Philippines: Foreign in personam summonses

Author: | Published: 10 Dec 2015
Email a friend

Please enter a maximum of 5 recipients. Use ; to separate more than one email address.

SyCip Salazar Hernandez & Gatmaitan

Address

SyCipLaw Center
105 Paseo de Roxas
Makati City 1226
Metro Manila, Philippines

Telephone

+63 2 982 3500

Fax

+63 2 817 3896 Visit Website
Ramon-Songco jenny-jean-domino
Ramon G Songco Jenny Jean B Domino

The service of a summons is indispensable in judicial proceedings. It both notifies the defendant that a suit has been brought against it and enables the court to acquire jurisdiction over the defendant in person, thus making any court order or ruling in such a case binding upon that defendant. This acquires particular relevance in cases of in personam actions, which are based on the defendant's personal liability. In contrast, in an action in rem, the judgment pertains to the thing that is the subject of the action and the court need not acquire jurisdiction over the defendant in person, only over the thing itself.

The old rules on the service of summons appear to contemplate as defendants only non-resident foreign corporations (NRFCs) that are registered as such and which have transacted business in the Philippines. Under the old rules, a summons may be served on the resident agent, any officer or agent in the Philippines, or the government agency regulating the entity. The old rules do not address the situation where an NRFC has transacted business in the Philippines but is neither registered there nor has an officer or agent upon whom a summons could be served locally. As a consequence, actions in personam against these foreign corporations, such as those relating to money judgments or damages, generally reach a dead-end due to the impossibility of service.

To address this need, the Supreme Court issued AM number 11-3-6-SC, which prescribes various modes of service to reach this type of defendant, subject to prior court approval:

  • Personal service directed through the appropriate foreign country and assisted by the Philippine department of foreign affairs;
  • One-time publication in a newspaper with general circulation in the country where the defendant may be found, and the serving of a copy of the summons by registered mail at the defendant's last known address;
  • Facsimile transmission or any recognised electronic means that could generate proof of service; or,
  • Other means as the court may direct.

These additional modes of service enable Philippine courts to acquire jurisdiction over defendant NRFCs and give life to in personam remedies that were previously rendered futile due to impossibility of service.

However, the new rules do not address issues of enforcement. Assuming judgment is rendered against the defendant NRFC, a problem arises as to how to execute the judgment if it has no property in the Philippines. Nonetheless, the plaintiff may attempt to enforce the judgment in the foreign jurisdiction where the defendant resides or has property.

Ramon G Songco and Jenny Jean B Domino