by presenting whether of the following:
- An
official publication of the law; or
- A
copy of the law attested by the officer having legal custody of the record
or by his deputy.
- If the 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.
- Proof of documents executed abroad:
any public document executed abroad to be used in the Philippines must be duly
authenticated by the Philippine consul attaching his consular seal. It must be
complied with before such document will be received by the court.
•
Sec.
11, Rule 23 of the Rules of Court, provides for the list of person before whom
depositions may be taken in foreign countries. Depositions of non-residents in
a foreign country: they may be taken—
- on
notice before a secretary of embassy or legation, consul general, consul,
vice consul, or consular agent of the Philippines;
- before
such person or officer as may be appointed by commission or under letters
rogatory; or
- before
such person which the parties have stipulated in writing.
Effects of Failure to Plead and Prove
Foreign Law
•
Forum
court may:
1. Dismiss the case for inability to establish cause of action
- Burden of
introducing proof of the contents of foreign law rests on the party relying on
such law
- Forum court
would, upon proof of law, enforce a right existing under that foreign law
- Failure to prove its contents results
in failure to establish a prima facie case
Walton v Arabian American Oil Co.
Facts:
•
Walton,
a resident of Arkansas, was traveling by car in Saudi Arabia when he was struck
by a truck owned and operated by Arabian American Oil, a Delaware corporation.
Walton brought suit in federal district court in New York.
•
At
trial, Plaintiff did not plead or offer to prove Arabian “law” on torts.
Neither did Arabian American Oil. The trial judge refused to take
judicial notice of Arabian “law,” directed a verdict in favor of the defendant
and gave judgment against Walton.
Issue:
•
May
a court decide a tort suit, based on an injury sustained in a foreign country,
based on the law of the forum, where neither party pleads or proves the
applicable foreign law?
Ruling:
•
No. Since this case is in federal court on
diversity jurisdiction, the New York conflict of laws rule is applicable and it
holds that the law of the place of the tort is controlling. While New
York procedures allow a judge to take judicial notice of foreign law even
though neither party proves it, the judge would be abusing his discretion if he
were to take notice of a foreign system of laws unfamiliar to our own.
•
Walton
(Plaintiff) claims that the facts of the incident establish liability under the
most “rudimentary” principle of tort law. But there can be no
“rudimentary” elements of negligence in the sense they are universally
recognized and without proof of Saudi law no decision should have been
rendered. New York law requires the plaintiff to go forward to establish
the foreign law, which he intentionally failed to do.
•
The
majority of the court feels that since Walton deliberately refused to prove
Saudi law, his complaint should be dismissed.
2. Apply law of the forum
- Courts that by failing to adduce
proof, parties acquiesce to the application of the forum law since it is the
basic law
- It proceeds from the theory that the
basic law is the law of the forum and when the claimed applicable foreign law
is not proved, then the court has no reason to displace the basic law.
Zalamea v. CA
Facts:
•
Spouses
Cesar and Suthira Zalamea and their daughter, Liana, purchased three airline
tickets from the Manila agent of Transworld Airlines, Inc.
•
The
tickets of the spouses were purchased at a 75% discount while Liana paid full
fare.
•
All
tickets were confirmed in Manila and re-confirmed in New York
•
On
the date of the flight, they were wait-listed because all seats were taken.
Eventually, Mr. Zalamea, who was holding Liana’s full-fare ticket was allowed
to board the plane.
•
Mrs.
Zalamea and Liana were constrained to purchase tickets from another airline for
their trip back to Manila.
•
RTC:
granted them refund of ticket prices, moral damages and attorney’s fees
Ruling:
•
The
U.S. law or regulation allegedly authorizing overbooking has never been proved.
Foreign laws do not prove themselves nor can the courts take judicial notice of
them. Like any other fact, they must be alleged and proved.
•
Written
law 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 with a certificate that such officer has custody.
•
TransWorld
Airlines relied solely on the statement of Ms. Gwendolyn Lather, its customer
service agent, in her deposition dated January 27, 1986 that the Code of Federal
Regulations of the Civil Aeronautics Board allows overbooking. Aside from said
statement, no official publication of said code was presented as evidence.
Thus, respondent court's finding that overbooking is specifically allowed by
the US Code of Federal Regulations has no basis in fact.
•
Existing
jurisprudence explicitly states that overbooking amounts to bad faith,
entitling the passengers concerned to an award of moral damages.
•
When
an airline issues a ticket to a passenger confirmed on a particular flight, on
a certain date, a contract of carriage arises, and the passenger has every
right to expect that he would fly on that flight and on that date.
•
If
he does not, then the carrier opens itself to a suit for breach of contract of
carriage. Where an airline had deliberately overbooked, it took the risk of
having to deprive some passengers of their seats in case all of them would show
up for the check in. For the indignity and inconvenience of being refused a
confirmed seat on the last minute, said passenger is entitled to an award of
moral damages.
•
Even
on the assumption that overbooking is allowed, TransWorld Airlines is still
guilty of bad faith in not informing its passengers beforehand that it could
breach the contract of carriage even if they have confirmed tickets if there
was overbooking.
•
Such
conscious disregard of petitioners’ rights makes TransWorld Ailrines liable for
damages.
3. Assume foreign law is the same as law of the forum (processual
presumption)
Miciano v. Brimo
Facts:
•
Partition
of the estate left by the deceased Joseph Brimo, a Turkish national.
•
Juan
Miciano, the judicial administrator of the estate, filed a scheme of partition
which was opposed by Andre Brimo, one of Joseph’s brothers
▫
Based
on the ground the partition puts into effect the provisions of the will which
are not in accordance with the laws of his Turkish nationality.
•
Andre
Brimo failed to prove that the said testamentary dispositions are not in
accordance with the Turkish laws, and failed to present any evidence showing
what the Turkish laws are on the matter.
Issue:
•
Whether
or not Philippine laws shall be applied on the estate of Joseph Brimo, a
Turkish citizen who has resided for a considerable length of time in the Philippines.
Ruling:
•
Article
10 of the old Civil Code of the Philippine law was applied on the estate of
Joseph Brimo, where it was provided,
▫
“nevertheless,
legal and testamentary successions, in respect to the order of succession as
well as to the amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the national law
of the person whose succession is in question, whatever may be the
nature of the property or the country in which it may be situated.”
•
However,
Andre Brimo did not prove, though was granted ample opportunity to introduce
competent evidence, that said testamentary dispositions are not in accordance
with the Turkish laws.
•
Therefore,
there is no evidence in the record that the national law of the testatrix was
violated in the testamentary dispositions in question which, not being contrary
to our laws in force, must be complied with and executed; thus, the approval of
the scheme of partition in this respect was not erroneous.
Factors in deciding whether to apply
forum law or to dismiss the case/ rule against the party who failed to prove
the foreign law, the courts must consider the following:
- degree
of public interest involved
- accessibility
of foreign law materials to the parties
- possibility
that plaintiff is merely forum shopping
- similarities
between forum law and foreign law on the issue involved
-
Consideration
of these factors will not likely result in the application of forum law except
in some cases involving marriage and family relations
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