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CONFLICT OF LAWS Public and Private International

(PUBLIC INTERNATIONAL LAW) Law Distinguished
Public International Private International
That part of the law of each state or nation Law Law
which determines whether, in dealing with a As to nature or character
legal situation, the law of some other state or International in National, municipal or
nation will be recognized, given effect or character local in character
As to persons involved
applied. (16 Am. Jur. 2d, Conflicts of Laws,
Governs states and Governs private
Sec. 1) entities internationally individuals or
recognized or corporations
The law concerning the rights of persons possessed of
within the territory and dominion of one nation, international personality,
by reason of acts, private or public, done exceptionally,
within the dominion of another nation (Hilton individuals, too.
vs. Guyot 159 U.S. 113) As to transactions involved
Recognizes transactions Assumes control over
FUNCTIONS OF PRIVATE INTERNATIONAL in which sovereign transactions which are
LAW States are interested strictly private in nature
As to remedies applied
1. To prescribe the conditions under which a
In case of violation of All remedies are
court or agency is competent to entertain a International Law, the provided by municipal
suit or proceeding involving facts State may resort to laws of the State, such
containing a foreign element diplomatic protest, as resort to courts and
2. To specify the circumstances in which negotiation, arbitration administrative tribunals
foreign judgment will be recognized as or adjudication by filing
valid and binding in the forum cases before
3. To determine for each class of cases the international tribunals or
particular system of law by reference to may even resort to use
of force or go to war
which the rights of the parties must be
ascertained – this is the fundamental
problem of choice of law

ELEMENTS: Sources
1. Direct Sources:
1. There is a legal problem involving a
a. Bilateral and multilateral treaties and
foreign element; a case involving a factual
international conventions;
situation that cuts across territorial lines
b. Codifications and special statutes;
and is affected by diverse laws of two or
c. Judicial decisions; and
more States is said to contain a foreign
d. International customs
element.
Article I. Indirect Sources:
2. The primary function is to determine
Section I.1 The natural moral law,
whether the rules of law or the judgments
Section I.2 The writings and
of some other State/s will govern and if so,
treatises of thinkers and famous
to what extent should these be recognized
writers and jurists, among others
or applied in the forum.

AREAS OF PRIVATE INTERNATIONAL LAW JURISDICTION

1. Choice of Law
2. Jurisdiction In International law, it is often defined as the
3. Recognition and Enforcement of Foreign right of a State to exercise authority over
Judgments persons and things within its boundaries,
subject to certain exceptions:
1. Judicial Jurisdiction – Legal authority
of a state to exercise authority, through its
courts or agencies, to hear and adjudicate
cases.
2. Legislative Jurisdiction – The power of personal/substituted service of summons.
a state to regulate or control, through rules However, service by publication may be
of law, interest of persons in a thing, event allowed in accordance with Sec 14, Rule
or situation. 14 of Revised Rules of Court (defendant
whose identity or whereabouts are
TYPES OF JUDICIAL JURISDICTION unknown).
A. Jurisdiction over the person
Competence of a court to render a Note however the view that the personal
decision that will bind the parties to a action must be converted to in rem (e.g. by
case. attachment of property).
1. Jurisdiction over the person of the
plaintiff is acquired from the moment Long-arm Statutes
he invokes the aid of the court and A law that allows a plaintiff to make a claim
voluntarily submits himself by against a defendant, who is a non-
institution of the suit through proper domiciliary of a state, provided that there
pleadings. are minimum contacts with the forum to
2. Jurisdiction over the person of the justify jurisdiction over him.
defendant is acquired through:
a. Voluntary appearance OR C. Jurisdiction over the subject matter
 Conferred by law;
b. Coercive process through
 The power to hear and determine
personal or substituted service of
cases of the general class to which
summons (Sec. 6 and 7, Rule 14,
the proceedings in question belong.
Revised Rules of Court)
c. Service upon foreign private Test of Jurisdiction – whether or not the law
juridical entities through its vests upon the tribunal the power to enter
resident agent designated in upon the inquiry.
accordance with law for that
purpose or if none, the Basic Principle Underlying All Rules of
government official designated by Jurisdiction:
law to that effect or any of its A State does not have jurisdiction in the
officers or agents within the absence of some reasonable basis for
Philippines (Rule 14, Sec. 12) exercising it, whether the proceedings are in
rem, quasi in rem, or in personam. To be
B. Jurisdiction over the res reasonable, the jurisdiction must be based on
Jurisdiction over the particular subject some minimum contacts that will not offend
matter in controversy, regardless of the traditional notions of fair play and substantial
persons who may be interested therein. justice.
 Results either from the seizure of
property under a legal process or from Minimum Contacts Test and Fundamental
the institution of legal proceedings Fairness Test
wherein the court’s power over the Due process requires only that in order to
property is recognized and made subject a defendant to a judgment in
effective. personam, if he is not present within the
 Referred to as in rem jurisdiction in territory of the forum, he should have certain
contrast to in personam jurisdiction minimum contacts with it such that the
 Another form of jurisdiction is quasi in maintenance of the suit does not offend
rem which affects only the interests of traditional notions of fair play and substantial
particular persons in the thing. justice. (International Shoe Co. vs.
Washington 326 U.S. 310)
Note: Summons by publication is
authorized in three cases: In both in rem and quasi-in rem, all that due
1. If the action is in rem, or process requires is that defendant be given
2. Quasi in rem, or adequate notice and opportunity to be heard
3. Involves the personal status of the which are met by service of summons by
plaintiff (Rule 14, Secs. 15-16) publication.

Where the suit is in personam, jurisdiction Jurisdiction Clause

over the defendant must be acquired by A clause in a contract whereby a provision is
voluntary appearance or by inserted which provides that any dispute
 San Beda College of Law
2010 Centralized Bar Operations
arising under the contract shall be tried before 2. Where there is failure to plead and prove
the competent court of a particular State or by foreign law;
a specific court by that State. 3. Where a case involves any of the
exceptions to the application of foreign
WAYS OF DISPOSING OF CONFLICTS law.
CASES:
1. Dismiss the case, either because of lack of CHOICE OF LAW
jurisdiction or refusal to assume
jurisdiction over the case such as in cases
of the application of the doctrine of forum THEORIES THAT JUSTIFY THE
non conveniens; or APPLICATION OF FOREIGN LAW IN
2. Assume jurisdiction over the case and CONFLICTS CASES:
apply the internal law of the forum; or 1. Theory of Comity
3. Assume jurisdiction over the case and The application of foreign legal systems in
take into account or apply the law of some cases involving foreign element is proper
other State/s. because their non-application would
constitute a disregard of foreign
Principle of forum non conveniens sovereignty (a lack of comity towards other
A court, though it has jurisdiction of a case, States).
may decline to exercise it where there is no ← Comity – The doctrine requiring
legitimate reason for the case to be brought courts of one state to recognize the laws
there, or where presentation in that court will and judgments of another state, in order to
create hardship on the defendants or on secure the reciprocal recognition by that
relevant witnesses because of the court’s foreign state of the laws and judgments of
distance from them. (Gifis, Dictionary of Legal the first state.
Terms, Third Edition, pp. 193-194)
2. Vested Rights Theory
Note: The court will not dismiss the case The function of Conflicts of Law is to give
under the doctrine unless the plaintiff has effect to rights acquired under the proper
another forum open to him. foreign law, and not to enforce foreign law.
← Thus, rights acquired in one country
Even if the court has jurisdiction over a
must be recognized and legally protected
conflicts case it may, by invoking the principle
in other countries. The forum will not apply
of forum non conveniens, refuse to exercise or
the foreign law but will simply recognize
assume that jurisdiction, in view of any of the
the right vested by said law.
following practical reasons:
1. Evidence and witness may not be readily
3. Local Law Theory
available in the forum;
← A foreign rule cannot be applied
2. Court dockets of the forum may already be
unless it has been “appropriated” by the
clogged and permitting additional cases
State of the forum and transformed into a
would hamper the speedy administration
domestic rule.
of justice;
←
3. Belief that the matter can be better tried
and decided in another jurisdiction, either
← In conflict of laws problem, the court
does not enforce a foreign right but a right
because the main aspects of the case
created by its own law by treating a case
transpired there or the material witnesses
as a purely domestic case that does not
have their residence there;
involve a foreign element.
4. To curb the evils of forum shopping;
5. Forum has no particular interest in the
4. Theory of Justice (Caver’s Principle
case;
of Preference)
6. Other courts are open and the case may
← Choice of law should be determined
be better tried in said courts;
7. Inadequacy of the local judicial machinery by considerations of justice and social
8. Difficulty of ascertaining the foreign law expediency and should not be the result of
applicable mechanical application of the rule or
principle of selection.
Instances Justifying the Application of ←
Internal Law to Conflicts Cases: 5. Harmony of Laws Theory
1. Where application of internal law is ← Identical or similar problems should be
decreed; given identical or similar solutions, thus
resulting in harmony of laws.

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 ← Reason: If foreign procedural laws
Exceptions to Application of Foreign Law were to be applied, it would involve a
1. Where enforcement of foreign law is making over of the machinery for the
contrary to an important public policy of administration of justice in the forum.
the forum (e.g., Protection of the working
class, policy against divorce, etc). 5. Questions relating to property in the
forum.
Kinds of Public Policy as to Extent of ← Reason: Art. 16 of the Civil Code
Operations: mandate the application of Lex Situs or
a. One which operates no matter where Lex Rei Sitae to ALL properties, whether
the event or transaction takes place real or personal, found and located here.
b. One which operates only where the ←
event or transaction takes place in the 6. Foreign fiscal or administrative law,
forum and is not offended if the i.e. tax law, local rates and the like
transaction is completed abroad. ← Reason: A sovereign has no legal duty
to assist foreign governments in the
Public Policy may be used by courts in financing of their activities.
different ways: ←
a. It may refuse to entertain the case 7. Where application of foreign law would
because enforcement of the action is involve injustice or injury to the residents
against its public policy and dismiss it of the forum.
without prejudice. 8. Where application of foreign law would
b. It may entertain the case but apply its endanger the foreign relations or vital
own domestic law to decide the interests of the state.
controversy in favor of the plaintiff.
c. It may entertain the case but invoke its PROOF OF FOREIGN LAW
own public policy in order to apply the General Rule: No Judicial Notice of Foreign
forum’s domestic law. Law. If alleged to apply, it must be PROVED
according to the following rules:
2. Where application of foreign law would 1. Written law
be against good morality in the wider a. By official publication
sense of the term as understood in the b. Copy attested by officer having legal
forum (Contra bonus mores) custody thereof. If the record is not
kept in the Philippines, a certificate
3. Foreign penal law – Crimes committed with seal from secretary of embassy,
in foreign countries cannot be prosecuted legation, consul general, consul, vice
in the Philippines (territoriality in Criminal consul, consular agent or any officer in
Law). the foreign service of the Philippines
 Based on the assumption that in the stationed in the foreign country to the
enforcement of the rules of public effect that said officer has custody is
order of a State, other States are not required (Sec. 24 Rule 132 of the
concerned and should not, as a Revised Rules of Court).
general rule interfere. c. A published treatise on the subject law
 Enforcement of foreign penal law must provided that the court takes judicial
be distinguished from their notice of the competence of the writer,
recognition; a state may recognize or evidence is introduced to establish
foreign penal laws for various the author’s competence (Rule 130,
purposes, though it will not directly Sec. 46).
enforce such laws in its jurisdiction. 2. Unwritten law – by oral testimony of
 A penal clause in a contract entered expert witnesses.
into abroad may be enforced here  The testimony of an expert witness
because such is NOT criminal in may be allowed to prove a foreign law.
nature but only provides for liquidated The court has ruled in other cases that
damages. Sec. 25, Rule 132 of the Rules of
4. Foreign procedural law - all procedural Court does not exclude the
aspects of a given case are to be presentation of other competent
determined by the internal law of the evidence to prove the existence of a
forum, regardless of where the transaction foreign law (Asiavest Limited v. Court
occurred out of which the claim in question
arose.
 San Beda College of Law
2010 Centralized Bar Operations
of Appeals. GR. NO. 128803.
September 25, 1998). Parts of every conflict rules
1. The factual situation – the set of facts or
Processual presumption of law means that situation presenting a conflicts problem
foreign law is the same as the law of the forum because there is a foreign element
when the former is either not alleged or if involved.
alleged, it is not proved. 2. The point of contact or connecting
factor – the law of the country with which
Effect of failure to plead or prove foreign the factual situation is most intimately
law connected.
1. Technically, if the plaintiff’s cause of action
rests on foreign law and it is not proved, CHARACTERIZATION OR DOCTRINE OF
there is no cause of action. This may be a QUALIFICATION
proper ground for Demurrer to Evidence. If Process of deciding whether or not the facts
the defense rests on foreign law that is not relate to the kind of question specified in a
proved, the defense fails (Aquino, conflicts rule (Saudi Arabian Airlines v. CA,
Elements of Private International Law, 2nd G.R. No. 122191, October 8, 1998).
ed., page 101).
2. The case will not be dismissed; the Three stages in Characterization:
doctrine of processual presumption will 1. The problem of classification
become operative. 2. The characterization of the point of contact
or the connecting factor
Note: This proceeds from the theory that 3. The extent of the application of the law
the basic law is the law of the forum and that is chosen as applicable to the conflicts
when the claimed applicable foreign law is case
not proved, the court has no reason to  The court should apply the selected
displace the basic law. proper law to the factual situation for
the purpose of deciding what, if any,
 A Philippine court may take judicial notice, legal consequences result from the
as when the laws are already within its situation or, if a thing is in question,
actual knowledge, such as when they are what interests are created in the thing.
well and generally known OR they have  The law chosen should be applied
been actually ruled upon in other cases only insofar as it brings about the
before it AND none of the parties good it was intended to bring.
concerned claim otherwise (PCIB v.
Escolin. GR Nos. L-27860 & 27896 Most Common Problem of
September 30, 1975). Characterization:
 Whether or not a particular rule of law is
NATURE, COMPOSITION & Procedural or Substantive.
CHARACTERIZATION OF CONFLICTS  If issue is substantive, apply foreign law,
RULES but if procedural, forum law.

A. Questions of Evidence
Conflict Rules Procedural and the law of the forum must
A provision found in our own law which control.
governs a factual situation possessed of a
foreign element. It is usually expressed in the B. Statute of Frauds
form of an abstract proposition that a given 1. Substantive - if the words of the law
legal question is governed by the law of a relate to forbidding the obligation.
particular country (which may be an internal 2. Procedural - if the law forbids the
law or the proper foreign law), to be enforcement of the obligation.
ascertained in the manner indicated in the
provision. C. Statute of Limitations and Borrowing
Statutes
Two kinds of conflict rules 1. Statute of limitations
1. One-sided rule – indicates when a. Substantive - when the limitation
Philippine law will apply was directed to the newly created
2. All-sided or multilateral rule – indicates liability to warrant a qualification of
whether to apply the local law or the the right (specificity test).
proper foreign law

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 b. Procedural - if it operates to bar That law which attaches to a person wherever
only the legal remedy without he may go and generally governs his status,
impairing the substantive right capacity, condition, family relations and the
involved. consequences of his actuations (Sempio-Diy,
2. Borrowing statute - Directs the state of Handbook on Conflict of Laws, 2004 edition p.
the forum to apply the foreign statute 29). It differs from national law in that the latter
of limitations to the pending claims refers to a system of law which determines the
based on a foreign law personal law.
 The characterization of a statute It may be his national law, the law of his
of limitation into procedural or domicile, or the situs of the event or
substantive becomes irrelevant transaction wherein he was involved,
when the country of the forum has depending on the theory applied in the forum
a borrowing statute. It has the (Sempio-Diy, Handbook on Conflict of Laws,
practical effect of treating the 2004 edition, p. 29)
foreign statute of limitation as one
of substance. THEORIES IN DETERMINING THE
PERSONAL LAW OF AN INDIVIDUAL
Note: A law on prescription is sui generis in A. National theory (personal theory)
Conflict of Laws in the sense that it may be The personal law of an individual is his
viewed either as procedural or substantive, national law.
depending on the characterization given such
a law (Cadalin v. POEA. GR No. 104776. Note: Adopted mostly by civil law
December 5, 1994). countries like the Philippines since their
people are bound more by a national spirit
Depecage of unity, common history and mores so
 The phenomenon where the different that the identity and legal position of their
citizens are guaranteed by a consistent
aspects of the case involving a foreign
application by their national laws on status
element may be governed by different
and family relations wherever they may
systems of law.
go. (Sempio-Diy, Handbook on Conflict of
 Allows the other relevant interests of the
Laws, 2004 edition, p. 31)
parties to be addressed; permits the courts
to arrive at a functionally sound result
Nationality refers to the membership in a
without rejecting the methodology of the
political community, one that is personal
traditional approach
and more or less permanent, not
temporary.
Proposed Solutions to the Problem of
Characterization:
In conflict of laws, the word nationality and
1. The Lex Fori Solution
citizenship are used interchangeably.
← The forum characterizes according to
 The Philippines adheres to the
its own law, and then applies the law
nationality theory (Art. 15, New Civil
(domestic or foreign) consequent upon its
Code).
classification.
 It is for each State to determine who
2. The Lex Causae Solution
are its nationals (Hague Convention);
← Characterization will depend on the
but it must be consistent with
governing law.
international treaties, international
3. The Analytic Jurisprudence and
customs, and principles of law
Comparative Law Solution
generally recognized with regard to
← Calls upon the court to determine the
nationality.
common patrimony of juridical concepts;
Employs characterization of a universal or
Problems in Applying the Nationality
quasi-universal character.
Principle
4. The Double Characterization
Dual or Multiple Citizenship arises from
Solution
the concurrent application of jus soli and
← Couples the lex fori and lex causae
jus sanguinis at birth or from a refusal of
solution
certain States to accept a full application
←
of the doctrine of expatriation or from
PERSONAL LAW marriage or from a formal and voluntary
act
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2010 Centralized Bar Operations
1. In matters of status, he is usually The individual’s private rights, condition,
considered by the forum as status, and capacity are determined by the
exclusively its own national, his law of his domicile or lex domicilii.
additional foreign nationality is
disregarded Adopted mostly by common law countries
2. In case litigation arises in a third whose populations consists of peoples of
country, the law most consistently different nationalities with varying
applied is that of the country of which traditions, culture and ideals, and whose
the person is not only a national but unity may be considered achieved by
where he also has his domicile or adopting the law of their domicile.
habitual residence, or in the absence (Sempio-Diy, Handbook on Conflict of
thereof, his residence. Laws, 2004 edition, pp. 31-32)
←
Theory of Effective Nationality Note: The forum determines domicile
A third state shall, of the nationalities according to its own standards.
which any such person possesses,
recognize exclusively in its territory either Domicile is the place of which a person
the nationality of the country of which he is has a settled connection for certain legal
habitually and principally a resident, or the purposes, either because his home is
nationality of the country with which in the there or because that is the place
circumstances he appears to be in fact assigned to him by law.
most closely connected (Art. 5 Hague
Convention on Conflict of Nationality
Laws). Domicile Residence Citizenship
Fixed,
Statelessness permanent Place of
Stateless persons are generally subject to residence to abode, Indicates ties
the law of their domicile or habitual which, when whether of allegiance
residence, and in default thereof, to the absent, one has permanent or and loyalty
law of their temporary residence (Hague the intention of temporary
Conference of 1928 on International returning
Private Law).
Legal Classification of Domicile
A person may become stateless by the 1. Domicile of origin
following means: a. Minor
a. Deprivation of his citizenship for any  Person’s domicile at birth
cause, such as commission of a  Legitimate child’s domicile of
crime; origin is that of his father and
b. Renunciation of one’s nationality by an illegitimate child’s is that of
certain acts, express or implied; his mother.
c. Voluntary release from his original  Legitimated child’s domicile of
state; and origin is that of his father at
d. If born in a country which recognizes the time of his birth, since the
only the principle of jus sanguinis of effects of legitimation retroacts
parents whose law recognizes only to the time of the child’s birth.
the principle of jus soli.  In case of a foundling,
domicile is in the country
Note: Convention on the Reduction of where he is found.
Statelessness adopted in 1961 mandates  In case of an adopted child,
that the jus sanguini country grant its his domicile is that of the
nationality to a person born within its adopter’s which becomes his
territory if he would otherwise be stateless, constructive domicile
and the jus soli country to extend its b. Married Women
nationality to a person who would The right to decide the question of
otherwise be considered stateless when where the family domicile should
one of his parents is a citizen of the be established is now a joint
contracting state. prerogative of husband and wife
(Family Code).
B. Domiciliary Theory (Territorial Theory) 2. Constructive Domicile (Domicile by
Operation of Law): domicile assigned

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 by law to persons legally incapable of the law of the forum (remission) or a third state
choosing their own domicile (e.g. (transmission). (Coquia, Conflict of Laws,
minors, mentally disabled) 2000 ed., p. 102)
←  It is a French word which means “referring
Domicile Of Origin Constructive Domicile back”
Acquired at birth Assigned after birth  It does not apply when the forums and the
foreign states are similarly governed by
Assigned only to Assigned to persons
the nationality or domiciliary theories.
infants under legal disabilities
May change from time FOUR WAYS OF TREATING THE RENVOI
Never changes
to time PROBLEM
1. Rejection (Internal Law Solution) – If the
3. Domicile of Choice (Voluntary conflicts rules of the forum refer the case
Domicile) to the law of another state, it is deemed to
 Place freely chosen by a person mean only the internal law of that state.
sui juris as his home and to which, Thus, the court will apply the foreign law.
whenever he is absent, he intends 2. Acceptance (Single Renvoi/Single
to return Transmission) – If the conflicts rules of
 To acquire domicile of choice, the forum refer the case to the law of
there must be a concurrence of another state, it is deemed to include the
physical presence in the new totality of the foreign law (internal law and
place and unqualified intention to conflicts of laws rules). Thus, the court will
make that place one’s home. recognize the referral back and apply local
law.
General Rules on Domicile (Gallego v. 3. Desistment Theory (Mutual Disclaimer
Verra, G.R. No. L-48641, November 24, of Jurisdiction Theory) – The forum
1941): court upon reference to another state’s law
1. No person shall be without domicile. sees that such law is limited in application
2. A person cannot have two to its own nationals domiciled in its
simultaneous domiciles. territory and has no provision for
3. Every natural person, as long as he is application to nationals domiciled outside
free and sui juris, may change his of the territory. Hence, the local court will
domicile at pleasure. apply local law.
4. Domicile once acquired is retained This has the same result as the
unless a new one is gained. acceptance of the renvoi doctrine but the
5. The presumption is in favor of the process used by the forum court is to
continuance of domicile. The burden desist applying the foreign law.
of proof is on the one who alleges that 4. Foreign Court Theory – Forum court
a change of domicile has taken place. assumes the same position that the
6. To acquire a fresh domicile, residence foreign court would take if the case is
and intention must concur; to retain an litigated in the foreign state.
existing domicile, either residence
there or intention to remain must be Double Renvoi – that which occurs when the
present; to abandon a domicile, local court, in adopting the foreign court theory,
residence in a new place and intention discovers that the foreign court accepts the
to abandon the old place must concur. renvoi.

C. Situs or Eclectic Theory Transmission – the process of applying the

The capacity, condition, or status of a law of a foreign state through the law of a
person is governed by the law of the place second foreign state.
(situs) where an important element of the
problem occurs or is situated. PERSONAL STATUS AND CAPACITY

RENVOI Synopsis of the Rules on Status

Factual Situation Point of Contact
Beginning of personality National law of the Child
A procedure whereby a jural matter presented of natural persons (Art. 15, NCC)
is referred by the conflict of laws rules of the Age of Majority National law (Art. 15)
forum to a foreign state, the conflict of laws Use of Names and
rule of which in turn refers the matter back to National law (Art. 15)
Surnames
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2010 Centralized Bar Operations
Use of Titles of Nobility National law (Art. 15)
Absence National law (Art. 15) Exceptions: The following are void
Presumptions of Death marriages in the Philippines even if valid in
Lex Fori
and Survivorship the foreign country where celebrated:
1. When either or both parties are below
Status – the place of an individual in society, 18 years of age even with parental
and consists of personal qualities and consent;
relationship, more or less permanent with 2. Bigamous and polygamous marriages;
which the state and community are concerned. 3. Mistake as to identity of a contracting
party;
Capacity – merely a part of status, and 4. A subsequent marriage performed
defined as the sum total of an individual’s without recording in the Civil Registry
rights and obligations. the judgment of annulment or
declaration of nullity, partition and
Kinds of Capacity distribution of properties and the
1. Capacity to act - power to do acts with delivery of the children’s presumptive
legal effect legitimes;
2. Juridical capacity - the fitness to be the 5. Marriages where either spouse is
subject of legal relations. psychologically incapacitated;
6. Incestuous marriages; and
 In the determination of status and capacity 7. Void marriages by reason of public
of persons, our Civil Code follows the policy.
nationality principle when dealing with
Filipinos. Note: These exceptions put into issue the
 When dealing with aliens, it depends on capacity of the parties to enter into the
which principle their country follows but if marriage and relate to the substantive
the alien is in the Philippines, the requirement for marriage. Since the
nationality theory is applied by implication personal law of the parties, e.g. the
national law of Filipinos, governs the
CHOICE OF LAW PROBLEMS questions of intrinsic validity of marriages
between the Filipinos abroad, the above
enumerations are exceptions to lex loci
FAMILY RELATIONS celebrationis precisely because they are
controlled by lex nationalii
Under the New Civil Code, questions of family
Rules on Extrinsic Validity of Certain
rights, duties, status, conditions and capacity
situations:
are governed by lex nationalii.
1. Proxy marriages
General Rule: Where permitted by
MARRIAGE
the law of the place where the proxy
A. Marriage as a contract
participates in the marriage ceremony,
Extrinsic validity - governed by lex loci
they are entitled to recognition in
celebrationis.
countries adhering to lex loci
celebrationis rule, at least insofar as
General Rules:
formal validity is concerned.
1. All states recognize as valid those
marriages celebrated in foreign
Note: Internal Philippine law DOES
countries if they comply with the
NOT sanction proxy marriages; but if
formalities prescribed therein (Hague
celebrated in a foreign state in
Convention).
accordance with the formalities
2. The forms and solemnities of
prescribed by its laws, it may be
contracts, wills and other public
recognized in the Philippines under
instruments, shall be governed by the
the lex loci celebrationis rule.
laws of the country in which they were
executed (Art. 17, Civil Code).
2. Common law marriages: If valid in
3. All marriages solemnized outside the
the State where the parties cohabited
Philippines, in accordance with the
while holding themselves out as man
laws in force in the country where they
and wife, it is given recognition in
were solemnized, and valid there as
sister States which do not permit this
such, shall also be valid in this country
(Art. 26, Family Code).

9
 informal method of entering into the 1. If both husband and wife will have a
marital status new common nationality- the new
national law will govern their personal
Note: Common law marriages are not relations.
recognized under the Philippine 2. If only one will change nationality- the
internal law last common nationality will be
applicable.
3. Marriage on board a vessel on High 3. If there never was any common
seas: Since the nation whose flag the nationality- the governing rule will be
ship is flying has jurisdiction over the the national law of the husband at the
ship, the rule is that compliance with time that the marriage was entered
this law is required for a marriage to into.
be validly contracted
Note: In situation (3), some writers are of
4. Consular marriages: Marriages the opinion that the national law of both
between Filipino citizens abroad may spouses should govern.
be solemnized by a consul-general,
consul or vice-consul of the
Philippines (Art. 10, Family Code)

Marriage performed by a consular and

diplomatic agent empowered by the
sending state to officiate marriage is
valid in the receiving state only if the
latter has agreed to his acting in that
capacity.

Intrinsic validity - controlled by the

parties’ personal laws (either domiciliary or
nationality).

B. Marriage as a status
Personal rights and obligations
between the spouses – governed by the
national law of the parties

Note: If the spouses have different

nationalities, generally the national law of
the husband may prevail as long as it is
not contrary to law, customs and good
morals of the forum.

 Justice Sempio-Diy is of the opinion

that it will be the national law of the
wife or Philippine law that would
govern the spouses’ personal relations
by parity of reasoning with Art. 80 of
the Family Code (Handbook of
Conflicts of Laws, page 79).
 The marriage of an alien woman to a
Filipino husband does not ipso facto
make her a Filipino citizen and does
not excuse her from her failure to
depart from the country upon the
expiration of her extended stay here
as an alien (Djumantan v. Domingo,
G.R. No. 99358, January 30, 1995).

Effect of change of nationality

 San Beda College of Law
2010 Centralized Bar Operations
Property relations between the 3. If obtained abroad National Law (if valid in
spouses BETWEEN the state granting it,
The Hague Convention declares that the FOREIGNERS and valid according to
governing law on matrimonial property the national law of the
regime is: parties, it will be valid
1. The internal law designated by the here)
spouses before the marriage 4. If obtained abroad Apply (2) and (3)
2. In the absence thereof, the internal between a FILIPINO respectively. See,
law of the state in which the spouses AND A FOREIGNER however, Art. 26, par. 2
fix their 1st habitual residence of the Family Code
which allows the
Filipino spouse to
Philippine Rule on property relations: remarry in the event
In the absence of a contrary stipulation in that the alien spouse
the marriage settlements, the property obtains a divorce
relations of the spouses shall be governed
by Philippine laws, regardless of the place RULES ON DIVORCE IN THE PHILIPPINES
of the celebration of the marriage and their General Rule: We only observe relative
residence. divorce or legal separation (a mensa et thoro)
in the Philippines.
This rule shall NOT apply:
1. Where both spouses are aliens; Exception:
2. With respect to the extrinsic validity of Where a marriage between a Filipino citizen
contracts affecting property not and a foreigner is validly celebrated and a
situated in the Philippines and divorce is thereafter validly obtained abroad by
executed in the country where the the alien spouse capacitating him or her to
property is located; AND remarry, the Filipino spouse shall have
3. With respect to the extrinsic validity of capacity to remarry under Philippine law (Art.
contracts entered into in the 26, Family Code).
Philippines but affecting property
situated in a foreign country whose Note: Even if the marriage is not a mixed
laws require different formalities for marriage, meaning both are Filipino citizens, at
their extrinsic validity (Art. 80 Family the time of celebration of such marriage, if
Code). later on one of the spouses becomes a citizen
of another country and obtains a valid divorce
Doctrine of Immutability of Matrimonial decree there, the spouse who did not change
Property Regime his/her citizenship will be considered also
Regardless of the change of nationality by divorced and free to remarry. (Republic vs.
either or both of the spouses, the original Cipriano Orbecido III, G.R. No. 154380,
property regime that prevailed at the start October 5, 2005)
of their marriage prevails.
Conflicts rules on legal separation
Divorce (A Vinculo Matrimonii)  If the parties are of the same nationality,
Hague Convention provides that the granting the grounds for legal separation are those
of divorce or separation must comply with the given by their personal law.
national law of the spouses and the law of the  If the parties are of different nationalities,
place where the application for divorce is the grounds available under the personal
made. law of the husband as well as those
available under the law of the wife are all
Synopsis of the rules on divorce available grounds for granting legal
Factual Situation Point of Contact separation.
1. If sought in the Lex Fori (will not be
Philippines (whether granted) Annulment and Declaration of Nullity
by Filipinos or Exception: Muslim Annulment – remedy if the marriage is
foreigners) Divorces voidable; Grounds are those provided for by
2. If obtained abroad National Law (thus, the law alleged to have been violated
BETWEEN NOT VALID here even
FILIPINOS if valid abroad) Declaration of Nullity – remedy if the
marriage is void ab initio; Grounds are the
exceptions to the Lex Loci Celebrationis in Art.
26 of the Family Code

11
 child by father and mother (e.g. Article
Jurisdiction to Annul 221, Family Code).
Vested in the court of the domicile of the Father’s personal law could grant parental
parties; jurisdiction over the non-resident authority to the mother of the illegitimate
defendant is not essential. It is the status of children (e.g. Article 176, Family Code)
the plaintiff that is in issue. He should be
domiciled in the forum. B. Legitimation
The requisites of legitimation are those
The Governing Law prescribed by the national law of the
Lex loci celebrationis determines the parents. If the parents have different
consequences of any defect to form. national laws, the national law of the father
Generally, the same applies with reference to is determinative.
substantive or intrinsic validity. But with regard
to capacity of the parties to marry, their C. Adoption
national law is determinative. The determinative law as to whether the
relationship of adoption has been created
Status of Children or not:
A. Legitimacy and illegitimacy 1. The child’s personal law, to protect his
Determination of Legitimacy of a Child well-being;
Legitimacy of the child is governed by the 2. If the child does not reside in the
common personal law of the parents country of his citizenship, the personal
(either domiciliary or nationality). law of the adopter will govern, or the
personal law of the adopter and that of
Philippine rule: the child will be applied concurrently.
 The legitimacy of the child is governed
by the national law of the parents. Under the Domestic Adoption Act of
 If parents belong to different 1998, an alien may adopt provided that
nationalities, legitimacy of the child is he is:
governed by the national law of the 1. Of legal age,
father. 2. In possession of full civil capacity and
 Personal law of the illegitimate child is legal rights,
the mother’s personal law. 3. Of good moral character,
4. No conviction of any crime involving
Note: However, in the case of Tecson v. moral turpitude,
COMELEC, Ronald Allan Kelly Poe and 5. Emotionally and psychologically
Fornier (G.R. No. 161434. March 3, 2004), capable of caring for children,
the Supreme Court held that providing 6. At least sixteen years older than the
neither conditions nor distinctions, the adoptee,
1935 Constitutions states that among the 7. In a position to support and care for
citizens of the Philippines are those whose his children,
fathers are citizens of the Philippines, 8. His country has diplomatic relations
regardless of whether the children are with the Philippines,
legitimate or illegitimate. 9. Residence in the Philippines for at
least three continuous years prior to
Doctrine of Immutability of Status the filing of the application for adoption
The status of the child (whether legitimate and maintains such residence until the
or illegitimate) is not affected by a adoption decree is entered,
subsequent change of nationality of the 10. Certificate of legal capacity to adopt in
parents. If the child is later legitimated, his country to be issued by his
personal law of the child follows that of the diplomatic or consular office, and
father. 11. His government allows the adoptee to
enter his country as his adopted
Parental Authority over the Child son/daughter
Personal law of the father controls the
rights and duties of parents and children The requirement on residency AND
certificate of qualification to adopt
Note: Reference to the personal law of the may be waived for the following:
father may result in joint exercise of a. A former Filipino citizen who seeks
parental authority over the property of the to adopt a relative within the fourth
 San Beda College of Law
2010 Centralized Bar Operations
(4th) degree of consanguinity or succeed
affinity; or
b. One who seeks to adopt the b. Contracts involving b. Lex Loci Voluntatis
legitimate son/daughter of his/her real property but or Lex Loci
which do not deal Intentionis
Filipino spouse; or
with the title thereto
c. One who is married to a Filipino
citizen and seeks to adopt jointly c. Contracts where real
with his/her spouse a relative property is given as c. The principal
within the fourth (4th) degree of security contract is governed
consanguinity or affinity of the by the proper law of
the contract. The
Filipino spouse.
mortgage, however,
is governed by Lex
The requirement of sixteen years Rei Sitae.
difference between the adopter and 2. Tangible Personal
the adoptee may be waived if the Property
adopter is: (Choses in Possession)
a. The biological parent of the
adoptee a. In general a. Lex rei Sitae
b. The spouse of the adoptee’s ← Exceptions: ← Exceptions:
same as those for same as that for
parent
real property real property except
that the security is
Inter-Country Adoption called a pledge, not
A socio-legal process of adopting a Filipino a mortgage
child by a foreigner or a Filipino citizen ←
permanently residing abroad where the b. Means of b.
petition is filed, the supervised trial transportation i. Law of the flag
custody is undertaken, and the decree of i. Vessels or
adoption is issued outside the Philippines. ii. Other means ii. Law of the
place of
registry or
This is an alternative means of child-care if iii. Law of the
the child cannot be cared for in any depot
suitable manner in the Philippines.

Note: Adoption is not one of the ways c. Thing in Transitu c.

prescribed by law for the acquisition of i. Loss, i. Law of the
Filipino citizenship. destruction, destination
ii. Deterioration ii. Locus regit
iii. Validity and actum (where
Please see Remedial Law Memory Aid for the
effect of the seized)
Procedure for Adoption and Persons for more seizure of iii. Lex loci
on the Domestic and Inter-Country Adoption goods voluntatis or
Laws. iv. Disposition or lex loci
alienation of intentionis
PROPERTY goods

3. Intangible Personal
CONTROLLING LAW Property (Chooses
 Real property as well as personal property in Action)
is subject to the law of the country where it
is situated (Art. 16 of the NCC). a. Recovery of debts or a. Where debtor may
 Rationale for lex situs or lex rei sitae rule: involuntary be effectively served
the property being physically part of the assignment of debts with summons
country should be subject to the laws b. Voluntary b. Lex loci voluntatis or
thereof. assignment of debts lex loci intentionis

Synopsis of Conflict Rules on Property Capacity to transfer or acquire property

Factual Situation Point Of Contact Governed by lex situs.
1. Real Property Lex Rei Sitae
(art. 6, par.1, NCC) EXTRINSIC AND INTRINSIC VALIDITY OF
Exceptions: CONVEYANCES
a. Successional rights a. National law of the General Rule: Governed by lex situs.
and Capacity to decedent Exceptions:

13
1. Art. 16, par. 2 of NCC iii. Law of the place where the debt is
2. The issue is the rights and liabilities of the recoverable
parties as a matter of contract even if the b. Involuntary transfer of choses in action
subject matter is land. (e.g. garnishment) – governed by the
3. The validity and effect of the obligation law of the state where the debtor may
which the encumbrance on an immovable be served with summons, which is
secures. usually at his domicile.
4. Under a policy-centered approach, when c. Situs of a debt for taxation purposes –
the situs of the movable at the time of the the domicile of the creditor, where the
transfer was insignificant or accidental. collectible credit may be taxed.
5. When the issue involves consideration d. Administration of debts – the situs is
other than the validity and effect of the the place where the assets of the
transfer – the court may look into the law debtor are usually situated.
of another state which has a real interest
in applying its law. Negotiable instrument – governed by the
6. The validity of the contract to transfer an law of the place indicated in the instrument
immovable. or place of delivery.

SPECIAL TYPES OF MOVABLE PROPERTY Corporate shares – as against the

1. Choses in possession (tangible corporation and third persons, the transfer
physical objects) or assignment are governed by the law of
the place of incorporation. As between the
General Rule: governed by the law of the assignor and assignees, the transfer will
place where the property is located at the be governed by the law most closely
time of transaction and determines the connected to the transaction.
creation and the transfer of interests (lex
situs) Goodwill – governed by the law of the
principal place of business.
Exception: those which do not have a
fixed situs (usually in motion or those Franchises – subject to the law of the
having changing situs), are given state that granted them.
ARTIFICIALLY CONSTRUCTIVE SITUS
← Patents, copyrights, trademarks,
← Rules governing different kinds of tradenames, and servicemarks – the
transfers: GENERAL RULE is that these are
a. Voluntary transfers of interests in protected only by the state that granted or
chattels (other than assignment for the recognized them. EXCEPTION: when a
benefit of creditors) – validity and treaty provides otherwise.
effect of conveyance as between the
parties are determined by the local law INTERPRETATION AND EFFECT OF
of the State which, with respect to the CONVEYANCE
particular issue, has the most Law of situs governs
significant relationship to the parties.
b. Acquisitions of title by operation of law RULES GOVERNING GOODS IN
(e.g. acquisition by prescription or TRANSITU:
adverse possession, validity and 1. Seizure and arrest – Where the
priority of attachments, levies of owner’s creditor seizes the goods in
execution, statutory liens) – governed transit, the result is that the transport is
by lex situs discontinued and a temporary resting
place is thereby created. The law of this
2. Choses in action (intangible place will depend on whether the seizure
movables) was lawful or whether he has acquired a
← Credits or Debts lien, pledge, privilege, or a similar right or
a. Voluntary transfer or assignment of what pertains to that right.
choses in action - 3 theories as to the 2. Disposition of goods – questions
law which may govern: arising from transactions involving
i. Personal law of the parties movables in transit may be resolved by
ii. Law of the place where the law of any place having substantial
assignment was executed connection with the transaction which will
uphold its validity. The owner is thus
 San Beda College of Law
2010 Centralized Bar Operations
permitted to choose between several legal must bear a substantive relationship to the
systems: transaction.
a. Law of the temporary resting place
(e.g. interim port) In the absence of an effective choice of law,
b. Lex loci actus express or implied, the contract will be
c. Law of the place of destination governed, with respect to the particular issue
d. Law of the last real situs of goods involved, by the law which has the closest and
most substantial connection with the
RULES GOVERNING MEANS OF transaction and the parties
TRANSPORT:
1. In case of sea going vessels – the law Capacity to enter into contracts –
of the flag ; OR determined by the personal laws of the
2. As in states consisting of several contracting parties (either nationality OR
countries (e.g. United Kingdom) – the domiciliary) (Art. 15 of the NCC).
place of registry.
Choice of Law Issues in Conflicts Contract
CONTRACTS Cases
Generally, the parties cannot select a law that
has NO connection at all with the transaction.
Extrinsic Validity – governed by lex loci 1. Choice of Forum Clause
celebrationis otherwise called lex loci  Parties may stipulate on the venue of
contractus (Art. 17 of the NCC).
the suit in case of litigation concerning
the contract. However, a case arising
Variations:
from a contract will be litigated in the
1. A contract entered into by the parties
forum chosen by the parties if the
in two different countries by cablegram,
choice of forum clause specifically
telex or fax is presumed to have been
identifies it as the only venue.
entered in the place where the offer was
 When there is no fraud or
made (Art. 1319, par. 2, NCC)
overreaching, and there is no showing
2. If the place of execution was merely
that the choice of forum clause would
casual or accidental, the law which has the
be unreasonable and unjust, the
most significant relationship to the
clause must be given effect.
transaction should be applied
Cognovit Clause: A clause in a contract
Intrinsic Validity – there is no specific
whereby the debtor may agree to be
provision in the NCC. However, the policy of
subject to the jurisdiction of a specific
our law is to give effect to the intention of the
court or courts in case he breaches the
parties (Art. 1306 Civil Code). There are 3
contract or defaults in payments. Also
possible laws that may govern:
called confession-of-judgment clause
1. Law of the place where the contract is
(Coquia, Conflicts of Law, 2000 ed. p.
made or lex loci contractus
379)
2. Law of the place of performance or lex
loci solutionis
2. Contracts with Arbitration Clause
3. Law intended by the parties or lex loci
 In the Philippines, the provisions of the
intentionis
Civil Code on arbitration and the
PHILIPPINE RULE arbitration law R.A. 876 embody a
The contracting parties may establish such clear legislative policy in favor of
stipulations, clauses, terms, conditions as they settling controversies by a method
may deem convenient provided that they are considered more expeditious, less
not contrary to law, morals, good customs, expensive and with greater chance in
public order, or public policy (Art. 1306, Civil some cases for substantial justice.
Code)  Many courts apply to arbitration
agreements the law of whatever place
the parties have designated as
Note: When the parties stipulate that the governing, thus sustaining their
contract be governed by the specific law, such agreement to arbitrate.
will be recognized (lex loci intentionis) subject
to the limitation that it is not against the law, 3. Adhesion Contracts
morals, and public policy of the forum, and it  Adhesion contracts are not entirely
prohibited. The one who agrees to the

15
 contract is in reality free to reject it stipulate a higher limit of liability (Alitalia
entirely; if he adheres, he gives his vs. IAC and Pablo, G.R. No. 71929,
consent. December 4, 1990).
 When there is no proof of  Period of responsibility includes the time
arbitrariness, abuse of power, or gross during which baggage or goods are in the
negligence, the contract or stipulation charge of the carrier, whether in an airport
will be enforced. Such contract is or in any place, whatsoever.
valid if it is reasonable and just under  It does not operate as an exclusive
the circumstances, and has been fairly enumeration of instances when a carrier
and freely agreed upon. shall be liable for breach of contract or as
 When there is an oppressive use of an absolute limit of the extent of liability
superior bargaining power, a nor does it regulate or exclude liability for
Philippine court may be justified in other breaches of contract by the carrier,
refusing to apply the contract or a misconduct of its employees, or for some
stipulation thereof on the ground that particular or exceptional type of damage.
there is no real arm’s-length  Limits of liability shall NOT apply if it is
transaction between the contracting proved that the damage resulted from an
parties. act or omission of the carrier, his servants
or agents done with intent to cause
4. Special Contracts damage or recklessly and with knowledge
a. Sale, Donation or Barter of goods – that damage would probably result,
governed by lex situs. provided that it is proved that the servant
b. Lease of Property or agent is acting within the scope of the
 If it creates real rights – lex situs employment.
 If it does NOT create real rights –  Suits may be prosecuted in any of the
law on contracts. following places at the option of the
c. Pledge, Chattel Mortgage, Real Estate plaintiff-passenger:
Mortgage, antichresis – lex situs. 1. Court of the domicile of the carrier
d. Contract of Loan 2. Court of the principal place of
 If mutuum - rules on contracts business of the carrier
 If Commodatum – lex situs 3. Court where the carrier has a place of
e. Lease of service, agency, guaranty, or business through which the contract
suretyship – the law on contracts was made
 An agency to alienate or 4. Court of the place of destination
encumber real property -  Action will prescribe if not brought within 2
governed by Lex Situs. years from the:
Transportation by Sea: 1. Date of arrival at the destination
i. Philippine ports to Foreign ports – 2. Date on which the aircraft ought to
law of the country of destination have arrived
ii. Foreign ports to Philippine ports 3. Date on which the transportation
 Civil Code – primary law stopped
 Code of Commerce
 Carriage of Goods by Sea Act Note: Method of counting the period of
f. International Air Transportation – limitation is determined by the law of the forum
governed by the Warsaw Convention (lex fori)

Note: Convention applies to all international Transportation by successive carriers –

carriage of persons, baggage or goods each of the carrier who accepts the
performed by aircraft for hire. It does NOT passengers or baggage shall be subject to the
apply to carriage of mail and postal packages. rules set out in the convention and shall be
deemed as one of the contracting parties
 Liability of carrier for loss, destruction and insofar as the contract deals with that part of
deterioration of goods transported to the the transportation which is performed under
Philippines from a foreign country is his supervision.
governed primarily by the Civil Code and  The passenger or representative can take
NOT by Warsaw Convention. action only against the carrier who
 The limit of liability for baggage lost is performed the transportation during which
$1,000 and for death of passenger is at the accident or delay occurred, unless by
$100,000. However, the parties may express agreement the first carrier has
 San Beda College of Law
2010 Centralized Bar Operations
assumed the responsibility for the entire  National law of the testator
journey. ii. Will is executed in a foreign
 As regards baggage or goods, the country
passenger or consignor shall have a right  National law of the testator; or
of action against the first carrier, and the  Law of Domicile; or
passenger or consignee shall have the  Lex loci celebrationis; or
right of action against the last carrier.  Philippine law
Furthermore, each may take an action ←
against the carrier who performed the ← Note: Joint wills executed by Filipinos
transportation during which the loss, whether in the Philippines or abroad, even
damage or delay took place. These though authorized by the foreign country in
carriers shall be jointly and severally liable which they may have been executed, shall
to the passenger, or to the consignor or not be valid in the Philippines (Art. 819,
consignee. Civil Code).
←
In cases where the convention does not apply, ←
the Second Restatement holds that the validity depends upon the observance of the law
of the contract of carriage as well as the rights in force at the time it is made.
created thereby are determined, in the
absence of an effective choice of law by the 1. Law governing the intrinsic validity
parties, by the local law of the state from which of wills:
the passenger departs or the goods are ← Governed by the national law of the
dispatched, UNLESS with respect to the person whose will is under
particular issue, some other State has a more consideration in force at the time of his
significant relationship to the contract and to death (Art. 16, par. 2, NCC).
the parties. ←
2. Interpretation of wills – governed by
WILLS AND ADMINISTRATION OF the decedent’s national law.
ESTATE
3. Revocation of wills
a. If revocation takes place in the
TWO THEORIES IN DETERMINING THE Philippines, whether the testator is
PROPER LAW FOR THE TRANSMISSION domiciled in the Philippines or in some
OF SUCCESSIONAL RIGHTS: other country, it is valid when it is in
1. Unitary or Single System accordance with the laws of the
← Only one law determines transmission Philippines.
of real and personal properties b. If the revocation takes place outside
2. Split or Scission System the Philippines, by a testator who is
Succession to real property is governed by domiciled in the Philippines, it is valid
the lex situs, while movable or personal when it is in accordance with the laws
property is governed by law of the domicile of the Philippines.
of deceased at the time of death. c. Revocation done outside the
Philippines, by a testator who does not
Note: Philippine Law follows the Unitary have his domicile in this country, is
System (Art. 16 of the NCC). valid when it is done according to the:
i. Law of the place where the will
GENERAL RULES IN PHILIPPINE was made, OR
CONFLICTS LAW (Art. 17, Par.2 of the NCC): ii. Law of the place in which the
1. Law governing the Extrinsic validity testator had his domicile at the
of wills: time of revocation.
a. Testator is a Filipino
i. Will is executed in the Philippines 4. Probate of wills – being procedural in
– Philippine law character, the law of the forum governs
ii. Will is executed in a foreign procedural matters.
country
 Lex loci celebrationis; 5. Administration of Estates –
 Philippine law Philippine law and procedure follow the
b. Testator is an Alien main principle of territorialism. The axiom
i. Will is executed in the Philippines is that the law of the domicile governs
 Philippine law; or distribution but the law of the State

17
 appointing the administrator or executor The tortuous act gives rise to an obligation,
governs administration. Administration is which is transitory and follows the person
governed by the law where administration committing the tortuous act and may be
takes place, and that is the law of the enforced wherever he may be found.
country from which the administrator
derives his authority.

Note: The Administration extends only to

the assets of the decedent found within
the state or country where it was granted.
To administer the property situated in a
foreign state, the administrator must be re-
appointed, or a new one named in that
state.

6. Distribution of Estates – regulated

according to the national law of the person
whose succession is under consideration
(Art. 16, par. 2 of the NCC)

CADUCIARY RIGHTS
The State is the last heir of a deceased
person. Hence, the State succeeds to the
properties left by the said deceased as an heir.

TORTS

Lex loci delicti comissi or law of the place

where the alleged tort was committed will
govern.

CONCEPTS OF PLACE OF WRONG (Locus

Delicti)
1. Place of injury (Common Law
Concept) – looks to the place where the
last event necessary to make an actor
liable for an alleged tort occurs.

It adheres to the vested rights theory in

that if the harm does not take place then
the tort is not completed. (Coquia, Conflict
of Laws, 2000 ed. p. 409)

2. Place of conduct (Civil Law Rule) –

views the situs of torts as the place where
the tortuous act was committed.
This is premised on the principle that the
legality or illegality of one’s act should be
determined by the law of the state where
he is at the time he does the act. (Coquia,
Conflict of Laws, 2000 ed. p. 409)

3. Most Substantial Connection

Theory (Theory of Dr. Rabel) – the locus
delicti is determined by the place where
the important and substantial acts leading
to the tortuous act were committed.

OBLIGATION THEORY
 San Beda College of Law
2010 Centralized Bar Operations
MODERN THEORIES IN DETERMINING 3. The judicial machinery of the forum is
LIABILITY FOR TORTS adequate for its proper enforcement.
1. Theory of Most Significant
Relationship PHILIPPINE RULE ON FOREIGN TORTS:
An action for tort may be filed in the  There is no governing specific statutory
country where it has the most significant law but courts may give due course on the
relationship. In determining the state which theory of vested rights or most significant
has the most significant relationship, the relationship provided that there are
following factors are to be taken into minimum contacts and the defendant can
account: be served with summons.
a. Place where the injury occurred;  In case of injuries which involve physical
b. Place of conduct causing the injury; harm, mental disturbance, false
c. Domicile, residence, nationality, place imprisonment, malicious prosecution – the
of incorporation and place of business law of the State where the injury was
of the parties; and inflicted.
d. Place where relationship between the  In case of intentional torts – the law of the
parties is centered. State where the actor initiated or carried
out the tortuous act.
Gives controlling effect to the law of the
jurisdiction which, because of its
relationship or contact with the occurrence CRIMES
or the parties, has the greatest concern
with the specific issue of the case. Penal laws and those of public security shall
be obligatory upon all who live or sojourn in
1. The Interest-Analysis Approach Philippine territory subject to the principles of
Considers the relevant concerns that two Public International Law and to treaty
or more states may have in the case. The stipulations (Art. 14, NCC).
State which has the more relevant and
weighty interests in the case should be General Rule: Lex loci delicti or the law of the
considered the locus delicti. place where the crime was committed will
govern.
2. Qaver’s Principle of Preference
A higher standard of conduct and financial Exceptions:
protection given to the injured party by one 1. Crimes committed by state officials,
State is applied by the State where the diplomatic representatives and officials of
injury happened, if the latter State adopts recognized international organizations.
a lower standard of conduct and financial
protection to the injured. Note: This is based on the theory of state
immunity from suits
KILBERG DOCTRINE
Where a wrongful death occurred in one state 2. Crimes committed on board a foreign
and the action for damages is brought in vessel even if within the territorial waters
another state, the latter is not bound by any of the coastal state, as long as the effect
limitation of liability arising from the wrongful of such crime does not affect the peace
death in the place by the law of the place and order of the coastal state
where the conduct causing death occurred 3. Crimes which, although committed by
concerning limitations on damages. Philippine nationals abroad are punishable
under the local law pursuant to the
Rationale: Laws that set limitations on protective principle of criminal jurisdiction
damages are procedural and, therefore, the (i.e. Article 2 of the Philippine Revised
law of the forum should be applied. (Kilberg v. Penal Code)
Northeast Airlines, Inc., 9 N.Y.2d 34, 211
N.Y.S.2d, 133, 172 N.E.2d 526) THEORIES AS TO WHAT COURT HAS
JURISDICTION TO TRY CRIMINAL CASES
Conditions for the Enforcement of Tort (Theories on Extraterritorial Competence)
Claims 1. Territorial theory – The State where
1. The foreign tort is based on a civil the crime was committed has jurisdiction
action and not on a crime; to try the case.
2. The enforcement of the tort would not Two Kinds:
infringe the public policy of the forum; and

19
 a.The Subjective Territorial Principle – 3. The personal law is the place of
the state where the crime begun may exploitation
prosecute the same even though the
crime was completed in another state. RULE FOLLOWED IN THE PHILIPPINES
b.The Objective Territorial Principle –
The state can prosecute crimes begun General Rule: Place of incorporation rule
abroad but completed within its
territory. (Sempio-Diy, Handbook on Exceptions:
Conflict of Laws, 2004 edition, p. 138 1. Constitutional and Statutory
citing Paras) Restrictions (Art. XII)
2. Control test during war – courts may
1. Nationality or personal theory pierce the veil of corporate identity and
(active nationality theory) – The country look into the nationality of stockholders to
of which the criminal is a citizen or a determine citizenship of the corporation
subject has jurisdiction to try him for the
offense he is supposed to have The Law of the Place of Incorporation is
committed, whether the effectuation of the applicable to the following issues:
act be inside or outside its territory, 1. Existence and the legal character of
PROVIDED that the act is a crime under the corporation
his country’s penal law. 2. Capacity and powers of the
2. Protective theory – Any State whose corporation
national interests may be jeopardized has 3. Internal organization of the corporate
jurisdiction over criminal offenses, even if enterprise
committed outside its territory, and even if 4. Alteration of the charter and the
committed by an alien in order that it may dissolution of the corporation
protect itself.
3. Real theory (eclectic theory) – Any DOMICILE OR RESIDENCE OF FOREIGN
State whose penal code has been CORPORATIONS
transgressed upon has jurisdiction to bring When not fixed by the law creating them, it
justice to the perpetrators of the offense, shall be understood to be the place where
whether the crime was committed inside or their legal representation is or where they
outside its own territory. exercise their principal functions.
4. Cosmopolitan or university theory –
Any State where the criminal is found or Note: A foreign corporation granted license to
which has custody over him is vested with operate in the Philippines acquires domicile
jurisdiction to try him for the crime he is here.
alleged to have committed – UNLESS
extradition is possible. JURISDICTION OVER FOREIGN
5. Passive personality theory (passive CORPORATIONS
nationality theory) – The state of which Consent Doctrine - A foreign corporation will
the victim is a citizen or subject has be recognized and will be allowed to transact
jurisdiction. business in any state which gives it consent.
This doctrine is established in Sec. 125, 126,
Note: The Philippines follows as a general rule 127, and 128 of the Corporation Code of the
the TERRITORIAL THEORY; by way of Philippines
exception, we also occasionally and in the
proper cases make use of the PROTECTIVE Note: All foreign corporations lawfully doing
THEORY. business in the Philippines shall be bound by
all laws, rules and regulations applicable to
BUSINESS ASSOCIATIONS domestic corporations EXCEPT provisions on
the creation, formation, organization or
dissolution of corporations or those which fix
CORPORATION/ PARTNERSHIP THEORIES the relations, liabilities, responsibilities or
ON THE PERSONAL OR GOVERNING LAW duties of stockholders, members or officers of
OF A CORPORATION the corporation to each other.
1. The personal law is the law of the place of
incorporation;
2. The personal law is the law of the place or
center of management (central office
principle); and
 San Beda College of Law
2010 Centralized Bar Operations
How summons served
Service of summons upon foreign corporations TRUSTS
doing business in the Philippines may be When the trust contains an express choice of
made on: law provision, that law shall be applied. In the
1. Its resident agent; absence of express provision, the courts will
2. In the absence thereof, on the government deem controlling the law that will sustain the
official designated by law or any of its validity of the trust.
officers or agent within the Philippines;
3. On any officer or agent of said corporation RECOGNITION AND ENFORCEMENT OF
in the Philippines; and FOREIGN JUDGMENTS
4. Through diplomatic channels.
Foreign judgment
Right of a Foreign Corporation to bring suit Decisions rendered outside the forum and
General Rule: No foreign corporation encompass judgments, decrees and orders of
transacting business in the Philippines without courts of foreign countries.
a license, or its successors or assigns, shall
be permitted to maintain or intervene in any Recognition of Enforcement of
action, suit or proceeding in any court or Foreign Judgment Foreign Judgment
administrative agency of the Philippines; but The defendant or
The plaintiff or
such corporation may be sued or be respondent is
petitioner wants the
presenting the foreign
proceeded against before Philippine courts or court to positively carry
judgment merely as a
administrative tribunals on any valid cause of defense, on the basis
out and make effective
action recognized under the Philippine laws the foreign judgment.
of res judicata.
(Sec. 133, Corporation Code). Acquisition by a Invokes merely a
foreign corporation of a license to transact sense of justice
business in the Philippines is an essential (Perkins v. Benguet Implies an act of
prerequisite for the filing of suits before courts. Consolidated Mining, sovereignty
L-1981-82, May 28,
Exceptions: 1954)
1. Isolated transactions; Needs no proceeding
or action but implies Requires a separate
2. Action to protect trademark, trade
that the same has action brought
name, goodwill, patent or for unfair already been filed precisely to make the
competition; against the defendant foreign judgment
3. Agreements fully transacted outside who is invoking the effective.
the Philippines; and foreign judgment
4. Petition filed is merely a corollary
defense in a suit against it. Note: Enforcement necessarily implies
5. To enforce a right not arising out of a recognition; recognition does not necessarily
business transaction, e.g. tort that imply enforcement.
occurred in the Philippines;
6. When the parties have contractually Examples of foreign judgments which can only
stipulated that the Philippines is the venue be recognized: declaratory judgments,
judgments which give no affirmative relief and
of actions;
judgments which determine the parties’
7. When the party sued is barred by the
interests in a thing or status.
principle of estoppel and/or principle of
unjust enrichment from questioning the Requisites for Recognition or Enforcement:
capacity of the foreign corporation; and 1. It must be a judgment in a judicial or
8. Recovery of misdelivered property. quasi-judicial action issued by an impartial
court of competent jurisdiction;
Effect of Failure to Secure a License to 2. The defendant has been given reasonable
Transact Business notice and opportunity to be heard;
1. The foreign corporation which does 3. The foreign judgment must have disposed
business in the Philippines without a of the controversy on the merits;
license has no right to sue in the 4. It must not be barred by prescription both
Philippines, but it can still be sued. in the State where it was promulgated and
2. The contracts entered into are valid as where it is sought to be enforced;
between the parties, but it may not be 5. Judgment must be final and executory to
enforced in the Philippine courts. constitute res judicata in another action;

21
6. State where the foreign judgment was Procedure of Enforcement of Judgment in
obtained allows recognition or the Philippines:
enforcement of Philippine judgments; 1. Filing of petition in the proper court
7. Judgment must be for a fixed sum of attaching an authenticated copy of the
money; foreign judgment
8. Foreign judgment must not be contrary to 2. Authentication calls for the Philippine
the public policy or good morals of the consul assigned to the country where the
country where it is to be enforced; foreign judgment was decreed to certify
9. Judgment must not have been obtained by that such judgment was rendered by a
fraud, collusion, mistake of fact or law; and court of competent jurisdiction. (Coquia,
10. It must be a judgment on civil or Conflict of Laws 2000 ed., p. 561)
commercial matters, including questions of
status.

PHILIPPINE RULE:
The effect of a judgment or final order of a
tribunal of a foreign country, having jurisdiction
to render the judgment or final order is as
follows:
1. In a judgment or final order upon a specific
thing, the judgment or final order is
conclusive upon the title to the thing; and
2. In a judgment or final order against a
person, the judgment or final order is
presumptive evidence of a right as
between the parties and their successors
in interest by a subsequent title.

IN EITHER CASE, the judgment or final order

may be repelled by evidence of a want of
jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact
(Rule 39, Sec. 48 of the 1997 Rules of Civil
Procedure)

THREE MODES OF ENFORCEMENT OF

JUDGMENTS:
1. By filing a petition in the court where the
judgment is sought to be recognized for
the recognition of the judgment

2. By a summary procedure known as

exequatur proceedings
Exequatur Procedure: A summary
procedure outlined in the statutes of some
civil law countries such as France, Italy,
Switzerland and Austria for the
enforcement of foreign judgments that
have no automatic effect or authority in
themselves.

3. By registration of the foreign judgment in a

registry of judgments in the forum where it
is with or without judicial supervision.
(Coquia, Conflict of Laws 2000 ed., p.
561-563)