Conflicts of Law

Atty. Cecilio D. Duka, Ed.D.

Associate Dean, College of Law
San Sebastian College
Professor, Arellano University School of Law
National Bar Reviewer

Private International Law

Conflict of Laws is that part of municipal law of a state which directs its courts and
administrative agencies, when confronted with a legal problem involving a foreign element,
whether or not they should apply a local law or foreign law.

Difference Between PIL and COOL

1. Public International Law is international in character while COOL is municipal
2. The parties are sovereign or states and other entities with international personality while in
COOL are private individuals
3. The transactions are those of sovereign states but in COOL the transactions are between
private parties
4. In case of breach of contract there are pacific or hostile methods but in COOL parties must
resolve their disputes before municipal tribunals

Elements of COOL
a) Conflict of Law is part of the municipal law of a state;
b) There is a directive to courts and administrative agencies;
c) There is a legal problem involving a foreign element;
d) There is either an application or a non-application of a foreign law or foreign laws.

Direct Sources of COOL

Constitutions
Codifications
Special laws
Treaties and conventions
Judicial decisions
International Customs

Indirect Sources of COOL

Natural moral law
Works of Writers

Dealing with a Conflicts Problem

First, determine whether the court has jurisdiction over the case. If it has no jurisdiction,
the case should be dismissed on that ground. If it has jurisdiction, the court will determine
whether it should assume jurisdiction over the case or dismiss it on the ground of forum non-
conveniens. Of course, it is the law of the forum that determines whether the court has
jurisdiction or not over the case.

Forum Non-Conveniens
Forum non conveniens (Latin for "forum not agreeing") is a (mostly) common law legal
doctrine whereby courts may refuse to take jurisdiction over matters where there is a more
appropriate forum available to the parties. As a doctrine of the conflict of laws, forum non
conveniens applies between courts in different countries and between courts in different
jurisdictions in the same country. Forum non conveniens is not applicable between counties or
federal districts within a state.

Dealing with a Conflicts Problem

Once the court has determined whether it has jurisdiction over the case, it will next
determine whether to apply the internal law of the forum or the proper foreign law, considering
the attendant circumstances.

Jurisdiction
The power and authority constitutionally conferred upon a court or judge to pronounce
the sentence of the law, or to award the remedies provided by law. - Black’s Law Dictionary

Kinds of Jurisdiction
(a) jurisdiction over the subject-matter,
(b) jurisdiction over the person,
(c) jurisdiction over the res.

Enforceability of a Judgment
In the realm of Conflict of Laws, however, there is another element which the court must
consider in determining the matter of jurisdiction; i.e., the possible enforceability of its decision
in foreign states, subject to the rights of said states (Fenwick, International Law {1948}, p.342).
This is because in Conflict of Laws, jurisdiction is the power of the court of the forum to render a
decision that will create legal rights and interests which other states will recognize and enforce.

When Should the Court Apply

Local Law (Lex Fori)
(a) When the law of the forum expressly so provides in its conflicts rules;
(b) When the proper foreign law has not been properly pleaded and proved;
(c) When the case involves any of the exceptions to the application of the proper foreign law;

Cases which require the application of Philippine law

(a) Whenever a property involved in the suit is located in the Philippines.
Real property as well as personal property is subject to the law of the country where it is situated.
(Art 16, first par., New Civil Code)
 (b) Regarding the property relations of the spouses.
Art. 80, Family Code - In the absence of a contrary stipulation in a marriage settlement, the
property relations of the spouses shall be governed by Philippine laws, regardless of the place
of the celebration of the marriage and their residence.

Exceptions (Art. 80) This rule shall not apply:

(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in the
Philippines and executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines but
affecting property situated in a foreign country whose laws require different formalities for its
extrinsic validity.

However, intestate and testamentary successions, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country wherein said
property may be found. (second par., Art. 16, New Civil Code).

(d) If a will executed by an alien abroad is revoke in our country, the revocation must comply
with the formalities of Philippine law.

Article 829, Civil Code

A revocation done outside the Philippines, by a person who does not have his domicile in
this country, is valid when it is done according to the law of the place where the will was made,
or according to the law of the place in which the testator had his domicile at the time; and if the
revocation takes place in this country, when it is in accordance with the provisions of this Code.

How to invoke and prove a foreign law (Written Law)

(1) An official publication thereof, or
(2) A copy of the law attested by the officer having legal custody of the record or by his deputy,
accompanied by a certificate of any Philippine embassy, consular, or foreign service officer in the
foreign country where the record is kept, and authenticated by the seal of his office.

Rule 132, Rules of Court

Section 25. What attestation of copy must state. — Whenever a copy of a document or
record is attested for the purpose of evidence, the attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation
must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court.
How to invoke and prove a foreign law (Unwritten Law)
(1) The oral testimony of expert witnesses, or
(2) By printed and published books of reports of decision of the country involved, if proved to be
commonly admitted in its courts.

Rule 130, Section 45, Rules of Court

Section 45. Commercial lists and the like. — Evidence of statements of matters of interest
to persons engaged in an occupation contained in a list, register, periodical, or other published
compilation is admissible as tending to prove the truth of any relevant matter so stated if that
compilation is published for use by persons engaged in that occupation and is generally used and
relied upon by them therein.

Doctrine of Processual Presumption

The foreign law, whenever applicable, should be proved by the proponent thereof,
otherwise, such law shall be presumed to be exactly the same as the law of the forum.

Rule 39, Section 48, Rules of Court

Section 48. Effect of foreign judgments or final orders. — The effect of a judgment or final
order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order
is as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final order,
is conclusive upon the title to the thing, and
(b) In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

Kinds of Conflicts Rules

The one-sided rule - which indicates when Philippine law will apply
e.g. Article 15, Civil Code: Laws relating to family rights and duties, or to the status,
condition, and legal capacity of persons, are binding upon citizens of the Philippines, even though
living abroad.
Art.818, Civil Code: Two or more persons cannot make a will jointly, or in the same
instrument, either for their reciprocal benefit or for the benefit of a third person.
They apply only to Filipinos.

The all-sided or multilateral rule - which indicates whether to apply the local law or the
proper foreign law).
Art. 16, first par., New Civil Code: Real property as well as personal property is subject to the law
of the country where it is situated.
Philippine law is applied if the property is found in the Philippines.
All Sided Conflicts Rules
Art. 17, first par, Civil Code: The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in which they are executed. If
the contract was executed in the Philippines, its form and solemnities are governed by Philippine
law. If it was executed in a foreign country, that country’s law will apply. The provisions tell us
when to apply Philippine law or the proper foreign law.

Personal Law
A person’s personal law attaches to him wherever he may go; the law that generally
governs his status, capacity, condition, family relations, and the consequences of his actuations.
It may be his national law, the law of his domicile, or the law of the situs of the event or
transaction wherein he was involved, depending on the theory applied and enforce in the forum.

Status
It is the place of an individual in society, and consists of personal qualities and
relationships, more or less permanent, with which the state and the community are concerned”.
It includes the civil status of a person (whether he is single, married, or illegitimate) or adopted;
whether he is a minor or has reached the age of majority; whether he has the capacity to enter
into various transactions.
It also includes his name, sex and his profession in certain cases (whether he is a lawyer
or a doctor, or a judge or an appellate justice, etc.

Capacity
Capacity is part of one’s status and may be defined as the sum total of his rights and
obligations.

Kinds of Capacity under the Civil Code:

1. Juridical capacity (passive capacity)- which is the fitness to be the subject of legal relations; and
2. Capacity to act (active capacity) – which is the power to do acts with legal effects

Characteristics of Status
1. It is conferred principally by the state, not by the individual.
2. It is a matter of public or social interest.
3. Being a concept of social order, it cannot easily be terminated at the mere will or desire of
the parties concerned.
4. It is generally supposed to have a universal character. When a certain status is created by
the law of one country, it is generally recognized all over the world.

Silverio vs. Republic,October 22, 2007

To reiterate, the statutes define who may file petitions for change of first name and for
correction or change of entries in the civil registry, where they may be filed, what grounds may
be invoked, what proof must be presented and what procedures shall be observed. If the
legislature intends to confer on a person who has undergone sex reassignment the privilege to
change his name and sex to conform with his reassigned sex, it has to enact legislation laying
down the guidelines in turn governing the conferment of that privilege.

Republic vs. Cagandahan, September 12, 2008

CAH is one of many condition that involve intersex anatomy. Intersex individuals are
treated in different ways by different cultures. In most societies, intersex individuals have been
expected to conform to either a male or female gender role. Since the rise of modern medical
science in Western societies, some intersex people with ambiguous external genitalia have had
their genitalia surgically modified to resemble either male or female genitals. As for respondent’s
change of name under Rule 103, this Court has held that a change of name is not a matter of right
but of judicial discretion, to be exercised in the light of the reasons adduced and the
consequences that will follow.

Republic Act No. 9048

An act authorizing the city or municipal civil registrar or the consul general to correct a
clerical or typographical error in an entry and/or change of first name or nickname in the civil
register without need of a judicial order, amending for this purpose articles 376 and 412 of the
Civil Code of the Philippines.

Republic Act No. 10172

No entry in a civil register shall be changed or corrected without a judicial order, except
for clerical or typographical errors and change of first name or nickname, the day and month in
the date of birth or sex of a person where it is patently clear that there was a clerical or
typographical error or mistake in the entry, which can be corrected or changed by the concerned
city or municipal civil registrar or consul general

Clerical Error
‘Clerical or typographical error’ refers to a mistake committed in the performance of
clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth, mistake in the
entry of day and month in the date of birth or the sex of the person or the like, which is visible to
the eyes or obvious to the understanding, and can be corrected or changed only by reference to
other existing record or records no correction must involve the change of nationality, age, or
status of the petitioner.

1. The Nationality Theory

The Nationality Theory (also called personal theory) – by virtue of which the status and
capacity of a person is determined by the law of his nationality or his national law.

2. The Domiciliary Theory

The Domiciliary Theory (also called the territorial theory) - the status and capacity of a
person is determined by the law of his domicile.
The Situs or Eclectic Theory
3. The Situs or Eclectic Theory – views the particular place of situs of an event or transaction as
generally the controlling law.
The Philippines follow the nationality theory. The United States, like other common law
countries, follows the domiciliary theory.

ARTICLE IV ‑ CITIZENSHIP
Citizenship denotes membership of a permanent character in a political community. A
citizen of a state is one who owes allegiance to it and is correspondingly entitled to its protection.

Citizenship
It denotes membership in a political community which is personal and more or less
permanent in character. Philippine citizenship, it must be stressed, is not a commodity or were
to be displayed when required and suppressed when convenient (In Re Petition For Habeas
Corpus of Willie Yu vs. Miriam Defensor-Santiago, January 24, 1989)

The concept of citizenship

In the 18th century, the concept was limited, by and large, to civil citizenship, which
established the rights necessary for individual freedom, such as rights to property, personal
liberty and justice. Its meaning expanded during the 19th century to include political citizenship,
which encompassed the right to participate in the exercise of political power (Tecson vs.
Comelec, March 3, 2004)

Nota Bene
Citizen – a member of a democratic state.
Subject – a member of a monarchial state.

Methods of Acquiring Citizenship

By Birth
Jus Sanguinis ‑ Blood relationship is the basis for the acquisition under this rule. The children
follow the citizenship of the parents or one of them.

Jus Soli or Jus Loci ‑ Place of birth serves as the basis for acquiring citizenship under this rule.

Valles vs. Commission on Elections, August 9, 2000

The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a
child follows the nationality or citizenship of the parents regardless of the place of his/her birth,
as opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of
place of birth.

Natural born citizens

1. Citizens of the Philippines from birth without having to perform any act to acquire or
perfect their Philippine citizenship;
2. Those born before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority.
The citizenship of Fernando Poe, Jr.
FPJ was illegitimately born on 20 August 1939 to a Filipino father and an American
motherTo disqualify an illegitimate child from holding an important public office is to punish him
for the indiscretion of his parents. The 1935 Constitution, during which regime FPJ had seen first
light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether
such children are legitimate or illegitimate. (Tecson vs. COMELEC, March 3, 2004)

Re: Application for Admission to the Philippine Bar of Vicente D. Ching, October 1, 1999
The phrase “reasonable time” has been interpreted to mean that the election should be
made within three (3) years from reaching the age of majority. However, we held in Cuenco vs.
Secretary of Justice, that the three (3) year period is not an inflexible rule. Philippine citizenship
can never be treated like a commodity that can be claimed when needed and suppressed when
convenient.

Citizenship by Naturalization
Judicial process – Commonwealth Act No. 473
Administrative process - R.A. No. 9139
Legislative process
R.A.10636 - Andray Blatche
R.A.10148 – Marcus Douthit

Djumantan vs. Domingo, 
January 30, 1995

Marriage of an alien woman to a Filipino does not make her a Filipino citizenThere is no
law guaranteeing aliens married to Filipino citizens the right to be admitted, much less to be given
permanent residency, in the Philippines. Marriage of an alien woman to a Filipino husband does
not ipso facto make her a Filipino citizen and does not excuse her from her failure to depart from
the country upon the expiration of her extended stay here as an alien

Administrative Naturalization Law of 2000

June 8, 2001 - Republic Act No. 9139
Special Committee on Naturalization
Solicitor General as chairman,
Secretary of Foreign Affairs, or his representative,
National Security Adviser, with the power to approve, deny or reject applications for
naturalization

Loss of citizenship
1) By naturalization in a foreign country;
2) By express renunciation of citizenship;
3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign
country upon attaining twenty-one years of age or more:
4) By rendering services to, or accepting commission in, the armed forces of a foreign country
Loss of citizenship
5) By cancellation of the of the certificates of naturalization;
6) By having been declared by competent authority, a deserter of the Philippine armed forces in
time of war,
7) In the case of a woman, upon her marriage to a foreigner if, by virtue of the laws in force in
her husband's country, she acquires his nationality. (Section 1, Commonwealth Act No. 63)

Repatriation
Repatriation shall be effected by merely taking the necessary oath of allegiance to the
Commonwealth of the Philippines and registration in the proper civil registry. (Section 4,
Commonwealth Act No. 63)

Effect of Repatriation - Bengzon III vs. HRET, May 7, 2001

The privilege of repatriation under RA 8171 is available only to natural-born Filipinos who lost
their citizenship on account of political or economic necessity, and to the minor children of said
natural-born Filipinos. This means that if a parent who had renounced his Philippine citizenship
due to political or economic reasons later decides to repatriate under RA 8171, his repatriation
will also benefit his minor children according to the law. Moreover, repatriation results in the
recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship
will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his
former status as a natural-born Filipino.

Mercado vs. Manzano, May 26, 1999

Dual citizenship arises when, as a result of concurrent application of the different laws of
two or more states, a person is simultaneously considered a citizen said states. It is an involuntary
act. By filing a certificate of candidacy when he ran for his present post, private respondent
elected Philippine citizenship and in effect renounced his American citizenship. The filing of such
certificate of candidacy sufficed to renounce his American.

Republic Act No. 9225

August 29, 2003 - Citizenship Retention and Re-acquisition Act of 2003
Natural-born citizenship by reason of their naturalization as citizens of a foreign country
are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of
allegiance to the Republic

Derivative Citizenship
The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18)
years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be
deemed citizenship of the Philippines. (Section 4, R.A. 9225)

Republic Act No. 9225 does not recognize dual allegiance

It is clear that the intent of the legislature in drafting Rep. Act No. 9225 is to do away with
the provision in Commonwealth Act No. 63 which takes away Philippine citizenship from natural-
born Filipinos who become naturalized citizens of other countries. What Rep. Act No. 9225 does
is allow dual citizenship to natural-born Filipino citizens who have lost Philippine citizenship by
reason of their naturalization as citizens of a foreign country. (Advocates and Adherents of Social
Justice for School Teachers and Allied Workers [AASJS] vs. Datumanong, May 11, 2007)

Condon vs. Comelec,August 10, 2012

R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their
citizenship and seek elective office, to execute a personal and sworn renunciation of any and all
foreign citizenships before an authorized public officer prior to or simultaneous to the filing of
their certificates of candidacy, to qualify as candidates in Philippine elections Failure to renounce
foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No.
9225 renders a dual citizen ineligible to run for and thus hold any elective public office. Unless
she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and
hold any elective office in the Philippines.

Doctrine of Effective Nationality

Article 5 of The Hague Convention on the Conflict of Laws
As far as the 3rd state is concerned, a person having more than one nationality shall be
treated as if he had only one – either the nationality of the state where he habitually and
principally reside or the nationality of the state where based on circumstances he is closely
connected. (Frivaldo vs. Comelec, 174 SCRA 245)

Books Authored by Atty. Duka

1. Public International Law Simplified (Rex Bookstore, 2017)
2. Labor Laws and Social Legislations: A Barrister’s Companion (Rex Bookstore, 2008, 2011,
2016)
3. Constitutional Law: A Barrister’s Companion (Rex Bookstore, 2010)
4. RIZAL, His Legacy to the Philippine Society (Anvil Publishing House, 2010)
5. Introduction to Sociology (Anvil Publishing, Inc. 2014)
6. The Struggle for Freedom: A Textbook in Philippine History (Rex Bookstore, 2008)
7. The Law and the Teaching Profession in the Philippines (C and E Publishing House, 2008)
8. Philosophy of Education (Rex Bookstore, Inc., 2006, 1999)
9. Reviewer for the Civil Service Examination (Manila Review Institute, Inc., 2001, 2015)
10. World Geography (Rex Bookstore, Inc., 2006, 2001)
11. Introduction to Asia: History, Culture and Civilization (Rex Bookstore, 2005)
12. Reviewer for the Licensure Examination for Teachers (Manila Review Institute, 2016,
1998)
13. Historical, Philosophical and Legal Foundations of Education (Phoenix Publishing House,
1997)