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1.

conflict 3-22-14 || 00:00:00 00:12:00|| Ralph

1.

Lets start with recognition and enforcement of foreign


judgment.
It is not unthinkable now that one obtains judgment from a
foreign country. And when that judgment obtained in the
foreign court is not executed there in that foreign country,
the judgment may be executed in another country. So it is a
fact of life that a decision rendered by another country may
be executed in another country. This is true despite the
fundamental principle that each state is superior over its
own border. So each country has its sovereignty. Each state
is superior over its own border. So that consistent with this
universal principle, judgment rendered by a court of a
particular country may not have an extraterritorial effect. In
its narrowest sense, allowing a judgment rendered by a
foreign court in another country amounts to a derogation of
the sovereignty of that latter state. It will amount to the
authority of that latter state being subordinated by the
authority of another country. But this was before. As society
evolved, and so its laws and jurisprudence, it is now a fact of
life that a judgment rendered by one state may be enforced
or recognized in another country. How is this principle being
justified? There are four justifications for this principle of
recognition and enforcement of foreign judgment.
1. The Theory of Comity. As I said, because a state is
superior over its own border, any decision rendered
by a court of that particular state may not be given
extraterritorial effect, unless the other state
consents, or recognizes or allows that foreign to be
enforced in the latter state. This is comity
predicated by respect observed by one country for
the authority of another country. It is based on
respect that each member of the community of
nations owe to another member of the same
community. This is the principal basis of our policy in
our
jurisdiction
allowing
enforcement
and
recognition of a foreign judgment. This is threshed
out under specific provisions of the rules of court
particularly section 48 of rule 39recognizes foreign
judgment and their effects in our jurisdiction. We will
discuss this topic thoroughly as we move along.
2. Reciprocity. Another justification for the rule allowing
recognition or enforcement of a foreign judgment is
reciprocity. Under this theory, one state recognizes
or allows the enforcement of the judgment of a
court of another state if that latter state also
recognizes or allows the enforcement of a foreign
judgment of the former state. So it is reciprocity
mutual recognition of the authority of the other
state. This is also the basis to a certain extent
in our jurisdiction specially on matters
concerning intellectual property laws or
rights. We adhere to the principle of
reciprocity recognizing laws and foreign
judgments involving intellectual property
rights.
3. The third justification is the Theory of Vested Rights.
Under this theory, a foreign judgment creates a right
which right may be enforced in any other state
where the defendant may be found or where the
property of the defendant is located. Theory of
justice. This is not adhered to by the Philippines.
4. Res judicata. The fourth one is the principle of res
judicata. Under this theory, when a case is decided
by a foreign court, all the issues adjudicated in that
case, cannot be relitigated by the other state except
to a certain extent. To a certain extent, we also
adhere to this principle as what we have in our
jurisdiction the qualified principle of res judicata.
The specifics, we will discuss as we move along.
So these are the four justifications for the recognition and
enforcement of a foreign judgment.
Distinction
between
enforcement
and
recognition:
Recognition is just a passive implementation of a foreign
judgment. While enforcement is an active implementation of
a foreign judgment. A foreign judgment generally may be
classified into three:

2.

Judgment which may involve affirmative relief.


Meaning, a judgment that directs a party to do or
perform a certain act. Typical example of a foreign
judgment involving affirmative relief is a judgment
rendered in an action for collection of sums of
money. The court there, if the plaintiff prevails in the
suit, the court will direct the defendant to pay the
obligation sued upon.
The foreign judgment may not involve affirmative
relief but merely adjudicates the partys rights. So it
does not command the doing or performance of an
act but it adjudicates. A typical example of a
judgment which does not involve affirmative relief is
divorce. A judgment of divorce. A judgment
adjudicating issues about filiation. It does not
command the doing or performance of an act but it
adjudicates rights.

If a judgment involving affirmative relief is rendered by a


foreign court, and its effect is sought to be applied in the
foreign country, what will happen there is the foreign
judgment will first be recognized by the court of the other
country (the other state), and the foreign court or the forum
court will recognize the foreign judgment and direct its
execution in compliance with the tenor of the foreign
judgment which directs the doing or performance of an act.
So going back to my example, if the foreign judgment
involves a monetary judgment directing the defendant to
pay certain sums of money, and that judgment is sought to
be enforced in the Philippines, the court in the Philippines
will recognize the judgment and enforce it by directing the
performance of the affirmative relief which is the payment
or collection of the sums of money. How is this done? Our
courts in the Philippines will now issue writ of execution
directing the defendant to pay the judgment awarded in the
foreign judgment. So in essence, what will be enforced
in the Philippines is a judgment of the domestic court
the local court. Because what will be complied or
implemented by the sheriff is the writ of execution issued by
the local court. And that writ of execution directs the sheriff
to execute the judgment which involves affirmative relief. So
what will happen there is the sheriff will direct the defendant
to pay and if the defendant refuses or fails to pay, then levy
on execution will follow.
On the other hand, if the judgment does not involve
affirmative relief but merely adjudicates certain rights like
divorce for example, what will happen there is the court also
in an action for recognition of the foreign judgment, the
court will merely recognize the foreign judgment. But
it will not direct the doing of a positive act.
2.

conflict 3-22-14 || 00:12:01 00:24:00|| Shahane

What will happen there is the court, also in an action for


recognition of foreign judgment, will merely recognize the
foreign judgment but it will not direct the doing of a
particular positive act because the tenor of the judgment
does not involve affirmative relief. Typical example of a
situation which merely involve recognition of foreign
judgment is when a party is sued for bigamy in the
Philippines and by way of defence he invokes the divorce
decree obtained abroad to prove that at the time he
remarried here in the Philippines, his marriage is already
dissolve by virtue of foreign divorce decree. This is a
passive invocation of a foreign judgment. It does not
command the doing or the performance.
Take note that enforcement necessarily presupposes
recognition. That is why if your action is for
enforcement your petition should be a petition for
recognition
and
enforcement
of
the
foreign
judgment. But if it is only for recognition, then your
petition should be captioned corresponding as mere
petition for recognition of foreign judgment. A
judgment may be recognized may not necessarily be

enforced in the sense that the court may direct the doing of
an affirmative act.

2.

Suppose the party seeking the recognition or


enforcement of foreign judgment is the alien spouse,
because the aliens after obtaining a divorce decree
abroad comes back here in the Philippines and
wishes to remarry another Filipino. The cause of
action of the foreigner cannot be based under Art 26
par. 2 of the family code.

3.

conflict 3-22-14 || 00:24:01 00:36:00|| Dente

Specific procedure to follow when you seek for the


recognition of a foreign judgment
The remedy varies depending on the nature of the foreign
judgment that you seek to be recognized or enforced. As it
is now, there may be three classifications that we can derive
from existing jurisprudence.
1.

When your action is for recognition of a foreign


judgment and the petitioner is the Filipino spouse
previously married to a foreigner and the foreigner
validly obtain a decree abroad and the Filipino
spouse wishes to remarry here in the Philippines.
This involves recognition of a foreign judgment but
how do it? In the case of Republic v. Orbesido, the
SC ruled that in order for the Filipino spouse to be
allowed to remarry, the appropriate action to file is
special civil action known as Petition for
Declaratory relief. This is a remedy available to
one who is interested under a law, ordinance,
contract or any public instruments or someone
whose rights is affected by a law, ordinance, or any
govt. Regulations and the party affected seek
clarifications or seek declaration of his right under
law, ordinance, or any govt. Regulations. The SC in
this case said that when the Filipino spouse whose
marriage to a foreigner was dissolved by virtue of a
divorce decree wishes to remarry, he may invoke
Art. 26 par 2. This is a provision which recognizes
the validity of divorce obtained abroad despite our
policy against divorce.
Now lets imagine that you already have declaratory
relief, what facts or matter do you need to establish
so that your petition for declaratory relief will be
favourably granted by the court? In the same case,
SC ruled that there are three essential matters or
facts that the petitioner should establish in the
proceedings for declaratory relief.

Prove the existence of the divorce decree


or rendition of that decree by a foreign
court
Official publication of foreign decree,
or
Certified copy of the divorce decree
certified by the legal custodian and
accompanied by the certification
issued by Philippine consular officer
stationed in that foreign country
where the divorce decree was
obtained.

Prove as a fact the conformity of the


divorce decree to the foreign law allowing
the divorce decree. Prove not only the
existence of the divorce decree but also
the existence of the foreign law. The
purpose of this is to establish that the
divorce decree was issued in accordance
with the foreign law.

Demonstrate that under the divorce


decree and the law allowing it, the divorce
decree capacitates the foreign spouse to
remarry. So this divorce decree must be
absolute in character.
It is only when this three facts or matters are duly
established that your petition for declaratory relief
can be granted and your client can remarry in the
Philippines.

00:24:01 00:36:00
Article 26 as a cause of action can only be availed of by the
Filipino spouse because that remedy for the benefit of this
provision is intended only for the benefit of the Filipino
spouse. While the Filipino spouse cause of action for the
enforcement or recognition of the divorce decree obtained
abroad is based on the Article 26, the alien spouse may not
avail of this remedy. But as a party affected by the divorce
decree he or she may seek the recognition or enforcement
of the foreign decree only that he cannot invoke as a cause
of action 2nd paragraph of Article 26.
What is therefore the cause of action of the alien
spouse obtained a divorce decree abroad and wishes
to remarry in the Philippines?

CORPUZ vs. STO.TOMAS


FACTS: This involves a natural born Filipino
but subsequently obtained a Canadian
citizen. He married to a Filipina. After the
marriage he returned to Canada. He went
back to the Philippines without informing the
wife to surprise her. True enough, he was
surprise. He learned that his wife is having an
illicit relationship with another man. So he
returned to Canada. But he did not learn his
lesson. He returned in the Philippines found
another Filipina and wishes to remarry. Mr.
Corpuz initially, went to the office of the Local
Civil Registrar in Pasig City and have the copy
of the divorce decree obtained in Canada
recorded. The officer of the Local Civil
Registrar office accepted the copy of the
divorce decree and in recorded it. He was
however advised that for the purpose of
remarrying, the recording of the divorce
decree is not enough because without a court
judgment recognizing the divorce decree, in
the eyes of the Philippine law he remains to
be married to his first Filipino spouse. And so
Mr. Corpuz filed an action for enforcement of
foreign judgment. The trial court at first
dismissed the petition ruling that he has no
right to avail the recognition of the foreign
judgment under Article 26.
HELD: The SC said that a Foreign judgment
recognize in the Philippines, its effects is not
automatic. In other words, in our jurisdiction
while we recognize foreign judgment, the
effect does not automatically operate in the
Philippines because it needs court order. The
reason why the foreign judgment needs to be
recognized first by a competent court in the
Philippines is because of foreign judgment.
Before foreign judgment is recognized and be
given effect in the Philippines, it is necessary

to determine if that foreign judgment is


against the public policy. And so, it is required
that it should first go through judicial process
and the court in this proceedings to
determine if that foreign judgment is
consistent with our public policy. That is why
as we discuss earlier, there are instances
where a foreign judgment or a foreign law
may not be recognize in the Philippines by
reason of public policy.

Take note that under the Family Code, when a foreigner who
was previously married is dissolve by divorce or nullity of
the previous marriage and wishes to remarry in the
Philippines, instead of requiring him to submit a copy of a
divorce decree, he is only required by law to submit a
certificate of legal capacity. And under the family code
this is enough for him to obtain a marriage license. This is so
because the capacity of the foreigner to marry in the
Philippines is governed by his national law in accordance
with the nationality theory, Article 15 of the Civil Code. So
what is required is only the certificate of legal capacity that
he is already capacitated to remarry because of the divorce
decree obtained earlier.
So obviously insofar as the
foreigner is concern there is no need for him to go to court
and have the previous divorce decree obtained by him
abroad recognized before he can apply for marriage license.
Such is not one of the requirements before a marriage
certificate is issued. There is no requirement that a divorce
decree should first go to court or judicial process for
recognition. But in the case of Corpuz vs. Sto. Tomas,
apparently, this is no longer true because in this case the SC
is categorical in saying while we recognize foreign judgment
including foreign divorce decree, it is not automatic unless
the judgment is recognized in the competent court in the
Philippines that foreign divorce decree is not considered
effective in this country and therefore without complying
with the requirement that a judicial order recognizing the
divorce decree the foreigner in the eyes of Philippine law
remains incapacitated to remarry by reason of the fact that
he remains to be already married to another. So as it now, if
you happen to be a lawyer acting on behalf of the foreigner,
whose previous marriage with a Filipino is dissolve by reason
of a divorce decree, by virtue of the Corpuz vs. Sto. Tomas
ruling, you cannot just apply for a marriage license, you
need first to go to court to have that divorce decree
recognize by the Philippine court. Because obviously the
office of the local civil registrar or the agency in charge of
the issuance of marriage license will require the applicant to
first comply with that requirement.
What is the specific remedy that the foreigner should
pursue in order to achieve the purpose of having this
divorce decree recognize in the Philippines? The
specific remedy is different from the remedy applicable to a
Filipino who invokes the 2 nd paragraph of Article 26, because
in this case of Corpuz, the SC said that the proper remedy
should either be a Petition for Recognition or
Enforcement of a Foreign Judgment, in this case foreign
divorce decree, and once the foreign divorce decree is
recognize by Philippine court, the petitioner may file for
Correction of Entry in the local Civil Registrar. Because
according to the SC, the action for enforcement or
recognition even if granted by the court is not enough to
effect the correction of the entries in the records available in
the local civil registrar particularly the marriage contract
between the foreigner and his previous Filipino spouse. So it
would appear that if the foreigner first file a petition for
recognition of the foreign divorce decree, and this is
granted, he needs to file another action which is Petition

for Cancelation of Correction of Entries. Under Rule 108


which is a special proceeding, a remedy to collect facts of
personal life such as birth, marriage, death of other facts
with public consequences. However the SC in the same case
ruled that there is a way to simplify the proceedings. Its not
also required that 2 separate positions or actions should be
filed. Because we discussed before that the alien spouse or
the petitioner may directly file a petition for correction of
entries in the records of civil registrar under 108 without
need for filing first for a petition for recognition of a foreign
divorce decree.
4.

conflict 3-22-14 || 00:36:01 00:48:00|| Albert

.without need for filing first a petition for recognition of a


foreign divorce decree.
In other words, SC said, the
recognition of a foreign divorce decree can very well be
achieved in the same proceeding for Correction of Entry in
the record of the Local Civil Registrar. So, the petition under
Rule 108 will tackle two matters namely, a) the recognition
of the foreign divorce decree and b) the correction of entry
in the records of the LCR. Therefore, two purposes will be
achieved in one and the same proceeding.
What do you need to prove in these proceedings? Either, the
recognition of the foreign divorce decree, or the correction
of entry under Rule 108? What matters do you need to
prove? As I said earlier, if the cause of action is based on
Art. 26, par. 2 of the CC, and the petition is filed by a Filipino
spouse who seeks to remarry thru a Petition for Declaratory
Relief, there are three matters that you will need to
establish in court.
What about in the second situation now, where the
petitioner is the alien spouse, the cause of action is not Art.
26 but Rule 108, or Sec. 48 of Rule 39, enforcement or
recognition of a foreign judgment and the petition or action
is an ordinary action for recognition or a special proceeding
under Rule 108
In the case of Corpuz v. Sto. Tomas, SC said that in these
proceedings, you only need to prove two facts:
1. The existence (authenticity) of a divorce decree,
either proving it by publication or certified copy duly
attested by the custodian and certified by the Philippine
consular official
2. The foreign law or the national law of the alien
concerned. This is because in our jurisdiction, it is our
policy that we acknowledge divorce when it is valid in
accordance with national law of the alien.
So, if a foreigner seeks the recognition of a foreign divorce
decree in the Philippines, it is not enough to only prove the
existence of the foreign divorce decree however it is equally
important to prove the national law of the alien concerned.
The purpose, being, is to determine whether that divorce
decree is validly obtained in accordance with the national
law of the party concerned. The third requirement under
par. 2 of Art. 26, is no longer obtaining; you do not need to
prove that under the national law there, he is capacitated to
remarry. Only the first two are necessary in this case.
Let us go to the third situation, it is when the foreign
judgment sought to be recognized in the Philippines, is a
foreign judgment other than a divorce decree. So, it means
ordinary foreign judgment or any judgment not involving
divorce. It may also happen that the foreigner who obtained
a favorable judgment for a collection of sum of money
abroad, comes to the Philippines to enforce the foreign

judgment. What is the remedy available? What is his or her


cause of action? Of course it cannot be under Art. 26 and it
cannot also be a petition for declaratory relief, neither can it
be under Rule 108 for correction of entries. What is the
cause of action? The cause of action is based on section 48
Rule 39, and the action is an ordinary action for recognition
and enforcement of a foreign judgment. That is the cause of
action and the corresponding remedy available. What do
you have to prove in this proceeding in order that this
judgment, not involving a divorce decree may be recognized
or enforced here in the Philippines.
In Fujiki v. Marinay, SC said there are only two matters
that the petitioner should prove in the proceeding for the
enforcement of a foreign judgment.
1. The existence of the foreign judgment
2. The authenticity of the foreign judgment which can be
proved by publication or a certified true copy (You refer back
to Secs. 24 and 25 of the Rules of Court)
Here, take note that there is no more need to prove the
foreign law. Existence and Authenticity of foreign judgment
is enough. This is the ruling in the case of Fujiki v. Marinay.
In Fujiki v. Marinay, the foreign judgment involved there is
not divorce. The foreign judgment involved there was a
judgment declaring void the marriage of Marinay and the
second husband Maekara. Take note that this is different
from divorce proceedings because while divorce is not
recognized in the Philippines, petition for decalaration of
nullity of a void marriage on the ground of bigamy is
consistent with our public policy. In fact, under Art. 35 par. 4
of the Family Code, bigamy is one of the grounds for
declaring a marriage void. So, if it is an ordinary foreign
judgment, what is only needed to be proven is the
existence and the authenticity, there is no need to prove
the applicable foreign law, and the reason behind this is
obvious. According this case, SC said that in an
action for recognition/enforcement of a foreign
judgment, the authority of our court is to review the
foreign judgment is limited.
This action for
recognition/enforcement prohibits relitigation of the
same issues already adjudicated by the foreign court.
What happened here?
Facts: This is the story of a Filipina who married a Japanese
named Fujiki but the marriage did not last so the former
again married another Japanese in the person of Maekara.
Because of her second marriage to Maekara, Marinay was
able to set foot on Japanese soil. But, as fate would have it,
she was physically abused by Maekara. To cut the long
story short, fate has brought Marinay and Fujiki again
together in Japan. So they rekindled their love, and this
time Fujiki helped Marinay get a declaration of nullity of her
marriage with Maekara. With the help of Fujiki, Marinay filed
a petition for the declaration of nullity of her marriage with
Maekara on the ground of bigamy. This was granted by the
Japanese court. Thereafter, Fujiki as the first and lawful
husband, and in his effort to clear the cloud of doubt as to
his status as the lawful husband of Marinay, went to the
Philippines and sought the correction of entry in the
marriage certificate of Marinay because in the said marriage
certificate, it appears that Marinay got married twice. So he
wanted to clarify and correct the entry so that it would be
reflected that Marinay is only lawfully married to the first
husband Fujiki. But the petitition, captioned as petition for
enforcement of a foreign judgment was dismissed by the
trial court.
5.

But the Petition, captioned as Petition for Enforcement of a


Foreign Judgment was dismissed by the Trial Court,
reasoning that Fujiki is not the Real party in interest, he has
no legal personality to file a Petition for the Enforcement of
a Foreign Judgment, applying the rules governing Petition for
nullity of void marriages, where it is provided that only the
spouse may file a petition for nullity of a void marriage.
The SC castigated the Trial Court: it was a grave error for the
Trial Court to dismiss the petition on the ground that it did
not comply with the provisions of the rules governing
declaration of nullity of void marriages. In justifying its
ruling, SC said that, what the petitioner filed before
the Trial Court is an ordinary action for enforcement
of a foreign judgment. To apply of the provisions of
the rules governing declaration of nullity of void
marriages to the petition for enforcement of foreign
judgments would necessarily require the parties and
the court to abide by the provisions of the rules
governing petition for nullity of void marriages
including the service of summons, the requirement
that the prosecutor should conduct an investigation
to determine if collusion exists, the requirement of
pre-trial, trial and so on and so forth.
SC said if this would be the procedure then the result would
be a re-litigation of the case anew because doing so will
undo the proceedings already had before the Japanese
Court. SC wanted to say that in a proceeding for
recognition or enforcement of a foreign judgment,
the power of review of the court is limited only to
grounds external to the merits of the case. And,
obviously you cannot touch matters on the merits only
grounds external to the merits may be looked into by the
local court.
The obvious reason behind this rule which prohibits
re-litigation of the issue is the principle that foreign
judgments are presumed to be valid. It is the burden
of the party claiming otherwise to prove its invalidity.
Since this is presumed valid, it is obvious that the
petitioner should be burdened with proving the
validity of that foreign judgment. And, if it is not
burdened with the duty to prove the validity of the foreign
judgment then it follows that it should not be burdened with
the duty to prove the foreign law. For how else do you prove
the validity of the foreign judgment unless you prove the
foreign law under which the judgment was rendered? So,
consistent with the policy and the principle that a
foreign judgment is presumed to be valid, the
petitioner, the proponent, the party seeking
enforcement of a foreign judgment is not obliged to
prove the foreign law under which that foreign
judgment was rendered.
But this rule however does not apply if the foreign judgment
involved is that of a foreign divorce decree because by
virtue of Republic v. Obrecido and ____ v. Sto. Tomas, the SC
was more categorical in ruling that petitioner should not
only prove the existence and authenticity of the divorce but
just as important is to prove the foreign law.
The proceedings for recognition-enforcement involves a
filing of petition before PH court. When a petition for this
purpose is filed before any appropriate court, jurisdiction is
always an issue. And, for purposes of determining
jurisdiction, the nature of the action matters because
jurisdiction depends on the nature of the action. So the
question is, What court is vested with jurisdiction to hear
and try actions for enforcement/recognition of a foreign
judgment?

conflict 3-22-14 || 00:48:01 01:00:00|| Biton

At first blush it may appear that by its very nature, an action


for recognition-enforcement of a foreign judgment should be
distinguished from an ordinary action filed at the first
instance because an action filed at the first instance is
based on a cause of action which gave rise to that particular
case filed in court. So, if an action for collection of sum of
money is filed at the first instance, the cause of action there
is the fact that the defendant owed money to the plaintiff
and the fact that the defendant failed to pay despite
demand. For purposes of jurisdiction, if the action is capable
of pecuniawy estimation like an action for collection of sums
of money, the amount of the money involved is
determinative of jurisdiction. If it is below 400K, its with the
MTC, otherwise RTC.
An action for recognition-enforcement is premised on
a different cause of action. So, when a judgment is
rendered by a foreign court in that action for
collection of sums of money and that judgment
rendered by the foreign court is sought to be
recognized or enforced in the PH the action for
enforcement is now based on a different cause of
action not the cause of action upon which the action
for collection of sums of money was filed before the
foreign court. This time around, the cause of action is
the judgment itself. So, theoretically, when someone files
an action for enforcement-recognition of a foreign judgment,
the cause of action is not for collection for sums of money
but for enforcement of a foreign judgment supposed to be
a different cause of action.
So, there is logic in the argument that when one files an
action for enforcement of a foreign judgment even if it
involves money judgment that action should not be
characterized as an action capable of pecuniary estimation
because the cause of action is not the collection but the
foreign judgment itself. This is akin to a complaint for
specific performance or injunction which his
incapable of pecuniary estimation.
But this issue has been settled already in the case of
Mijares, et. Al. v. Judge Ranada (?). It is not correct to say
that an action for enforcement of a foreign judgment is
incapable of pecuniary estimation. The prevailing rule
now is an action for recognition-enforcement of a
foreign judgment is either Capable or Incapable of
Pecuniary Estimation depending on the nature of the
foreign judgment sought to be enforced in the PH.
So, for purpose of determining jurisdiction the action for
enforcement of foreign judgment is considered as an
ordinary action so that if the action involves sums of
money filed before a foreign court and the foreign court
ruled in favour of the plaintiff and the plaintiff seeks to
enforce the foreign judgment which awarded certain amount
of money in favour of the plaintiff against the defendant
sought to be enforced in the PH for purposes of
jurisdiction
over
the
action
for
recognitionenforcement, that action should be considered as
capable of pecuniary estimation because the
judgment itself that is sought to be enforced involves
monetary award which is capable of pecuniary
estimation.
So, the determining factor now is not the Cause of action
being the enforcement of a foreign judgment thats no
longer the factor now; the factor now is the relief obtained
on the foreign court which is sought to be enforced in the
PH. If that relief involves payment of certain amount that is
capable of pecuniary estimation. This is the ruling in Mijares.

This involves a class suit filed by the victims of the Marcos


Regime. They obtained a multi-million/billion award. When
they failed to execute the judgment rendered by the court in
Hawaii, the plaintiffs/petitioners filed an action for
enforcement of a foreign judgment in the PH. Since the
judgment awarded 2B Pesos, the court dismissed the case
for failure to pay docket fees which runs to 475M (yati!). The
petitioners argued that this is an action for enforcement of a
foreign judgment, this is not an ordinary action for collection
of sums of money. The cause of action is the judgment itself
the judgment being incapable of pecuniary estimation.
But the SC rejected this argument, saying, how can it be
incapable when the relief that you demanded, the relief
that you want enforced in the PH is capable of pecuniary
estimation?
6.

conflict 3-22-14 || 01:00:01 01:12:00|| Richard

The cause of action is the judgment itself, the judgment


being incapable of pecuniary estimation. But the SC rejected
this argument. The SC said, the relief that you are enforcing
in the Philippines is capable of pecuniary estimation. But the
SC in this case made a Solomonic decision. While it upheld
the trial court in its decision, in its finding that the action is
capable of pecuniary estimation, yet, the SC ruled that the
filing fee is just the same, about, 400 pesos. The SC was
able to find obscure provisions in the rules and said that this
kind of action should fall under this provision. It turns out
that this provision requires payment of a minimal fixed
amount of filing fee, which incidentally happened to be the
same amount that the petitioner earlier paid when they filed
the petition. The net effect is, the petitioner still qualm. But
thats only about the issue of jurisdiction in relation to
correct docket fee.
Now what is the principle that can be deduced from the
ruling in Mijares? The obvious principle that can be deduced
from this ruling is that it depends on the nature of the
foreign judgment. It depends on the relief adjudged
by the foreign court in that decision sought to be
enforced in the Philippines. So if the decision involves a
relief consisting of sums of money, it is capable of pecuniary
estimation, and therefore, for purposes of jurisdiction, you
determine the amount. This time, jurisdiction is determined
by our own law because the action for enforcement or
recognition is filed pursuant to our own law. So if its below
400,000 MTC, more than 400,000 - RTC.
On the other hand, if the foreign judgment does not involve
monetary award, simply adjudicates certain rights like it
calls for decree of divorce, or other actions which do not
involve any monetary award, then it rightly falls within the
classification of actions incapable of pecuniary estimation,
and therefore jurisdiction should always be with the RTC
under our prevailing rules.
If the foreign judgment is res judicata in the Philippines, can
the defendant resist and defeat an action for enforcement of
foreign judgment filed before the Philippine court?
In our jurisdiction, we adhere to the qualified form of res
judicata. Absolute res judicata is a principle which
prohibits relitigation of the foreign judgment. In other words,
when the foreign judgment is sought to be enforced in
another country, there is no way to repel it because its
absolutely considered binding and conclusive upon the local
court. But this is not the principle we adhere to in the
Philippines because ours is qualified. Qualified in the sense
that when an action for recognition or enforcement of a
foreign judgment is filed in the Philippines, the defendant is
allowed by our rules to repel that foreign judgment on the

basis of some specified and recognized grounds. And it is


only when the court in the same case rules that none
of the grounds for repel is present that the foreign
judgment may be considered res judicata. In other
words, foreign judgment can only be considered res judicata
and therefore conclusive upon our courts only when the
defendant was given the opportunity to repel that foreign
judgment, and despite that opportunity, the defendant
failed to prove that any of the grounds recognized by the
rules is present to warrant the repel of the foreign judgment.
What are the grounds for repelling a foreign judgment?
The grounds are specific, provided for under 3 paragraph of
Section 48, Rule 39. The grounds include: lack of
jurisdiction, lack of notice to the parties, collusion,
fraud, mistake of fact or law. There are only five
grounds. Any or some of these grounds may be invoked by
the defendant in an action for enforcement or recognition of
foreign judgment by way of repelling the foreign judgment.
So if any, or some, or all of these grounds are proven to be
present, that foreign judgment may not be recognized nor
may it be enforced in the Philippines. In that sense, the
foreign judgment is successfully repelled.
rd

The rule on enforcement of foreign judgment contemplates


of two kinds of judgment. The first judgment is the
judgment or a final order upon a specific thing. While
the second form of judgment is a judgment or final order
upon a particular person. In other words, the first is an
action which involves judgment in rem, the second is an
action which involves judgment in personam.
What is the effect of a foreign judgment or a final order
upon a specific thing? Or what is the effect of a judgment in
rem (judgment upon a specific thing)? Under Section 48, a
judgment in rem or a judgment upon a specific thing
is conclusive upon that title of the thing. Conclusive,
meaning to say, it cannot be controverted because it
is conclusive. So whatever judgment that a foreign
court rendered in a case as to the title of a particular
property, that is already conclusive, and our courts
may not review or supersede or substitute its own
judgment because it is conclusive. What is the basis for
this conclusive nature of judgment in rem. The obvious
reason here is the lex rei sitae principle. When a judgment
rendered by a foreign court involves adjudication on the title
of a certain property, obviously the property being
mentioned here is located outside of the Philippines because
jurisdiction over this property is lodged with the foreign
court. Because we are talking here of a foreign judgment
involving a property, the judgment involves title. It involves
adjudication of the issues of title over a property. So
obviously the property is outside of the Philippines. So when
the court having jurisdiction over the property, having
jurisdiction over the res renders a decision concerning title
to the property, that is conclusive and our courts are without
jurisdiction to substitute its judgment for that of the foreign
court because obviously, our court has no jurisdiction over
that property the title of which being adjudicated by the
foreign court. So that, in an action for enforcement of a
foreign judgment and the judgment is one in rem because it
involves an adjudication of an issue of title over a certain
property, that is already conclusive. The local courts cannot
overturn the finding rendered by the foreign court.
Otherwise, it would be useless on the part of the Philippine
court to overturn the judgment of the foreign court for lack
of jurisdiction. So our local courts cannot, for example,
contrary to the decision rendered by the foreign court,
cannot direct the defendant to deliver a property located
outside of its territory. So our court here cannot direct the
sheriff to go there in Russia to seize the property of the

defendant because the court processes including writs of


execution, writs of replevin do not take effect in a foreign
land. Now what happens if a judgment is rendered by the
court? The normal procedure there is that if the judgment is
final, it should be executed in accordance with the tenor of
the decision. Say for example, X is now directed to reconvey
the possession of a property to the plaintiff. Now our courts
cannot do that if the property is located outside.
7.

conflict 3-22-14 || 01:12:01 01:24:00|| Clyde

Our court cannot do that if the property is located outside.


Because the judgment of the court can be executed
by its sheriff and the force and effect of its processes
is coterminous with its execution. Thats the reason why
a judgment upon a thing is conclusive upon the title of the
particular thing. This is consistent with lex rae sitae. Second,
a judgment of final order upon a specific person, the effect
of the foreign judgment is that it is presumptive evidence of
the right between parties and successors-in-interest by
subsequent title. As distinguished from judgment in rem
which is conclusive, a judgment in personam is merely
evidence of a right between the parties. So it may be
contradicted.
Take note however, that even if a judgment in rem is
conclusive, it can however be repelled. This is the
kind of conclusive judgment that can still be repelled.
This can be done under the 5 grounds enumerated by
law: fraud, collusion, lack of notice, lack of
jurisdiction, mistake of fact and law. Similarly and in
like manner, a judgment in personam, presumptive in
nature, may be repelled on the basis of the same
grounds.
There is however a view to the effect that insofar as a
judgment in rem is concerned, it can only be repelled on the
basis of grounds other than the merit of the case. In other
words, while it may be repelled on the ground of lack of
jurisdiction, lack of notice, or with grounds external to the
merits, a judgment in rem which passes upon title to a
particular property may not be repelled based on the
merits, otherwise, it would defeat the very purpose
and nature of it being a conclusive judgment. Its
supposed to be conclusive.
What about judgment in personam, may it be reviewed on
the merits?
There are conflicting views on the matter. One view is to the
effect that the foreign judgment may not be reviewed on the
merits by the local court in an action for the recognition of
foreign judgment. The reason being that an action for
recognition prohibits relitigation for the same issues and
claims already passed upon by the foreign court. So the
authority of our court in an action for recognition and
enforcement is limited only to grounds external to the
merits. Otherwise, the SC said, if our local court would be
allowed to review on the merits, and therefore relitigate the
same issues, the petitioner will be brought back to its
original cause of action. It is as if the proceedings in the
Philippines will undo proceedings already had by a
foreign court. This is the ruling in the case of Fujiki, and
Mijares. So, in Fujiki and Mijares, the SC consistently ruled
that relitigation is not allowed in a proceeding for
recognition of a foreign judgment. While repel may be
allowed, its merely limited to external merits. Thats one
view.
The other view is that enunciated in the case of Binalbagan
Isabela and Tayag vs. Benguet Consolidated. Lets go to
Binalbagan. This involves a contract of purchase and

delivery of certain materials, to be delivered by an Indian


company, which was obligated to deliver certain quantities
of these items in the Philippines, in monthly installments,
July, August, September, October. The delivery due on July,
August and September, the Indian company was able to
deliver on time but the deliveries were short of certain
number of items. The Indian company was able to comply
with the lacking items only in October. But during this time,
the Indian government passed and approved a law which
increased the export tax imposed on goods exported from
India to outside of its territory. While the Indian company
required the Philippine company to shoulder the increase of
the export tax for the October transaction, this was
accepted by the Philippine company because this was
stipulated in the contract. The problem however arose when
the Indian company required the Philippine company to
shoulder the export tax for the remaining undelivered items
which were supposed to be delivered in the previous
months. Because while these items were supposed to be
delivered on the previous months, they were actually
delivered when the law that increased the export tax was
already in effect.
The Philippine company argued that it was not responsible
to pay for the export tax because these items should have
been delivered earlier, when there was no increase in export
tax yet. For its part, the Indian company argued that it was
the Philippine company which demanded for the delivery of
these items and were it not for this demand, it would not
have been imposed with the increase of export taxes. In
other words, the Indian company passed the blame to the
Philippine company. When the matter reached the court, the
Indian court ruled in favor of the Indian company, but when
the decision cannot be enforced in India, the Indian
company went to the Philippines to enforce that foreign
judgment. On the issue of whether or not the Philippine
company should bear the burden to pay the increase of
export tax, the SC invoked Philippine Law, particularly
Article 1191 involving reciprocal obligations. Under this
provision, in reciprocal obligations, when one party is not
ready or unable to perform what is incumbent upon him, the
other party has the option to either rescind the contract or
to pursue an action for specific performance, but with
damages in either case. From this provision, the SC said that
the Philippine company is the aggrieved party as a result of
the short delivery of these items when they were supposed
to be delivered in the previous months. And as the
aggrieved party, it can either choose rescission or specific
performance and in this case, it chose to demand for the
fulfillment, specific performance.
8.

conflict 3-22-14 || 01:24:01 01:36:00|| Glen

So by demanding for the delivery of the items, though


late, the Philippine company was merely exercising its
right under the law and so that because of merely
exercising his rights under the law it cannot be blamed,
therefore it cannot be made to pay in the increase of the
export tax. On the other hand, under the same provision
(1191), the aggrieved party who demanded for specific
performance on top of the right to demand specific
performance is also entitled to demand payment of
damages against the party responsible. So the Supreme
Court said, the obligation to pay or the party who should
bear the burden of shouldering the increase of export
tax should be the Indian company by way of damages
pursuant to 1191 of the Civil Code.
Obviously, in this case, the Supreme Court reviewed the
merits of the decision rendered by the Indian Court and
in so doing, the Supreme Court applied Philippine Law to

reverse the decision of the Indian court. Therefore, in an


action for enforcement of a foreign judgment and the
defendant invokes any of the grounds for repelling the
judgment, the local court where the action is pending
may review on the merits of the decision of the foreign
court; especially that in this case the ground invoked by
the Philippine company was that the Indian court
committed a mistake of law in its decision.
This ruling is in conflict with the principle enunciated in
the cases of Fujiki and Mijares because this is exactly
what is prohibited by the Supreme Court in these cases
the relitigation of the same claims and issues already
adjudicated by the foreign court. When the SC reviewed
the merits of the decision of the Indian Court, especially
on the issue of law, the Philippine Court was in effect
relitigating that issue because that issue was already
passed upon by the Indian court. So, this is allowed
under the ruling in Binalbagan.
In another case, the Supreme Court, went on to say that
the findings of facts and laws of foreign courts are not
binding neither are they conclusive upon our courts.
This is the ruling in the case of Tayag vs. Benguet
Mining Consolidated. This case involves the
settlement of the Estate of Perkins who died. The
deceased left certain properties one of which is the
shares of stocks in Benguet Cosolidated Mining a
corporation organized under the Philippine laws, so it is
a domestic corporation; but the certificate of stocks
covering the shares of stocks of the deceased where in
possession and in the custody of the domiciliary
administrator of the estate of the deceased who turns
out to be a US Citizen, who also left properties in the US;
since some of the properties of the deceased are also
located in the Philippines, an ancillary administrator was
appointed. In order for him to discharge his functions as
ancillary administrator, he demanded for the delivery of
the certificate of stocks from the domiciliary
administrator in order to settle the estate of the
deceased but for one reason or another the domiciliary
administrator refused to deliver the certificates. Tayag
as an ancillary administrator petitioned the court that
the certificates of stocks now in possession of the
domiciliary administrator should be declared as lost for
all intents and purposes and that Benguet Mining should
issue a new certificate of stocks in new of the lost one.
Benguet refused contending that it cannot issue a new
certificate of stocks because the truth of the matter is
that it is not lost but rather in the possession of the
domiciliary administrator. Supreme Court ruled in favor
of the ancillary administrator (Tayag). SC said, we
cannot be held hostage by that foreign entity. We
cannot force him because we have no jurisdiction
over him but we cannot also be held hostage! If
he is not willing to turn over the possession of
such certificate, then our Authority would be
rendered nugatory. We cannot perform our
function and so as the ancillary administrator.
In justifying its ruling that Benguet should issue a new
certificate of stocks, SC ruled that if our authority is
subordinated to that of a foreign entity, our
judicial authority would be rendered meaningless.
As a matter of fact the SC invoked another case to
the effect that even judgments rendered by a
foreign court are not binding and are not
conclusive upon our courts. So if judgments
rendered by a foreign court are not conclusive
and binding upon Philippine Courts, how much
more the whims and caprices of that domiciliary
administrator; he is not even a court!

It is obvious in that in so far as our jurisdiction,


judgments of foreign courts are never conclusive. SC
said, if WE are devoid of authority to review findings of
facts and laws of foreign courts, our judicial authority
would be meaningless. Again, Sovereignty prevails
consistent with the policy that a State is supreme over
its border.
So obviously there are two conflicting principles on the
issue of whether or not a judgment rendered by a
foreign court may be reviewed on the merits by the local
court in a proceeding for recognition of a foreign
judgment.
FUJIKI and MIJARES are the more recent ones but I am
not saying that these two have superseded the previous
ones.
Question: What law determines the existence or
non-existence of any of the grounds for repelling
a foreign judgment?
As I said, in an action for enforcement or recognition the
defendant may repel that foreign judgment by showing
any of the grounds provided by the rules. But the
question is, what law determines the issue of whether or
not, there was lack of jurisdiction, there was lack of
notice, collusion, fraud or there was mistake of fact or
law because obviously there are two laws involved here
the laws of the country where the judgment was
rendered, and Philippine law where the judgment is
sought to be enforced.
There are two conflicting views on the matter. No
wonder this is called conflict of laws, true to its name!
One view says that in the determination of the existence
or non-existence of the grounds for repelling a foreign
judgment it should be the foreign law which should
serve as the yardstick.
So what is the justification advanced by the advocates
of this view?
9.

conflict 3-22-14 || 01:36:01 01:48:00|| KC Canda

So what is the justification advanced by the advocates of


this bill? One of the justification is that the foreign judgment
while it is sought to be enforce in the Philippines was
decided in a foreign country and rendered by a foreign
court. And since that case was tried, heard and decided by a
foreign country then logically it should be decided on the
basis of its own law. If the case was decided by a court in
Japan, then it should be decided on the basis of the law in
Japan. Its absurd to require a Japanese Court trying a case
involving Japanese parties and decide the case on the basis
of Vietnamese laws or Philippine laws. So playing on simple
logic dictates that these questions should be decided by the
law of the place where the decision was rendered.
On the other hand, the other view says that in the
determination of the existence or non existence, the
Philippine law shall serve as the yardstick. The justification
for this view include: One, according to the advocates
supporting this view, the provisions of the recognition or the
enforcement of a foreign judgment particularly Section 48
Rule 39 when it speaks for grounds to repel foreign
judgment, this provision talks to or refer to Philippine law, it
does not talk about foreign law. Second justification is, when
a party obtains a foreign judgment and comes to the
Philippines to enforce the foreign judgment, that party
voluntarily submits himself to our courts and at the same

time to the laws upon which our courts operate. So if a party


seeks to enforce the foreign judgment before the Philippine
court, it carries with it the voluntary submission to the laws
of the Philippines upon which our courts operate. This is the
second justification advanced by the advocates of the
second view.
What is the prevailing authority now? The prevailing
authority now based on existing jurisprudence is
neither here nor there. Because as jurisprudence
would show, there is a middle ground. The
jurisprudence now is that matters of remedy and
procedure, lex fori. But substantive matters,
Philippine law. This is the ruling in the cases of
Asiavest Limited vs Antonio Herras, Northwest Orient
Airlines, Merchant Bankers Berhad vs CA.
Lets have a rundown of these cases.
Northwest Orient Airlines this involves an action filed by
Northwest against Sharp arising from their contract of
agency. Sharp was designated by Northwest as agent in the
sale of its airline tickets. When the contract turned sour, the
airline sued Sharp for breach of contract. After two attempts
in Japan, the Japanese court failed to serve the summons on
Sharp. Sharp here maintains offices in Japan, doing business
in Japan. The summons were not served so the Japanese
court was constrained to effect extraterritorial service of
summons. How? This was done through diplomatic channel.
The Japanese court requested the Supreme Court to help
the service of summons, in turn the SC in Japan sought the
help of its Ministry of Foreign Affairs and the Japanese
Minister for Foreign Affairs referred the matter to its
Japanese embassy here in the Philippines. And the Japanese
embassy here referred it to the Department of Foreign
Affairs here in the Philippines and the latter referred it to the
Executive Judge of the RTC and the latter referred it to
Sheriff and it served the summons to Sharps main office
here in the Philippines.
Long and winding road. When the airline obtained
favourable judgment in Japan and it cannot execute the
judgment, it filed an enforcement of judgment here in the
Philippines. The defense of Sharp is that there was improper
service of summons and therefore the decision rendered by
the Japanese court is void for lack of jurisdiction over his
person.
So the issue there is whether or not there was valid service
of summons?
The SC in this case ruled in no uncertain terms that the
issue of whether or not there was proper service of
summons, concerns a matter of procedure or remedy and
lex fori must be applied. Therefore, the Japanese law. The
problem here is Japanese law was not duly established and
prove by the means required under the rules.
The SC said, a foreign judgment is presume to be valid and
therefore the party seeking its enforcement here in the
Philippines needs only to prove its existence and its
authenticity. It does not need to prove its validity. On the
other hand, the party assailing its validity has the burden of
proving its invalidity by showing the law of the country and
demonstrating that it was rendered contrary to that law.
In this case, Sharp failed to prove the Japanese law on the
service of summons and therefore the presumption of
validity stands. Then SC put forward an alternative
reasoning, it says that because of the failure of Sharp to
prove the foreign law, we should now apply the rule on
processual presumption. And under the Philippine law, it
shall be presumed that it is the same as that of the foreign

law, the service of summons done through diplomatic


channel is essentially the same as our own rule on the
service of summons on a private foreign corporation doing
business in the Philippines. And under our own Rules of
Court, a private foreign corporation doing business in the
Philippines may be served with summons through a
government agency tasked with this purpose, among others.
Taking cue from this provision, the SC held that the service
of summons upon Sharp effective through diplomatic
channels can be likened to that of the service of summons
of a private foreign corporation through a government
agency designated for that purpose.
So by express declaration , the SC in the case of Northwest
Orient Airlines , matter of remedy and procedure is govern
by lex fori.

The same ruling was upheld in the case of Asiavest vs.


Herras . A judgment was rendered by the Hongkong court
but the service of summon was effected extraterritorially
upon Herras in the Philippines. When Asiavest try to enforce
the foreign judgment here in the Philippines, the defense of
Herras that there was lack of jurisdiction over his person,
which is one of the grounds to repel a foreign judgment.
The issue was whether or not there was a proper service of
summons.
The SC ruled that this is a matter of procedure and this is
resolved by applying the Japanese laws on the service of
summons. But Herras failed to prove the Japanese law. So
the SC proceeded to apply the doctrine of processual
presumption and applied the Philippine law. Accordingly,
under the Philippine law, in actions in personam,
extraterritorial service is not allowed.
The same principle was applied in Asiavest Berhad where
the judgment was rendered by the Malaysian Court in favor
of a Malaysian entity.
10. conflict 3-22-14 || 01:48:01 02:00:00|| Salas
Under Philippine law an action in personam, extra territorial
service is not allowed. The same pprincile was applied in the
case of

supreme court said that the Malaysian court was


able to prove the Malaysian jurisprudence
concerning or authority of lawyers to represent
clients and under the Malaysian jurisprudence on
the matter lawyers in Malaysia are not required to
present to court the special power of attorney to
prove
their
authority
and
second
lawyers
representing clients before the Malaysian courts
always have the authority to compromise on behalf
of their client and while this also involves remedy or
procedure and should be governed by lex fori
ASIAVEST BERHAD was able to prove the pertinent
Malaysian law on the matter and it succeeded in
proving that there was no defect in the authority of
the lawyer in representing the defendant in the
proceedings before the Malaysian court .
3rd issue as to the form of the decision the SC said
that ASIAVEST BERHAD was also able to prove the
Malaysian law on the matter governing the required
form of court decision. SC said that under the
Malaysian law on the matter, decision which do not
contain the facts and the law from which it was
based in valid in Malaysia and our court cannot
invalidate these decisions because their procedure
on the matter is different from ours.

So these 3 cases has consistently upheld the rule that on


matters of remedy and procedure these are governed by lex
fori, the law of the country where the decision was rendered.
On the other hand,
the case of BINALBAGAN
demonstrates the rule that on the substantive ground
particularly mistake of law, Philippine law governs , and
serves as a yard stick in determination in the existence and
non-existence of the ground. The ground invoked here is
mistake of law
SC said that the court in the Philippines reverse the
decision of the Indian court using as bases the
Philippine law particularly Article 1191 of the
Philippine Civil Code .
This is enough for recognition and enforcement of foreign
judgment.

DIVORCE
As a matter of policy divorce is against our policy, as a
general rule we do not recognize divorce. Except

ASIAVEST CASE
1.
Where the judgment was rendered by Malaysian court in
favor of a Malaysian entity when the prevailing party filed an
action for enforcement of a foreign judgment in the
Philippines the defendant a Philippine company invoke the
defense of lack of jurisdiction over the person because
allegedly the service of summons was not properly done
lack of authority of the lawyer representing them during the
trial and the fact that the decision rendered by the
Malaysian court did not specify and did not contain the facts
and the law to which it was based contrary to the
requirement of the provisions of the constitution.

Supreme court said on the first ground lack of


jurisdiction over the person, the supreme court said
the issue whether or not there was a proper service
of summons upon the finance officer of the company
should be determined by lex fori because this is a
matter of remedy or procedure but in this case the
law in Malaysia on service of summons was not
properly proved in this case.
And so the supreme court said that the failure to
prove the Malaysian law or the service of summons
or the presumption of regularity stands.
As to the second ground, the authority of the lawyer
to represent the clien in the proceedings in the trial

2.

in so far as foreigners are concerned we recognize


the effects of divorce pursuant to Article 15 of the
civil code that nationality theory so while as a policy
we do not recognize divorce but in so far as
foreigners are concerned we respect the effects of
divorce this is the ruling in the CASE OF VAN
DHORN, ROMELLY, IBAY, PILAPIL AND MANY
OTHERS in so far as foreigners, we dont care about
their personal law. They are governed by their own
national law
the one provided for in 2 nd paragraph of article 56
which says that when a marriage between the
Filipino and a foreigner is validly celebrated and
there after a divorce is validly obtained abroad by
the alien spouse capacitating him to remarry the
Filipino spouse shall also be capacitated to remarry.
a. Take not that this is the only instance where
divorce is recognized in the Philippines in so
far as Filipino is concerned and that the
effect of divorce is recognized in the
Philippines in so far as the Filipino is
concerned in Article 26 2nd paragraph.

When is a divorce decreed obtained abroad is deemed valid


in so far as our court is concerned?

in various jurisprudence including the recent one

dont have the legal authority what we have are only these
2 conflicting ruling/principles or decisions)

CORPUS VS STA TOMAS

LEGAL SEPARATION

The recent one but there are many other cases in the same
tenor. We recognize divorce as valid so long as it is valid in
accordance with the parties national law. Take note the
validity of divorce in so far as our jurisprudence is
concerned, as a general rule is determined by the national
law od the party concerned. So divorce is valid provided it is
valid with the parties national law.

On the matter of legal separation there are 2 basin


questions that may arise.

2nd par of Article 26 of the family code referring to the


second exception to the prohibition against divorce it says
there and in the case of
REPUBLIC VS ORBESIDO
Supreme court said that In a petition for declaratory relief
for the purpose of capacitating the Filipino spouse to
remarry, the Filipino spouse should prove among others
that the foreign law allowing the divorce. This requirement
could either refer to 2 situations
1.

that foreign law allowing the divorce could be the


foreign law where the divorce decree was
obtained(?) or the foreign law allowing the divorce
could refer to the foreign law of the country of which
the party is a national or a citizen.

2.What happens if the divorce is obtained in the country by


a party who is a citizen of another country say if a party is
Russian and obtained a divorce decree in Nigeria, and under
the general rule that divorce decree is valid so long as it is
obtained in accordance of the national law of the parties.
Which should be the law of Russia but the divorce was
obtained in Nigeria. This is also unrealistic to expect that the
Nigerian laws will follow the laws of Russia on the matter of
divorce. The most likely scenario is that the divorce decree
is determined by the law of the country where the divorce
decree was obtained because the divorce decree is tried and
rendered by their own court. So the likely scenarios is that
the requirement in article 26 paragraph 2 is that the parties
should prove the foreign law allowing the divorce decree,
this refers to the place where the divorce decree was
obtained. Which is a departure from the general rule in the
recent case of CORPUS VS STO TOMAS.
That divorce decree is valid so long as it is obtained in the
parties national law the national law here is not necessarily
be the law of the place from which the divorce decree was
obtained. That is the problem.

You have a rule which says that divorce decree is valid so


long as it is obtained in accordance of the parties national
law on one hand and second it may be valid if obtained in
accordance with the law of the country where it was
obtained.
Or maybe possible 3rd ruling, it should be both valid in
accordance with the national law and the place on where it
was obtained. Because you cannot separate the nationality
theory from the lex fori. ( I think that should be the better
rule, if it happens that the divorce decree was obtained by
the party who is not a citizen of that country, that divorce
decree to be valid must be both valid under the national law
of the party and the law of country where the divorce decree
was obtained. It is judt my opinion just rying to hazard I

1.

which court has jurisdiction to hear and decide legal


separation cases
2. which law will determine the grounds for legal
separation.
As to which court has jurisdiction, the court of the country
or place where the party is domiciled or residence has
jurisdiction for purposes of jurisdiction over legal separation
cases it is not required that a party must be a citizen of the
country where the petition for legal separation is filed. It is
enough that the party is domiciled in the country. So a
Nigerian national residing in the Philippines may file a
petition for legal separation and that petition may be
cognizable by our court. But which law determines the
ground for legal separation?

For purposes of determining grounds on legal separation ,


the law applicable is the national law of the party
concerned. This is based on the justification that in legal
separation cases this is more on the protection of the status
of the party it is not about the status of the marriage,
because the marriage remains intact in the legal separation
proceedings. So it is more on the status and governed by
the nationality theory which is article 16 of the civil code. so
determination on whether the ground exists or does not
exist are governed by the national law of the party. If the
parties are of different nationalities then you apply the laws
of both party. So the grounds for legal separation are
ground provided for under the laws of both party.
So a Nigerian citizen reside in the Philippines may file in the
Philippines a case for legal separation before the Philippine
court. But he law applicable in the determination on whether
there is really a ground for legal separation is the law in
Nigeria because he is a citizen of Nigeria. You cannot invoke
our family code which provides for our own grounds for legal
separation.
WHAT ABOUT NULLITY OR ANNULMENT OF MARRIAGE
Unlike legal separation, in nullity or annulment of marriage
the issue concerned revolves itself into a question of
marriage it is no longer considered as a question of status
but more on the status of marriage itself. Because both
annulment and nullity seek to dissolve the marital tie.
1st question which court has jurisdiction to try or hear a
petition for annulment or nullity of marriage. Again what is
only required is residence or domicile. Regardless of
citizenship of the party residing in the Philippines the
requirement is at least 6 months in the place where the
petition is filed may file a petition for annulment or nullity of
a void marriage. But which law determines the existence or
non-existence of a ground. Unlike legal separation where it
is governed by nationality theory. Consistent with the issue
on more of status in the determination on the existence or
non-existence of ground on the nullity of marriage
nationality theory does not apply the law applicable is the
lex loci celebrationis, as a general rule the justification for
this is that actions for annulment or nullity of a marriage is
just the other side of the same coin, other side of the issue
of the validity of marriage so that if validity of the marriage
is determined by lex loci celebrationis, as a general rule,
which is one side of the same coin the other side of the

10

same coin is the law that determines the invalidity of the


marriage is lex loci celebrationis. In other words if the
marriage is celebrated abroad between foreigners. And any
or both of the parties field a case before Philippine court for
annulment or nullity of the marriage, the ground for nullity
or annulment should be the ground provided for under the
law of the country where the marriage was celebrated. They
cannot invoke the grounds under Philippine law if they are
foreigners. But if the parties are Filipinos and their marriage
was celebrated abroad and either or both of them field a
case for annulment or nullity of marriage in the Philippines
the law or the ground for nullity or annulment are those
grounds provided for under the laws of the country where
the marriage was solemnized consistent with lex loci
celebrationis. Plus the exeptions provided under article 26
2nd paragraph because the exceptions in article 26 apply to
Filipino citizens. So in so far as Filipinos are concerned they
have no grounds to invoke for purposes of annulment or
nullity of their marriage apart from the grounds of the place
of celebration of the marriage if the marriage falls under any
of the exceptions . the exceptions provided under article 26
can also be used.
If the marriage between foreigners in the Philippines, was
solemnized in the Philippines apply the lex loci celebrationis
and therefore the grounds available under the family code.
if the parties are both Filipinos and solemnized in the
philippiens. Then the grounds will be those under the family
code of the Philippines.

article 26 because you are governed by Philippine laws. On


the other hand if both foreigners solemnized abroad, your
only grounds are those grounds available in the place of
celebration. So discuss the mis and that is where the
problem arises. So youre question is may the foreigner
invoke the ground? In so far as the foreigner is concerned.
Typical example the foreigner and the age of majority is 15
but in the Philippines the wife is 18 and in so far as the
husband national law lex ploci celebrationis. In so far as
Filipino spouse it is void under article 35 paragraph 1. Your
question is may the husband file a petition for nullity of the
marriage because the wife is under age under Philippine law.
Let us go back to the rule. In this case in so far as valid sa
foreigner and void for Filipino it should be considered valid.
So there you have no ground for nullity.
It would be absurd to allow anyone of them to nullify it when
the law itself considers it valid.
But in the first place the proposition that this kind of
marriage should be considered valid is already doubtful.
That is only an opinion. That is the effect, because if we take
the position that the marriage is valid in so far as foreigner
and void for Filipino consider this valid and consider it as a
non defective marriage you may throw out the petition for
nullity of marriage. It has to be that was otherwise that will
be self contradiction , valid which can be voided? That
cannot be done.

CRIME
Nay ni question di ma sabtana ang audio

What is our conflict of laws on crime? And tort? (together)

Atty t. the marriage was solemnized abroad?

How is tort distinguished from crime?

Student:__-------------

There is a crime when there is law punishing it. So an act


may only be considered as crime if it is so defined by law. If
there is no law that defines an act or omission as a crime,
then that act or omission is not a crime. So if the question is,
is that act or omission a crime? Your answer is: IS THERE A
LAW THAT DEFINES IT AS A CRIME? If there is not law that
defines it as such then it cannot be a crime then it can
probably be a tort because a tort does not need definition
and does not need a law to define it what is only required is
that there has to be an act or omission that causes damage
to another. Regardless if whether there is a law that
punishes it as a crime then it is a tort so what is the
delineation line from a tort and a crime apart from the fact
that a crime is defined by law and a tort is not necessary. In
the books it is often said that a tort involved violation of
private rights a crime violates public rights or there is

Atty t: so youre referring to a mixed marriage? Ok. Lets look


at it from the bright side, validity of marriage, if the
marriage was a mixed marriage between a foreigner and a
Filipina, celebrated abroad, under article 26 if it is valid
there it should be valid here. Except 35, 36, 37,38.
So it would appear here that in so far as the foreigner
because he is not governed by the exceptions the marriage
as to him is valid but not in so far as the Filipino because
the exception applies only to the Filipino spouse this would
result to the absurdity to the marriage flip half way a
marriage part valid [art void. According to the leading
literature on the matter including sempio dy this should not
be allowed because of the legal impossibility on a marriage
partly valid partly void because there should only be one
contract institution a marriage.most writers are of mind that
consistent to the policy upholding marriage as an inviolable
social institution, asa a matter of fact the dissolution of
marriage is the exception rather than the rule. In a situation
wher the marriage appears to be void in so far as the Filipino
and valid as to the foreigner the marriage should be taken
as valid. That is the bright side. So if it is considered valid,
then none of them can file a petition for nullity. Even if one
is governed by the exception because it is just the other
side of it. If it is considered as valid then it cannot be
dissolved.
So answer to the question it cannot be nullified
Student: --------------- blah
Atty t: my discussion was that if you are a Filipino both
Filipinos married abroad your grounds for nullity or
annulment are the grounds under the Philippine laws under

11. conflict 3-22-14 || 02:00:01 02:09:00|| [Five-Five]


The national law does not necessarily refer to the law of the
place where the divorce decree was obtained. Thats the
problem. So, Ive searched in vain for possible material
clarifying these two seeming inconsistent rulings but I cant
find any. Again, another conflict. We have a rule that says
the divorce decree is valid provided it is in accordance with
the partys national law. On second hand, valid if obtained of
the law of the country where it was obtained. Or maybe a
possible third ruling it should be both valid in accordance
with the national law and the place where it was obtained
because you cannot separate the nationality theory from the
Lex Fori. I think that should be the better rule. If it happens,
that a divorce is filed by a person not a citizen of the
country that decree to be valid must be both valid under the
national law of the party and the law of the country where
the decree was obtained. Of course, I cant cite you a legal
authority, it is just my opinion- trying to hazard a guess.

11

What
we
have
are
ruling/principles/decisions.

these

two

conflicting

Legal Separation
There are always two basic questions that may arise.
1.
2.

Which court has jurisdiction to hear and decide


legal separation cases; and
Which law determines the ground/s for legal
separation

As to the first one, the court of the country or place where


the party has a domicile has jurisdiction. Otherwise also
known as residence. For purposes of jurisdiction over legal
separation cases it is not required that a party is a citizen of
the country where the legal separation is filed. It is enough
that it maintains a domicile in the country. So, a Nigerian
national, residing in the Philippines may file a petition for
legal separation and that petition may be cognizable by our
court.
As to the second, for purposes of determining the grounds
(existence or non-existence) the law applicable is the
national law of the party concerned. This is based on the
justification that in legal separation cases, this is more of a
question of the status of the party and not the status of the
marriage because the marriage remains intact. It is more of
a status and the status is governed by the nationality
theory, Article 16 of the Civil Code. If the parties are of
different nationalities, then you apply the laws of both
parties. So he grounds for legal separation are the grounds
provided for by the laws of both parties. So a Nigerian
Citizen domiciled in the Philippines may file a petition for
legal separation before the Philippine court but the law
determining WON there is a ground for legal separation is
the laws of Nigeria. He cannot invoke the grounds in our
Family Court.

Nullity or Annulment of Marriage


The issue concerns or revolves itself into a question of
marriage. It is no longer considered a question of status but
more on the status of the marriage itself because both
annulment and nullity seek to dissolve the marital tie.
First question, which court has jurisdiction to try and hear
the petition for annulment or nullity of marriage? Again,
what is only required is residence/domicile regardless of
citizenship, any party residing and domiciled here is allowed
to file. The requirement is at least 6 months, may file a
petition for annulment or nullity of a void marriage.
But which law determines the existence or non-existence of
the ground? In the determination of grounds for annulment
or nullity of marriage, nationality theory does not apply. The
law applicable is the Lex Loci Celebrationis - thats the
general rule, the justification for this is that actions for
annulment or nullity of a marriage is just the other side of
the same coin. It is just the other side of the issue of the
validity of marriage. So that if validity of marriage is
determined by Lex Loci Celebrationis as a general rule,
which is one side of the same coin, the other side of the
same coin is the law that determines the invalidity of the
marriage is lex loci celebrationis. IOW, if the marriage is
celebrated abroad between foreigners and any or both of
the parties filed a case before Philippine court for annulment
or nullity of the marriage, the ground must be based on the
ground where the marriage was celebrated. They cannot
invoke the grounds available under Philippines law.

12. conflict 3-22-14 || 02:09:01 02:18:00|| [Anyong


Georfo]
They cannot invoke the grounds available in Philippines law.
If they are foreigners. But if the parties are Filipinos and the
marriage was celebrated abroad, and either or both of them
filed a case for annulment or nullity of marriage in the
Philippines, the law or the ground for nullity or annulment
are those under the laws which the marriage was
solemnized consistent with the lex loci celebrationis plus the
exceptions provided for in article 26 second par. Because
the exceptions in art 26, these applies to Filipinos. If the
marriage between foreigners in the Philippines, apply the lex
loci celebrationis. If both Filipinos, then Family code of the
Philippines will be applicable.
Student asking question: if marriage is valid as regard to
foreigner and not valid as to Filipino, is marriage valid?
sir said: lets look at it at the bright side. If the marriage is
mixed and celebrated abroad, the marriage as to foreigner
is valid but as to Filipino it is void. This will lead to absurd
situation. Sempoi Dy said, if we consider it as partly void
and partly valid, the marriage shall be taken as, or should be
considered valid. So none of them can file a petition for
nullity. Even if one is governed by the exception. But this is
only the bright side. So in answer to the question, it is
nether or either.
For example the age of majority of the foreigner there is age
15, he is 15, but in the Philippines 18. The wife is 18,
Filipina. So in so far as foreigner husband valid, lex loci
celebrationis. But in so far as the Filipino spouse void. And
your question is, may the husband file a petition for nullity
of marriage because the legal age in Philippines is 18?
Thats a logical question. But again we go back to the rule, if
valid in so far as foreigner and void in so far as Filipino, it
should be considered valid. So here you have no ground for
nullity. Because it would be absurd to allow anyone to nullify
the marriage when the law considers it valid. But in the 1 st
place, this kind of situation is already doubtful, thats just an
opinion.
So now lets go to crime.
13. conflict 3-22-14 || 02:18:01 02:27:00|| [Gwen]
Always distinguish tort from crime. There is a crime when
there is a law punishing it. An act may only be considered a
crime when so defined by law. If there is no law that defines
an act or omission as a crime, then it is not a crime. As
simple as that. If the question is that is the act or omission a
crime? The answer is that, is there a law that defines it as a
crime? If there is no law that defines it a crime, then it is not
a crime. That is probably a tort. In tort, there is no need for
a law to define it as a tort. Regardless of a law, any act or
omission that causes damage to another, then it is tort. So
what is the delineation line between a tort and a crime?
Start from the fact that a crime is defined for by law, a tort
not necessarily so.
In the books, it is often said that a tort involves
violation of private rights. A crime, public. If there is civil
liability, tort. If criminal liability, crime. Criminal liability,
involves
punishment,
imprisonment.
Civil
liability,
restitution, reparation, indemnification. The most substantial
distinction, is that a tort presupposes damage because as
defined by law a tort is an act or omission committed by one
in violation of a right of another causing damage to the
latter. In the Philippines our concept of tort, we have two,
Spanish concept as spelled out in Art 2176 of the Civil Code,
whereby it is said that anyone who by an act or omission
causing damage to another, there being fault or negligence

12

shall indemnify for the damage caused. So the Spanish


concept of tort is committed by one either through fault or
negligence. So our Spanish concept of tort excludes
intentional acts. But the other concept of tort which we
adopt in the Philippines is the American style which is
spelled out in Art 21 of the civil code which is everyone who
willfully causes damage to another in a manner contrary to
morals, good customs or public policy shall indemnify the
damage caused. Our American concept of torts involves
intentional acts. All in all, our concept of torts in the
Philippines includes both intentional and non-intentional
torts.
How do we distinguish tort from crime?
Because it is possible that the act is intentional and yet it is
tort because we also adopt the intentional concept of tort.
As I said, the most substantial distinction is the
presence or absence of the element of injury. If the act
causes no injury, there cannot be tort. An act could be a
crime but not tort. An act or mission can be tort but not
crime. So we can really separate one from the other. An act
also can be both crime and tort. Example an act is a crime
because it is punished by law but it also causes damage, it
is also tort. An act can also be a crime but since it involves
no damage, then it does not involve, restitution,
indemnification, reparation, it cannot b tort. Or an act may
cause damage but there is no law that defines it as a crime,
then it is tort but not crime. Tort but not a crime, a textbook
example of this is breach of promise to marry. There is no
law that treats a breach of promise to marry a crime, there
is no law that punish it because our concept of marriage is
consensual, because if that were so that it would be
involuntary servitude, it is always consensual, it is not a
crime but definitely a tort, contrary to moral, good customs,
it may give rise to an action for damages, it is actually a tort
action giving rise to damage, there is bad faith. So this is an
example of a tort but not a crime. What about an act or
omission both tort and crime, typical example is murder. It is
a crime because it is so defined by law as a crime and at the
same time a tort because it gives rise to a civil liability in
favor of the victim, as a matter of fact under Article 33 of
the Civil Code, this gives rise to an independent civil action.
This independent civil action is essentially a tort action.

So whats the conflict of laws rule on crime? For purposes of


conflict of law, we need to distinguish the 2 basic principles
of penal laws.

We have the principle of generality and principle of


territoriality. Do not confuse one from the other.
Principle of generality is one placed out at the Article 14
of the Civil Code which says that penal laws and laws of
public safety or order shall be obligatory upon all who live or
sojourn in the Philippine territory subject of course to
principles of public international law and treaty stipulations.
Generality principle simply means that if a crime is
committed within Philippine territory, the offender maybe
charged with, prosecuted for and convicted of the crime
before a court in the regardless of his nationality so long as
he lives or sojourns within Philippine territory and he
committed the crime within Philippine territory, he is subject
to our penal laws.
Of course, the exceptions there under the principles of
international law which person maybe the heads of state in
which case they maybe immune from criminal prosecution.
On the other hand, territoriality principle is that placed
out under Article 2 of the RPC which says that except for
treaties or laws of preferential application, the provisions of
the RPC may be enforced not only within
Philippine
archipelago but also outside.
Territoriality principle means that our penal laws take
effect only within our territorial borders. So the jurisdiction
of our court to hear and try cases and punish criminal
offenders is coterminous with the territory of the Philippines.
Conversely, it has nothing jurisdiction to try a criminal case
and punish the offender for crimes committed outside the
Philippine territory, as a general rule.
While territoriality refers to jurisdiction of our courts
to punish the crime, to prosecute the crime and
punish the offender. Generality refers to persons who
would be subject of our penal laws.

14. conflict 3-22-14 || 02:27:01 02:36:00|| [Olive Olvis]


What about an act or omission which is a crime but not a
tort? A house but not a home (Hahaha)?
Crime but not a tort. Illegal possession of drugs. When
one is convicted of crime of illegal possession of drugs, it
does not award damages. It does not award restitution or
payment of consequential damages because mere
possession is punished by law. That makes it a crime. But it
does not involve an act or omission committed by one in
violation of anothers right causing damage to the latter.
But it is not also accurate to say that the government, if the
crime is committed against the government, it will not result
in tort. Because the government may also suffer damage.
And if the government suffers damage, the action to recover
damages to compensate for the damage caused is
essentially a tort action. So if you happen to destroy a
property of the government (sunugon nimo ng kapitolyo :D),
do you think the government will not file an action other
than arson? It will also file an action for damages against
you for destroying the capitol building. So what makes an
act or omission a tort is when there is no damage involve.

Take note that the principle of generality presupposes


territoriality because that the offender who could either be a
Filipino citizen or a foreign citizen may only be subject to our
penal laws if he commits the crime within Philippine
territory.
Generality presupposes territoriality.
The general rule in so far as our courts are concerned in
jurisdiction is territoriality principle. We only have
jurisdiction over crimes committed inside/within our
territory.
By way of exception we adhere to Protective Theory
under which a country/state whose national interest is
prejudiced by the crime has jurisdiction to prosecute and
punish the offender.
The protective theory which is an exception to the
territoriality principle is placed out under the 2 nd paragraph
of article 2 of the RPC.
What are these instances covered under the protective
theory and therefore even if these crimes are committed
outside of the territory of the Philippines, the offender may

13

be prosecuted and punished by Philippine courts under the


exceptions. So there are five exceptions there.
15. conflict 3-22-14 || 02:36:01 02:45:00|| [Mipps]
#1: Those who shall commit an offense on board a
Philippine ship or airship.
So Its a Philippine ship or airship even if the
Philippine ship is outside of the areal territory of the
Philippines, it may be punished, prosecuted
#2: Those who shall forge or counterfeit any coins or
currency notes of the Republic of the Philippines or any
obligations or securities issued by Philippine Government.
So forging Philippine currency! This may be done
outside of the Philippines. The offender if caught
may be prosecuted before Philippine court!
#3: Those who shall be guilty of the acts in connection with
the introduction of the forged or counterfeit coin or
Philippine currency or notes issued by the Philippine
Government.
So one who introduces a forged or counterfeit coin
or Philippine currency may be prosecuted.
#4: Those government officers or employees who should
commit a crime while in the exercise of official function.
Even if this is committed outside, prosecutable
under the Philippine court.
#5: Those who shall commit any of the Crimes Against
National Security and the Law of Nations. Those enumerated
at Title 1 Book 2 of the Revised Penal Code (TC ME IV CF)
1.
2.
3.
4.
5.
6.
7.
8.

Treason
Conspiracy and Proposal to Commit Treason
Misprision of Treason
Espionage
Inciting to war or Giving Motives for Reprisals
Violation of Neutrality
Correspondence with Hostile Country
Flight to Enemy Country

Territoriality Principle has two kinds or theories.


We have the Subjective Territoriality Principle and the
Objective Territoriality Principle. Take note, if the crime
is committed within the Philippines, all the acts are
committed within the Philippine territory, we dont have any
problem because it is covered with the general principle of
territoriality. It can be prosecuted within the Philippine court.
But the problem may offer certain degree of difficulty when
some acts of execution where or are committed outside of
the Philippine territory but some of the acts of execution are
committed within the Philippine territory. This situation is
precisely sought to be addressed by the two theories under
Territoriality Principle.
Lets go to the Subjective Territoriality Principle. Under
this principle, a state or country may prosecute the crime
and punish the offender if the crime began in the Philippines
even if the crime was completed outside of its territory. So
long as the crime, the acts of execution started in the
Philippines, it doesnt matter if the crime was completed
outside the Philippine territory, its still within our
jurisdiction. Thats precisely the principle applied in the case
of People vs Tulin.
People vs. Tulin

This involves a crime of piracy where a vessel was seajacked at the territorial waters somewhere in Mindoro. The
pirates seized the vessel and the crew and forced the crew
to sail the vessel towards the territorial waters of Singapore.
In Singapore the cargoes, the petroleum products were
unloaded, sold by the pirates to a ready buyer in Singapore.
One of whom was an employee of the buyer who supervised
the transfer of the cargoes from the seized vessel to the
other vessel. This fellow who supervised the transfer of the
cargoes was prosecuted along with the pirates because all
of them were eventually caught when they returned to the
Philippines. So thats what you get when you violate the
fundamental rule of a thief: Never go back to the crime
scene! They returned to the Philippines so they got caught,
prosecuted. One of whom, this guy, a certain Hiong, not
Cokaliong but Hiong, was convicted as accomplice. So when
he appealed the conviction to the SC, he argued on the
main that the decision convicting him as accomplice to the
crime of piracy is void for lack of jurisdiction because his
proven participation in the crime took place in Singapore,
beyond the territory of the Philippines. So invoking the
principle of territoriality he argued that Philippine court has
no jurisdiction to try him for the crime.
But the SC saw it the other way. While it is true that his
individual participation took place only in the territorial
waters of Singapore, it is also established that the crime of
piracy started in the Philippines! And it continued to be
committed and consummated while the vessel was in the
territorial waters of Singapore. So the SC was in effect
saying that Philippine court has jurisdiction because
the crime BEGAN in the Philippines. And his
involvement was part and parcel of the entire stages
of the criminal process.
Secondly the Supreme court said even then, Piracy is a
crime classified under Title 1 of Book 2 of RPC which
is a crime against National Security or Law of Nation.
So this falls under the exception pursuant to the Protective
Theory in Criminal Law.
People vs. Bull
In the case of People vs. Bull, the reverse was the situation.
In Bull, the accused was prosecuted for violation of special
law that prohibits INHUMAN TREATMENT OF ANIMALS! If you
treat animals inhumanly, thats a crime. So Bull, a Captain
(master man ghud) of a vessel, the vessel has its cargoes
some cows or cattles. The cattles were transported
originally from Formosa, now Taiwan and loaded on the
vessel sailed towards Philippine waters where they were
caught and prosecuted for violation of that special law:
inhuman treatment of animals. It was argued by Bull that
the Philippine court has no jurisdiction to try and prosecute
and punish him for the alleged crime because the crime was
committed in Formosa when they loaded the animals and
maltreated them. SC said that while it may be true that
the maltreatment of animals started in Formosa, but
such maltreatment continued until the vessel
reached Philippine waters. So Philippine court has
jurisdiction. This is consistent with objective
territoriality principle which says that the country or
the state may prosecute crime against the offender
for crimes that began outside but completed within
its territory. It is the reverse of the subjective
territoriality principle.
16. conflict 3-22-14 || 02:45:01 02:54:00|| [Fiona]
Let us go to Tort. When is the act or omission classified as
tort? What is its point of contact?

14

In so far as crime is concerned the connecting factor is


territoriality. As a general rule, protective theory is a way of
exception; but what about Tort?
Our conflict of laws in tort is lex loci delicti commissi
the law of the place where the tort was committed
governs. Tort is governed by the law of the country or the
state where the tortious act was committed. There is no
problem is the tortious act is committed within the territory
of one country because what should be applied is lex loci
delicti commissi. The problem will somehow arise if the tort
consists of series of acts cutting across two or more, or
several states. So for example, State A adjoins State B, and
X, the offender, along the border shoots Y in front of him
standing on the other state. So the offender stands on State
A and the victim stands on State B, separated by a border
line. This situation would cause a problem because the
whole tortious act cuts across two states.
How do you now determine the lex loci delicti commissi?
Should it be governed by the law of the country where the
victim was located and where the victim suffered injury? Or
should it be governed by the law of the country where the
act began where the party responsible for the act
committed it?
The recent authority on the matter now is one consistent
with the so called the state of the most significant
relationship where the court is supposed to consider all
significant
aspects of the entire tortious act and
determine to which country the significant factors pertain. If
the most significant relationship pertains to one state, then
under this theory, the lex loci delicti commissi is the law of
the country to which the most significant relationship
pertains. This is exactly the ruling in the case of Saudi
Arabian Airlines. It was argued by the Saudi Arabian Airlines
that the case should be dismissed because the case
involves the conflict of laws and because the alleged
tortious act was committed in Saudi Arabia, then it should
be governed by the Saudi Arabian Laws, and therefore, the
court in the Philippines so take off its hand from taking
cognizance of the case. The primordial issue raised before
the Supreme Court was as to which of the two states (SA or
PHIL) may be considered as the place where the tortious act
was committed. The alleged tortious act where too many
that some acts where committed in SA and some were in
the PHIL. In resolving the issue as to where the lex loci
delicti commissi lies, the Supreme Court applied the
principle of the state of the most significant
relationship. After all is said and done, the Supreme Court
ruled that the state of the most significant relationship
pertains to the Philippines therefore, Philippine law should
apply.
An action for tort may be filed anywhere even if the
tortious act was committed somewhere else. In other
words, for purposes of the Court taking cognizance
over a tort action, it is not necessary that the
tortious act must be committed within its territory. It
is not necessary that for Philippine Court to take
cognizance of the case the tortious act must be
committed in the Philippine territory. The tortious act
which is the subject matter of the action for tort may
be committed in another country but the action is
filed in the Philippines it is allowed! So it is possible
that Mr. Fiel committed rape in Saudi Arabia and
returned to the Philippines, the victim in Saudi
Arabia may run after him and file an action for tort
against him in the Philippines.
What is the requirement for the Court to take cognizance
over an action arising from tort?

What is only required is, either


1.

2.

So long as the defendant is located in the place


where the Court can acquire jurisdiction; so long as
the court can acquire jurisdiction over the
defendant it is allowed; even if the tortious act
was located somewhere else;
So long as the defendant has some property
located in the place where the court has jurisdiction,
the court may take cognizance of the case.

What law governs actions arising from Torts? Suppose an


action for torts is filed in the Philippines, what law governs
the mechanics of that tort action?
In so far as procedure, the rule is lex fori. So
therefore, as far as procedure is concerned, the
governing law is Philippine law if the case is filed
before Philippine Court. Matters of substance, such
as, prescription, the nature and extent of damages
that may be recovered, and the defenses the
defendant may put up these are matters of
substance and therefore governed by the lex loci
delicti commissi. So that if the act is committed in
Saudi Arabia and the action for Tort is filed in the
Philippines, matters of substance should be governed
not by Philippine law, but the law of Saudi Arabia
where the tortious act was committed.
17. conflict 3-22-14 || 02:54:01 03:03:00|| [Abegail
Mari]
CORPORATIONS
What is the personal law of the corporation? A corporation is
also a person although a juridical/artificial creation of the
law. So like natural persons, a juridical person is also
governed by its personal law.
What are the various theories that govern the personal law
of the corporation? There are 3 recognized theories.
Theory of incorporation- provides that the personal law of
the corporation is the law of the country where the juridical
person was formed or incorporated. This is the theory
adhered to in the Philippines.
Theory of center of management-the personal law of the
corporation is the law of the country where the Board of
Directors of the corporation sits.
Theory of exploitation-personal law of the corporation is
the law of the country where the corporation operates its
business.

Familiarize yourself with the characteristics of these theories


and the disadvantages perceived in these theories. But ours
in the Philippines is the Theory of incoporation.
What specific matters are governed by the corporations
personal law? Take note that not all matters pertaining to
corporations or juridical persons are governed by its
personal law. So, in the Philippines, not all matters
concerning about juridical person are governed by Philippine
law if it is organized in accordance with Philippine law
because personal law governs only matters which are
internal to the corporation. Matters that relate to the
relationship between the member insofar as other members

15

are concerned, the stockholder and other stockholder or the


stockholders and the corporation itself. These are intra
corporate matters like the requirement for the
incorporation of the corporation, the required
number of incorporators or the required number of
the members of the board, the kind of stocks that
may be issued or the nature or amount of dividends
that maybe allowed or matters concerning the sale of
stocks or the duties and obligation of stockholders
and directors. These are the only matters collectively
referred to as internal matters. So that matters outside
like contracts entered into by the corporation with the public
or matters dealing with the relationship of the corporation
with another corporation or with the general public are no
longer within the intra-corporate sphere so these are not
governed by the personal law of the corporation. The rule
here is that the validity of the acts or contracts entered into
by the corporation shall be determined by the law of the
place where the contract is to be performed and the law of
incorporation. Validity of contracts or transactions entered
into by the corporation with the public or third party is
determined by two laws, meaning, it will not be valid under
one but shall be valid under both the law of performance
and the law of incorporation.

Someone asked a question (inaudible) but about 2


corporations, created in different states, entered into a
contract.
Answer: it should be valid under both states AND the law of
performance
Right of the corporation to sue in the Philippines.
Conflict of law problem may arise in situations when foreign
corporations get involved in litigation before Philippine
court. The usual issue is about the right of the corporation to
sue and be sued and the rule on how corporations should be
served with summons. In the right to sue and be sued
depends on whether the corporation is doing business in the
Philippines or not.

18. conflict 3-22-14 || 03:03:01 03:12:00|| [Daphne]

not doing business


Philippines.

If it is not doing business, and therefore no license, it can


sue on isolated transaction. The foreign corporation may sue
provided the suit arises from an isolated transaction.
What about the capacity of being sued?
A foreign corporation, whether doing business or not,
may be sued. How do you acquire jurisdiction over a
foreign corporation?
It depends on whether the corporation is doing
business or is registered in the Philippines or if it is

not

registered

in

the

If doing business in the Philippines. There are three


ways:
1.

Designated Agent in the Philippines. One of the


requirements for applying a license is to designate a
resident agent for purposes of receiving summons
intended for a foreign private corporation.

2.

In the absence or in capacity of designated agent in


the Philippines, the summons may be served
through a Government Agency tasked by law for
that purpose.
If engaged in the business of Insurance- service is
done through the Insurance Commissioner.
If engaged in banking business, by the Central Bank.
If it is engaged in any other business, by Securities
and Exchange Commission.

3.

It may be served to any of its officers, agents, or


employees in the Philippines.

What happens if the defendant is sued is a foreign private


corporation not doing business in the Philippines and
not registered and has no resident agent in the Philippines?
Before, there was no specific provision of the rules which
governs a situation where the defendant is a private
corporation not doing business in the Philippines. We only
have some jurisprudence to guide us. One jurisprudence
says that service of summons may be done through
publication. Other jurisprudence provide that it may be done
through its agents in the context of principal-agent as
provided in the Civil Code.
But now, in the new amendment now, the rules provide for
specific service of summons in case defendant is a private
foreign corporation not registered in the Philippines and has
no resident agent in the Philippines. What are these?
1.

What is the rule if foreign private corporation is doing


business in the Philippines?
The rule is, it may sue. So it can be a plaintiff in a case in
the Philippines. So if it aggrieved by a transaction in the
Philippines, it can always avail of the benefits, judicial
processes, so long as it is licensed to do business in the
Philippines. If it is not licensed, but doing business it cannot
avail of judicial processes. The reason there is obvious. It is
absurd to allow a foreign private corporation to avail of
benefits under our laws but the same corporation does not
comply with its obligation owing to the state. That could be
against public policy.

or

2.

By personal service outside the country or the


so called extraterritorial service of summons.
Meaning, personal service outside. This is done
through the appropriate court in the country where
the defendant is based with the assistance of
Department of Foreign Affairs. Obviously, this is
inspired by ruling in the case of Northwest Orient
Ailrines where the service of summons through
diplomatic channel is considered by the court as
similar to service of summons to private foreign
corporation doing business. So it is now being
institutionalized under the rules that personal
service of summons through a diplomatic channel is
valid mode of service.
Second is by publication. Once a week in a
newspaper of general circulation in the
country where the defendant is found. So this
is the only provision where publication is done
outside, not in the Philippines. The publication is not
done in the Philippines but in the country where the
defendant resides or can be found. And if this is
resorted to, publication outside, the summons as
well as the copy of the order, because service of
summons under this rule requires leave of court, if
this is resorted to the service of summons through
publication, shall also comply with the requirement
of service of the summons as well as the order
thorugh registered mail of the defendants last

16

3.

4.

known address. So take note if the summons is by


publication, the copy of the order as well as the
summons shall be served through registered mail of
the last known address of the defendant.
Service through facsimile. Fax. Or any electronic
means capable of generating proof of service.
(Yahoo, Twitter. Hahah. Is that capable of generating
proof of service? Hashtag proofofservice )
Any other means the court may direct.

Sempio-Dy opines that Art.80 should apply to properties


located outside the Philippines.
But I have a problem with this because of Art. 16. When lex
res sitae is applied, all components of the contract should
apply. Everything is governed by lex res sitae. Art. 16 does
not provide an exception to art.80, and article 80 does not
pretend to be an exception to art.16.
20. conflict 3-22-14 || 03:21:01 03:32:09|| [Migs]

19. conflict 3-22-14 || 03:12:01 03:21:00|| [Eric]


So there are 4 means of service.
I think thats all you need to know.

Question Portion

Harmonizing Art 80 of the Family Code and Lex Rei


Sitae
One interpretation might be that Art. 80 is an exception to
Lex Rei Sitae so that when the question is about property
relation, whether or not the property is located in the
Philippines or outside, it should always be governed by
Philippine law, but that is easier said than done because the
issue of property relation may always be intimately related
to the issue of ownership, especially when it involves
contracts upon such property, and thats the very essence
of Art. 16 (Lex Rei Sitae)

Property Relations of Spouses


This is also an interesting point. Article 80 of the Family
Code expressly provides that property relations between
spouses shall be governed by Philippine laws regardless of
the place celebration of the marriage and regardless of
residence.
There are three exceptions: 1, when the spouses are both
foreign citizens, 2nd, extrinsic validity of contracts involving
properties located outside of the Philippines and executed
outside of the Philippines, and 3 rd, extrinsic validity of
contracts involving properties located outside the
Philippines but execute inside the Philippines. These are the
exceptions.
But the question now is, What about the INTRINSIC aspect of
the contract of properties located outside of the Philippines?
By simple logic reasoning, since the intrinsic aspect is not
among the exception, it would appear that it is governed by
the general principle, which is Philippine law. Property
relations as we understand it refers to matters concerning
what property regime should govern, the rule in the
administration of properties during marriage. Obviously this
will ultimately revolve into issue of ownership. So what
happens when the property is acquired during the marriage
by either spouse and the property is located outside of the
Philippines, and the law of the place where the property is
located, the presumption is that the property regime is
complete separation of property, contrary to the Philippines
which in the absence of a marriage settlement, presumes
absolute community.
Whatever is hers is mine, whatever is mineis mine.

Suppose the spouse is a Filipina, the husband a foreigner.


The property is in Japan which adheres to complete
separation. The Japanese acquired the property by himself.
So the Japanese sold the property without the knowledge of
the Filipina in accordance with Japanese law. May the Filipina
file for the nullity of the transfer, because under Philippine
law, that property is supposed to be common to the both of
them and therefore it cannot be disposed of without consent
of the wife? If you look at the literal language Article 80, it
appears that the wife has always the right to complain. But
on the hand the property is located in Japan which adheres
to complete separation of marriage. There is therefore a
toss between art.80 and article 16 of the civil code.

So the difficulty is in delineating the line between 80 and 16.


Because in the example I gave you, the facts may seem like
property relations which is supposedly governed by 80, but
if you look a little closer, you will see that the issue is really
on ownership, which is governed by 16.
Another ostensible way of reconciling these provisions is:
Limit the application of Art. 80 to properties located in the
Philippines. If the properties are outside of the Philippines, it
should be governed by Lex Rei Sitae. There is a practical
consideration in support of this position: It is based on the
practical consideration that the country where the property
is located has the authority over that same property. So that
if a property is involved in a litigation, the court that can
exercise jurisdiction over the RES is the court where the said
property is located.
Of course our courts have no
jurisdiction over properties outside our territory. We do not
have jurisdiction to say that the property located outside
should be conveyed, or levied upon execution. Its just
beyond our jurisdiction to adjudicate issues concerning title
to properties located outside. Thats why in IN REM
judgments, a judgment of final order upon a particular thing
is conclusive as to the title upon that thing, and this is
consistent with Lex Rei Sitae because as I said, our court has
no jurisdiction over properties located outside.
So that if a decision is rendered here involving a property
located outside, such decision of our court may not be
properly enforced or effected there because our court
processes are limited in force within our territory. Suppose
our judgment here is enforced outside, suppose they have a
similar rule on recognition of foreign judgment and the
person files a petition abroad to recognize such judgment,
the defendant could always repel that judgment on the
ground of lack of jurisdiction over the res! So either way,
any judgment rendered by the court on property located
abroad may not be given effect. I think Lex Rei Sitae (2 nd
position) should be the better rule. But of course youre free
to advocate a different position.
NOTE: This issue is a difficult issue (Sir telling the class that
most authors like Paras, Agpalo and Sempio-Dy opt to avoid
discussing this issue in depth because it is complex) but he
went on to say that:
If the issue is straight cut, when it purely involves property
relations use Art. 80, but if it is tied up with issues of
ownership, that is when it becomes a really complicated
problem. I could not understand why Article 80 provides for

17

exceptions on the 2nd and the 3rd, but not with intrinsic. The
2nd and 3rd exceptions are consistent with Lex Rei Sitae. So if
80 recognizes some superiority enjoyed by 16, then why
does it not recognize the same superiority with respect to
the intrinsic aspect?

18

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