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Asiavest Limited v CA; Antonio Heras (1998) Antonio Heras (connected with Navegante Shipping Agency LTD ) was

sued on the basis of his personal guarantee of the obligations of Co pania Her anos de Navegacion S!A by Asiavest before a Hong "ong court! The Hong "ong Court ruled against hi and ordered pay ent of#

d) d) There is no necessity to furnish the defendant with a copy of the Cudg ent or decision rendered against hi ! e) e) Bn an action based on a guarantee' there is no established legal re.uire ent or obligation under Hong "ong laws that the creditor ust first bring proceedings against the principal debtor! The creditor can i ediately go against the guarantor!

$S%&'(&)'*+,!-) or its e.uivalent in Hong "ong currency plus interest/ interest on the su of $S%&',))!)) at 0!(1,2 per annu / H"%0),!)) at fi3ed cost in the action/ and at :n cross' he testified# least %()')))!)) representing attorney4s fees' litigation &! That the Hong "ong court authori9ed service of e3penses and cost' with interest thereon fro the date of su ons on HG7AS outside of its 5urisdiction' the 5udg ent until fully paid! particularly in the <hilippines! To enforce the 5udg ent here' Asiavest Li ited filed a *! He ad itted also the e3istence of an affidavit of co plaint on Dece ber 6' &0(1 before the 7TC of 8ue9on one Cose 7! >ernande9 of the Sycip Sala9ar City! Hernande9 H Iat aitan law fir stating that Defendant filed his Answer! He raised the defense that the >ernande9 served su ons on HG7AS on &6 Hong "ong court never ac.uired 5urisdiction over his Nove ber &0(- at No! +' &st St!' 8ue9on City' by person! :n pre;trial' they stipulated the following# leaving a copy with HG7AS4s son;in;law Dionisio Lope9! &! The defendant ad its the e3istence of the 5udg ent dated Dece ber *(' &0(- as well as its :n redirect e3a ination' Lousich declared that such service a end ent dated April &6' &0(1' but not of su ons would be valid under Hong "ong laws necessarily the authenticity or validity thereof/ provided that it was in accordance with <hilippine laws!

*! The plaintiff is not doing business and is not The trial court ordered hi to pay the a ount in the Hong licensed to do business in the <hilippines/ "ong 5udg ent! Bt held that since the Hong "ong court 5udg ent had been duly proved' it is a presu ptive 6! The residence of defendant' Antonio Heras' is New evidence of a right as between the parties/ hence' the party =anila' 8ue9on City! i pugning it had the burden to prove want of 5urisdiction over his person! HG7AS failed to discharge that burden! He presented * witnesses# >ortunata dela ?ega and 7ussel @arren Lousich! Heras appealed to the CA! The CA REVERSED the 7TCJs >ortunata testified that no writ of su ons or copy of a state ent of clai of Asiavest Li ited was ever served in the office of the Navegante Shipping Agency Li ited andAor for =r! Antonio Heras' and that no service of the writ of su ons was either served on the defendant at his residence in New =anila' 8ue9on City! decision! It held that a forei n !"d ment does not of itself have an# e$traterritorial a%%li&ation' (or it to )e iven effe&t* the forei n tri)"nal sho"ld have a&+"ired !"risdi&tion over the %erson and the s")!e&t matter' If s"&h tri)"nal has not a&+"ired !"risdi&tion* its !"d ment is void'

The CA agreed with HG7AS that Knotice sent outside the Lousich testified was presented as an e3pert on the laws of state to a non;resident is unavailing to give 5urisdiction in an Hong "ong! He testified that# action against hi %ersonall# for oney recovery!K Su ons should have been %ersonall# served on HG7AS The defendant was sued on the basis of his personal guarantee of the obligations of Co pania Her anos de in Hong "ong' for' as clai ed by ASBA?GST' HG7AS was Navegacion S!A! There is no record that a writ of su ons physically present in Hong "ong for nearly &- years! Since ons on was served on the person of the defendant in Hong "ong' there was not even an atte pt to serve su HG7AS in Hong "ong' the Hong "ong Supre e Court did or that any such atte pt at service was ade! not ac.uire 5urisdiction over HG7AS! Nonetheless' it did not a) The writ of su ons or clai can be served by the totally foreclose the clai of ASBA?GST solicitor (lawyer) of the clai ant or plaintiff! Bn Hong "ong there are no Court personnel who serve writs BssuesAHeld of su ons andAor ost other processes! &! @hat law applies in this caseL b) Bf the writ of su ons or clai (or co plaint) is not contested' the clai ant or the plaintiff is not re.uired to present proof of his clai or co plaint nor present evidence under oath of the clai in order to obtain a Cudg ent! <hilippine laws based on the doctrine of processual presu ption!

,atters of remed# and %ro&ed"re s"&h as those relatin to the servi&e of %ro&ess "%on the defendant are overned )# the le$ fori or the la- of the for"m* i'e'* c) There is no legal re.uire ent that such a Cudg ent the la- of Hon .on in this &ase' or decision rendered by the Court in Hong "ong DtoE aFe a recitation of the facts or the law upon which /he testimon# of an e$%ert -itness* Lo"si&h in this the clai is based! &ase* ma# )e allo-ed to %rove a forei n la-' There is'

however' nothin in the testimon# of ,r' Lo"si&h that to"&hed on the s%e&ifi& la- of Hon .on in res%e&t of servi&e of s"mmons either in a&tions in rem or in %ersonam' and -here the defendant is either a resident or nonresident of Hon .on ' Bn view of the absence of proof of the Hong "ong law on this particular issue' the presu ption of identity or si ilarity or the so;called <7:CGSS$AL <7GS$=<TB:N shall co e into play! Bt will thus be %res"med that the Hon .on la- on the matter is similar to the 0hili%%ine la-' *! @hat Find of action was involved in this caseL

such Cudicial ad ission a ounted to evidence that he was and is not a resident of Hong "ong! Significantly' in the pre;trial conference' the parties ca e up with stipulations of facts' a ong which was that Kthe residence of defendant' Antonio Heras' is New =anila' 8ue9on City!K @e therefore conclude that the stipulated fact that HG7AS Kis a resident of New =anila' 8ue9on City' <hilippinesK refers to his residence at the ti e 5urisdiction over his person was being sought by the Hong "ong court!

1' 2hether s"mmons -as %ro%erl# and validl# An action in persona ! Bn the case at bar' the action filed in served on HERAS' Hong "ong against HG7AS was in %ersonam' since it was based on his personal guarantee of the obligation of the No! Sin&e HERAS -as not a resident of Hon .on and principal debtor! An a&tion in %ersonam is an a&tion the a&tion a ainst him -as* indis%"ta)l#* one in a ainst a %erson on the )asis of his %ersonal lia)ilit# ! %ersonam* s"mmons should have )een %ersonall# In an a&tion in %ersonam* !"risdi&tion over the %erson served on him in Hon .on ' /he e$traterritorial of the defendant is ne&essar# for the &o"rt to validl# tr# servi&e in the 0hili%%ines -as therefore invalid and did and de&ide the &ase' Curisdiction over the person of a not &onfer on the Hon .on &o"rt !"risdi&tion over his resident defendant who does not voluntarily appear in %erson' Bt follows that the Hong "ong court 5udg ent court can be ac.uired by personal service of su ons as cannot be given force and effect here in the <hilippines for provided under Section 1' 7ule &- of the 7ules of Court! Bf having been rendered without 5urisdiction! he cannot be personally served with su ons within a reasonable ti e' substituted service ay be ade in accordance with Section ( of said 7ule! Bf he is te porarily out of the country' any of the following odes of service ay he resorted to# (&) substituted service set forth in Section (/ (*) personal service outside the country' with leave of court/ (6) service by publication also with leave of court/ or (-) any other anner the court ay dee sufficient! Gven assu ing that HG7AS was for erly a resident of Hong "ong' he was no longer so in Nove ber &0(- when the e3traterritorial service of su ons was atte pted to be ade on hi ! As declared by his secretary' which state ent was not disputed by ASBA?GST' HG7AS left Hong "ong in :ctober &0(- Kfor good!K His absence in Hong "ong ust have been the reason why su ons was not served on hi therein/ thus' ASBA?GST was constrained to apply for leave to effect service in the <hilippines' and upon obtaining a favorable action on the atter' it co issioned the Sycip Sala9ar Hernande9 H Iat aitan law fir to serve the su ons here in the <hilippines!

Ho-ever* in an a&tion in %ersonam -herein the defendant is a non-resident -ho does not vol"ntaril# s")mit himself to the a"thorit# of the &o"rt* %ersonal servi&e of s"mmons -ithin the state is essential to the a&+"isition of !"risdi&tion over her %erson' (Moudart v! HERAS* -ho -as also an a)sentee* sho"ld have )een Tait' +1 <hil! &1)' &1-;&1, & D&060E!) served -ith s"mmons in the same manner as a non3 This ethod of service is possible if such defendant is resident not fo"nd in Hon .on ' Se&tion 14* R"le 11 of physically present in the country! Bf he is not found therein' the R"les of Co"rt %rovidin for e$traterritorial servi&e the court cannot ac.uire 5urisdiction over his person and -ill not a%%l# )e&a"se the s"it a ainst him -as in therefore cannot validly try and decide the case against %ersonam' Neither can we apply Section &(' which allows hi ! An e3ception was laid down in Ie perle v! SchenFer e3traterritorial service on a resident defendant who is the country' because the wherein a non;resident was served with su ons through te porarily absent fro undisputed fact re ains that he left Hong "ong not only his wife' who was a resident of the <hilippines and who was his representative and attorney;in;fact in a prior civil case Kte porarilyK but Kfor good!K filed by hi / oreover' the second case was a offshoot of the first case! ere A/CI* ,ALIA 5' I.DAL and ,I6IS/R7 8( 09:LIC HEAL/H3.92AI/ v E&hin (;<1<)

6! Bs Heras a resident of Hong "ong or a resident of Cosefina Gchin was hired by ATCB :verseas Corporation in the <hilippinesL behalf of its principal' the =inistry of <ublic Health of "uwait 7esident of the <hilippines! >ortunata testified that HG7AS for the position of edical technologist under a two;year was the <resident and part owner of a shipping co pany in contract' deno inated as a =e orandu of Agree ent Hong "ong! He had Kbusiness co it ents' undertaFings' (=:A)' with a onthly salary of $S%&'*))!))! conferences' and appoint ents until :ctober &0(- when he $nder the =:A' all newly;hired e ployees undergo a left Hong "ong for good!K probationary period of one (&) year and are &overed )# HG7AS argued that the lacF of 5urisdiction over his person ."-ait=s Civil Servi&e :oard Em%lo#ment Contra&t 6o' was corroborated by ASBA?GST4s allegation in the ;' Gchin was deployed on >ebruary &1' *))) but was co plaint that he Khas his residence at No! +' &st St!' New ter inated fro e ploy ent on >ebruary &&' *))&' she not =anila' 8ue9on City' <hilippines!K He then concluded that having allegedly passed the probationary period!

:n Culy *1' *))&' she filed with the NL7C a co plaint for As to their &ontentions that 0hili%%ine la)or la-s on illegal dis issal against ATCB' BFdal and the =inistry! %ro)ationar# em%lo#ment are not a%%li&a)le sin&e it -as e$%ressl# %rovided in res%ondent=s em%lo#ment The LA held that she was illegally dis issed and &ontra&t* -hi&h she vol"ntaril# entered into* that the accordingly ordered the to pay her $S%6'+))!))' terms of her en a ement shall )e overned )# representing her salary for the three onths une3pired %revailin ."-aiti Civil Servi&e La-s and Re "lations portion of her contract! This was affir ed by the NL7C! as in fa&t 08EA R"les a&&ord res%e&t to s"&h r"les* &"stoms and %ra&ti&es of the host &o"ntr#* the same They appealed to the CA' contending that their principal' was not substantiated. the =inistry' being a foreign govern ent agency' is i une fro suit and' as such' the i unity e3tended to the / and Bndeed' a &ontra&t freel# entered into is &onsidered the that Gchin was validly dis issed for her failure to eet the la- )et-een the %arties -ho &an esta)lish sti%"lations* perfor ance rating within the one;year period as re.uired &la"ses* terms and &onditions as the# ma# deem under "uwait4s Civil Service Laws and that BFdal should not &onvenient* in&l"din the la-s -hi&h the# -ish to be liable as an officer of ATCB! overn their res%e&tive o)li ations* as lon as the# are The CA sustained the NL7CJs decision! A%%l#in 0hili%%ines la-s' it held that under the law* a %rivate em%lo#ment a en&# shall ass"me all res%onsi)ilities for the im%lementation of the &ontra&t of em%lo#ment of an overseas -or>er* hen&e* it &an )e s"ed !ointl# and severall# -ith the forei n %rin&i%al for any violation of the recruit ent agree ent or contract of e ploy ent! As to BFdal4s liability' the appellate court held that under Sec! &) of 7epublic Act No! ()-*' the K=igrant and :verseas >ilipinos4 Act of &00,'K corporate officers' directors and partners of a recruit ent agency ay the selves be 5ointly and solidarily liable with the recruit ent agency for oney clai s and da ages awarded to overseas worFers! not &ontrar# to la-* morals* ood &"stoms* %")li& order or %")li& %oli&#' (LE? L8CI I6/E6CI86ES) It is horn)oo> %rin&i%le* ho-ever* that the %art# invo>in the a%%li&ation of a forei n la- has the )"rden of %rovin the la-* "nder the do&trine of %ro&ess"al %res"m%tion -hi&h* in this &ase* %etitioners failed to dis&har e' On the issue of proving foreign laws Bn GDB;Staffbuilders Bnt4l! v! NL7C#

In international la-* the %art# -ho -ants to have a forei n la- a%%lied to a dis%"te or &ase has the )"rden of %rovin the forei n la-' /he forei n la- is treated as a +"estion of fa&t to )e %ro%erl# %leaded and %roved as Bn this petition' they raised these defenses# the !"d e or la)or ar)iter &annot ta>e !"di&ial noti&e of a forei n la-' He is %res"med to >no- onl# domesti& or &! That they should not be held liable because for"m la-' respondent4s e ploy ent contract specifically stipulates that her e ploy ent shall )e overned )# the Civil /he 0hili%%ines does not ta>e !"di&ial noti&e of forei n Servi&e La- and Re "lations of ."-ait' They thus la-s* hen&e* the# m"st not onl# )e alle ed; the# m"st conclude that it was patent error for the labor tribunals and )e %roven' /o %rove a forei n la-* the %art# invo>in it the appellate court to apply the Labor Code provisions m"st %resent a &o%# thereof and &om%l# -ith Se&tions governing probationary e ploy ent in deciding the present ;1 and ;@ of R"le 1A; of the Revised R"les of Co"rt case! -hi&h readsB *! That even the <:GA 7ules relative to aster SGC! *-! <roof of official record! N The record of public e ploy ent contracts accord respect to the Kcusto s' docu ents referred to in paragraph (a) of Section &0' when practices' co pany policies and labor laws and legislation ad issible for any purpose' ay be evidenced by# of the host country! &! An official publication thereof or by a copy attested 6! That assu ing arguendo that <hilippine labor laws by the officer having the legal custody of the record' are applicable' given that the foreign principal is a or by his deputy' and govern ent agency which is i une fro suit' as in fact it *! Acco panied' if the record is not Fept in the did not sign any docu ent agreeing to be held 5ointly and <hilippines' with a certificate that such officer has solidarily liable' ATCB cannot liFewise be held liable' ore the custody! so since the =inistry4s liability had not been 5udicially deter ined as 5urisdiction was not ac.uired over it! Bssue @hat law governs this caseL Held <hilippine laws based on the doctrine of processual presu ption! Choice of law 6! Bf the office in which the record is Fept is in a foreign country' the certificate ay be ade by a secretary of the e bassy or legation' consul general' consul' vice consul' or consular agent or by any officer in the foreign service of the <hilippines stationed in the foreign country in which the record is Fept' and authenticated by the seal of his office! SGC! *,! @hat attestation of copy ust state! N @henever a copy of a docu ent or record is attested for the purpose of the evidence' the attestation ust state' in substance' that#

&! The copy is a correct copy of the original' or a were the party seeFing to enforce it be re.uired to first specific part thereof' as the case ay be! establish its validity! *! The attestation ust be under the official seal of On whether the foreign judgment should be enforced in the attesting officer' if there be any' or if he be the this case clerF of a court having a seal' under the seal of No' for lacF of 5urisdiction over the person of Heras such court (e3planation supra)! To prove the "uwaiti law' petitioners sub itted the $nder paragraph (b) of Section ,)' 7ule 60 of the 7ules of following# Court' which was the governing law at the ti e this case &! =:A between respondent and the =inistry' as was decided by the trial court and respondent CA' a foreign represented by ATCB' which provides that the 5udg ent against a person rendered by a court having e ployee is sub5ect to a probationary period of one 5urisdiction to pronounce the 5udg ent is %res"m%tive (&) year and that the host country4s Civil Service eviden&e of a ri ht as )et-een the %arties and their Laws and 7egulations apply/ s"&&essors in interest )# the s")se+"ent title' However' the 5udg ent ma# )e re%elled )# eviden&e of -ant of *! a translated copy (Arabic to Gnglish) of the !"risdi&tion* -ant of noti&e to the %art#* &oll"sion* ter ination letter to respondent stating that she did fra"d* or &lear mista>e of la- or fa&t' not pass the probation ter s' without specifying the grounds therefor' and a translated copy of the Also' Section 6(n) of 7ule &6& of the New 7ules of certificate of ter ination' both of which docu ents Gvidence provides that in the absence of proof to the were certified by =r! =ustapha Alawi' Head of the contrary' a court' or 5udge acting as such' whether in the Depart ent of >oreign Affairs;:ffice of Consular <hilippines or elsewhere' is %res"med to have a&ted in Affairs Bnsla ic Certification and Translation $nit/ the la-f"l e$er&ise of !"risdi&tion' and Hence' on&e the a"thenti&it# of the forei n !"d ment is 6! Her letter of reconsideration to the =inistry' wherein %roved* the )"rden to re%el it on ro"nds %rovided for she noted that in her first eight (() onths of in %ara ra%h ()) of Se&tion @<* R"le A9 of the R"les of e ploy ent' she was given a rating of KG3cellentK Co"rt is on the %art# &hallen in the forei n !"d ment albeit it changed due to changes in her shift of worF N HG7AS in this case! schedule! /hese do&"ments* -hether ta>en sin l# or as a -hole* do not s"ffi&ientl# %rove that res%ondent -as validl# terminated as a %ro)ationar# em%lo#ee "nder ."-aiti &ivil servi&e la-s' Instead of s")mittin a &o%# of the %ertinent ."-aiti la)or la-s d"l# a"thenti&ated and translated )# Em)ass# offi&ials thereat* as re+"ired "nder the R"les* -hat %etitioners s")mitted -ere mere &ertifi&ations attestin onl# to the &orre&tness of the translations of the ,8A and the termination letter -hi&h does not %rove at all that ."-aiti &ivil servi&e la-s differ from 0hili%%ine la-s and that "nder s"&h ."-aiti la-s* res%ondent -as validl# terminated' Asiavest Limited v CA; Antonio Heras (1998) The CA ruled# That it was necessary that evidence supporting the validity of the foreign 5udg ent be sub itted and that our courts are not bound to give effect to foreign 5udg ents which contravene our laws and the principle of sound orality and public policy! Held Not necessary! At the pre;trial conference' HG7AS ad itted the e3istence of the Hong "ong 5udg ent! :n the other hand' ASBA?GST presented evidence to prove rendition' e3istence' and authentication of the 5udg ent by the proper officials! The 5udg ent is thus presu ed to be valid and binding in the country fro which it co es' until the contrary is shown! Conse.uently' the first ground relied upon by ASBA?GST has erit! The presu ption of validity accorded foreign 5udg ent would be rendered eaningless