Conflict of laws

B a rO p s H e a d
I
P Y C a u n a n
Aca d s H e a d
I
B e th Lice ra ld e
S u b je ct H e a d
I
Ja s G a p a ta n
Fa cu lty Ad vise r
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TABLE OF CONTENTS
I. NATURE, STRUCTURE AND METHODS.............................................................................................................................. 1
PRIVATEINTERNATIONALLAWORCONFLICTOFLAWS.......................................................................................1
FOREIGNELEMENT....................................................................................................................................................1
DISTINGUISHEDFROMPUBLICINTERNATIONALLAW........................................................................................... 1
OBJECTIVES...............................................................................................................................................................1
STAGESINTHERESOLUTIONOFACONFLICTSCASE..........................................................................................1
RENVOI........................................................................................................................................................................2
APPLICATIONOFFOREIGNLAW...............................................................................................................................2
PROOFOFFOREIGNLAW......................................................................................................................................... 2
EXCEPTIONSTOTHEAPPLICATIONOFFOREIGNLAW.........................................................................................3
II. PERSONAL LAW SYSTEM................................................................................................................................................... 4
CONCEPTOFPERSONALLAW..................................................................................................................................4
LEXPATRIAEORNATIONALITYLAWTHEORY........................................................................................................4
LEXDOMICILII ORDOMICILLIARYTHEORY.............................................................................................................4
III. CHOICE OF LAW................................................................................................................................................................... 5
PERSONALSTATUSANDCAPACITY........................................................................................................................5
FAMILYRELATIONS....................................................................................................................................................5
CONTRACTUALRELATIONS...................................................................................................................................... 7
TORTS.......................................................................................................................................................................... 8
CRIMES........................................................................................................................................................................9
PROPERTY..................................................................................................................................................................9
SUCCESSIONANDADMINISTRATIONOFESTATES.............................................................................................10
BUSINESSASSOCIATIONS...................................................................................................................................... 11
IV. FOREIGN JUDGMENTS ..................................................................................................................................................... 12
FOREIGNJUDGMENT...............................................................................................................................................12
RECOGNITIONOFFOREIGNJUDGMENT...............................................................................................................12
ENFORCEMENTOFAFOREIGNJUDGMENT.........................................................................................................12
REQUISITESFORRECOGNITIONORENFORCEMENT.........................................................................................12
PHILIPPINERULEEFFECTOFFOREIGNJUDGMENTSORFINALORDERS..................................................... 13
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I. NATURE, STRUCTURE AND METHODS
PRIVATE INTERNATIONAL LAW OR
CONFLICT OF LAWS
It is that part of Philippine law which is applied
by the court whenever it is seized of a problem or a
case containing a foreign element. Rules of private
international law are national in character and are
found in various statutes and codes of Philippine
law or adopted by Philippine courts. They are rules
of domestic law, not of international law. Every
state or national legal system has its own body of
rules called private international law or conflict
of law rules.
It is that part of Philippine law which governs
the application and interpretation of foreign law in
Philippine jurisdiction in resolution of cases
involving foreign element.
FOREIGN ELEMENT
A case has a foreign element if it has some
relevant fact which has a juridical or legal
connection with a foreign country or jurisdiction
and, for this reason, it raises the issue:
1. whether it is Philippine law or foreign law
that the court should apply for the resolution
of the case, (Choice-of-law problem) or
2. whether it is the Philippine or foreign court
that should have jurisdiction over the case.
Examples of foreign element:
1. One of the parties is of a foreign nationality.
2. The case involves a property situated abroad.
3. A contract executed in the Philippines is to be
performed in another country.
4. The issue relates to the condition of the goods
transported to a foreign destination.
5. A marriage between a Filipino and an alien was
celebrated abroad.
DISTINGUISHED FROM PUBLIC
INTERNATIONAL LAW
Basis
Public
International
Law
Private
International
Law
1. Nature or
Character
International in
character as it
applies in the
international
sphere.
National,
municipal or local
in character
2. Sources Custom, treaty
and general
principles of law
recognized by
civilized nations
and judicial
decisions and
teachings of the
most highly
Generally derived
from the internal
law of each
state; except any
conflict of laws
question which is
governed by a
treaty
qualified
publicists
3. Applicability Governs rights
and obligations
of states and
their
relationships
among
themselves
Deals with rights
and obligations
of private
individuals and
their private
transactions
which involve a
foreign element
4. As to Persons
Involved
Governs only
states and
internationally
recognized
organizations
Governs
individuals or
corporations
5.Transactions Recognizes
transactions in
which sovereign
states are
interested
Assumes control
over transactions
strictly private in
nature
6. Remedies In case of
violation of
international law,
the State may
resort to
diplomatic
protest,
negotiation,
arbitration or
adjudication by
the filing cases
before
international
tribunals or may
even resort to
the use of force
or go to war
All remedies are
provided by
municipal laws of
the State, such
as resort to
courts and
administrative
tribunals
OBJECTIVES
1. To prescribe the conditions under which the
court is competent to assume jurisdiction over
the case.
2. To determine the particular national legal
system under which the rights of the parties
must be ascertained, based on the appropriate
legal category by which the case may be
classified; in other words, to choose the
appropriate law applicable.
3. To specify the conditions under which a foreign
judgment may be recognized or enforced in
the Philippines.
STAGES IN THE RESOLUTION OF A
CONFLICTS CASE
1. The court first deals with the question whether
it possesses jurisdiction over the parties and/or
the subject matter; or of the cause of action.
2. The court should next classify the cause of
action under its correct legal category such as
succession, breach of contract, or a commission
of a tort. This is a prerequisite to ascertaining
the appropriate conflicts rule applicable and
hence determine the lex causae.
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Classification or Characterization (of
the cause of action) is the allocation of
the question raised by the factual situation
before the court to its correct legal
category, and its object is to reveal the
relevant rule for the choice of law.
( Cheshires Private I nternational Law by
P.M. North, 9
th
ed., pages 42- 43.)
3. The next step is for the court to select the lex
causae or the legal system which under the
conflicts rule of the forum is applicable to the
given question. The selection of the lex causae
is based on a connecting factor which is
some outstanding fact which establishes a
natural connection between the factual situation
before the court and a particular system of
law. ( Cheshires Private I nternational Law by
P.M. North, 9
th
ed., pages 41- 42.)
4. The court will then apply the lex causae which
the court will determine as either the lex fori or
the foreign law.
RENVOI
SINGLE RENVOI
Aznar vs. Garcia (1963)
If a Philippine court is directed by a conflicts
rule in Philippine law to resolve the case in
accordance with the law of another country, but
under the conflicts rule of that country the case is
referred to the Philippine law, there is the
application of renvoi if the Philippine court accepts
that reference, or remission, and applies Philippine
internal law in deciding the case.
DOUBLE RENVOI
If the Philippine court is directed by a
Philippine conflict rule to a foreign legal system,
which refers back the question to Philippine law for
resolution, the court will not accept the reference
back but will refer back to the foreign court, and it
must apply whatever law a court in that foreign
legal system would apply if seized of the case.
Whatever the foreign court would do in resolving
the case would determine the decision of the
Philippine court.
APPLICATION OF FOREIGN LAW
The Philippine court applies foreign law, or
rights acquired under foreign law, because it is
required or permitted to do so by Philippine law. It
is in the nature of conflicts rule in Philippine law
that the court is authorized to resolve a
controversy by applying foreign law, under
conditions laid down by Philippine law.
PROOF OF FOREIGN LAW
When foreign law is to be applied pursuant to a
Philippine conflicts rule, there is the requirement
that it must be proved as a fact.
There are three ways by which this may be
done:
1. by pleading and proof;
2. by judicial notice; and
3. by presumption.
As a general rule, it is required that the foreign
law must be pleaded and proved in accordance
with the Rules of Court.
WRITTEN LAW
Foreign law is a written official act of a foreign
country, hence, it is treated as a public document
under Philippine law as provided for in Rule 132,
Sec. 19( a) , Rules of Court.
As a public document, it must be proved in the
following manner: The record of public documents
referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by
an official publication thereof or by a copy
attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a
certificate that such officer has the custody. If the
office in which the record is kept is in foreign
country, the certificate may be made by a
secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or
by any officer in the foreign service of the
Philippines stationed in the foreign country in which
the record is kept, and authenticated by the seal
of his office. ( Rule 132, Sec. 24, Rules of Court.)
UNWRITTEN LAW
ROC Rule 130 Sec. 49
The opinion of a witness on a matter requiring
special knowledge, skill, experience or training
which he shown to posses, may be received in
evidence.
Notes:
Generally, Philippine courts are not authorized
to take judicial notice of foreign laws ( I n re Estate
of J ohnson, 39 Phil. 157, 1918.) . However, there
are certain exceptions wherein the court may take
judicial notice of the content of the foreign law:
1. In cases where the courts are evidently familiar
with the foreign law. ( Delgado vs. Republic,
G.R. No. L- 2546, 1950, and Pardo vs.
Republic, 85 Phil. 323, 1950) .
2. In instances when the foreign laws are already
within the actual knowledge of the court, such
as when they are well and generally known or
they have actually been ruled upon in other
cases before it and none of the parties do not
claim otherwise. ( PCI B vs. Escolin, 56 SCRA
266) .
3. The pertinent law of the state of the testator
may be taken judicial notice of without proof of
such law having been offered at the hearing of
the project of partition where it appears that
said law was admitted by the court as exhibit
during the probate of the will; that same was
introduced as evidence of a motion of one of
the appellants for withdrawal of a certain sum
of money; and the other appellants do not
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dispute the said law. ( Philippine Trust Co. vs.
Bohanan, 106 Phil. 997, 1960)
PROCESSUAL PRESUMPTION
Where there is failure to prove foreign law, or
in the absence of evidence thereof, the
presumption applies that it is the same as
Philippine law. ( Lim vs. Collector of Customs, 36
Phil. 472; Beam vs. Yatco, 82 Phil. 30; Miciano
vs. Brimo, 50 Phil. 867, 1927; CI R vs. Fisher, 110
Phil. 686, 1961) .
EXCEPTIONS TO THE APPLICATION OF
FOREIGN LAW
IN GENERAL
1. where its enforcement would run counter to
some important public policy of the forum;
2. when its application would lead to an
infringement of good morality in the wider
sense of the term, as understood in the forum;
3. when the foreign law is penal in nature;
4. when the foreign law is procedural in nature;
5. when the question relates to immovable
property in the forum;
6. when the foreign law is fiscal or administrative
in nature;
7. when the application of foreign law would
involve injustice or injury to the nationals or
residents of the forum; and
8. when the application of foreign law would
endanger the foreign relations or vital interests
of the State. ( Salonga. Private I nternational
Law. 1995. page 114.)
EXCEPTIONS UNDER PHILIPPINE LAW
IN GENERAL
CC Art. 17 (3)
Prohibitive laws concerning persons, their acts or
property, and those which have, for their object,
public order, public policy and good customs shall
not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country.
CONTRACTS
CC Art. 1306
The contracting parties may establish such
stipulations, clauses, terms and conditions as they
may deem convenient, provided they are not
contrary to law, morals, good customs, public
order, or public policy.
MARRIAGE
FC Art. 26 (1)
All marriages solemnized outside the Philippines in
accordance with the laws in force in the country
where they were solemnized (or the lex loci
celebrationis) 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.
WILLS
CC Art. 819
Wills, prohibited by the preceding article, executed
by Filipinos in a foreign country shall not be valid in
the Philippines, even though authorized by the laws
of the country where they may have been
executed.
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II. PERSONAL LAW SYSTEM
CONCEPT OF PERSONAL LAW
It is the law which governs persons, legal
condition, capacity, status, etc.
It governs a person wherever he goes.
There are two bases for legal nexus between
the individual and the State, from the viewpoint of
private international law, namely:
1. the law of his nationality or lex patriae and
2. the law of his place of domicile or lex domicilii.
His status or legal condition in the society is
defined either by his nationality or domicile.
LEX PATRIAE OR NATIONALITY LAW
THEORY
The Philippine legal system adheres to lex
patriae.
Concrete application of lex patriae in Philippine
law can be found in the following provisions:
1. Art. 15, CC: Laws relating to family rights
and duties, or to the status, condition and
legal capacity of persons are binding upon
citizens of the Philippines, even though living
abroad.
2. Art. 16, par. 2, CC: However, intestate and
testamentary successions, both with respect
to the order of succession and to the
amount of successional rights and to the
intrinsic validity of testamentary
provisions, shall be regulated by the national
law of the person whose succession is under
consideration, whatever may be the nature of
the property and regardless of the country
wherein said property may be found.
3. Art. 1039, CC: Capacity to succeed is
governed by the law of the nation of the
decedent.
Under the Hague Convention, it is for each
State to determine who are its nationals. But it
must be consistent with international treatises and
customs and principles of law generally recognized
with regard to nationality.
PROBLEMS IN APPLYING THE NATIONALITY
PRINCIPLE
DUAL OR MULTIPLE NATIONALITY
1. This arises from the concurrent application of
jus soli and jus sanguinis at birth or from a
refusal of certain States to accept a full
application of the doctrine of expatriation or
from marriage or from a formal and voluntary
act.
2. In matters of status, he is usually considered by
the forum as exclusively its own national, his
additional foreign nationality is disregarded.
3. In case the litigation arises in a third country,
the law most consistently applied is that of the
country of which the person is not only a
national but where he also has his domicile or
habitual residence, or in the absence thereof,
his residence.
4. a third state shall, of the nationalities which
any such person possesses, recognize
exclusively in its territory either the nationality
of the country in which he is habitually and
principally a resident, or the nationality of the
country with which in the circumstances he
appears to be in fact most closely connected.
( Art. 5, Hague Convention on Conflict of
Nationality Laws)
5. See R.A. No. 9225 Citizenship Retention and
Reacquisition Act of 2003.
STATELESSNESS
A person may become stateless if he is deprived
of his citizenship for any cause such as the
commission of a crime or if he renounced his
nationality by certain acts, or by voluntary release
from his original state, or if he is born in a country
which recognizes jus sanguinis of parents whose
law on the other hand, recognizes only the
principle of jus soli.
Stateless persons are generally subject to the
law of their domicile or habitual residence, and in
default thereof, to the law of their temporary
residence.
The Convention on the Reduction of
Statelessness ( 1961) mandates that the jus
sanguini country grant its nationality to a person
born within its territory if he would otherwise be
stateless, and the jus soli country to extend its
nationality to a person who would otherwise be
considered stateless when one of his parents is a
citizen of the contracting state.
LEX DOMICILII OR DOMICILLIARY
THEORY
The individuals private rights, condition, status
and capacity are determined by his physical
location.
The forum determines domicile according to its
own standards.
Domicile is the place of which a person has a
settled connection for certain legal purposes, either
because his home is there or because that is the
place assigned to him by law.
In specified cases, Philippine law recognizes lex
domicilii. See Articles 50, 51, 99, 629 and 1251
paragraphs 3 and 4, CC.
GENERAL RULES ON DOMICILE
1. No person shall be without domicile.
2. A person cannot have two simultaneous
domiciles.
3. Every natural person, as long as he is free, may
change his domicile at pleasure.
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4. Domicile once acquired is retained unless a new
one is gained.
5. The presumption is in favor of the continuance
of domicile. The burden of proof is on the one
who alleges that a change of domicile has taken
place.
6. To acquire a fresh domicile, residence and
intention must concur; to retain an existing
domicile, either residence there or an intention
to remain must be present; to abandon a
domicile, residence in a new place and intention
to abandon the old place must concur.
LEGAL CLASSIFICATION OF DOMICILE
DOMICILE OF ORIGIN
It is a persons domicile at birth.
CONSTRUCTIVE DOMICILE
It is a domicile assigned by operation of law to
persons legally incapable of choosing their own
domicile, ex. Minors, mentally disabled.
DOMICILE OF CHOICE OR VOLUNTARY DOMICILE
It is the place freely chosen by a person sui
juris as his home and to which whenever he is
absent, he has the intention of returning. To
acquire this, there must be a concurrence of
physical presence in the new place and unqualified
intention to make that place ones home.
III. CHOICE OF LAW
PERSONAL STATUS AND CAPACITY
CC Art. 15
Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even
though living abroad.
In the determination of status and capacity of
persons, the CC follows the nationality principle
when dealing with Filipinos.
When dealing with aliens, it depends on which
principle their country follows, but if the alien is in
the Philippines, the nationality theory is applied by
implication.
FAMILY RELATIONS
1. MARRIAGE
EXTRINSIC VALIDITY
Governed by the lex loci celebrationis
General Rule
CC Art. 17 (1)
The forms and solemnities of contracts, wills, and
other public instruments shall be governed by the
laws of the country in which they are executed.
FC Art. 26 (1)
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.
Hague Convention
All states recognize as valid those marriages
celebrated in foreign countries if they comply with
the formalities prescribed therein.
Exceptions (as provided for in Art. 26, FC)
1. when either or both parties are below 18 years
of age even with parental consent;
2. bigamous and polygamous marriages;
3. mistake as to identity of a contracting party;
4. a subsequent marriage performed without
recording in the Civil Registry the judgment of
annulment or declaration of nullity, partition,
and distribution of properties and the delivery
of the childrens presumptive legitimes;
5. marriages where either spouse is
psychologically incapacitated;
6. incestuous marriages; and
7. void marriages by reason of public policy.
Rules on Extrinsic Validity of Certain Marriages
1. Proxy Marriages Where permitted by the
law of the place where the proxy participates in
the marriage ceremony, proxy marriages are
entitled to recognition in countries adhering to
the lex loci celebrationis rule, at least insofar as
formal validity is concerned. Internal Philippine
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law does not allow proxy marriages, it is
doubtful whether this will be recognized here.
2. Common Law Marriages If valid in the
State where the parties cohabited while holding
themselves out as man and wife, it is given
recognition in sister states which do not permit
this informal method of entering into the
marital status. Philippine internal law does not
recognize common law marriages.
3. Marriage on board a vessel on high seas
This is governed by the law of the nation whose
flag the ship is flying since that nation has
jurisdiction over the ship.
4. Consular Marriages The state authorizes its
consular or diplomatic agents in foreign
countries to solemnize marriages in accordance
with the states domestic laws. Philippine law
allows this under Art. 10, FC. This marriage
performed by a consular and diplomatic agent
empowered by the sending state to officiate the
marriage is valid in the receiving state only if
the latter has agreed to his acting in that
capacity.
INTRINSIC VALIDITY
This is governed by the parties personal laws
which may either be the lex patriae or the lex
domicilii.
Philippine conflict rules: Art. 15, CC and Art.
26, par. 1, FC. Note that the lex loci celebrationis
rule under Art. 26, FC also applies to Filipinos
married abroad.
CONSEQUENCES OF MARRIAGE
Personal relations between the spouses
This is governed by the national law of the
parties ( Art. 15, CC) . If the spouses have
different nationalities, generally, the national law of
the husband may prevail as long as said law is not
contrary to law, customs and good morals of the
forum.
Property relations between the spouses
General Rule: In the absence of a contrary
stipulation in the marriage settlements, the
property relations of the spouses shall be governed
by Philippine laws, regardless of the place of the
celebration of the marriage and their residence.
( Art. 80, FC)
Exceptions:
1. Where both spouses are aliens;
2. With respect to the extrinsic validity of
contracts affecting property not situated in the
Philippines and executed in the country where
the property is situated; and
3. With respect to the extrinsic validity of
contracts entered into in the Philippines but
affecting property situated in a foreign country
whose laws require different formalities for their
extrinsic validity.
( Art. 80, FC)
Note that Art. 16, par. 1, CC which provides
that Real property as well as personal property is
subject to the law of the country where it is
situated. prevails over the rule embodied under
Art. 80, FC.
Under the Hague Convention, the governing
law on matrimonial property regime is:
1. The internal law designated by the spouses
before marriage.
2. In the absence thereof, the internal law of the
state in which the spouses fix their first habitual
residence.
Doctrine of Immutability of Matrimonial
Property Regime The change of the nationality on
the part of the husband or wife or both does not
affect the original property regime except when the
law of the original nationality itself changes the
martial regime, hence, the property regime has to
change accordingly.
DIVORCE AND SEPARATION
General Rule
In the Philippines, only relative divorce or legal
separation is observed. As a consequence of Art.
15, CC, Filipino couples cannot obtain absolute
divorces abroad to be recognized here in the
Philippines.
Exception
Where a marriage between a Filipino citizen and
a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry
under Philippine law. ( Art. 26, par. 2, FC)
The Hague Convention provides that the
granting of divorce must comply with the
national law of the spouses and the law of the
place where the application for divorce is made.
The national law is the system of law last
common to each of the spouses. The grounds
for divorce are dictated by the lex fori.
Aliens may secure relative divorce in the
Philippines, provided their national law is willing
to recognize Philippine jurisdiction and
separation is agreeable to the internal law of
the national state of the parties.
ANNULMENT AND DECLARATION OF NULLITY
Jurisdiction to Annul
This is vested in the court of the domicile of the
parties. Jurisdiction over the non-resident
defendant is not essential. It is the status of the
plaintiff that is in issue, therefore, he should be
domiciled in the forum.
Governing Law
Lex loci celebrationis determines the
consequences of any defect as to form. Generally,
the same applies with reference to the substantive
or intrinsic validity except with regard to the
capacity of the parties to marry wherein their
national law is determinative.
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2. PARENTAL RELATIONS
DETERMINATION OF THE LEGITIMACY OF THE CHILD
This is governed by the personal law of the
parents.
Philippine rule
1. In the Philippines, the legitimacy of the child is
governed by the national law of the parents.
2. If parents belong to different nationalities,
legitimacy is governed by the national law of
the father.
3. Personal law of the illegitimate child is the
mothers personal law.
4. If the child is later legitimated, the personal law
of the child follows that of the father.
5. Note: In the case of Tecson vs. COMELEC
( GR No. 161434, 2004) , the Court held that
providing neither conditions nor distinctions, the
1935 Constitution states that among the
citizens of the Philippines are those whose
fathers are citizens of the Philippines,
regardless of whether the children are
legitimate or illegitimate.
PARENTAL AUTHORITY OVER THE CHILD
The personal law of the father controls the
rights and duties of parents and children.
Reference to the personal law of the father may
result in the joint exercise of parental authority
over the property of the child by the father and the
mother, example would be Art. 221, FC.
The fathers personal law could also grant
parental authority to the mother of the illegitimate
child, example would be Art. 176, FC.
3. ADOPTION
DOMESTIC ADOPTION ACT OF 1998 (R.A. NO.
8552)
An alien may adopt provided that
1. he is of legal age
2. he is in possession of civil capacity and legal
rights
3. he is of good moral character
4. he is not convicted of any crime involving
moral turpitude
5. he is emotionally and psychologically
capable of caring for children
6. he is at least sixteen years older than the
adoptee
7. he is in a position to support and care for his
children
8. his country has diplomatic relations with the
Philippines
9. residence in the Philippines for at least three
continuous years prior to the filing of the
application for adoption and maintains such
residence until the adoption decree is
entered
10.certificate of legal capacity to adopt in his
country to be issued by his diplomatic or
consular office, and
11.his government allows the adoptee to enter
his country as his adopted son or daughter.
The requirement on residency and certificate of
the aliens qualification to adopt may be waived for
the following:
1. a former Filipino citizen who seeks to adopt
a relative within the 4
th
degree of
consanguinity or affinity; or
2. one who seeks to adopt the legitimate son
or daughter of his or her Filipino spouse; or
3. one who is married to a Filipino citizen and
seeks to adopt jointly with his or her spouse
a relative within the 4
th
degree of
consanguinity or affinity of the Filipino
spouse.
The requirement of sixteen years difference
between the adopter and the adoptee may be
waived if the adopter is:
1. the biological parent of the adoptee; or
2. the spouse of the adoptees parent.
INTER-COUNTRY ADOPTION (R.A. NO. 8043)
A socio-legal process of adopting a Filipino child
by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the
decree of adoption is issued outside the Philippines.
This is an alternative means of child care if the
child cannot be cared for in any suitable manner in
the Philippines.
Adoption is not one of the ways prescribed for
the acquisition of Filipino citizenship. ( Ching Leng
vs. Galang, 57 O.G. 2312, 1958)
CONTRACTUAL RELATIONS
EXTRINSIC VALIDITY
Governed by the lex loci contractus as
embodied in Art. 17, par. 1, CC.
INTRINSIC VALIDITY
There is no specific provision in the Civil Code.
Thus, there are three possible laws that may
govern:
1. lex loci contractus or law of the place where the
contract is made
2. lex loci solutionis or law of the place of
performance
3. lex loci intentionis or law intended by the
parties
Lex loci intentionis is embodied in Art.
1306, CC.
The specific law stipulated by the parties
must bear a substantial relationship to
the transaction.
In the absence of an effective choice of
law, expressed or implied, the contract
will be governed, with respect to the
particular issue involved, by the law
which has the closest and most
substantial connection with the
transaction and the parties.
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CAPACITY TO ENTER INTO CONTRACTS
This is determined by the personal laws of the
contracting parties, either nationality or
domiciliary.
CC Art. 15
CHOICE OF LAW ISSUES IN CONFLICTS
CONTRACT CASES
CHOICE OF FORUM CLAUSE
The parties may stipulate on the venue of the
suit in case of litigation concerning the contract. A
case arising from a contract will be litigated in the
forum chosen by the parties if the choice of forum
clause specifically identifies it as the only venue.
When there is no fraud or overreaching, and
there is no showing that the choice-of-forum clause
would be unreasonable and unjust, the clause must
be given effect.
CONTRACTS WITH ARBITRATION CLAUSE
In the Philippines, the provisions on arbitration
in the Civil Code and the Arbitration Law ( R.A. No.
876) embody a clear legislative policy in favor of
settling controversies by a method considered
more expeditious, less expensive and with greater
chance in some cases for substantial justice.
Many courts apply the law of the place the
parties have designated as governing, thus
sustaining the agreement to arbitrate.
ADHESION CONTRACTS
Adhesion contracts are not entirely prohibited.
The one who agrees to the contract is in reality,
free to reject it entirely; if he adheres, he gives his
consent.
When there is no proof of arbitrariness, abuse
of power, or gross negligence, the contract or
stipulation will be enforced.
The contract is valid if it is reasonable and just
under the circumstances, and has been fairly and
freely agreed upon. ( Art. 1750, CC)
When there is an oppressive use of superior
bargaining power, a Philippine court may be
justified in refusing to apply the contract or a
stipulation thereof on the ground that there is no
real arms length transaction between the
contracting parties.
SPECIAL CONTRACTS
1. Sale or Barter of Goods governed by the lex
situs
2. Simple loan granted by financial institutions
law of the permanent place of business
3. Loan granted by a private individual or where
subject matter of loan is personal law of the
place where the loan was obtained
4. Pledge, Chattel Mortgage, Antichresis lex situs
5. Transportation by Sea
a. Philippine ports to Foreign ports law of the
country of destination ( Art. 1753, CC)
b. Foreign ports to Philippine ports
Primary law Civil Code
Code of Commerce
Carriage of Goods by Sea Act
6. International Air Transportation governed by
the Warsaw Convention
a. Suits may be prosecuted in any of the
following places at the option of the plaintiff-
passenger:
court of the domicile of the carrier
court of the principal place of business
of the carrier
court where the carrier has a place of
business through which the contract
was made
court of the place of destination
b. With respect to transportation by successive
carriers The Guadalaj ara Protocol
provides that the contracting carrier shall
also be liable for the acts of the actual
carrier.
TORTS
GOVERNING LAW
Lex loci delicti commissi or law of the place
where the alleged tort was committed.
In the Philippines, there is no governing
specific statutory law but courts may give due
course on the theory of the vested rights or most
significant relationship provided that there are
minimum contacts and the defendant can be
served with summons.
In case of injuries which involve physical harm,
mental disturbance, false imprisonment, malicious
prosecution law of the State where the injury was
inflicted.
In case of intentional torts law of the State
where the actor initiated or carried out the tortuous
act.
CONCEPTS OF PLACE OF WRONG OR THE
LOCUS DELICTI
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. This is in line with the
vested rights theory.
PLACE OF CONDUCT
Civil law rule; views the situs of torts as the
place where the tortuous act was committed.
OBLIGATION THEORY
The tortuous act gives rise to an obligation,
which is transitory and follows the person
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committing the tortuous act and may be enforced
wherever he may be found.
THEORY OF THE MOST SIGNIFICANT
RELATIONSHIP
An action for tort may be filed in the country
where it has the most significant relationship. In
determining the state which has the most
significant relationship, the following factors are to
be taken into account:
1. place where the injury occurred
2. place of conduct causing the injury
3. domicile, residence, nationality, place of
incorporation and place of business
4. place where relationship between the parties is
centered
It gives controlling effect to the law of the
jurisdiction which, because of its relationship or
contact with the occurrence or the parties, has the
greatest concern with the specific issue of the case.
CONDITIONS FOR THE ENFORCEMENT OF
TORT CLAIMS
1. The foreign tort is based on a civil action and
not on a crime.
2. The enforcement of the tort would not infringe
the public policy of the forum; and
3. The judicial machinery of the forum is adequate
for its proper enforcement.
CRIMES
CC Art. 14
Penal laws and those of public security and safety
shall be obligatory upon all who live or sojourn in
the Philippine territory, subject to the principles of
public international law and to treaty stipulations.
GENERAL RULE
Lex loci delicti or the law of the place where
the crime was committed.
EXCEPTIONS
1. crimes committed by state officials, diplomatic
representatives and officials of recognized
international organizations. This is based on the
theory of state immunity from suits.
2. crimes committed on board a foreign vessel
even if within the territorial waters of the
coastal state, as long as the effect of such crime
does not affect the peace and order of the
coastal state.
3. Crimes which, although committed by Philippine
nationals abroad are punishable under the local
law pursuant to the protective principle of
criminal jurisdiction as embodied in Art. 2,
Revised Penal Code.
PROPERTY
CONTROLLING LAW
Lex situs or lex rei sitae as embodied in Art.
16, par. 1, CC.
CAPACITY TO TRANSFER OR ACQUIRE
PROPERTY
Governed by lex situs.
EXTRINSIC AND INTRINSIC VALIDITY OF
CONVEYANCES
GENERAL RULE
Governed by lex situs.
EXCEPTIONS
1. Art. 16, par. 2, CC
2. The issue is the rights and liabilities of the
parties as a matter of contract even if the
subject matter is land.
3. The validity and effect of the obligation which
the encumbrance on an immovable secures.
4. Under a policy centered approach, when the
situs of the movable at the time of the transfer
was insignificant or accidental.
5. When the issue involves consideration other
than the validity and effect of the transfer the
court may look into the law of another state
which has a real interest in applying its law.
6. The validity of the contract to transfer an
immovable.
SPECIAL TYPES OF MOVABLE PROPERTY
CHOSES IN POSSESSION (TANGIBLE PHYSICAL
OBJECTS)
General Rule
The law of the place where the property is
located at the time of the transaction determines
the creation and transfer of interests ( lex situs)
Goods in transitu
Seizure and arrest: The law of the temporary
resting place will determine whether the seizure
was lawful or whether a lien, pledge, privilege or a
similar right was acquired.
Disposition of goods: Governed by the law of
any place having substantial connection with the
transaction which will uphold its validity. The owner
may choose from among several legal systems
such as the law of the temporary resting place, lex
loci actus, law of the place of destination, or the
law of the last real situs of the goods.
Rules Governing Means of Transport
Sea going vessels law of the flag; or
If the country has several states law of the
place of registry
CHOSES IN ACTION (INTANGIBLE MOVABLES)
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Debts
Voluntary Transfer or Assignment of Choses in
Action there are three theories as to the law
which may govern:
1. Law of the domicile of the owner
2. Law of the place where the assignment was
executed
3. Law of the place where the debt is
recoverable
Involuntary Transfer of Choses in Action
example would be garnishment. Governed by the
law of the state where jurisdiction is effectively
exercisable against the garnishee. This is the
country where the debt can be recovered, i.e., any
country in which the debtor is present or can be
served effectively with process.
Negotiable Instrument
Governed by the law of the place indicated in
the instrument or place of delivery
Corporate Shares
As against the corporation and third persons
The transfer or assignment is governed by the law
of the place of incorporation.
As between the assignor and assignees The
transfer will be governed by the law most closely
connected to the transaction.
Goodwill
Governed by the law of the principal place of
business
SUCCESSION AND ADMINISTRATION OF
ESTATES
GENERAL RULE
CC Art. 16 (2)
However, intestate and testamentary successions,
both with respect to the order of succession and to
the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person
whose succession is under consideration, whatever
may be the nature of the property and regardless
of the country wherein said property may be found.
EXTRINSIC VALIDITY OF WILLS
CC Art. 17 (1)
The forms and solemnities of contracts, wills, and
other public instruments shall be governed by the
laws of the country in which they are executed.
CC Art. 815
When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms
established by the law of the country in which he
may be. Such will may be probated in the
Philippines.
CC Art. 816
The will of an alien who is abroad produces effect
in the Philippines if made with the formalities
prescribed by the law of the place in which he
resides, or according to the formalities observed in
his country, or in conformity with those which this
Code prescribes.
CC Art. 817
A will made in the Philippines by a citizen or subject of
another country, which is executed in accordance with
the law of the country of which he is a citizen or
subject, and which might be proved and allowed by
the law of his own country, shall have the same effect
as if executed according to the laws of the Philippines.
TESTATOR PLACE OF
EXECUTION
GOVERNING LAW
Philippines Philippine law Filipino
Foreign
country
1. Lex loci contractus
or
2. Philippine law
Philippines 1. Philippine law or
2. National law of
testator
Alien
Foreign
country
1. National law of
testator or
2. Law of domicile
or
3. Lex loci
contractus or
4. Philippine law
Note:
1. Joint Wills executed by Filipinos in the
Philippines or abroad, even though authorized
by the foreign country in which they may have
been executed, shall not be valid in the
Philippines. ( Art. 819, CC) This prohibition
applies only to Filipino nationals.
2. The validity of the will as to its form depends
upon the observation of the law in force at the
time it is made.
INTRINSIC VALIDITY OF WILLS
Governed by the national law of the person
whose will is under consideration in force at the
time of the testators death
CC Art. 16, par. 2
CC Art. 1039
Capacity to succeed is governed by the law of the
nation of the decedent.
INTERPRETATION OF WILLS
Governed by the decedents national law
REVOCATION OF WILLS (ART. 829, CC)
CC Art. 829
A revocation done outside the Philippines, by a
person who does not have his domicile in this
country, is valid when it is done according to the
law of the place where the will was made, or
according to the law of the place in which the
testator had his domicile at the time; and if the
revocation takes place in this country, when it is in
accordance with the provisions of this Code.
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PLACE OF
REVOCATION
TESTATORS
DOMICILE
GOVERNING LAW
Philippines Philippine law
Philippines
Foreign
country
Philippine law
Philippines Philippine law
Outside the
Philippines
Foreign
country
1. law of the place
where the will was
made or
2. law of the place in
which the testator
had his domicile at
the time of the
revocation.
PROBATE OF WILLS
Being procedural in nature, the law of the
forum governs the probate of the will.
ADMINISTRATION OF ESTATES
Philippine law follows the main principle of
territorialism. The national law of the decedent
governs the distribution while the law of the State
appointing the administrator or executor governs
the administration.
Administration is governed by the law of the
place where the administration takes place, and
that is the law of the country from which the
administrator derives his authority.
Administration may either be principal
(administration in the jurisdiction of the decedents
last domicile) or ancillary (any other administration
outside the decedents last domicile).
The administration extends only to 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 reappointed or a new one named in that state.
DISTRIBUTION OF ESTATES
Regulated according to the national law of the
person whose succession is under consideration.
( Art. 16, par. 2 and Art. 1039, CC)
RIGHT OF THE STATE TO CLAIM THE ESTATE
OF THE DECEASED
Regardless of the claim of the foreign state, as
long as there are no private heirs or beneficiaries,
the rights of the State of the situs over local assets
will prevail.
BUSINESS ASSOCIATIONS
1. CORPORATION OR PARTNERSHIP
PERSONAL LAW
General Rule
Place of incorporation
Exceptions
1. Constitutional and statutory restrictions ( Art.
XI I , 1987 Constitution)
2. Control Test during war Courts may pierce
the veil of corporate identity and look into the
nationality of the stockholders to determine the
citizenship of the corporation.
LAW OF THE PLACE OF INCORPORATION IS
APPLICABLE ON THE FOLLOWING ISSUES:
1. existence and the legal character of the
corporation
2. capacity and powers of the corporation
3. internal organization of the corporate enterprise
4. alteration of the charter and the dissolution of
the corporation
DOMICILE OR RESIDENCE OF FOREIGN
CORPORATIONS
When it is not fixed by the law creating the
corporation, it shall be understood to be the place
where their legal representation is or where they
exercise their principal functions. ( Art. 51, CC)
A foreign corporation granted license to
operate in the Philippines acquires domicile here.
JURISDICTION OVER FOREIGN CORPORATIONS
Because of the consent of the state, a foreign
corporation will be recognized and will be allowed
to transact business in any state which gives it
consent. This consent doctrine is established in
Sections 125 128, Corporation Code.
All foreign corporations lawfully doing business
here in the Philippines shall be bound by all laws
and rules and regulations applicable to domestic
corporations except provisions for the creation,
formation, organization or dissolution of
corporations or liabilities, responsibilities or duties
of stockholders, members or officers of the
corporation to each other.
Service of summons upon foreign corporations
doing business in the Philippines may be made:
1. on its resident agent
2. in the absence thereof, on the government
official designated by law or any of its officers
or agents within the Philippines
3. on any officer or agent of said corporation in
the Philippines
4. by serving summons through diplomatic
channels.
RIGHT OF A FOREIGN CORPORATION TO BRING SUIT
General Rule
No foreign corporation transacting business in
the Philippines without a license, or its successors
or assignees, shall be permitted to maintain or
intervene in any action, suit or proceeding in any
court or administrative agency of the Philippines,
but such corporation may be sued or proceeded
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against before Philippine courts or administrative
tribunals on any valid cause of action recognized
under the Philippine laws ( Sec. 133, Corporation
Code) . Hence, acquisition by a foreign corporation
of a license to transact business in the Philippines
is an essential prerequisite for the filing of suits
before courts.
Exceptions
1. isolated transactions
2. action to protect trademark, trade name,
goodwill, patent or for unfair competition
3. agreements fully transacted outside the
Philippines
4. petition filed is merely corollary defense in a
suit against the corporation
EFFECT OF FAILURE TO SECURE A LICENSE TO
TRANSACT BUSINESS
1. The foreign corporation has no right to sue in
the Philippines but it can still be sued.
2. Although the contracts entered into may be
valid as between the parties, it may not be
enforced in the Philippine courts.
2. TRUSTS
When the trust contains an express choice of
law provision, that law shall be applied.
In the absence of express provision, the courts
will deem controlling the law that will sustain the
validity of the trust.
IV. FOREIGN JUDGMENTS
FOREIGN JUDGMENT
It is a decision rendered outside the forum and
encompasses judgments, decrees and orders of
courts of foreign countries.
RECOGNITION OF FOREIGN JUDGMENT
Passive act of giving the same effect that it has
in the State where it was rendered with respect to
the parties, the subject matter of the action and
the issues involved without the necessity of filing
an action in the forum giving effect to the
judgment.
Examples of foreign judgments which can only
be recognized: declaratory judgments, judgments
which give no affirmative relief, judgments which
determine the parties interests in a thing or
status.
ENFORCEMENT OF A FOREIGN JUDGMENT
A foreign judgment is enforced when, in
addition to being recognized, a party is given
affirmative relief to which the judgment entitles
him and it necessarily requires the filing of an
action.
This necessarily implies recognition.
REQUISITES FOR RECOGNITION OR
ENFORCEMENT
1. It must be a judgment in a judicial or quasi-
judicial action;
2. It must be a judgment on civil or commercial
matters, including questions of status;
3. The court issuing the judgment must be a court
of competent jurisdiction;
4. The judgment must emanate from an impartial
court;
5. The judgment must be valid according to the
law of the court that delivered it;
6. The judgment must be final and must amount
to res judicata in the country where it was
delivered;
7. A judgment for the payment of money must be
for a fixed sum;
8. The foreign judgment must have disposed of
the controversy on its merits;
9. The foreign judgment must not be barred by
prescription under the law of the State in which
it was promulgated or under the law of the
State in which its recognition or enforcement is
being sought;
10.The foreign judgment must not be contrary to
the public policy or the canons of morality of
the place where it is sought to be enforced or
recognized;
11.The foreign judgment must not be contrary to
natural or substantial justice;
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12.The foreign judgment should not have been
obtained by fraud; and
13. The foreign judgment must not constitute a
clear mistake of law or fact. (Salonga. Private
International Law. 1995. Chapter XXIII,
Recognition and Enforcement of Foreign
Judgments.)
PHILIPPINE RULE EFFECT OF FOREIGN
JUDGMENTS OR FINAL ORDERS
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 case of 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 case of 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.
(Section 48, Rule 39, Rules of Court)
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