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Apostilles and Their Effect on Foreign Public Documents

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Apostilles and Their Effect on Foreign Public Documents

By Atty. Jonathan de Guzman

On 12 September 2018, the Philippines acceded to The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, otherwise known as the Apostille Convention, which took effect last 14 May 2019.

Before we discuss apostillation, it might be advantageous to ask….um…what exactly is an apostille? Well, essentially, it’s a certificate that verifies the authenticity and legitimacy of a public document.

Apostillized public documents can only be recognized by another state if all of the following conditions are met:

  1. The state in which the document was issued is a party to the Convention;
  2. The state in which the document is to be used is also party to the Convention;
  3. The law of the state in which the document was issued considers the document as a public instrument; and
  4. The state in which the document is to be used requires an apostille in order to recognize the document as a foreign public document.

At this point, it is crucial to note that apostille only applies if both states consider the document a public document, and the definition and classification of a public document may differ between states, as defined by the municipal law of each one.

 

Here in the Philippines, the following are treated as public documents, according to Section19, R ule 132 of the Rules of Court:

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) Documents acknowledged before a notary public except last wills and testaments; and (c) Public records, kept in the Philippines, of private documents required by law to be entered therein.

Under the previous authentication process, documents issued abroad were required to be authenticated by the Philippine Embassy or Consulate General before they could be used here. Under the Apostille Convention, however, a public document can easily be authenticated or apostillized by the issuing authority, called the Competent Authority, of the state where the document was executed, allowing it to be used in other countries, provided, as previously mentioned, they are also a member of the Apostille Convention. Let’s say, for example, a certificate of birth originating in Japan is required to be presented to one of the government agencies here in the Philippines. Under the Apostille Convention, the certificate will be treated as a public document here once an apostille is issued by the Competent Authority in Japan.

Simply put, the purpose of an apostille is to authenticate the origin of public documents intended to be used abroad. Much like in the traditional method, an apostillized document certifies only the origin of the document; it certifies the document as authentic and the authority of the person who certified the document as a public document. The apostille does not certify the contents of the public document.

To ensure the authenticity of the apostille, the Competent Authority is required to have a register of all the apostilles it issues for verification should it be necessary. Now, what if the State in which the document is to be used is not a party to the convention, will the apostille have an effect? The answer is no. Such document will only be recognized as a public document by reverting back to the traditional mode of authenticating public documents.

The Hague Conference on Private International Law keeps records of the contracting State Parties to the international law and their corresponding Competent Authorities that issue apostilles in their respective states.

Here in the Philippines, the Department of Foreign Affairs – Office of Consular Affairs (DFA- OCA) is the registered Competent Authority that issues apostilles.

Atty. Jonathan de Guzman. August 20, 2019.
LINK: The Hague Apostille Covention
Picture by Andrew Stutesman @ Unsplash

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Catcallers Beware!

Catcallers Beware

Catcallers Beware!

 

Recognizing the need to protect the dignity of every human being and guarantee full respect for human rights, Republic Act No. 11313, otherwise known as the “Safe Spaces Act”, was enacted.

The Safe Spaces Act, principally authored and sponsored by Senator Risa Hontiveros, seeks to complement the existing Anti-Sexual Harassment Law, and is described by her as “a big victory and a major push back against the growing ‘bastos culture’ in our streets and communities.” The new law expands the coverage of sexual harassment by not limiting the same to the workplace, and acknowledging that it can occur not just in superior-subordinate relationships. The crime of gender-based sexual harassment may also be committed, for example, between peers, by a subordinate to a superior officer, by a student to a teacher, or by a trainee to a trainer.

The new law punishes gender-based street and public spaces harassment such as wolf-whistling, catcalling, and online sexual harassment among others.

   

More specifically, it covers the following crimes:

a) Gender-Based Streets and Public Spaces Sexual Harassment

b) Gender-Based Online Sexual Harassment

c) Qualified Gender-Based Streets, Public Spaces and Online Sexual Harassment

d) Gender-Based Sexual Harassment in the Workplace, and

e) Gender Based Sexual Harassment in Educational and Training Institutions.

   

Below are some of the salient features of the law:

A. The crime of Gender-based Streets and Public Spaces Sexual Harassment are committed through any unwanted and uninvited sexual actions or remarks against any person regardless of the motive for committing such action or remarks.

 

Specific Acts and Penalties for Gender-based Streets and Public Spaces Sexual Harassment:

Degree of Offense

Penalty

First degree offenses:

  1. Cursing
  2. Catcalling
  3. Wolf-whistling
  4. Leering and intrusive gazing
  5. Taunting, unwanted invitations
  6. Misogynistic, transphobic, homophobic, and sexist slurs
  7. Persistent unwanted comments on one’s appearance
  8. Relentless requests for personal details such as name, contact, and social media details; or destination
  9. Use of words, gestures, or actions that ridicule on the basis of sex, gender, or sexual orientation; identity and/or expression including sexist, homophobic, transphobic statements and slurs
  10. Persistent telling of sexual jokes
  11. Use of sexual names, comments, and demands
  12. Any statement that has made an invasion on a person’s personal space or threatens the person’s sense of personal safety
  1. 1st offense: P1,000-fine and 12-hour community service with Gender Sensitivity Seminar
  2. 2nd offense: 6-10 days in prison/P3,000 fine
  3. 3rd offense: 11-30 days in prison and P10,000-fine
 

2nd degree offenses:

  1. Making offensive body gestures at someone
  2. Public masturbation
  3. Flashing of private parts
  4. Groping
  5. Similar lewd actions
  1. 1st offense: P10,000-fine and 12-hour community service with Gender Sensitivity Seminar
  2. 2nd offense: 11-30 days in prison/P15,000 fine
  3. 3rd offense: 1 month and 1 day to 6 months in prison and P20,000 fine

3rd degree offenses:

  1. Stalking
  2. Sexual advances, gestures, and statements mentioned previously with pinching or brushing against the body of the offended person
  3. Touching, pinching, or brushing against the genitalia, face, arms, anus, groin, breasts, inner thighs, face, buttocks, or any part of the victim’s body
  1. 1st offense: 11-30 days in prison/P30,000-fine with attendance to Gender Sensitivity Seminar
  2. 2nd offense: 1 month and 1 day to 6 months in prison and P50,000-fine
  3. 3rd offense: 4 months and 1 day to 6 months in prison/P100,000-fine
 
Section 4, Article 1, Republic Act No. 11313.
 

B. Gender-Based Online Sexual Harassment includes:

  1. Acts that use information and communications technology in terrorizing and intimidating victims through physical, psychological, and emotional threats; Unwanted sexual misogynistic, transphobic, homophobic, and sexist remarks
  2. and comments online whether publicly or through direct and private messages;
  3. Invasion of victim’s privacy through cyberstalking and incessant messaging;
  4. Uploading and sharing without the consent of the victims, any form of media that contains photos, voice, or video with sexual content;
  5. Unauthorized recording and sharing of any of the victim’s photos, videos, or any information online;
  6. Impersonating identities of victims online or posting lies about victims to harm their reputation;
  7. Filing false abuse reports to online platforms to silence victims.
 

Penalty 2 years, 4 months, and 1 day to 4 years and 2 months in prison or P100,000 to P500,000-fine, or both

 

C. Qualified Gender-Based Streets, Public Spaces and Online Sexual Harassment is committed in the following instances:

  1. If the act takes place in a common carrier or PUV, including, but not limited to, jeepneys, taxis, tricycles, or app-based transport network vehicle services, where the perpetrator is the driver of the vehicle and the offended party is a passenger;
  2. If the offended party is a minor, a senior citizen, or a person with disability (PWD), or a breastfeeding mother nursing her child;
  3. If the offended party is diagnosed with a mental problem tending to impair consent;
  4. If the perpetrator is a member of the uniformed services, such as the PNP and the Armed Forces of the Philippines (AFP), and the act was perpetrated while the perpetrator was in uniform; and
  5. If the act takes place in the premises of a government agency offering frontline services to the public and the perpetrator is a government employee.

Penalty The penalty next higher will apply.

 

D. Gender-Based Sexual Harassment in the Workplace includes:

  1. An act or series of acts involving any unwelcome sexual advances, requests or demand for sexual favors or any act of sexual nature, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems, that has or could have a detrimental effect on the conditions of an individual’s employment or education, job performance or opportunities;
  2. A conduct of sexual nature and other conduct-based on sex affecting the dignity of a person, which is unwelcome, unreasonable, and offensive to the recipient, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems;
  3. A conduct that is unwelcome and pervasive and creates an intimidating, hostile or humiliating environment for the recipient; Provided, That the crime of gender-based sexual harassment may also be committed between peers and those committed to a superior officer by a subordinate, or to a teacher by a student, or to a trainer by a trainee.
 

E. Gender-Based Sexual Harassment in Educational and Training Institutions

All schools whether public or private are tasked to ensure that the victims are provided with a gender-sensitive  environment that is both respectful to the victims’ needs and conducive to truth-telling.

There you have it. The bottom line of the law is respect. As the song goes, “R-E-S-P-E-C-T / Find out what it means to me / R-E-S-P-E-C-T”. Should there be any confusion as to its observance, let the Safe Spaces Act be your guide.

 

Atty. Jasmin Fiel-Samson. July 24, 2019

RA11313 The Safe Spaces Act

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Five Things You Need To Know Before Starting A Crypto-Exchange Business In The Philippines

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Five Things You Need To Know Before Starting A Crypto-Exchange Business In The Philippines

  1. You must have the BSP’s approval before you can register your company with the SEC. For most companies, the usual requirement before legitimately operating a business is to simply secure a license with the Securities and Exchange Commission. However, the same route is not true for a crypto-exchange business, as it must first secure an endorsement from the Bangko Sentral ng Pilipinas.To get the BSP’s nod of approval (for SEC registration purposes), the company must pass the rigorous preliminary screening process for determining its eligibility for registration.At this point, the company must prepare, among others, a business plan detailing the company’s purpose, organizational structure, products/services to be offered, target market/network, operational workflow and capital requirements. The business plan must be clear enough to give BSP an idea of what you really intend to do. If your operations will include online transactions, you should also be ready to present your platform. If you pass the preliminary screening, a letter of no objection will be issued in your favor, and you can proceed with your SEC application for registration.
  2. You must secure a BSP license before operating your crypto-exchange business. Once you’re registered with the SEC, should you already start the crypto-exchange operations? Not yet.You must go back to BSP and comply with the second stage requirements, which are listed under the BSP Memorandum No. M-2017- 014. Basically, you will have to submit the SEC incorporation documents and business permit of the company. The company’s officers and directors must submit their personal data sheets and undertakings to comply with AML rules.
  3. You must meet the capitalization requirements. The capitalization requirement may range from less than PHP10 million for small-scale operators to at least PHP50 million for large-scale operators. If your business includes e-money issuance, the requirement is PHP100 million.
  4. You must build a secure IT infrastructure. The use of digital technology is faced with challenges, such as more sophisticated cyber-attack methods. Pursuant to BSP Circular No. 944, Series of 2017, a virtual currency exchange shall put in place adequate risk management and security control mechanisms to address, manage and mitigate technology risks associated with virtual currencies. An effective cyber security program should be established by a virtual currency exchange that provides wallet services. For simple virtual currency operations, installing up-to-date anti-malware solutions, conducting periodic back- ups and being aware of emerging risks and cyber-attacks may suffice.No matter the complexity of your operations, at the end of the day, the integrity and security of your platform must be maintained. Thus, you should seek competent IT professionals or service providers that will help in protecting your clients’ funds and data, and likewise your business.
  5. You must comply with anti-money laundering laws. A virtual currency exchange must register with the Anti-Money Laundering Council within 30 days from the actual date of commencement of operations. Its principal directors, officers, or responsible personnel should attend a seminar on anti-money laundering and terrorist financing, and training for staff should be provided to enable them to detect illegal transactions and/or prevent the exchange from being used for fraudulent purposes. Policies must be implemented to ensure compliance with anti- money laundering regulations. The board of directors should likewise appoint a Compliance Officer who shall be responsible for overseeing the implementation of relevant policies and reporting covered and suspicious transactions.
  And there you have it. If you are thinking of starting a crypto-exchange business in the Philippines, take careful note of the above. The world is changing fast, and it pays to keep abreast of all the latest rules and regulations. For consultation and assistance in setting up your business, email me at satible@mflegal.com.ph. Attorney Stephanie Anne V. Tible. July 11 2019 Photo by Clifford Photography @ Unsplash

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The Perks of Converting Manually-Issued Land Titles to E- Titles.

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The Perks of Converting Manually-Issued Land Titles to E-Titles.

A land title or a certificate of title serves as best evidence of one’s ownership over a piece of land. Among other things, it provides and confirms a property’s location, its metes and bounds (boundary lines), size or area, as well as the name of its legitimate owner. Ordinarily, a land title is made of paper, and thus susceptible to being forged, lost, misplaced or destroyed by wear and tear, fire or similar natural and man-made disasters. Needless to say, it is at times troublesome for an owner to preserve and maintain such a document.

 

Upgrading to e-Titles

It was back in 2008 when the Land Registration Authority (LRA) launched the Land Titling Computerization Project, part of which allowed manually-issued, paper-made land titles to be converted into e-titles under the e-Titling Conversion Project.

As a result, the original titles in the Registry of Deeds’ Vault are now digitized and stored in the computer database, while the owners’ duplicate copies can now be converted to e-titles. The conversion involves scanning and digitization of manually- issued land titles (with red borders), the relevant title information, and the storage of these records in secure databases. Certainly this is a welcome development, since apart from avoiding the problems with paper-based land titles, it also ensures that the title records of the Registries of Deeds are easily accessible and that copies are electronically preserved and backed-up securely for future reference.

 

Confusion

On July 31, 2018, owners of land titles received a slight shock when the LRA published a notice to the effect that September 30, 2018, was the deadline to scan/digitize manually issued titles. This caused some concern and confusion until a subsequent clarification made it known that the due date applied only to the LRA’s Registries of Deeds, who were directed to retrieve, scan and digitize the remaining manually-issued land titles which were not yet in the database. Owners of manually issued titles learned, to their relief, that these remained valid and effective even if they had not been digitized by the September 30 deadline. Indeed, it is only optional for owners to upgrade these titles, though they are strongly encouraged to do so, pursuant to LRACircular 02-2016 as amended by LRACircular 02-2017.

 

Perks of e-Titles

  1. Better Protection from Various Forms of Real Estate Fraud and Scams e-Titles are stored in a virtual Registry of Deed vault and can only be accessed and shared within the 154 LRA extension office kiosks. This is intended to minimize the number of court cases and disputes involving fake and spurious land titles (copies that do not come from legitimate sources). Moreover, existing annotations on the paper title are carried over to the e-title, including pending court cases, alerting would-be buyers or those who have claims or an interest in the land.
  2. Enhanced Real Estate Transactions With the creation of an e-titles database, procurement and verification of Certified True Copies of Land Titles, as well as retrieving information regarding the history of ownership of a property, becomes a lot easier for both sellers and, especially, purchasers of real estate, who need to determine the status of a property as well as the possible existence of other claimants. This dispenses with the old methods that would often take days, weeks or months of legwork and follow-up.
  3. Faster Real Estate Mortgage Processing For financing or home loan purposes, banks and financial institutions hosting LRA extension office kiosks require much less time – from a matter of days, previously, to a matter of minutes, now – to verify the authenticity of a land title offered as collateral. More importantly, land title owners need not visit the Registry of Deeds where their titles were registered and can instead avail themselves of the “anywhere-to-anywhere” service (A2A) whereby they can request certified true copies of the e-titles in the database from any Registry of Deeds with online services.
  4. Simplified Processing in Replacing Lost or Destroyed Titles e-Titles face no risk of damage or loss. Even if a Registry of Deeds office were to be gutted by fire, records are safely preserved in the database.
  5. Efficient Government Processes Digitized titles are less time-consuming and reduce bureaucratic red tape. This creates the perception of a government progressing from slow deliverer to a more efficient service provider. In turn, this encourages property owners to be proactive about managing their most prized possession.
 

Go and Covert to e-Titles!

With the convenience and protection offered by e-titles, there is no doubt that converting to these should be the trend for every title owner. To avail themselves of the service, property owners simply need to bring the owner’s duplicate title and other required documents to the Registry of Deeds or the nearest satellite office. The LRA personnel will match the duplicate copy to the original to validate authenticity. Once validated, the conversion process of the manual title to e-title will commence. It will only take a few days and the owner’s duplicate e-title will be ready for pick-up – all for the price of a movie date!

 

Atty. Bayani B. Brillante, Jr. July 10, 2019. Picture by Jonathon Young at Unsplash

Sources:

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The Speakeasy That Wasn’t

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In true Prohibition-Era fashion, the second MFBR Lex Speakeasy most certainly did not take place at the end of last month. No clients and friends partook of an impressive list of single-malt and blended whiskies; nor did they enjoy tasty canapés expertly prepared by that good friend of the firm, Ms. Ingrid Connon.

Likewise, it goes without saying that no feverish game of poker (just for fun) occupied the tightly-packed inhabitants of our conference room. And if the talented JR duo sang hits both old and new to the delight of everyone not present, it was surely not in our offices.

That is why you will see no report of such goings on in social media. Not a jot. No pictures of one particular client, diligently working his way down the entire drinks menu while his business partner opined that it was the best party he had been to in his life. No Captain Of Industry happily ruining exquisite songs in various languages.

And no trainee barman who insisted on plonking slices of lemon and a dash of Coca Cola in everything from chocolate liqueur to red wine.

No sir. Never happened. And anyone who says it did will not be invited to the next one. Oops! 😉

 

MFBR Opens Speakeasy!

MFBR’s First Lex Speakeasy Gets Off to a Roaring Start!

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