What is your understanding of Conflict of Law?
Conflict of Law=Private International Law
- branch of International Law
“Part of local law of the sovereign State which determines the law applicable in resolving a legal
controversy involving a foreign element.”
*A conflict of laws is a situation in which the court has to address questions of jurisdiction
and relevant law. A conflict of laws may arise when parties live in different jurisdictions,
the transactions occurred in more than one jurisdiction, or when the matter involves the
application of some foreign law.
What is International Law?
*The rules and principles of general application dealing with the conduct of states and of
international organizations and with their relations inter se as well as with some of their
relations with persons, whether natural or juridic al.
*Consists of rules and principles governing the relations and dealings of nations with each
other, as well as the relations between states and individuals, and relations between
international organizations. – University of Cornel Law School
*Branches – Public International Law, Private International Law
Private International Law
The part of law of each State or nation which determines whether, in dealing with a legal situation, the
law or some other State or nation will be recognized, given effect, or applied.
- “Generally, it is not international in nature. It does not come across territorial bounderies
between and among sovereign states. Nothing more of a portion or a part of the law of its State
or nation. “
Note: Do not think about treaties, international agreement, international customary laws
Public International Law
Concerns only with questions of rights between several nations or nations and the citizens or subjects of
other nations. It deals with controversies arising our of situations which have a significant relationship to
manipulate nations.
Element (for the application of Private International Law):
1. Foreign Element-when there is no foreign element, there is no conflict of law.
Reason: In order for the court to invoked conflict of law rules.
Difference between Private International Law vs. Public International Law
Difference Private International Law (PrIL) Public International Law (PuIL)
Character Municipal In character International in character
Reason: Because it is part of the law of Reason: Binding to all the members of
the local forum communities of the nation. It would cut
across territorial boundaries.
Persons Dealt with by private individuals. Sovereign States and other entities
Involved (e.g., Private corporations; private possessing international personality.
natural persons)
(e.g., UN; governs States in their
Reason: governs private individuals in relationship amongst themselves)
their private transactions which involve or organizations vested with
a foreign element. international status
Transactions Private Transactions between Generally affected by public interest
involved private individual Note: Those in general are of interest only to
sovereign States.
Remedies and Resort to municipal tribunals May be peaceful or forcible
Sanctions Note: In case of issue, the party goes to
the local court. Note: Peaceful includes; diplomatic
negotiation, tender and exercise of good
(e.g. business transaction between offices, mediation, inquiry and conciliation,
corporation in Canada and Philippines. arbitration, judicial settlement by
Corp C can file an action to the C court International Court of Justice, reference to
or Phil Court) the regional agencies.
Forcible includes; severance of diplomatic
relations, retorsions, reprisals, economic
embargo, boycott, non-intercourse, pacific
blockades, collective measures under the
UN Charter, war.
Court:
-international criminal court; international
court of justice; ____ court for arbitration.
Sources Generally derived from internal Anchored in customs, treaties and
law of the State general principles of law, recognized
by civilized nations and juridical
Exception: when any conflict of law decisions and teachings of the most
question governed by a treaty highly qualified publicists
Case #1: Saudi Arabian Airlines Vs. Court of Appeals, 297 SCRA 469, G.R. 122191, G.R. No. 122494,
October 8,1998.
“Where the factual antecedents satisfactorily establish the existence of a foreign element, we agree with
petitioner that the problem herein could present a “conflicts” case. A factual situation that cuts across
territorial lines and is affected by the diverse laws of two or more states is said to contain a “foreign
element”. The presence of a foreign element is inevitable since social and economic affairs of individuals
and associations are rarely confined to the geographic limits of their birth or conception.”
Illustrative Example #1: Filipino Citizen woman(17) and gentlemen(22) went to a vacation, Australia.
While in Australia, they decided to get married. Supposedly, their marriage is valid in Australia.
Supposedly, one questions the validity of their marriage in Australia. Is it also valid here in the Philippines?
No. Art 26(Family Code), “All marriages solemnized outside the Philippines, in accordance with the laws
in force in the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36,37 and 38…”
“Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents
or guardians”
LEX LOCI CELEBRATIONIS- relates to the "law of the place of the ceremony" or the law of the place where
a contract is made.
JURISDICTION- the authority of the court of law to pay cognizance of the case
In general, jurisdiction (from the Latin “jus dicere” — the “right to speak”) is the authority
of a tribunal to hear and decide a case. (Herrera v. Barretto, 25 Phil. 245; De la Cruz v.
Moir, 36 Phil. 213.)
Phases or Stages in the Resolution of Conflict of Law problem/Scope of Functions of COL
1. Jurisdiction
2. Choice of Law
3. Recognition and Enforcement/Applicability or non-applicability of foreign element
1. Jurisdiction - authority of court of law to take cognizance of a case
- In international law, it is often defined as the right of a State to exercise authority over persons
and things within its boundaries, subject to certain exceptions.
Note: In example #1, the court will determine whether it has jurisdiction over the case. If no
jurisdiction, the case may be dismissed. If it has jurisdiction, the court will decide the law
applicable.
Kinds of Jurisdiction
1. Jurisdiction over the subject matter - Jurisdiction over the subject matter is conferred
by law and is defined as the authority of a court to hear and decide cases of the
general class to which the proceedings in question belong. (Reyes v. Diaz, 73 Phil.
484). If no jurisdiction, no preliminary hearing on the evidence is needed.
(Administrator v. Alberto, G.R. L-12123, Oct. 31, 1958).
As distinguished from jurisdiction over the subject matter, which is generic in
character, jurisdiction over the res is jurisdiction over the particular subject matter
involved, as when, for instance, specific properties which are the subject of the
litigation have been properly attached. (See Banco Espafiol-Filipino v. Palanca,
37 Phil. 921; Bernabe v. Vergara, 73 Phil. 676.)
2. Jurisdiction over the person - Jurisdiction over the person is the power of a court to
render a judgment that will be binding on the parties involved: the plaintiff and the
defendant.
Question: How can the court acquire jurisdiction over the plaintiff/defendant?
Over the person of the plaintiff
Is acquired from the moment he invokes the aid of the court and voluntarily submits
himself by institution of the suit through proper pleadings
Note: The first way is by voluntary appearance in court or voluntary submission
to the jurisdiction of the court (Rule 14, Sec. 23, Rules of Court) except, of course, if the
precise purpose of the appearance is to question the jurisdiction of the court over his
person. (Carballo v. Encarnacion, 92 ’Phil. 974).
Over the person of the defendant
Is acquired though (a) Voluntary appearance of the defendant or (b)Personal or
substituted service of summons- can be done through publication
A. Note: This is referred to as service by the coercive process in the manner
provided by law. (Tolendano v. Severino, 78 Phil. 283).
Personal Service — “The summons shall be served by handing a copy thereof to
the defendant in person, or if he refuses to receive it, by tendering it to him. (Rule
14, Sec. 7, Rules of Court). Service of summons may be made at night as well as
during the day or even on a Sunday or holiday because of its ministerial character.
(Laus v. CA, 219 SCRA 688 [1993]).
Substituted Service — “If the defendant cannot be served within a reasonable
time as provided in the preceding section, service may be effected (a) by leaving
copies of the summons at the defendant’s dwelling house or residence with some
person of suitable age and discretion then residing therein, or (b) by leaving the
copies at defendant’s office or regular place of business with some competent
person in charge thereof.” (Rule 14, Sec. 8, Rules of Court; Laus v. CA, 219 SCRA 688
[1993]).
B. Note: This manner of summons is good only if the action is in rem(the thing)
or quasi in rem (Sec. 17) or involves the personal status of the plaintiff (Sec.
17; Fontanilla v. Dominguez, 73 Phil. 579). If the action is in personam,
summons by publication would not be sufficient service on the person of the
defendant, whether or not said defendant is in the Philippines. (Pantaleon v.
Asuncion, 105 Phil. 761).
3. Jurisdiction over the res - Jurisdiction over the res or thing is jurisdiction over the
particular subject matter in controversy, regardless of the persons who may be
interested thereon. Said jurisdiction may for instance be acquired by coercive seizure
of the property by attachment proceedings.
Illustrative Example #2
An American, not residing in the Philippines, intimidated a Filipino woman into
marrying him in Manila. The day following the marriage, the man left the wife, and
departed for parts unknown. Subsequently, the woman filed in the Regional Trial
Court of Manila a suit asking for the annulment of the marriage and for consequential
damages. Since the husband could not be found, service of summons was made by
publication. Incidentally, the man has no property in the Philippines.
A. Does the Court have jurisdiction to annul the marriage, assuming that the
intimidation can be duly proved?
B. Does the Court have jurisdiction to award damages to the woman in case the
marriage is annulled?
A. Yes, the Court has jurisdiction to annul the marriage, assuming the intimidation
to be duly proved. The Court has jurisdiction over the subject matter —
annulment of a marriage — a jurisdiction granted it by law; jurisdiction over the
person of the plaintiff — for the simple reason that she filed the complaint before
it; and finally, jurisdiction over the res — the annulment itself. While it is true that
the summons here was merely by publication, this is sufficient because the
proceeding partakes of an action in rem, more particularly, it involves the
personal status of the plaintiff. Neither personal service of summons nor
voluntary appearance by the defendant in court, in person or through an
attorney, is required. (See Sec. 17, Rule 14, Rules of Court; See also Fontanilla v.
Dominguez, 73 Phil. 579). As a matter of fact, in a case like this, jurisdiction over
the person of the defendant is NOT essential, and if the law demands service by
publication, it is merely to satisfy the constitutional requirement of due process.
(Perkins v. Dizon, 69 Phil. 186). Moreover, the Family Code sanctions the
annulment of a marriage even if the defendant does not appear, in the following
words: “In all cases of annulment or declaration of absolute nullity of marriage,
the court shall order the prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion between the parties and to
take care that evidence is not fabricated or suppressed. In the cases referred to
in the preceding paragraph, no judgment shall be based upon a stipulation of
facts or confession of judgment.” (Art. 48 of the Family Code).
B. No, the Court has no jurisdiction to award damages to the woman, even if the
marriage is annulled, and even if ordinarily, damages should have been adjudged.
This is because an award of damages is clearly a judgment in personam,
enforceable not against the whole world as in a proceeding in rem, but only
against the party concerned, the defendant. There can be no valid judgment in
personam here because the service of summons was only by publication. There
was neither a voluntary appearance nor personal or substituted service of
summons. Hence, for the purpose of awarding damages there was NO jurisdiction
over the person of the defendant.
In the problem hereinabove presented concerning the award of damages, the
defendant had NO property in the Philippines. Now, then, suppose the defendant
has properties here, would the answer be the same? YES, the answer would be
the same; since the court never acquired jurisdiction over his person, it cannot
now satisfy his liability from his properties found in this country. The reason is
evident: since he never incurred personal liability, how can his properties be held
liable? HOWEVER, there is one exception to this rule: when previously, the court
had acquired jurisdiction over the property itself, such as by attachment or by any
other proceeding in rem, the court may validly render the property liable for the
payment of the damages, notwithstanding the fact that the only summons on the
defendant was summons by publication. (See Pennoyer v. Neff, 95 U.S. 714;
Perkins v. Dizon, 69 Phil. 186)
Illustrative Example #3
Similarly, an action for the recognition of an illegitimate child concerns the
personal status of the plaintiff, and summons by publication would be sufficient
on a nonresident defendant; but an award for support is a proceeding in
personam, and summons by publication is not adequate therefor.
Illustrative Example #4
Similarly, again, if a debtor-mortgagor is a non-resident defendant, summons by
publication would be sufficient for the foreclosure of the mortgage, but not for
award of the deficiency, in case the proceeds are insufficient to cover the
indebtedness.
2. Choice of Law - refers to the determination of the law applicable
Note: the court will choose the applicable law by inquiring into conflict rules.
3. Recognition and Enforcement/Applicability of foreign element – concerns the enforcement of
foreign law and judgments in other jurisdictions
Note: if the court has decided what law to apply, it then renders judgement and it will be called
upon to enforce it; or recognize a foreign law and enforce it here in the Philippines.
Ways to dismiss COL
1. Dismiss for lack of jurisdiction
2. Dismiss in the ground of forum non-conveniens
Alternatives Given to Court(when tribunal possesses jurisdiction)
1. Refuse assume jurisdiction on the ground of forum non-conveniens
Note: there is forum non-conveniens if in the minds of the court, it would cost discomfort or there
is a difficulty of enforcing the judgment.
Forum Non- Conveniens- A forum may resist imposition upon its jurisdiction is authorized
by law on the ground that the forum is inconvenient or the ends of justice would be best
served by trial in another forum or the controversy may be more suitably tried elsewhere.
Element of Forum Non- Conveniens:
a. The forum State is one to which the parties may
conveniently resort to;
b. It is in position to make an intelligent decision as
to the law and the facts; and
c. It has or is likely to have power to enforce its
decision
2. Assume jurisdiction, in which case it may either:
a. Apply the internal law of the forum(lex fori); or
b. Apply the proper foreign law (lex causea)
Instances When Internal Law Should Be Applied:
a. A specific law of the forum decrees that internal law should apply.
Provisions:
i. Article 16 of the Civil Code- real and personal property subject to the law of the country
where they are situated and testamentary succession governed by lex nationalii
ii. Article 829 of the Civil Code- makes revocation done outside the Philippines valid
according to law of the place where will was made or lex domicilii
iii. Article 819 of the Civil Code- prohibits Filipinos from making joint wills even if valid in
foreign country
Note: This are laws that mandate the local law should be applied
b. The Proper foreign law was not properly pleaded and proved.
Note: it should be proved that the foreign law should be proved as a fact because our local court
would not take judicial notice or cognizance of this foreign law. If not, it will be constrained to
apply the internal law under the rule of processual presumption.
Actions that may be resorted to in case of failure to prove and plead proper foreign law:
i. Dismiss the case for inability to establish cause of action
ii. Assume that the foreign law of the same ass the law of the forum (processual
presumption)
iii. Apply the law of the forum
General Law in Disposing Cases
As a general rule, no rule of Private International Law would be violated if the courts should decide to
dispose of cases, according to the Internal Law of the forum.
Exception: Where a foreign, sovereign, diplomatic official, or public vessel or property of another state is
involved, or where a state has by treaty, accepted limitations upon its jurisdiction over certain person or
things.
Theories Why Foreign Law Should be Given Effect: Why should we apply foreign law?
1. Theory of Comity- foreign law is applied because of its convenience and because we want to give
protection to our citizens, residents, and transients in our land.
2. Theory of Vested Rights- we seek to enforce not foreign law itself but the rights that have been
vested und er such foreign law; an act done in another State may give rise to the existence of
a right if the laws of that State created such right.
3. Theory of Local Law- we apply foreign law not because it is foreign, but because our laws, by
applying similar rules, require us to do so; hence, it is as if the foreign law has become part and
parcel of our local law.
4. Theory of Harmony Law- we have to apply the foreign laws so that wherever a case is decided,
that is, irrespective of the forum, the solution should be approximately the same; thus, identical
or similar solutions anywhere and everywhere. When the goal is realized, there will be “harmony
of law”
5. Theory of Justice- the purpose of all laws, including Conflict of Laws, is the dispensing of justice; if
this can be attained in many cases applying the proper foreign law, we must do so.
Minimum Contacts Test and Fundamental Fairness Test
Due process requires only that in order to subject a defendant to a judgment in personam, if he is not
present within the territory of the forum he should have certain minimum contacts with it such that the
maintenance of the suit does not offend traditional notions fair play and substantial justice.
In both in rem and quasi-in rem, all that due process requires is that defendant be given adequate notice
and opportunity to be heard which are met by service of summons by publication.
Some Sources of Philippine Conflict of Law Rules
o Family Code- 10,21,26,35,36,37,38,80,96,184,187
o Civil Code- 14,15,16,17,815,816,818,819,829,1039,1317,1753
o Penal Code- Art. 2(Generality and Territoriality)
o Constitution- Art. 4, Art. 5, Sec 1
o Rules of Court- Rules 14 and 29, Sec. 48, Rule 131, Sec. 3(N), 132, Sec. 35
o …And some provisions of revised corporation code
Illustrative Example #5:
If both married as to when they are still Filipinos and then later on the husband became a foreign citizen,
will the divorce prosper? Ca n the Filipino spouse obtain the divorce?
Yes. Orbicido vs. Republic, “Mixed marriage will be reckoned not at the time of the celebration of the
marriage but at the time the decree of divorce was issued or obtained.”
Yes. In the case of Manalo v. Republic, the supreme court said that it doesn’t really matter who obtained
the divorce abroad. There is no requirement that the divorce shall be obtained by the alien spouse.
Important Concepts in the application of COL
*Includes maxim and doctrines
Instances when Internal Law Should be Applied:
a. A specific Law of the forum decrees that internal law should apply
Examples: i. Article 16 of the Civil Code – real and personal property subject to the law of
the country where they are situated and testamentary succession governed by lex
nationalii; ii. Article 829 of the Civil Code – makes revocation done outside Philippines
valid according to law of the place where will was made or lex domicilii; Article 819 of the
Civil Code- prohibits Filipinos from making joint will even if valid in foreign country.
b. The proper foreign law was not properly pleaded and proved
Choice of Law(next meeting) Recitation and cases
Personal Notes
Executive Order No. 725, s. 1981
WHEREAS, the establishment of Industrial Tree Plantations (ITP) is encouraged as Government policy
under P.D. No. 705 and P.D. No. 1559
Timber License Agreement. A long-term license executed by and between the Secretary of the DENR, on
behalf of the government, and the grantee for the harvesting and removal from the public forest of timber
and, in appropriate cases, also of other forest products.
-25 years(terms)
Donald Baer Commander U.S. Naval Base,
Subic Bay vs. Hon. Tito V. Tizon
L-24294, July 15, 1974
FACTS: If a Filipino is granted a timber license may he conduct a logging operation within a U.S.
Military Base when the U.S. Base Commander refuses to grant him permission to do so?
HELD: (thru Mr. Justice, later to become Chief Justice Enrique M. Fernando): No, he cannot
conduct such a logging operation. To sue the Base Commander (to compel the allowance of the operation)
would amount to a suit against the U.S. Government. This cannot be done in view of the principle of state
immunity from suit. True, the Base Commander does not possess diplomatic immunity (and he may,
therefore, be proceeded against in his personal capacity, or when the action taken by him cannot be
imputed to the government he represents). But here, the suit is not actually against him, but against the
U.S. Government, which has merely acted on the basis of its treaty stipulations with our Republic
Southeast Asian Fisheries
Development Center Aquaculture
Department v. National Labor
Relations Commission
G.R. No. 86773, Feb. 14, 1992
Permanent international commissions and administrative bodies have been created by the
agreement of a considerable number of States for a variety of international purposes, economic or social
and mainly non-political.
Among the notable instances are the International Labor Organization, the International
Institute of Agriculture, and the International Danube Commission. Insofar as they are autonomous and
beyond the control of any one State, they have a distinct juridical personality independent of the
municipal law of the State where they are situated. As such, they must be deemed to possess a species
of international personality.
Parity Amendment to the 1935 Constitution
The patrimonial rights referred to were extended to Americans. This was by virtue of an
ordinance appended to the Constitution in 1947. The arrangement embodied in an Executive Agreement
between the President of the Philippines and the President of the United States and entered into on July
4, 1946 did not continue beyond July 3, 1974.
Pedro R. Palting v. San Jose Petroleum, Inc., (L-14441, Dec. 17, 1966),
The Supreme Court, thru Mr. Justice Jesus Barrera held that an American citizen (natural or
juridical) can take advantage of parity only if in his own particular state in the United States, reciprocal
rights are granted Filipino citizens (whether natural or juridical).
After the expiration of Parity Rights, the Government decided to grant American entities a grace
period ending May, 1975 whereby lots acquired by them would either be actually disposed of, or made
the subject matter of plans which would dispose of them eventually.
Later, in June, 1975, Presidential Decree No. 713 was issued granting three types of American
citizens, who had acquired private residential lands for family dwelling purposes before July 3, 1974
permission to continue holding such lands (up to 5000 square meters only, however) and to transfer their
^ownership to qualified persons and entities.
These three (3) types of American citizens are the following:
1) those who were formerly Filipino citizens;
2) those who have become permanent residents of the Philippines; and
3) those who have resided in the Philippines continuously for at least twenty (20) years.
Then President Ferdinand E. Marcos pointed out that these properties had been acquired in
GOOD FAITH, in the honest belief that such properties could be held even after the expiration of parity.
Under the 1973 Constitution, titles of American citizens to the private lands are void as against the
Government but valid as against private persons. With this new decree, according to Mr. Marcos, these
three types of American citizens are granted “special consideration and compassion” in the interest of
justice.
Meanwhile, with the advent of the 1987 Constitution, “lands of the public domain are classified
into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public
domain may be further classified by law according to the uses to which they may be devoted. Alienable
lands of the public domain shall be limited to agricultural lands. Private corporations or associations may
not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five
years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more
than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead,
or grant. Taking into account the requirements of conservation, ecology, and development, and subject
to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the
public domain which may be acquired, developed, held, or leased and the conditions therefor.” (Art. XII,
Sec. 3, The 1987 Phil. Const.).
Jurisprudence #1
When a court is without jurisdiction, it has no alternative except to dismiss the case. Any judgment
rendered without or in excess of jurisdiction is clearly null and void even in the state that rendered it, in
view of the lack of “due process.” (Pennoyer v. Neff, 95 U.S. 714)
