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CONFLICT OF I-AWS
ARAULLO Uil!\TER SITY LAW L'BRARY
CABAI{AI UAN
C
ITY
ALICIAV. SE
Retired
LLB., LL.M
of Appeals
Fortter Astistdat
olitvto*Guera/
BorE*oiiori in GailLzw'
Gai I l-znt
Acatieml
PREFACE
CoPvrrght 200'l by Repcatedl'urped and requested
br, her srucienrs
ALICIA V. SEMPIO-DIY
to writc a textbooli in confhct oi Larvs rvhrci.r ther. claim is a difhcull subject and that no srmple and handv book rs available to help them study tire same, the undersrgned finallr, buckled dou,n and .wrote this "Handbooli on Conflrct of Laws" rn a sunphFred, quesuon-answer form. gurded bv her long experience for the past nvenn'-five or llore )/ears ln
teaching the slrblect. and emphasizing and explainine with exampies tl-re fundamentals and irnportant aspects of the subiect that students and bar. reviewees seem to Frnd difficult and burdensonre. This irumble rvork rs thus dedrcated to aii the larv srudents takrng the subject this vear and in the vears to come, as well as the author's tl'rousands of former students whc, are either rcvieu'ing for the bar or are now successfu] l2s,' practiuoner-s. It is likewise hoped that larr"'professors teaciring the srrbiect, and larr^u'ers
ITY
number and Any copy of this book not bearing a be ,ig"","r. .f.he author on this page shall denounced u. pro.""dt.tg from an illegal source
t"., ' ti
and judges conftontcd with confucts problerns, can find thrs humblc handbook useful and heipful, especraily as rve do not have enougb laws nor jurisprudence to guide them in all }lnds of conflicts problems. indeed,
wrth dre fast advance of modem technology rn dre means
of communication
N" /43L
between and arnong tire natrons of the '"vorld, the raprd growth and expansion of internattonal trade and commerce, the influx of tourists and foreign traders to out countn as well as the massi\re migration of our countn'rnen to v,'ork and hve rn forergn shotes, and the great increase in busir.ress uansactions of foreign corporauons rn d-re Philippines. nrore and more confhcts problems crytng for solutions will undoubtedll'ause. The i.nr,aluabie help of her fotmer students Atn. Edr.vard Ong and bar reviewees Clarence Evangelista and Russei N'liraflor in encoding her manuscript and preparing it for prtnung ts herebv gratefullr- and sincerclv acknorvledged.
W'i
Pdnted'SY'
MPC Printers
8-F Pahutan St. Veterans Village
ALICIA V. SEMPIO.DIY
Quezor Ciry
lvlav 2t)04
TABLE OF CONTENTS
i
In
General
Page
1
Junsdrcdon and Choice of La'*' 3 Theories that Justi$' the Applicauon of the Foreign Law 4 Nature and Composition of Conflicts Rules 5 Charactenzaaon of Conflicts Rules 6 Personal Law - Theories in Determining One's Personal Law 7 The Nationaiiq' Theory g The Domrcrliary Theory 9 The Situs or Eclectic Theory 10 The Problem of "Renvoi" 11 Conflicts Ruies on Starus and Capaciry ,).2 Confltcts Rules on Marriage A. Matriage as a Conffact B. Marriage as a Starus C. Annulment and Declaration of Nulliry of Mariage D. Absolute Divorce
4
1,7
22 26 29
33
51
57 59 65
74
78 83 86
h la-
13
90 94
97
Legrtimauon C. Adoption
98
105
14
15 Property 16 Contracts
i13
122
Contracts B. Capacity of Parties C. Intrinsic Validity of Contracts D. Special l{nds of Contracts 17 Torts 18 Crimes
A. Extrinsic Validiq' of
19 20
Busrness Assooation
A.
B.
Corporauons Partnerships
of Foretgn.Judgments
143
149
151
CONFLICT OT LAWS
CHAPTER
IN GENERAL
L"Defrne Conflict
of
Laws.
rvhen the issuc before the court affects some fact, event or transaction that is so clearlr' connectedwith a foretgn svstem of Ia$'as to necessttate recou.rse ro that svstem (Clieshire, Private lnternauonal Ll ', 194i ed., p. (r).
Conflrct of Lau's embraces those universal pnnciples of ngbt and jusuce whicl'r govern the courts of one state l-raving bcfore tirem cases involvrng the operation arid et-fect of tl-re iarvs of anotirer state or coul-rtrv (lr{rnor. Conflict of Las's. 19t)1. p .{). Conflict of l,aws is that parr r,i the munrcrpal lau, oi zr starc whtch directs its courts and adnlnistrative agencres, rvhetr confrontecl
with
a legal problem rnvolving a foreign element. rvhether or should apply a foreign law or foretgn lnu's. fParas. Phil. Confhct 1996 ed.. p. 2).
or nauon, so that in deciding thc case. ir rs neccssan' to make a choicc berween the laws of drtterent srxrcs or coLrnrrles. is l C.onluct of Lau-s
IN GENERAL
CONFLICTOF LAWS
CONFLICTOF LAWS
IN GENERAT
7. Distinguish Conflict
(a) As
of
ovn
ir inclucies nor oniy ioreign s()\'cretgn cc-runtrics or states but of states oL countrics v'hich l-rave their legal sYStems, sr-rch as thc differcnt states
sovereign states and entities that are intemationally rccognized or possessed of internationai personality, such as the United Nations Organization; while
constiruting the United States of America, the lederal st^tes of Austfaha, Canada, lv{ex-tco, llrazil and Germauy, etc 4. $/hy is this subiect more important in recent times than in the past?
Witir the fast advance of modern tecirnologv in the means of communicatiou betrveen and among states, the rapid growth and exPansion of internatronal trade and commerce, the influx of tourists arid f,;reign traders to our countlv as well as the massive lnregatlon of our countrvmen to rvorli and live in foreign shores, the great increase of business transactions of foretgn corPoratiotls n the Philippines, all these bring about manv ar-rd varied problems tn Conflict of l,aws. Hence, tlre necessitl nor oulv for iaw]ters and judges but ft-,r: our citizens as a wholc to studv
this subject as an important department
of
lar'r,:,
5. Is Conflict
of
Laws part
of International Law?
No. Althougir it is sometirnes tirought of as part of International Law because of the presence of a foreign elemetrt in a given problem, it is nor rnternational tn character but is part of the municipai law of each state. Br' "municipal larv" rn Conftct of l-aws is meaut the intcrnai or iocai iaw of each state, since everr' state has its orvn iuterual or loczrl svstern of lavi so each state also has its own confltct o[ Iaws.
6. What is the reason for the diversitv of conflicts rules among the
(d) As to remedies applied: In a dispute between sovereign states or tnternational entities or in cise of a violauon of Internauonal Law, the concetned states may fitst resort to peaceful remedies iike diplomatic negotiations, mediation, inquiry and conciliation, arbitratron, or judicial settlemeflt b,v international tribunals [ke the United Nations. If these temedies fail, the states concerned may resort to for:cible remedies like severance of diplomattc relari<-rns, retorsions, reprisais, ernbargo, bovcott, non-intercourse, pacific blockades, collective measures under the UN Charter and finallv. war.
ln Conflict of Laws, recourse is had to ;udicral or admrnistratrve tribunals in accordance with the rules of procedurc .of the country w'bere
rhey sit.
of Conflict of
Laws?
Direct soutces: Bilateral and multilateral treaties and internatic-,nai conventions; constitutions; condiltcations and statutes; iudicial decisions;
and internationai customs.
as other branches
of jau': among
otirers, the natural moral laui and the rvritrngs and treatrses and famous writers and jurists on the subiect.
of
thinkers
CONFLICT
OIJ
LAWS
CONFLICT OF LAWS
clehned as ti,e ll()wcr to irear anci dctcrrnrnc crses oF ti-rc general class tt, whrch d-re proceedrngs in cluesuon bclons.
1a)
lt clnnot
Srnce jr-rrisdicuon over ti're sublect marrer ls conferred bv iau. be conferred b1' consent oi'tire partres or bv tl'reir voluntart'
submission.
a
CHAPTER
(b) In the PhrJrpptnes, prnsdictron o\jer the sr"rbject-marrer is found and the.)udicrary Reorganizauon Act, as arnended the Constitution in fludrcrarv Acr of i94ii; Batas Pambansa BIg. 129, as arnended bv Rep.
Act
7691).
(c) Srnce jr-u'rsdtcuon over the subject-matter exists onlr, rn the abstract. rt mlrst bc invoked bl Frlir-rg the proper cornplaint or peduon wlth thc court. And it is dre illegauons of the complaint or peutron read in the hgirt of tl-re proper jurisdrctional laq that confer jr-rrisdtctroll on the
lf the allegations of tl-re complaint show prinu.fttsic a lack of jurisdiction, tirc cor-rrt must disnliss thc case outtigl.rt. Ntr prchrninalr'
colrrt.
irearing on ti.re cvidence is needed. Il, on tl'rc other hand. thc complatnt or pctitioll. on rts f-ace , sirrxvs the l)rcscncc oI jLrrisdicti<;n, tria] must bc held. Should thc cvidcnce shorv that tirc coult rcaiiv has no junsciicti<,rr-r, thc case rnust bc dismrsscr-|.
(a) First. deternine rvhethcl thc courr i-ras jruisdrction ovcr thc clse. lf it has no iulrsdrctron, thc case sl.rould be drsrnisscd on tirat t:round. jLrrisdjction o\rer the case or clismiss it on thc ground of .ionrru nln L'ot'tzj(nian.t. OF course. 1t is thc lat, of thc forunr that cietcrmines rvhctircr thc court
bas juflsdicUon ol'1lot ovcr thc casc.
Ii it l"ras jurisdictron. tllc court rvill cle tcrrninc t.hether it should assume
ln thc reaim o[ Conflrct of ],arvs, horvevcr. there is anothcr eicrnenr whrch the coult mLrst consider in detcrmining the mattcr ()f
(d) lurisdrcuotr;1.e.. the possrble eniorceabilin'of rts clecrsion in loreigr ,ror../ sublect to thc riqhts oi said statcs (sec lticnu'tck, lntcrlratronal J-arv [1948].
(b) Once the coult has dctcrmined rvhethcr it has jurisdrcrion ()vcr tire case. itrvili next determine rvhethcr to a1>plv tl-rc internal lal, <,,f the folurn or the proper forejsn lau', considering thc atrencianr
c1f
cumstances.
t-ri Llrvs. lunsdrction is thc porvcr of t() rcnclcr a dccrsron thar ri'ill cteatc lcual r:ights and intcrests rvi'rrch otircl statcs will rccognrze and cniorccbcc;Lr.rsc
312) 'l-hrs rs
rr (-onfiict
ii-rrr-rm
2.
Ho*'
the
case?
T'here are threc liinds of jurisdiction: (11 jud.61.ri<xr over thc sublect-matter:, (b) iurisdrctron over rirc person, and (c) jurisdiction ovel tlrc
t'es
c()rlrl t() rendcr r luclgrnent that rvill brnd thc parues ttrvolvcd: thc piantrff or pctitloncr, ancl thc dcfcndant or respondent.
(b) .lunsclictrr)n ()ver the piaintrii rs acqutrccl thc tr<xnent ht' rnvoiics thc pr-rrvcr of the court bt, ilr.t tuttng tirc acttou il tirc prolrct' picaciing..f unsdicrit,n over thc clcfcndat-rt is acqurlccl rvircti hc eutcrs hts lul)l)ext,r)cc ot'Lrt ti-rc coercivc pos'cr oi lcgal 1>roccss cxcrtccl bv tht
f\e-
'^
ccu''r\,n:l*
lrl larl arrd is
CONFLICT OF LAWS
CONFLICTOTLAWS
A piantrfi.
Jurisdiction over the Res: -lurisdictron over the re.i or thing is jurisdrctron over the particular subject-matter in controversr', regardless of tl-re persons
who mav be rnterested therein. The basrs of the exercisc of this jurisdiction is the presence of the propertv wthrn the territorial iurisdicuon of the forum, even though the court rlav not have personal iurisdicuon over the persons whose interests in the properw are affected. This is because the purpose of the suit is not to impose a personal habiiiw on anvone but it is to affect the interests of ail persons rn a thing. Lxamples are land reglstration cases and adrniralW cases where the purpose is for the judgment to bind the whole wodd insofar as the subject land or vessel is concerned and not just the interests of specific persons. This llnd of jurisdicuon is
is tantamount to his giving consent tt; the c()urt's exetclse of iurisdrctron over his person, except if his appezrance of ri'rat of counsel is for tire solc putpose of cluesuoning tire jurisdrctron o[ the court
over the defendant rrrav be acqurred througlr hrs voiuntarv appearance, as already stated. of bv personal or substlfuted scrvice of summons on him ulldef the Rules of Court. This is referred to
(c) Jurisdrcuon
in tire rnnnler
referred to as jurisdiction in
rezz, as
Personal setvice: "Sec. 6. Servlcc in person oll defendant Whenever pracdcable, tire summons shall bc served bt'handing a coP)' thcreof tc_r tirc defendant in person. or, if l.re refuses to receive and sign for it, bY tendering it to him." (l{uie 14, 1997 Rr"ries on civil Procedute) substituted service; "Scc.
7. Substrtuted servicc.-
petonam whtch binds onlv the parues and their succcssc.,rs-in-interest. What about acuons quai in rcrn? In an action qua.ri iu rem, tlte purpose is neither to rlTrpose a persoull habi.hn or obhgation uP()n ^nvot]e, nor to affect the interests ol aii persons in a thrng, but to affcct the interests of particular persons in a thing. In sucl.r case, the court mav render vatd judggnent when it has iurisdiction over tl-re particular persons whose interests are affected. Examples are foreclosltre of a mortgage,
causes, the dcfendant cannot be serve{ rvidtn lr rcasonablc tune as providecl in thc prcce<ling section, servtce mal' be e ifccted (a) bv lcaving copies of
the summons at tire <-leFendant's residence with some pefson of suitable agc and drscreuon then residing therein' or t'b) bv leaving the copies at clefenclant's ofltcc or rcgLtlar placc of busttless wtth some c()l'tlPetent persorl ln ch^rge thereof." (id.)
partition of land, or an acuon to qutet tide to propern'. An actron affecting the personal status ofthe plarnuffrs aiso classiFred as an acdon quati in rem under Ruie 14. sec. 1 5 of the 1 997 lluies on Civil Procedure. ln actions zz tem. act:tons quLtti in rem, or'those involving the personal statr'ls of the plaintifl exlraterritorial service of summous bv pul>llcatron is all<;wecl.
bef<-rrc thc
of summons
be effected?
c()Llrt can accluire jurisdicUon over thc Pcrsol) of dre dcfendant (Pantuleon servlce u. ,'lrundon, 1 05 Phi/. 76 I : .\'eqnttt a. I-,e/ronclo. I 0 5 Phil' I 1 )9)"lbus'
on a \2-year old daughter of the defendarrt is not vahd substituted (Sequitrt u. se rvice because of tire child\ lack of suitable age and drscretion of summous scrvtce t>f cr(>ncous tite quesuon Itlrondo,,/). Howcver.
tnLlsr l)e raised bcforc judgnent is rcuderccl. or tl-ris woulcl be a clcar casc r>f rvaiver (J,tranilia u. c)Lniule.s. 96 Pt)i/. j) Nioreover, deiccuvc scn'ice rnav bc cured bv actr-ral receipt o[ the strnrtrtons bv thc clcfcudant. or if in anY other lTranner. knowledge of thc exrstcncc of the casc si-tt>uld comt to iris attenuon (Sequito u Lttrondtt, id )
summons mat bc bt llcrsonal service or subsututed service, as pornted out above. Sen'ice bv publication would not be sufficient, whether the defendant is in tl.rc i)hilippincs or not (Pantaleon u. Arundon. 105 Phil 75/).
ln acdons
oi
When, then. is setvice by publication allorved? Summons br pubhcation is authorizcd onit'iu thrce cases:
(a) lf the acrt<>n ts in ran; (b) if dre acuon rs quati in rum. or (c) It tl-re action involves thc Pcrsonal
statr-rs of the plarntifi '(Rule 14. sec. 15. 1997 Rules on Civil i)rocedure i
CONFLICT OT LAWS
CONFLICTOFLAWS 'URISDICTION
When rr-ral extraterritorial service oi sumrnous be effecteci-: Sec. 15. i{ule i-t. id.. provicies fcrr four rnstanccs wi-rereln exffaterrttortai
servlce
of sumtlons tnat
(a)
bc mircie: llamci\':
tl're
to the PhiJ-ippines on vacation. while here, he had an affak w,rth and impregnated Rose. Learnrng of Rose's pregnancy, Mar took the firsi availabie piane to the L'.S. rf, after the birth of het child, Rose fiies an
action against Mar, who happens to have some properties
Philippines, for. recogmuon of her child with supporq would the action
prosper, summons having been served on Mar only by publication,
in
the
\\hen the dcttnciant does not reside and is not found in Phihppines. and the action affects the personal status of
tire
plarn u ff: (b) \lhen the defendant does not reside and is not found rn the Phihppines, and the actlon relatcs to or thc sr-rblect of wirich is, propern'wrthrn the l)luhppmes treal or pcrsonal). rn which the defendant has a claim a hen or interest, actual or contingent; (c) When the defendant is a non-resident but the subject of the action rs properry located in the Philippines, in whtch tire reiief demanded consists. whollv or in patt. rn exciudtng tl-re defendant from any interest therein; and
As to the recogninon of ltose,.s bab1,, ves, beca.se that is an acrion that affects the srarus of the child. so tirat sumrions bv publicauon would be sufhcient for the colur to acguire j'risdrcti.n o'et N{ar (scc. 15, llule L1, 1997 Rules on Crvil Procedure).
But the clernand for sr-rpport of thc child agairst l'lar will not prosper, because it would be a judgmcnt tr puronant, ancl surnmons b.' pubhcation wouid not give the court jur-iscliction over Mar.
(b) Joe, a Fil-ipino non-residenr, married Susan in tire pl-rilippines while on a short vacauo'l here, '"itir.nr re'ealing to susan tl-rat he rs alreadv a mar'ied rnar. After Joet deparrure for hrs lorergn residence. Susan filed againsr, ]inr an acuon for thc declaratron of the nulhrv of their rnatriage and damages, as Joe happe's to h^r,e some properties herc. Upon the hli^g of her petitro', S'san also asked the court for a v"'rit of
(d) \X'hcn propertv of a non-resident defer.rdant has been attached n thc Phiiipprnes.
tl're last case, hower.cr, u4riie a l'rit of attachment court upon apphcatron, sard v'rit cannot be lmplemented untll the court iras accluired jurisdictron over thc non-residcr-rt defendant, for urithout such jurisdtctron, the court has no porver ancl allthoriq' to acr 111 any manlrcr against the defendar-rt, and an1' court order to that effect rvill nor bind sard defendant (.Dn,ao l)3ht and PrnuerC,o., lnc. t'. C.-'1..204 5'Cl\'1 i|)
In
lteel
for
a declaration
cluasi
in
rem.
But as to the demand for damages rvith a rvrit of prcliminan. attacirment, it was held in the recent case of Dauao I ght and power Co., Inc. u C..,1., .rupru. that while the court could issue said writ, it cannot bc
implemented unul the court has accprired jurisdrction ovcr the nonresident defendant, which can be done onlv bv personal or subsuruted
service
of summons on
in pertonam.
FernandeT.
61 SCK'1
23).
iudgment
(c) X. credrtor of
(a residenr
4. Illustrative
cases on the problem of jurisdiction: Fiirpino permanenr residenr of Cahiornia. USA, carne
(a) Mar, a
Y for tire foreclosure of mortgage over a propern- given to hrm br, \' as securin' for tl-re pavmenr of a dcbt conrracred br' \' while he rvas i. tirc Pirrirppines. In iris acuon, X l)so pravcd for dehcrencl, juclgrncnt ln casc
10
OF LAW
CONFLICT OF LAWS
CONFLICT OF LAWS
LAW
1I
thc properw tnortgavccl lvor.rld not bc suificicnt to satlsfi'thc debt. ,\gatr-r, sumlnons was servcd on Y b-r'pubiicauon. \\buid the actton ptosperr
plai.tiff
foreciosure of n-rortgagc. \'es. bccatlsc lt is an ncuon quai in rem.Butas to the detnand for deficiencv judgrnent. no. because it
As to for
a
tl-re
rs asking
iras Do lraLuctrlar inrcrcst t. tirc casc, thc paruc:; not beillEr ciuze's .f t'e 10rr-r'r or are resrcle'ts elsewhcre; or the subject-rnr -ter of trrc casc ertolvecl s.mervhere elsel (f) other collrts are ope' and trrc case rra'rre better triecr said ceLtrtsl
r-rrgirt h^'e trled the casc rn thc ir.rlur_' meleh. rc, secllrc l)focccir,rr.el adlantag.cs 01. t() ;lnlr()\, or ltrrrass the
'
counterciaims, cross-clatms, etc' that the defendant nlal' Put up under Philipprne larv. In choosrng n Paructlllir forum, tl-re plandf[ has acceptcd the entire judiciai machiuery of ti.re forurn completeil', so that he must accept not onlv tts benefits but its burdens as well.
(b) As for the defendant, he becomes subiect to the court''s
iudrcial
15 l;ct/. (2(/)#q
'I'he rnadcc|.ra., of trre local j*drcial maci''c^. for effccrr_rafi'., ft) o thc nght sorrgl-rt tc.r l>e enforced by thc plarntrfL ot (h) 1'he difficuln. of asccrraining the ibrcign larv apphcablc. (See Strmson, Co'fhct of Larvs, pp 3ag-352; (.anacla A,laltitt3 Co. t. Paftenon .Stcanthil>, 28i Lr..f . 1l ). 12 j: Hdre t,. Neu )b* 1n.,,. (0..
craims
resrdc'rs.f
iunsdicuon
wrs a Ne*'\brk CorPoration, suit was brought in oregon, u.S.A. rvhcle defendant hacl an agent on .rrl',orn sunrr.,rc-,rr.
de fendar.rr
v"'as se-rved.
6: Explain why the court may refuse to exercise jurisdiction over a case on the basis of the principle of forum non conveniens. As has been said before, even tf the court has jr"rnsdictioll over a confltcts case, it ma1,, bv rnvoking the princrple of forun nzn tluuunreni. rcfuse to exercise cr assttlne that ltrrisdiction, in vies'of an'{ oi the
Issue: Nfat' thc Oregon court. in the exercise t-rf rts discretion. refusc to taiic cognizance of tlic casc?
Held:
c1
of the forum; (b) 'fhe courts of Germanv and Net, yor:li arc opcn ancl iu'crl()lrrng, and sc^'icc ca' bc rlirde .' thc dcfe'dant
crrirer jru'isdrcuon;
'r
tl.rc
forun rv.ulcl
compcl
m2l'not
be
readtil avarlabie in
the forum;
(b) The court dockets
of
"vouid
The belief that the matter can bc better uied and decided rn another iurisdiction, either bccause the main aspccts of the case transpircd there or the rnaterial wrtnesses have their
residence therel
of ti.re rirne of rhc cr>urr. resultiug rri dclay, inconvcnience, ancl expense t() ()the r Lrrgants rvho are entitlecl to involie thc coult's jurisdiction.
(.Hcint r.
\n,)brk
o[ "forum
Warning: Itemernbcr, however, that the doctrinc shoulci generalh' appll onlv if the defendant is a corporation. lior if ti.rc
72
L,AW
CONFLICI OF LAWS
CONFLICT OF LA}^'s
LA}\'
I.1
clefcriclant ts an inciivrdual. thc propcr: forum tnm' not be ablc to '.'tctlultc ir-rnschctron over
-This
rs the
sec'nd
httl ifor
rencdt
iJttnt.trtti, .w.bn':.
tire forum (itx tori) rvill be appiiecl: th:rt is. when tire proper
rntel'ai .r
clor",-,e
sdc iau,
.i
foreig. iau
7. After the court has acquired jurisdiction over n conflicts case and has decided to assume that jurisdiction, u'hen is it bound to aPPlv the internal or domestic la'w (lex fotr)?
Tl-rere are at lexst three (3) instance tl'rc inter nal
t,i:,,
s rvl.rerr tire forr'un has to appil (lex fo..ilrn clcciding a casc in conflicts of lau',
or dorncsltc
lnxv
courts cannot take ludicial noucc oi forergn iarvs, So that if thc Droper forcign lau'is pleaded (rn tirc cornpiarnt c,r peuu.,n. or in rhe irnsr,,,ct 'ot or an\r othcr rcsllonsrve pleadint) ancl is not pl'()vcn :Ls a fact, the cor.Lrr bas the right to presnlDe that tire aPpliclbie forergn iarv is tire sa'rc as thc internal or dolncstlc law of the t<>rurn a'd should, theref'r-c. app)v tht latter law (4don.qu. Cheon1ScngCrc, 4J Pl)il. 1);5.1 loc I-.ton3u. ,\'),quza, /6 Phi/. 1)7; Itn y. Collector, 36 Pltti. 172; I'luenr u. I li.c. 5l Pltil. 6/0; ln ra
'l-ettate I'-stutt
i,
thnt ,r,r.
(a)
rts
conflicts rulcs; (b) \!hen tl.rc proper forcign lru' has not been ptoperll' pleaded
ancl proved:
(c)
(a) In connection with the foregoing quesrion, lror:r.. is foteign law proved under our Rules of Court?
If
invoh'es anl of the exccptions to tire application
1211';
b1':
\\,hen thc
casc
ii.c.. e\ccptions
t,-r courttt-).
(1)
8. Give examples of cases rx'hich require the application of Philippine internal or domestic law' (lex for\.
(a)
(2) A copv
,\n official pubhcation rher'cof. or ofthe larv attestcd bl thc otttcer har-ing iegrl custodri of rlrc- rccolcl or b',' his clcPr,rt1,, irccr>nrpaniccl lrl a certiIcatc ol rrrl l)hihppinc cmbassl. c()r)suilr.
\lhencver eivrl
silu.t rs
apphcd
(.\rt
i 6.
or forcigr-r sclvicc oft]ccr rrr thc tbrcign c()Llrrrr\'\\ [re'jc the recc-ird is kcpt, and auther.rticatecl bl rhc scal oi his offlcc. (lturlc 132, scc. 25. Rer'. Rr.rlcs of (.<;urt)
(b) l{cg;rrtling thc pt'opcrrv rtlaltt>t.ts of thc sPr.,uscs. ;\rt 8() of tirc lranrh-(,odc provicics tbat tlt-the allsctlcc of .a corltrarl stipr,riati<-rn ur a tnarriagc scttlcment. the propertt'relatiotrs of
the spotrses sl-rrll bc g<.,r'cmccl bv PLrilipprnc laws, rcsardlcss oi thc placc of thc cclcll-ation of thc tnirrriagc anci their
(c) \X/ircn
li
tl-re
l-ly:
(1) 'I'hc oflrl tcstrttrol'tr- of c.rpe rt wirncsscs. ,ir' (2) B,v printccl atrcl publishcd boolis of rcpor,:s rif dccisions of the c<-lur-rnf inr,oived, if provcrl to bc
commt.rnll aclmittcd
ir.r
rcsicleucc.'fhc onlt,exccPtttlrt ts rvhcu both sllouscls arc alictls. r Filqlrr<, tathcr t'itlr ,\tncricatr cirrlclrcn (rvho bccrtnc utrdcl thc rulc of ./t1., .rr,1, dics, itis sttcccssiou shtll be such
-\rt.
1(r,
Ne*' (,ivil
(d)
if a rviil cxeclrted bv au alicn abt'oacl is revolictl in otrr couuft\', the revocntiott urttst crxrplv ri'ith thc fomulitic.- of J)irilippine iarv (-\rt. El9. Nc*' Civil (-,rcic). if it has not
noI bccn proprerh ltr<tved. thc c<>Ltrt o1- tirc ft;mnt rnirr' Plcslurrc that satcl forcipr-r iau i:r tht.salrtc as rrs l,rcai oi clomcstic lat', rl'iricir it cen norv apnlr',
10. How is a foreign larv that has been duly pleaded and pnn'ed to
This rule mcans that rvircn the l)rc)per f<rrcrgn l:rs. hes
.11
CONFI,ICT OF LAWS
CONFLICT OF I,AIVS
LAW
15
xgreemcnts'ndcr fo'cign iar's ti-rat cor.rupt tire propc' ldrnttrtstrrttorr rri itisLlcc .)r'tr'wilrcl cl.lrnci: a.rrr,raa,- t.,n'da, torelgn ial's to cernrl)t publrc offrcrajs: ancr rn gerrcral.
^rl ntoralrn' .,r.r,j"rat',rod br. th. ^r forum anci thosc rncor-rsisrcnt u'itir tj-rc bcsr rlrtcrcsts oi its peoplr.
tire sarnc intcrprctatlon as thai qtven bt the toreign tribr.tnals of thc countn'rvhcrc ti'rc iat,cor-nes frorn.
or-rr cr)ur:ts
goi-rcl
sotnes.hcre
in our lav"'s,
thcrc ts ir statute s'orded idenxcallv as thc iorcign iarv. s<; thirt our courts if thev disregarci thc forcign inter:pretation oi sard tbrergn lav' and grve it tirc same interprt)tadon prcvlousl,v gl.en bv our
'fhere
paf
n'to
ancl
lL. When a case involves any of the exceptions to the application law-, the rulc is that the foreign law cannot be applied and the courts should instead applv the domestic or local lau'. Wltat are these exceptions?
of a foreign
substantn'c, hlic the rules on prescliptlon. and thc Statutc of l;rar.rds rvhich undcr Phiiipprne larv are substantivc. l-Iencc. an American cannot insist on a jr.rrt, trial in the 1)hilippines: neitl-rcr can he insist in the applicatron oi Amcrican procedural lau,s in a
case
(a) When the application of the foreign law would run counter to a sound and established public policy of the forurn.
Examples:
Crimes committed in foreign countries are violations ofpenal laws ofthose counfties and cannot be prosecuted here. especially as we follow the pdnciple of territoriality in crirninal
law:
(l)
\\,e cilnnot enforcc in this coutrtrv a. dn'orce lau, of a foreign corlntr\r if the prrttcs arc- Fiiipir"rc,s. If. however. tire prrtics are a ljiiiprr.r<; and a forcigr-rcl and the latter vaiidir. obtans a divolce abroad capacitating him or her to femattl'. the Filipino spouse can also marrtr again (-1f t.
26. scc. par.. Famtlt Coclc).
,\ "pcn:rl clause" Ln a contfact cntc-rccl lnto abroad lrra\., horvever, bc enforccd lrcre bccansc such clausc is not crirrinai in natute bur onh,' provicies for hcpridrtccl dan'rages.
(e) When thc law is purelv fiscal (i.e., revenue-producing) or administrative in llature:
(2)
-\ ioint t'ili
exccutcd br. Fiirprnr,s iocaih' ol lr a forcign countrl is not vaLid (Arts. [118, ti19. Nerv Civil (,ode).
considered vord bv tl-rc Codc br reas<>n oIpublic policl. nuil and r-oid. even if thel lre val-id ir-r other counuies (Arrc. 3?. 3ti. I;amrlv Codc). Horvevet, thcse provisions
\\c are not bour)J t,r cnforcr.tirreign re\'('nu(.,)radministrative lau's. \\'e are llot conccrne cl rvith thc collccrion oI taxes b1' foreign coulrtries or.r'tth forcign laws rclating tcr governmt'ntal functrons or m;lttcrs.
(f) When the foreign law might work undeniable injustice to the citizens or residents nf the forum: I rrrt'tgn i;rrvs that s'ould result or cau.ie ru;usrict. r,,
16
CONFLICT OF LAWS
CONFLICT OF LAWS
cltizens or rcsidents of our countrv sirouid not be eniorced or Even effect irere. An exalrlple rs a foreign iaw purung tire age of n-rajorin'at 21 ancl refusrng ro recr)gnlze conuacrs of fji]rprros abroad u4ro are abor.e 18 bur beiou'21. consicicnng tirat rhc age of majonn- in our cour-rtn is 18.
(g) When the application of the fbreign law would endanger the vital interests of the State:
enfl.rrce
or personal propertv
law?
Sonre o[ the traditional thcorics in cleciding rvhethcr to apply the local or domestic larv or the foreign iarv ur a conflicts casc are thc follorvurg:
S)
CONFLICT OF LAWS
CONFLICT OF LAIVS
THEORIESTHATJUSTIFYTHE
APPLICATION OF THE FOREIGN LAN'
19
"Cornirr. in thc lcgal sense. is neither: a fitatter obligatron. on the r>nc irancl. nor of mere absohrtc oi courtcst anci goocirvili. r-rpor-r tire othcr. But it is thc l'ecognlrlon rvhich one statc allos's .r.'ithrn rrs tcr-rrtor\. ro the legisiarrve, execuuve. or judrcrai acts of anothcr narlon, having due regard both to international dr-rfi'and convcnience, and to the rights of its orvr-r citizens, or of otirer persons rvho are undcl the protecdon of its larvs." (1se u.s. 113 [18es]) firench citrzen sued an American in a French court..luclgmcn! was rcnder:ecl in favor of thc plarnuff Frcnch. rvho latcr Frled an i1r an ,\r-nerican c()Lut to cnforcc ^ction thc judgment. 'I'he An.rcrican colrrr found that the rnal tr.r the Frcnch court \\?s latr and rmpartial br-rt even in such a casc, I irench rribunals do not regard .\mcrican decisions r.r,rtir tlnaiin, but thcl still revict'tirc latter's clccrsions on the merits; i.e., thcv arc regarde d mcrclv as pirna.lat)e evtd,encc of plaintifl .s claim. Fience, the satne etfcct should bc givctl bv ^\n-rertcan c()llrts t() Irrench decisior-rs or-r "the pnncrplc c,,f reciprocitr''.
case, a
comitv based on the persuasiveness of a foreign judgment. Note: In our 1997 Rules or-r Cir.il llroceclr.ue. u'c still follou' tire plurcinle of recipr6crrr. hclj rn tire oici i:iiiton case because ln Sec. 4.9 of ltule 39 on tire "ctfcct oF foreign 1r_rclgnnenrs or frnal orders',. a forcrgm final jLrdgmcnt or <-,rder "rs presumpuve cvidcncc of a
right
as
bl a subseqtrer.rr title" aud "mav be lcpeiled lrv evidence of a rvant of jurisdicuon! want of nouce to the par:q',
collusion, fraud, or clear mrstake oF law or Fact".
In the above
Ilorvever, rn a 1926 dccisi<lr. thc U.S. (_oru:t c_,f .\ppeals Ycrrli rcfuscd to npplr thc abolc casc of l'li/ton y. Gurot. ln this casc. an -\rlcncan sr-rccl thc clcfendant lrrcnch citizen for rvrt.,t-rgful cicln'en- of goocls ur an ;\mcrican court. 'fhe defendant sct r\r tire clcttr-rsc that tl-re same lnfltter rvas alrcarl\'decrded ur his lavor l-r an carhcr casc Frled 1l' the -\merican in a ]irench coLut. The lorver court rcfusccl to givc e tfect to thc cadrel lrrcncl-r dccision or.r the theon o[ rhc o]cl Fliltor case. ltcvcrsing thc lower
crf
lierv
case
of Grai't
court. the L].S. Suprcme (,otrrr rulccl that surce it rvas the --\mcrican rviro hled the carlicr casc wrth a .lircnch cr-rurt s,hclcin hc lost, hc could not laterimpeach smcl juclgmcnt agair.rst irim on thc punciplc of comrq', t'hich grves conclusiveness to the Frcnch decisrcxr and bars his subseqr-rent acuou frlcd rvith an ;\merican coutt. 'I'hc basis o[ corlitv rvas srared as the persuasiveness of the foteign
damaqes against l.rcr hnsband Nlr, Crav f<rr pctsor.ral injur:ies alleged to have been caused to her bv the Iattcl rvhile drivrng fron.r their home in Nes' Harnpshire to N{arne u'hcre tl.re accident irappened. In N{ainc, the spouses are barrcLl florr rnrirrrrining an ;rcuon against cach -fhere other. is no sr-rch prohibitron in Ncu' I lampshire.
filed an
judgment. not the princrple of reciprocin- as held rn the old I Iilton case. (lohn.ran u. (ompanit: Generale -[iunta/i,tnliqur,. j42 -\. ). ]8/ , U..l. Ct'urr o/' .'lppcai: o/' N.).. 2+: N)- JSl)
J'irus, nvo pflnclples havc bcen given upon rvhiclr the thcon'of courin: rests: the comitv bxsed on reciprociq, and the
f'he ,\mericarr court mled tn the al>ovc cxsc that forcisn torts should be govcrned bv the /rr" loi tlelitri tommi.r.ri.,{ nght I-ravinS becn creatccl bl thc appropr:iatc iarl thc r.cosnrtion,'i
its existcncc foiiorvs cr.crr-lvhcrc. (Sce also ,\'['tJ)onuia
t'. ]Ltintttt^,.
\.\.
21;L"ouik.i
r'. .\'ranciard
Oi,' (a.
l0
CONFLICT OF LAWS
CONFLICT OF LAWS
THEORIESTHAT'USTIFYTHE
APPLICATTON OF THE FOREIGN LAW
21
of local lau'
forergn bv appiving a srmilar rule requires us to do so; hcnce. it is as if tirc foreign }aw has become par:t oi our o\\n internal or domesuc
of tiris thcon' beijeve tilnt ve rppil a lau.'not because it rs iorergn, but because our ou.'n iau'
Tl're adirerents
law
A good example of this theorv is Art. 16. par. 2, Neu' Crvil Code. rvhich requires us to appl-v the nattoual larv o[ tl"re deceased in the mattet of his testate or llttcstate succession lf the deceased rvas a Chinese aithough thc children are alreacll' Filipinos, we arc requlred to applt' Chirrese iarr,', not becausc it is
the appropnate foreign lav; but because our
tells us to do so.
o\\'11
"It rvill be observed that thc theories hereinabove adverted ro do not rnutuall1' exclude onc another; perhaps, the uuth rnav be found in their ccmbinltron. Certain\., it tire wolld ls to progress in uoderstanding and judgment, it must
recognrze this rmperative postulate: tirat sorneumes, we have ro apply the proper forergn law because courtesv. conveniencc, and internationai dury so demandl because there are vested rights rve cannot conceivably ignorel because a1i too often, tl.re foreign law has become part and parcel of our law; because idenucal sinrations
should be resolved bv ider.rtical rerncdres, ilrespecdve of dre forr-rm;
Crvil Code
of harmony of
laws
o[
p 73)
Undcr this theorl', tdentical or stmilar problems should be given identical or smilxr solutious, thr.rs resulting in harmonv of laws. Certaintr,- of soiutions to titc same or srmtlar problems are of particular rmportance in areas where tl-re Pirrties are hkeh'
to think ur advance
"r
of
of
therr transactiolls.
have
vahdin. This suggests that thcy are not entirelv exclusive. lndeed, there mav be a gain in using different theories at different places to make morc rcadilv apparent the change in pohcres deemed dominant as the situations
vAf \.."'
oiall
law's.
is the dispensation of justrcc. the propcr forcigt-r larv shou]d bc 'I'hc de fect of this theolv, applied in c>rder t() attain this objcctive. hovever, rs that different pcrsons tnat'' havc c{ifierent idcas of wirat is jusc Should we, then. lc;we tirc questlorl to t}.re diFfercnt notions oI iairness and iustrce?
CONFLICT OF LAWS
r22
CONFLICT OF LAWS
of conflicts
rules?
G)
Tire one-sided rule (wirrcir indrcates when philipprne Iaw will appl1').
Examples:
An. i5, New Crvil Code: Laws relaung to famrll, nghts and duties, or to the status, condition, and
legal capaciry ofpersons, are binding upon citrzens of the Philippines, even though livrng abroad. Art. 818, id.: Two ot more persons cannot make a will jorntly, or in dre same instrument, erther for their reciprocal benefit or for the beneht of a thrrd pefson.
,
1.
Distinguish a purelv internal provision of law from a conflicts rule or a provision in conflict of laws.
A purelv internal pror,'ision of lau' governs a dourestic problem; i.e., one without a foreign elerncnt. And it authorizes, commands, or ptohibits a certain act or modc of conduct. Ihe qucstron taised - whether the partrcuiar act or mode of couduct is allowed. cornmanded, or prol-ibited - is imrnediatelv solved.
(b) The all-sided or multilateral rule; (which indrcates whether to applv the local law or tire proper
foreign law). Examples:
as
On the other hand, a conflicts rule or pr<>r-ision of lav' is a provision found in olrr own law rvhtch lt()verns a tactual situation possesscd of a forcign element. It is usuallv expressed in the form of an
abstract proposition that
a
1aw- or the proper foreign law). to be ascertained in the manner rndicated bv the provision.
par, Neu'Civd Code: Reai properry personal propern is.subiect to the lau' of the countrv where it is siruated. Art. 17, Ftst par.. rd.;'fhe foms and solemnitres of contracts, wills, and other pr-rbhc instruments shall be gc.rverned bv tl-re iaws of the counuy m which thev are executed.
16, fu'st
Art
well
as
an internal rule: Art. 796. All persons v,{ro not expresshr prohibited bv law mal tnake a will. QNew Civil Code)
Example
of
are
Note: The above provrsions tell us when to appll Philippine larv or the proper foretgn la.ri
In
tl.re
Example of a conflicts rule: Art. 16, Reai proPernr as wcll as personai propert| is subject to thc larv of thc countrv u,hcre it is situated (Art. 16, 1" par. . rd.).
likc
in
ii
CONFLICT OF LAWS
25
gor.crned bt Phihpprnc latr Jf rt \r'rs e\ecurc.l rn r forersn countrt sav rn l'-ngland. E,ngLslr iau' u'ili appir'.
\\'hlt
lau' rs
t. irt' apphccl r. clete.rnurc rirc irabrhn oi the slrrPi co"tn t' rvirrch thc l.st cargocs lr.c t. be rransp()rted.
Observation: \\,'hiic,\rt. 15 of thc Neu'Civil Codc irtcrally apphes onll to lrihprnos and is actuallv a one-sidcd rule. tirc Suprcmc (-,ourt iras gir.cn it a rnultiiateral apphcation rn that it has l-reld that t<-rrcigncrs, in tireir status and lcga) capacrt\', are gor-crned irt thetr national law (Gibb.r x,. Gzul..:19 Phil. 29J.l\a;to r. I larden, L-6897. Nou. 29, 195Q. In other words. the na[onahtl' theon' embodied in Art. 15 of tl-re Ncrv Cir'il Code has been applied bv the Suprctne Court even to pcrsons who are citizens oIcountrics follr)wins the domici]ran' theorl. like Americans.
or tire larv of tlrerr destrnatron. not thc iarv oF tbe c()unrnr wirere the lost cargoes were ioaded, or the placc r.lf er-nbarliauon.
Another example: .\Lt. 'l 039. Ner,v (-ivil (.ocle. provrding tl.rat "capactn to succeeci rs govcmcd bl thc iarv o[ thc natron o[ thc <]ccr.dertt". .l Ierc aqain, wc get the picttrrc ql: a. persc.rn rvlro dics, bur rvh.sc heirs rnav bc cttizens of another coulrtr\,'. \\'irat Iarv should applv to dctcrmrne wl-ro
will succeed the deceased? The la*' savs it is tl-ie larv of the countrv of rvhich thc deceased rvas a citizcn. and not the lav,, of the
ciuzenship of his heirs.
3, What
Unhke a pureh' internal rulc whicll governs a purelv don'rcstic problem without a foreign element. a conflicts rulc u'hrch indicatbs rvhethcr to apph' the internal iarv or the foreiqn iaw. hes tu'o parts s'hich
are readiiy recognlzablc:
pre-
(b) the point of contact or connecting factor, u'irich is the law oI tl-rc c()untr1: with rvhtch thc iactual situatit-rn is most
intin-ratcil conuected
tl-re first part states ccrtain operatrve facts, the wirich are determined in the second part; that is, tl.re first part raises, rvhile the second part answers or solves, a legal
<-,f
In other words,
legai consequences
questlon.
Example: Art. 1763, Neu.Cir.il Code, pror.'idrng d.rat "the law of the country to which the goods are to be uansported shall govern the habilirv of the common carrier for ther lo-ss, destrucuon, or deterioratron".
thrs provision, we have tirc pictute of a cargo shrp traveling on thc higl-r seas bnt for some reasoll ()r anorhel, the cargo clr part of it is lost, destroved. or deteriorates durns the vovagc.
ln
w
CONFLICT OF LAWS CONFLICT OF LAWS CHARACTERIZATION OF CONFLICTS
RULES 2i
Niost wrrters hoid rhat ()n the grounds oI practicai necessrtr. a'd con\ren1el]ce. rt is the torum. or rire ,e.r 7un. that should cietermrne tire probiem'.s char;rcrerization. uniess tl-re result would be a. clear rnjusuce.
the followrng
Cibb.r u. Goul
rll
P. 1.. 59
Pltil.
29): A
Califor.nran wife
dies. I.Ier Cahfornian husband clarms the entire properues ac<1urcd bl the spor-rses during tl-reir marriage as his alone bv accrerion,
follorvirrg California iaw on propertv relations of spouses. Undel Phihpprne lar.r'. irou'ever, tiris is a problem rn succession,
so tl.rat ir.rheritance taxcs shoulcl be pard bl the husband as thc lands in qucstion rvere located in the Phriippine, fhe Supreme
of
"classification" or "quah6caflon",
whether the matter pertains to ttsubstantivet' or to tlroceduraPt la*-. How is the problem to be solved?
are g<x'erned bv the /c:t fon. 'fhus. matters of sen'rcc oi summons, ioindcr or splittinq ()f cause of acuon, hox- to appeal. peuocls of appeal. crc. are governed b,r'
is tl-re ptocess c-rf assigniuq a certait't set of facts or facttral situatron to its proper or correct iegal categort'. Evcr-r' rule rli lau'is bascd on situations of fact. tcrual or ttlagrnccl. sincc tl-re lclislatol: tnust trl tct solve iactual situatrons that migl-rt arise in tirc futurc, bascd crn past obscn'irtic-,n and experience. These legal categoties nrar-bc farnilt, relations. colltracts, torls. succession, propert\:, etc. Bv charactcrtzing the legal prt.,blem. the court
or the parties invoh'ed reach thc proper solutton whether to applv the local law or the proper fotergn laur
llut what abollt prescrtptton of acrit-'n and dre Statute of Frauds? Are thev substantive (or.rr law considers them such, so tl-lat therr are found in the Neu'Cn'il Code as rvell as tl.rc llules of Court) or merelv procedural and, tlretef<-rre, governeci bt the lax.lor?
T'he modcnr trend is to considcr tire prescriptivc periods or thc
Statute o[Frauds tirat ti.rc partres had in rmnd at the time the &ansaction
conflicts situatron or problem may be charactelized bv thc lr.r'fari differendr ti'om tlre characterization of the ltx nu.tat (the Iaw of thc state \r'1th whlch 'I'bc ic.:, irnt :mrgilt regard the act crr transacticur is most closch'cortnccted). the problem as torl. whrle thc iex r',ttt.,,.tt rcgards tt as coutract. ()t thc /c:' lon rntght regard the problem as cr11re, rvhiie the llcx tttu:* considers it
took place. Thcn, proceed to applv the intended iaw in its "totalitv"
rncludrng its penc,ds of prescnpticin and its Statute ol ljrauds. ,\n cxcepnon rs if the subject-rnatter is propertv locatcd rn tire Philipptnes, in u'hich
case Plrilrpprne
iaul being
rr-r
B,
28
CONFLICT OF LAWS
CONFLICTOF LAWS
that under l-nglish lar'"', the perrod to sue ()n tire promissorrfour i4) r,ears. In thc Phihpoines. thc period .i prescriptrt)n rs ten nore (1()t vears. If acuon rs idcd rn rhe i)hihpnrnes bo'ond 4l,.or. irom rhc issuance ol tl-re note but r'"rthrn 1{) vears, sirould rve hoid the action as
Lrs assurne
1-c
iarr,.
lil
1.
CHAPTER
hj6 whcreyet
A person's personai larv ntav bc de Frned as tirat whtch attacires to l-rc rnal gol the Ia1't[at gcneralll sovcrns his status. clp^cln, conditron, fhmih'rclations, and thc c()nsc(lucnccs ol- his actuatt<;ns.
It
of
of
the situs of thc event or cransaction rvhcrcin he was involvcd, dcpendurg on the theorl' applicd aud enforccd 1n thc forum.
in society, and consists of permanent, with which more or less personal qualities and reiationships, the state and the commurury are concerned" (?aras, supfa, p. 100). It
"Status" "is the place
of
an indrvidual
includes the civil status of a Person (wh.ether he is single, married, widowed, or dlorced); his patemity and Frliauon (whether he is legtimate or iliegitimate or adopted); whether he is a minor or has reached the age of majonty; whether he has the capacity to enter into vatious transacLions. It also includes his name, sex, and his profession in certain cases (whether he is a lawyer or a doctor, or, a iudge or an appellate iustice, etc')'
. r$'
>..r.lr*Av
30
PERSONAL LA1A
CONFLICT OF LAVVS
CONFLICTOFLAWS
PERSONALIAW 3I
"Capacrn'". on the other hanci. is onlv part of one's status, and mal be delned as tire sum total oiirrs rtsitts and obirgations {Graveson.
The united States, like other common raw countries, follows the
\:l
h:rnds
of clPacln:
tc)
bc tl-rc subject of iegai rclartorts: lnd lactr\-e cxp^crtf, - rvhtcir is thc powcr to do
Code)
7. Is national law the same as the law of one's citizenship? In other words , ate a person's nationality and citizenship the same? "Nationality" refers to membership in a political communiq',
one that is personal and more or less permanent, not temporary. A ciuzen,
l-ras
no crlli1c1.\' t('
1lct.
itrs cc>nferred prtncipailv bv tl.rc statc. not bl thc ndrvidual. it rs a ffrattcr of pubhc or sc-,cirl iutercst. (c) Ileurg a concept of sociai ordcr^ rt cann()t casilt bc tcrr-r-ri natcci rt thc nrcre u'il] or .lcstrc oI tl'rc partics couccttrecl.
(a)
(b)
on the other hand, is one who owes allegiance to, and is entitled to the ptotection of, the State. In the held of Confhct of Laws, however, nationality and citizenship are the same; o!, "national" and "citizen" are the same. When our law refers to one's national law, therefore, the law is Philippine law. While the national law
(.j
a umr-crsal character. \\then a bv tl-re inq'oi ()nc c()urrtr\'. tt rs ctcated certain status get"reraih' rccognized iril ovel tlre rvotld.
It
ts
of Filiprnos an alien is the lav' of his citizenship (e.g., Art. 16, sec. par., referring to the "national law" of the
means the person's law
of citizenship. Thus,
of
his national law already becomes the law of his new citizenship; the former
an
4. State the different theories on horl' the personal laq' of individual is deternrined.
(a)
an
8. What are the reasons why some countries adopt the nationality
The nationalifi'theor\, tlist, c:irllccl tirc pclsotr:rl tltc()r\:) - b\' virtue oi rl.hich the status and cePaciti o[ a persotr ts clctcrntnecl
theory, while others adopt the domiciliary theory? Civil law countries, like the Philippines, follow the nationality
theory. In such countdeq the nationaliry theory has been consideted justified
bl
tl-rc
iau'oi
(b) The
capacin-
oi
of
hts dornicile
on practical considetations of convenience and expediency. The people of these countries are considered bound by a spint of national unity, by a coffunon history and mores, so that the identity and legal position of their otizens are guaflnteed by the consistent application of theu national
laws on status and familv relations wherever they may go and even when they migrate to other counfties. Note that manv Filipinos \r'ho have
Iat'.
5. What theorv does the I'}hilippines
to
the
Phihppines and die here because they sull consider themselves as FiJ-ipinos.
States?
\\c ftrlioN
rhc rr:irronaiitr
thr.<,fl.fiftfiUl
tn
!rr
fy
The domrcihary theory, on the other hand, assumes that the attributes which make up one's status and petsonal relations are intimately
r32
CONFLICT OT LAWS
CONFLICTOF LAWS
connected viith the country where they have made their home. It is adopted bv the United States and other cornrnon law countries, whose populations consist of peoples of different nationahucs with vannng tradidons, cuinrre, and ideals, and whose uniw mav be consideted achieved bv adopting the law of their domrole as the law that govems their status and family relations. Countries with mixed populauon brought about by the migation of foreigners to their shores need the dor'niciliary principle to certain fusion of their populatron and to avoid the necessity of ^ttdn ^ appli4ng a different law to ptactically every case.
It offers no solution to
the problem
ofa
stateless person or
one rvitl.r dual or rnr-rltrple citizenshrp. (b) It is unfair to consider a person still bound bv his national lar.r' i[ he has ]ived in another countrv Fot most of his hfe and ptacticallv all his t-1es ate with that c()untry. G) It rs sometimes difficult fcrr persons who rvant to change
(d)
fugees from Cornmunist countrtes) to be natr.rralized in other countrics. It is also somettmes difficult to solve problems reiating to individuals in countries rvhe;:e most of the peopie, having
re
2. Since citizens and nationals are the same in Conflict of Laws, we should knowwho ate Filipino citizens considering that Philippine
law follows them wherever they go in matters of status, legal capaciry and family reiations. [t is, therefore, important for us to teview Philippine law on citizenship.
First of all, what are the different kinds of citizens in the
Philippines?
NATIONALITY THEORY
CONFLICT OF LAWS
CONFLICT OF LAWS
NATIONALITY THEORY
who determines whether a person is a citizen of a certain state or countrv? For example, who detetmines whether a person is a Filipino citizen or not?
4.
Each countr'or state has the sole porver and authonh ro determrne under its internal or rnunrcipal ]av' ud-ro are its citrzens or nauonals. r\s provided in Art. 2 of tire Haguc Conven[on on conflict of Nationa[n. Laws (April 12,19301:
Ongrnallv classificd as citizens by election verc tllose born before rbe 1973 Constrtuuon of Fihptno motl-Iefs blrt of ahen fathers wlro, upon reaching the age of 27 ot wrthin a reasonable drne thereafter,
electetJ Pl-iihppine citizenship. But rvith the provision
',{nv question
the nationai:rv
as to .rvhetirer a
person possesses
of the 1987
of a particular
Constitutron aiso considering as natural-born citrzens "those born before u'ho elect Phrirpprne citrzenshrp .Januarr' 17, 19i3 o[ Fihprno rnothers. upon reirchrng the agc t.,f niajorifi'". th<;sc cl'.rsstfied beforc as ctrizens b| election are now considered narural-born ciuzens. Note: Nauve-born Fiiipino crozens are drose born in dre Philipprnes. Natr.rral-born citizens mav not be nattve born if they rvere born abroad.
,\rt. JV .i the i987 C.nsuturo' ,f the pbilippines clctcrmincs who are Fihpino ciuzens. No foreign lari; <_,r.no ];rw oi a torergn countr.\, can determinc who are F-ilipinos. Smilarir,, our constirutron and laws cannot deterrunc rvhc.r are, for cxar-nple, chinese ()r.r\rnerican citizens. onlv the larv of cl,rna, or the larv oi the United States. can determir-re rvho are its citizens.
5. Considering that onlv the Philippines can determine who are Filipino citizens, mav the problem of the dual or multipre citizenship of a Filipino arise in the Philippincs? No, because as alreadl srared, as long as hc is a Filipino citizer.r, our country is nor concerned if ire iras anl, other citrzenshrp. For example. if he was born olti'riiprno parenrs. he rs a natural-b.rn citize' under the rule of .ju.r vn.guini.r. He mav aiso bc a u.S. ciuzen under the prlrcipie of rzr.r .roh ii hc rvas born rn U.S. soil. But from the pc,rnr of ,,,ieu, of our Consritutror-r and lav", he is onlr, a Filipnio ciuzen, penod. 6. What about Sec. 5, Art. IV of the 1987 Constitution providing that "dual allegiance of citizens is inimical to the national interest
ol those rvl'ro had been naturairzcd as Ftliprno crtlzens arc also considered to be naturalized citizens bl denr''ative
aturlltzatiorr.
3. What do you understand by the principles of ius soli and fus sanguinis in the law on citizenship?
person is a ciuzen of the cout-ltl' $'here he was 'l'hus. the babt'of lirliprno born, or of thc countrt of his birtir. Parents br,rt born rn tire LiS. is not onlv a Filiprno but also an ,\rnerican citizen undcr "thc princrple oi 1tt.r .roii. s'hich thc U.S. follows.
is tire rule that u'e lollow n.r the Pi-rriippines. Jus sanguinr's It is citizenship bv blood: i.c.. those rvirose lathers or lnotltets' or whose botl.r parents atc Fiiipino ciuzens. rs a Fihprno cttizen
tus soli - ,\
and shall be dealt with by law"? Does this provision prohibit Filipinos from having dual citizenship?
cruzenshrp cannot be avorded due to the dr,",erse larvs as to who are their citizens ancl who are not. So, a Filipino mav have dual citizenship. as shown in euesuon 5 hereof. But the concero oi the aforesard provision of the constrrution
No. Dual
'l'hrs
oi
the
36
NATIONALITYTHEORY
CONFLICT OF LAWS
CONFLICT OF LAWS
NATIONALITYTHEORY
37
(a) In a case where a Frlipino (because his parents are F-ihpin.s) was born in Arnerican soil, he rs a Fihpr'o urder the rule of .jut ,iogoion wlrile lre is an ;\mericao under the ruie oi.iut toli.
(b) If a Fdrpino \r/oman marries a foreigner wirose natronai iau, aliows her to becorne a citjzen of her husband's country like China br,
such marriage. she still retains her Phrltpprne citizenship under Art IV ,.i. 4 of the 1987 Consutution, unless bv l-rer act or omission, she is deemed to have renounced her PhiJrppine ciuzenship. Therefore, she would be
a FiLpino and a Cirrnese citizen, if she does nothing to renounce her Philippine citizenship.
7. Considering, then, that it is the Philippine law that determines who are Filipino citizens and who are not, so that it does not determine whether a Filipino is also an American citizen or a Chinese citizen, etc., when would the problem of dual citizenship of a Filipino arise?
Such questron would arise onlv from the point of view of a a gtl rvirose parents ltre Fihprnos but who rvls bo.rn and has lived all her life in Cahfornia. U.S.,\.. is appiyrng for scholarship in a French universiq', the French authoriues will regard her not as a Fihpino but as an American. as hcr (lalift>rnia citizensirip rs the
both
9. Give an example of a problem involving an alien who, ftom the point of view of the Philippines, has dual citizenship.
n:x>re effective
connecting factor in determurtng what is her citizenship, Filiprno or Californian. Tlls is appllnng the theorv of effective nationality embodied in Art. 5 of tire Hague Convcnuon on Confhct of Natronahq' Larvs rvirici-r ptx.icles
:
Chinese citizen by marriage, dies, leaving some properties in our count]vzhere she did some business before her death. Since Art. 16, pat. 2, of the Nerv Crvil Code, requires us to appiy her national law in determining who are her hehs and how much is the share of each, we should know which iaw a Philipprne court should applv to her succession; whether Japanese law or Chinese law.
10.
as i[ ire had onlv one. \\ithout preludtce of its iaw tn personal matters and of anv conventions in force, a third state shail appir, the nationalities which anr, such person possesses, recognize exclusivelv in rts territorv either ti.re natiooality of the countrv m rvhich he is habiruallv and prurcipallv a resident, or the nationahn' of the
to
tl-re application
W-'e should applv the "effective nationalirv" theory prevrouslv espiained. lf the deceased woman was a domiciiiary of Japan at tire time of her death, then the Philipprne court should applv Japanese iavl li howevet, she was a domiciliarv of China at the time of her death, the court should apply Chinese law: This is because the law of the country of which the deceased was both a citizen and a domiciliary at the
mosdy connected." Undoubtedlv', in the above problem, Californra is the more effective connecdng factor in determining whicl-r of tl-re girl's rwo nationalities ot citizenships, is irer personal Ia-*.
8. In what case or cases may a Filipino have dual citizenship from the point of view of a third state?
time of her death is considered more effectively connected to her than het other national law. Or, stated otherwise, she was more closely connected to the country where, being a citizen.thereof, she and her family also made it their home. Needless to s.ay, rhat
countrv where she and her famtlv had their home was closer to her heart than her other natronai lavz And so, in ali personal and family matters. it is tl-rat law that the court should applli
11. Suppose
at the time
II
NATIONALITYTHEORY
CONFLICT OF LAWS
coNFLlcroFLAws
NATIoNALITyTHEoRy
3e
lhird countrv, like Singapore? Will the solution to the problem be tltr riame?
The soluuon rvould nout be drfferent because u/e can no ionger
rrv that she was.more closeiv connected to J apan or Chrr-ra, the countries rrl wlrich she was a cirizen at the ume of her deatl-r. In this case. then, the tlomicilian theorl' comes to the rescue and will consider tl-re countr-u- o[ lrcl domicile at tire time o[ her death (Singapore). So, rve sirould Ftrst
applv the nauonaliry theory by taking her rwo natronal laws (]apanese and ()hinese) and applyrng them together insofar as thev are consistent and harmomous with each other. BLrt if thev are inconsistent and in conflict witi-r each otirer. then we should alreadv apply the law of Singapore, which was her domrcile and home at the time of her deadr. 12. Suppose the person whose succession is in question before a Philippine court is stateless. How should the court decide the case?
Srnce the person tn questron is stateless and, therefore, has no national law, we cannot apply the nationalitv theory (Art. 16, sec. par., New Civil Code) to hrm. ln this case, ,rEain the domrcrhaq' theorv comes to the rescue, and the court shall appll' the larv of hts domicile or if he has none, tire law of the country of his temp<,rrar_v domicile.
all pr";;;;;ffi;;r, 'Ck4 of Rure i 0g are foto*'ed and ali persons with rntercst
Hower-er. tlrs rulrnglras aireadr been supersecieci b'subsecluenr cases (.Toientin, t. Para.,. I I'J CR I 16..Rm. z: Lt,en,..t /.i tJ aR J ;:..R il,.*,,ir,l)rr,','.' , ,O / ii, among odrers)
ii
ifi
iifl
iitr
t'al
longer summary but adversarial, and substantia, I errors Lke crtizenship can arreadv be corrected under Ruje i0g.
15'
is held. ,h.
fis
$tr
Hf,f
19g7
constitution?
the 19g7 constitution enumerares the ciuzens of the Phrlippines as follows: "o rhose wrro a'e ciuze's of rhe phiLppines at the time of tire adopuon of rhis ConsuruLion:
(2) Those rvhose fathers ormodrers are ciuzens of trre prrihpprnes; (3) Those born beforeJanuarv Ii,1g73, olFilipino nr;;;;r. who elect phrhppine crdzenshrp upon reachrng rt," ng. .f ;;;;;,y,
{s
,Jtr
$#
:3t
iff
and
in
Yn. uoni
19'
petition for naturalization? In Comn. o/' lmmtgralion u. Carctu, L-28082..|une 28. 1974, the Supreme Court held that the court. in a petiuon for narureirzation, cannot make a deciaration that the apphcant is alreadv a Fitliprno ctttzen for the reason that rn this jurisdiction, there can be do independent actron for the judrcial declaration of onet ciuzensirip. Courts of jusuce exist onlv for the settlement of jusuciabie controversres, which rmpi,v a given nght, legally demandable and enforceabie, an act or omrssion violative of said nght, and a legal remed)' for the breach of sard right.
Philippine citizenship be made in a special proceeding for correction of entrv under Rule 108 of the Rules of
14. May a declaration of
Art. IIL Sectron I (l) "f the 1973 Constrtuuon provides that the follow:ng are cirizens of the philippines: "0) Those who ate ciuzens of the philippines ar the ume of the adoption of this Constitution;
(2)
,.:,.It{OO-e
are ciuzens
of the Constirution of 1935; and (4) Those who are naturalized in accordance wrth law.,,
r:li:
i!:
,;Lr
rili
i;: iri
ii4
Itl,
Court?
17' Since the 1973 constitution considers as F'ipino citizens those who were such at the time of the adoption of said constitution on Januarv 1711973, who are those refetred to in said provision?
In a long line of
They are those enumerated in Art. I! 1935 Consutu tron, t0 at: "(1) Those who are citizens of tire philippines ar the ume of the adopuon of the Consnrutron of rhe phihpprn.s;
IO
NATTONALITYTHEOR}
CONTLICT OT LAWS
CONFLICT OF LAWS
NATIONALITYTHEORY 4I
Those born in the Phihpprne Isiar.rds of ioreign parents who. befcire ti-rc adootron ol tiris Constitutt<-,n. ir:rd been elected to pubirc office in the Piri)rpprnc Isiands: (3J Tirosc u'hosc iatl.rers arc cltrzcns of rhe Phrhpptne"^: (.t) Those v,'hose mothers are citizens oi the i)hthppurcs and. upon reaching the age of majortq', clect Phiirppine cicizenship; (5) Those who are naturaLzed rn accordance rvtth lav":"
12)
20. where do vou find the lau'providing for election of philippine citizenship under the 1.935 Constitution?
625.
of children born of Filipino mothers under the 1.935 Constitution, from those born of and alien fathers Filipino mothers and alien fathers under the 19'73 and 1987 Constitutions.
18. Differentiate the citizenship
i1,
the U.S. and Sparn) and were Spanish subjects on rhar date, unless thev l.rad lost therr Phihppinc citizcnshrp on Nfar. 14,1935; of the Spanish i)eninsula u4ro resrded ln the Philippines declare tirerr intentron of preserving their Spanisl-r nauonalN between tl-rat date and Octobcr 11, 1900 (tl're tirnc provided for doing so), unless ther.had losr rherr
(2) Nauvcs
or as natural-born citizer.rs only those whose fathers were Filipinos at the time of therr brrth. rvhle those born of Filipino mothers and ahen fathers still had to elect Philippine citizenship upon reaching maloriq' before they could be Fihpino citrzens, tiris injusuce tc-, children of Filiprno mothers (wiro are really Fihprnos because Frliprno blood flows through their veins) was iater corrected b,v the 1973 and 1987 Constitutions, rvl-ricl.r alreadl' consider as natural-tlorn citizens those born of Fiirpino mothers, even if the fathers were ahens. ln other words, those born after tire effectivtq' of the 1973 Constitution on Januan 17,1913 of Fdrpino mothers but of
ahens fathers are alread-r' IrrJrpuros at blrth rvidrout need of elecung Phdtpprne citizenslup.
on April 11 ,1899 and who did rrot declare thcir intentron of preser'ing their Spanish nationahn'between that date and ()ctober
11, 1900, unless they had lost therr cirizenship
bl
In the case of election of Philippine citizenship under the 1935 Constitution, as of what time should the mother be a Filipino? At the time of her marriage to an alien, at the time of the childts birth, or at the time of the child's election upon reaching the age of rnaiority?
19.
1899, unless tl'rer,had lost their i)hrhppine ciuzenship bv N,Iav I1.1935; (5) Persons rvho becamc narurahzed citizens of the phrhpprnes in accordance rvrtir the procedurc sef forrh in the Naruralization Law since rts enactment on March 22, '1920. unless tlrey had lost therr Philippine ciuzenship on or before May 14. 1935;
At tl're tirne of the mother's marnage to an aiien. F-or if we require the mother to be a Filiprno at the time of the childt birth, verv few childlen wtll be benetrted by ths provision because the mother would have alreadi' become an alien at the time of her marriage (followrng the irusband's alien citizenship) and before the child's brrth. Likewise, if we requite that tire mother should be a Irilipino citrzen at the ume of the child's election, again ven' few children would be able to eiect, because their mothets would have alreadv become a[ens when tirey got married to thet ahen husbands and iong before tire birth of the children.
(6) Childlen of persons embtaccd rn (5), uniess thev had lost theu'Phrhppine citrzenship on or betbre \.{av 14. 1935;
(7) Fihpino women who. after havrng iost Phijrpprne cruzenship
by matriage to forergners, irad subsequenth' become wrdou,s and regained Philrpprne cruzensirrp on or before lvlar'14. 1935
of (7) who were stiil under 2i vears of age ar the ume tlreirmothers regained Phrirppine ciuzcnshtp (Roa t: Collector,2)
(8) Children
CONFLICT OF LAWS
CONFLICT OFLAWS
NATIONALITYTHEORY {3
NATIONALITYTHEORY
25' 195)' L9i GR L'5t97' Sept' Phil. i2l;Talarocl'
I
got marned to who' before Mav 14' 1935' (9) Forergn women *i; *nt themseives be lawfuiiv naturalzed on citizens of the Phrirpp-t" n^i fott their Philippine citizenship
Filiprnas who married Chinese husbands legally. Since under the law of China, they followed their husbands' citizenship, they all became Chinese. That is why many Filipinas later opted not to marry their Chrnese husbands legally, so that
Philippures who' on All other persons born in the the Roa case' n of thejut nli docmne in of the erroneou' "ppht"oo unless they cidzens' tt"tts.";ltrtgino were mistakenly dtd;;;'tr" by tvr citizens 1'g3' These are
the strength
had lost
thti' titizt"li*it *t
14'
tuit''
Under the 1973 Constitution: A female citizen of the Philippines who marries an alien shall retain her Philippine citizenship, unless by her act or omission, she is deemed, under the law, to have tenounced her Philippine citizenship (Art. Ill, Sec.,2, 1973 Constiuion)
Under the 1987 Constitution: Citizens of the Philippines who marry aliens shall tetain theu citizenship, unless by their act or omission, they are deemed, under the laq to have renounced their Philippine citizenship (Att. ry Sec. 4, 1987 Constitution).
22.
1935
FrLpino mothers ""d.'il;;;*'*i'o from 2l years'.H:*:u"t after 1994 (21 years otizenshrp ,rpot' "^tn-g who those longer no there vrere the effectivity of th" tS;iot'sutt'tion)' already have itt^ttt ^[ of them would could elect Philipo-t ';;;;;' or did not elect at all' in
Note: Unlike the similar ptovision in the 1973 Constitution, the above provision of the 1987 Constinrtion now applies to both males and females who marry aliens.
elected of teached 2l andtl"y ti;;;;iaheady followrng the citizenship aliens be which latter case they t;;il; their fathers'
25. What is the citizenship of an alien woman who marties a Filipino husband?
(1) In the case of Zita Ngo Burca u. Repablir, Jan.20, 1967, ir was held that the ptopet proceeding vuherein an alien'woman married to a Filipino can herself be declared a Filipino citizen is a naturalization ptoceeding in a court of justice, and that any such declaration by any other office or agency is null and void.
1935
the rnother followed the ciuzenship of The child, berng ille gttrmate' from birth' the chrld is a Filipino without need of tttJ;""' fit"te'
Many Filipinos criticized said ruling because it imposed more stringent requirements on an aLien wife of a Fiiipino husband vrho ordinadly follows the citzenship of the latte4 than an applicant for naturalization. Fortunately, this ruling was later abandoned. of Innigration,4l SCk4 292 (1971), the Supreme Court reversed the Burca ruling and held that "under
If (1) Prior to the 19?3 Constitution: her Philippine citizenship' lost of her aiien husband' she the many
Q)
MEa
Ya
Lin
Yao a. Comm.
Sec. 15
44
NATIONALITYTHEOR\
CONFLICT OF LAWS
CONFLICT OF LAWS
NATIONALITYTHEORY
45
an aiion wolrran rrnlr\,l11e a I;ihtrino. uailr'c-born oi naturirlized. bccon-tcs tp.tl.iltiio a irilipino pu'idccl sl-rc is ur-rt ciiscluahired to be a cruzcn oi tirr 'l'his cleciston PhrJrppu"res undcr Scc..l r;f'thc sarnc iat:" rn cifecr ruic.i that rt is not neccssarl ror tirc ai-rclr rvilte oi a .l-ihpr1cl hssband 16 p16;1rg 1n a courr plocecding that sirc possesses ail thc guahficadons ser tortir rn Scc.
(1) By iudicial process in accordance with Commonweaith Act No. 475, as amended bv Repubiic Act No. 530; (2) By legislative process; i.e., when Philippine citi.zenship is
2 and nonc of thc discluaiihcauons unclcl Scc. -1. both of thc Rcvrsccl \vatulahzation l,at; ]t rs cnougir ther sl'rc 1-rlolcs rhat sl'rc is nor drscluahiiecl to l:c a Filipin o crilzen not necessarih- in court but even bcf<_,rc an agencr Llic rlrr' Lnrnirlratron (.orlnrissiorr.
Note also lhat an ahcn woman rnarrrcr-l t() ;tn aiien liusband rviro (tl-re husbancl) is subsccprentlr.naturalizcd als<.r follt.,l,s the l)hrJ_rppinc citrzenship c;f her husband, pro'idecl shc d.cs 'ot suiicr f'.m a'r .f rltt tlrstltrahficluutts tlrtd('r )cc. -l , tlrc s;rrrrt l(t.r rscd \rrLrrairznti.,l l-,ru,
administrative process, under Rep. Act No. 9139, otherwise known as "The Adminis&ative Naturalization Law of 2000", approved in 2001. Under this laq a Special Committee on Naturaiization is created, with the power to approve, deny or
reject applications for naturalization irled with said Committee.
'f
ol
:r uarurali;zcd
ljilipint
citizcn;.
Members of the Committee are the Solicitor Geneml as chairman, and the Secretary of Forergn Affairs or his representative and the National Securiw Adviser as members.
is no lau,g,r^rinn,i,lg alicns n-rarr:icd t. Fil4rrnrs thc riEht t. bc acimrttccl lnr.. nruch lcss givcn l)crlnallcllt rcsiclcrlcc irl. thc l)hLiipltitrcs. l'ltlr oi aircns rtt() rl-lc l)l-rilpprlcs rflti t]rctr ldrrrtssr,,t) 1ls lltlnllgr;lltts ts j)(,1 :l llt;tttct.,rl r.rqlit. cr.en il tht,r
tircr-e arc icgallr,marrieci tc, .Fihprnos. i\iarrrrrgc
d<.rcs
Derivative rr"*r.ti""tion is Philippine ciuzenship conferred on: (l) the rvife of ftar'xaLzed husband; (2) the mrnor children of a
naturalized father; and (3) the a[en wife of a narural-born or nafuralzed citizen, in the latter case, the mariage having taken place after the husband's
naturalization.
oi
r-rrr tp.ro .fat/a *rakc her a fiiliprn' citrzcn l'd docs crcuse he:: '.t fror.n her failure to dcpart lrorn thc PhrLppure Lrpon rhe expiration .f her cxteuded sta\- hcrc as an ahcn.
Note: Unliiic t|'t': i\10):tt Drt rt.;t rvhelc the aLcn lrornan marliccl to a liiliplro hr.rsba'd drd not appear r. ha'c anl drscluaLtrcation for traturalization, the ahcn \\'onlan in thc abo'c Df umanton case re fused tc.r It'ar c tlris coulltf\ r'r't'n aflcl tlrc cxl'rrrari,,n ,,t'ir.ir.cxterrr-lt.ri stei. ltere and itsteail g()t ll?rrrlccl to a l''ihpino. apparcnth't, avoid ircr d(,portat1on.
26. What is naturalization, and rvhat are the clifferent modes of
Be it remembered that during the penod of Martral laq Pres. Marcos issued Letter of Instruction (LOl) No. 270 providing for naturalization by Presidential Decree. The applicants'were screened by a Special Committee in a summary manner, which then recommended those found eligible for natutalization under said LOI to Pres. Marcos, who would issue a decree declanng as naturalized Filipino citizens those included in the list recommended by the Special Committee. Said Committee is similar to the Committee on Naturafization created by the recently approved Rep. Act No. 9139.
27. What are the qualifications fot iudicial naturalization under Sec 2, C.A. No. 475, as amended?
(1) The petitioner must not be less than 21 yeats date of the hearing of the petition;
naturalization?
of
age on the
Naturalization is tl-rc pr()ccss of conienrng on :rn airen the citizenship of another coLultr\-, bl anr'of rhc lncans pr-or.idecl bu iar,": It is cousidered not a rlatrcr oi rigirt bur orrc of pnvilcgc arrcl mar bc
cr.rjoved onh' r-rndcr thc precise conditions prcscriirccl br. l;ru:
(2) He must have, as a rule, resided in the Phiiippines for continuous period of not less than ten years;
16
NATIONALITYTHEORY
CONFLICT OF LAWS
CONFLICT OF LATVS
NATIONALITY THEOR\
rvho )rave not cvtnced a snccre destrc t<., learn aud etlbract. the custorrrs, tradrtrons. and ideals of the liilipinos:l 17) Crtrzens or sub jects of naurns rvith rviro' tl-re Phiirppir-rcs rs at war: and (8) Ciuzcns or subjecrs of a iorergrr countn,k;ther than the United
States) wlrose lat,s do not grant Frlprnos the nght bccomc naruralizcd crtizcns or subjccts thercof.
tr.r
29. What are the qualifications for administrative naturalization under Sec. 3 of Rep. Act 9139?
(1) The applicant must bc boln in the Phdrppines and resrding therein srnce birth;
(5) Fle rnr-rst be able to speali itnd u'r'irc l:nglish or Sparrish and anv one of the pnncipal Philipprne languages; and
ant'ol the pubhc or pnvate schools recognizcd bv the Buteau of Prtvatc Schools where Phllippine historr'. government, and civics are taugirt or plescnbcd as part of the school cutrtculutn ciuriug the elltire pcliod of tire testdence lequu'ed of hrm. prior to the hearing of his petiuon ti;r naturalization
as
(2)'fhe appltcant must not bc lcss than eigl.rtecn (1ii) vear. of .gc at the ume of the Frhng of hrs/hcr petluon;
(3) The applicant must be o[good moral character and beiievcs in the underl,ving principles of thc Constitution, ancl must har,c conducted ilmself/hcrseliin a proper ancl u'rcproachablc rnanner
cigzcn.
r>i residence in the Phihppines in his relatron with the duiv constitutecl government as rvell as rvith the communirv in u'hrch hc/sirc rs hvrng;
be
turalizcd
as
Plrilipprne ciuzens:
(a) fhe applicant lnust have recetved hislher pnrnarv ancl secondari' educatron in anv pubirc school or private educational insurutior.r dulv recognized bl thc Department of F.ducation. Culture and Sports. where Phihppine irist<-rr1'. governmt:nt anri
civics are taught and prescribed as part of tl'rc school curnculun-r and where enrollment is not limited to anv race or nationaLn; Pmuid.ed, that sirould he,/she havc rninor children oi school agc. he/she must have enrolled tirem in simiiar schooisl
(5) The applicant must have a known trade. business, profession or larvful occupation, from which hc/she denves incornc sufficier.rt for ins/her suppon and if helshe ts rnamed zndf or has dependents. also drat of his/her familr': Prouiticd. howeuer. Tirat thrs shall not applv to app[cants whc.r are coliege degree hoiders but are unable to pracltce their profession becausc the'r'are drsqualitlcd to do s,:, bv reason of their ciuzensirrp;
(1)
Persons opposed to organized goverflment or afFrliated wrth, any association or grouP o[ persons rvho uphold and teach
doctrines opposine all organizcd governments; (2) Petsons defending or tcaching the proprietl of vtoleuce, personnl assauit or assassination for the success and pre-
rdeas; Pol,vgamists or believcrs in tire practicc of pol,vgam,v; Persons ccrnvicted of a crirne involving m<-rral turpirude;
dotntnance
of their
(6) Persons
of therr residence in the wrth the Filiprnos' ot sociall,v not rnrngled Phihppines, have
.r'l.ro, during the period
4H
NATIONALITYTHEOR\
CONFI,ICT OF LAWS
CONFLICT OF LAWS
NATIONALITYTHEORY
49
(3) B.v subscribing to an oath of aliegiance ro supporr rhe constitution or laws of a foreign countrv upon attainrng
fwentv-one vears
oi
'I'irc applicant must hn\-e nrnqlr.i u'ltir ti)c f"ti-tllnos and eviuced a sinccre desrle to learn anci clnbrxcc thc customs, traditrons and rdeals oi thc Fihpirro people.
irl
Act.
9139?
Sec. -{
not clualified
forces of a foreign country; (5) By cancellation of the certificate of naturaiization; (6) By having been declated by competent authoriry a deserrer of the Philippine armed forces in time of wat, unless subsequentlri a plenary pardon or amnesty has been granted; and (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 countrl', she acquires his national-ity.
.rl!
f{
,cq
ifl
:1',ri
nt
iIi
;t
.,d
,ii
l$
'ti :ll
i1) 'I'hose opDosed to orsanlzt:d government or aiftirated rvrth anl associatron or grollp of pcrsons u'lro uphoid and tcach
cloctrines opposmg all organtzeci govemlnen ts ; (2) 'i hosc cleiendrng or teaching thc ncccssitr of or propricn' of ltoience. personal assault ol rss;rssinrtlon for the success or
,,.t
Note, however, that under the 7973 and 1987 Consututions, the
woman in No. (7) above retains her Philippine citizenship unless bv her act or omission, she is deemed under the law to have renounced her
Philippine citizenship.
plcdormnance oi their ideas; (3) Polvgamrsts <x beher.ers ln the practlcc i-l)
of
pr.,lvgarny;
r-r'rolal
turpitudcl
Under Sec 2
of
havc n<,t rmngled socialh'l.".ith i,hprnos- or rvhc.' havc not cr.iucecl ?r slncerc clcsirc to lcar:n ancl ertrbrace tirc custotrts. traditir.,ns ancl iclcals of thc iirhpinos: (7) (-iuzcns or sr.rbjccts l<-,inationslrvith u'horn tire Phrirppines is at t,at' cilrt'nrg thc pcriocl of sLrcir r."'rr: and (.9;Cruzens ol srrblccts ol u forcrgrr countn l.i]ose lzrs.'s clr not grnlrt I;iill)ur()s thc flshr f() l)c nlrtluxi-rzecl ci[zens or sublccts
(1) By naturalization; Pnuided, that the applicant possesses none of the drsquahfications prescribed in Sec. 2 of Act No. 2927:
(2) Bv repatriation
of
deserters
of
the
Proaidcd,That a woman who iost her citizenship bv reasor of her mariage to an alien may be tepatriated in accordancr wrth the provisions of this Act after the termination of th( mafital starus; and (3) By direct act of the Nauonal Assembly (now Congress).
thercoi
31.
of Philippin,
(lon-rruout'<'altit .\cr.
6i
:r: tlttcndccl
Iti(r.
"
1' Ltn
l-ris ciuzcnsiriP
citizenship?
Sec. 4
"The procedure prescribed fot nztvrabzation undet Act292i . a amended, shall apply to the reacquisition of Philippine citizenship b
'O
NATIONALITYTHEORY
CONFLICT OF LAWS
CONFLICT OF LAWS
naruralization provided for in the next preceding secrron; Prouided,That the qualihcations and special qual-ificauons presctibed in Secrions three and four of sard Act shali nor be requred; and pror,-rded ftrrther. (1) That the applicant be at least rwenw-one vears of age and shall have resided in the Philippines at least six monrhs before he appiies for naturalization; (2) That he shall have conducted himself in a proper and i::reproachable manner during the entire period of his residence
rs
(3) That he subscribes ro an oath declating his intention to renounce absolutely and perperually all faith and alleg'iance to the foreign authorir)', state .or sovereignw of which he was a citizen or subject. 34. How about repatriation? How can it be effected? Rep. Act 8171 on repatiarion of Frhpino women who married alens and natural-born Filiprno who have lost their Philippine ciuzenship, provides:
"Sec. 1. FiJipino women who have lost their Philippine ciuzenship
E
CHAPTER
It is the theorv wherebl tl-re starus, condition, rights, obligati<;ns, and capactrt' of a pclson are gor.-crncd l>i thc larv <-,f his domicilc or the
by mariage to al-iens and natural-born Fil-ipinos who have lost their Philippine citzenslup, rncluding thet minor children, on account of pohtical or economic necessity, may re-acquire Philippine citizenship through repaftiation in the manner provided in Section 4 of Commonwealth Act No. 63, as amended: Provided, That the applicant is nor a: (1) Person opposed to organized governmenr or affiliated with an association or group of persons who uphold and teach
doctrines opposing organized goverflmenr. (2) Person defending or teaching the necessity or propriery of violence, personal assauit, or association for the predorninance
l*
cloniilii.
2. Define domicile.
Ftxed. permanent
home and pnncipal cstabhshmer-rr, and to rvhich. whencver he is absent. Iie has the intcntron oF returning" (Storr; (,onflict of l,aws, sec. 41).
It
is
has a settled
of their ideas;
(3) Person convi,cted of crimes involving moral turpitude; or (4) Penon suffering from mentai alienation or incurable contagious
diseases.
legal purposes, either because hts hon-rc is tl.rere or bccause that is the placer assigned to hirn bJ-lotu"' (lrrrst llcstatelnent, scc. 9).
"For ti-re exercise of crvtl rights and fulfrllmcnt o[ crvil obligatrons, thc domicile oi natr.rral persons is the place of their habttual residence."
2. Repauiation shall be effected by taking the necessary oath of allegiance to the Republic of the Ph-rhppines and regrstarion in the propff civil registry and in the Bureau of lmmigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certifrcate of reg'istration and issue the certificate of identification as Fil_ipino citizen to the repatriated citizen."
Sec.
[\rt.
" s r x rt is an established principle in Confuct of Laws that 'dornicile' refels to thc reiattvelr' rrlorc perrnanent abode of a person
.1
THEDOMICILIARYTHEOIIY
CONFLICT OF LAWS
CONFLICT OF LAWS
glr-ctl Diacc" rvltrlc.'resider-rcc'apphcs t() a tctr)P()fx1-\rstlt\'()i1Persoll tu a ll',rtl, t'. C.. 1.. =0 .\CR. 1 :t8,
tire place in *'irich rre resicie-.. or according to thc 'f formairtres obsen'ed rn his counrrt'. or rn conformin, wrth tirose u4.uch ti-ris Codc prescrtbes," (-\rr. 81(r. znl
bv tlrc lau'
of abode'
w'hethcr
pcrmanent or temPorar\'; 'domicile' denotes a fixcd' Petmanent residence tnal' t,,.rrl-uch..r,,hen absetlt. one has thc intention of rettlrning. A man is not i{esidence another. in dornicilc a lrave a residence in one place and tol fel1]aln tr) lntentrou rvitlr rlorntcile. but domicilc is residence coupled same the and onct for nrr unl-ilruted trme. ,\ lll^n can have one dornrcilc
l-Ia\re nufiler()us places of residence"' l)rlrpose at an\' tlme, but he mav (litt/enq.rtr t'. Rcp.,95 Plttl. 890)
(3) In the case i,i srarelcss indn-rdu.,rls. or those r.vith dual or multiple nationa[ties. the domtcihan' tlteor-r, runs ro tl-re rescue of the
nationaliw theorr'.
(4) Dunng tl-ie earlv vears of American colonization of thc Philippines, our Supreme Court ur solrrc cases apphed the domrciliantl-reor1'.
of
the vahdiri'
of
a drvorce decree
obtained abroad.
4. Distinguish "domicile" from "citizenship"' Dorniciie in gencral speaks of one's perrnanent Place of abode' lovalti A rvhile citizer-rship or nauonality indicates ties of allegiance and of domiciharl' and n pcrson ma\. be a crtrzen or national of one state of grcc[ .;rll()rhcf. irilrpiflos rvhcr are imrnigrants abroad' hkc thc holders stjll Frhpino citizens. but therr dcxnicile 1s thc. coutltfv cards in the Lj.S.. ^rc to rvhere thev havc per-rnanentll migratcd'
15) Crtrzens of countries [ke the U.S. or Great Britain, wl.ricl.r follorv the dornicihaly dreor1,, rnav bccome rnvolved in iiiigatron in our'
countr)., rvhich follorvs the nationahfi- theor\'. (6) ,\garn, srxne great ccruntrics hkc the Ll.S. ancl Grcat Britarn follow the domiciiiari- theor)', so that it rvould do rvell For us tr-r rnake a comparatle studv oi thc nationalitv and dorniciharr tirconcs.
6.
What law determines one's domicile, his national lau'or the lex
fori
theorl', whv 5. considering that our countrv follows the nationality theorv? is it still important for us to know and studv the domiciliarv
The prcvarirng rule is that thc iorurn applics its orvn concept ()i domicile in deterrruning the dornicrle of a htrsant bctbrc its courts. 7.
(1)
ln
assisnccl
b)'in*'t,,
a pcrs()1r
. oi
(b) Constructive domicile ot domicile by operation of la\\': assigncd bv lau' to a person after birth on account ()f r] legal drsabihn'. lilie nrinorth'. insanin. inrprrsonmeut. ctc-
firc domicile
(c) Domicile of choice: fhe dc-,nrrcrle of a person tui.luri.r bccause he has his l-rorne tl-rerc and to u'htch. lvltelter.er abscnt. l-re intcnds to retLll1t.
of
one's natlonalitv
ln
if
macle s'iti.r
\\'lrilc consrructtrrc domiciic ts gl'cn aftcl btrtir tci those u'ltt, 1:r,-ir. clplcrtt to chr.rosc thelr c-ru,n clou"rtctlc. Iikt'tttttr,'rs. ittsattcs, etc.
rr
54
THEDOMICILIARYTHEORY
CONFLICT OF LAWS
CONFLICT OF LAWS
THEDOMICILIARYTHEORY
55
AIso. domicile of origrn never changes, fot a person ts born onlv once. while constructive domtcile mar change from ttme to nme. like wiren the parents of a minor change dotmcile serreral nrnes. Botb domrcile of origrn and constructive dornicile are, horvever, assrgned by laq while domicile of choice is the result of .tl-re voiuntan' will and action of the person concerned. 8. State some basic principles regarding one's domicile of choice.
(1) No person can ever be without a domicile; or! eveq/ natural Person must have a domicile. (2) A person cannot l-rave fwo simultaneous domiciles. (3) A natutal person, lree (not a prisoner) and vi jui.r (one of
age and under no drsabiliw) can change his
$
t[
o[a foundling
{r
1s
,
F
t,i[
.,$
ill
i,ifl
;l*
domicile at pleasure.
'
legrtimate. the domicilc of both pareots. In case of disagreement, rhar of the father, unless there is a judicial.order ro the contra$,. (Art. 21 1, Familv Code). (b) If illegrtimare, the domicile of the mother (Arr. 176, Famrly Code).
(a)
if
l
.r
ili
irlii
,i
'ill
il
1:il
A domicile once acguired, is retarned until a new one is gained. (5) The presumption being in favor of the continuance o[ an exisdng dornrcile, the burden of proof is on the one who alleges that a change oF dornicile has taken place.
(4) (6) 1b acquire a new domicile
of
(c)In case of absence or death of either parent, rhe domiciie of the presenr parenr. Even in case of the remarriage of tire surviung parent. stili hrs/her domrcile determines the construcrive domicile of tl-re minor child. (d) If the cirild is adopted, the domicile of choice of
(b) an intenuon to remain there(.animu.s manendl; ar.d (c) an rntentron not to return to the former abode (animu.r not reuerl enci)
(Calie,go
of origin.
Since insanes and other mentallv rncapacitated persons cannot select their own domicile, the larv assigns their domicrle to them.
if the child is legitimate, irrs domicile of origrn rs that of hrs parents at the tlme of irrs birthl if thc parents are separated, the domicile of tl-re custodial parent.
the child is illegitimate. hrs dor-mcile of origin is that of the mother at the time of his birth.
(a) If fiey arc below the age of majontli rhe rules <;n minors applr, to thern. p) If they are of age and have guardians, thev follou, the dorrucile of ch'ice of their- guardrans. If thev ha'e no guardrans, tireir consrructive do'ucile is their domicile of cr-roice before thev becamc insane.
If
If the child is legitimated, the dormcile of his fatirer at the time of ils binh controls, since tire eflects of legrtlnauon rctroacts to the time o[ the child's brrth (Art. 1tJ(]. l;amrh'Code).
(2) 1'he domtcilc of c-'ngrn o[ an adopted child is tire domrcile of his real p^rents at tirc tune of his brrth, not the domicilc of the adopters
If fie
marriage is valid; (i) The consrrucrn'e domicile of the wife is tl-re domrcilc of borl.r spouses, ur.rless the larv alk;u,s thc wifc to have a separate domicile, tor valid and compelling reasons (Art. 69, Jiarnilv Code).
(ii)
If
there
rs
56
CONFLICT Of LAWS
CONFLICT OF LAWS
the wife can have her os'n domrcile of choice. ril) If there ls separaucrn de talo, the wife can aisc, have a separatc domicile (Dc ra I tna r.'. l tliurtu,.
'1:/
Phi;./
i't'
(b) If the martiage r.s voidable: Appll tirc same ruies as when the maffiage is va[d. However, after annulment, the rvife can freely select her own domicile of choice.
(c) If dre marriage is void: Since tirere is realv no marriage in dris case. dre.lrfe can have a domlcile separate iorm the husband.
(4) Other persons(a) Convict or prisoner - He is not free to have a domicile of chotce, so iris dornicile rs the one he had possessed pnor to his incarcerauon.
CHAPTER
(b) Soldrcrs - Since thev are compelled to follov"' thc dictates of the rnilitart', their domicile rs theu domicile before
their enlistment.
(c) Pubhc olficials or empiovees abroad hke diplomats, consular ofFrcials, etc. Since their stal' abroad is rn their official and not in their personai capaciry', their domrcile is the one thev had before thev r.vere assigned elseu'here, unlcss they voluntarilv
or capacin of a person is gor.erncd not necessarill bv the lau, of hrs natronalihj or tl're lau' of his domicrlc. b't br- tl.re law of thc place (.rlzr.r) where an llnporranr clement of the probleffl occurs or rs situated.
Ilowever. thrs theo.r drsu'guishes tu'o l'ncls oipartrcrpation the individual concerncd. (a)
of
of emplovment
as
If
voluntarilt',
tl-re
hrs parricipatlon is actir.c, i.e., rvhcn he does thc acr go'erning law is -the lav' of tl.rc actual situs of thc
ffansactron or e\.ent,
(b) If the partrciparion is passi'e, as wi-re' the effccts of rlre act are set forth or determined by law, the go'e'ring law is the lav- of thc legal situs; i.e., the domicile of the inciividual concernecl.
of tlrc nrarriage
ulebraliani.r
1s
oi getrurq mirrried rs voiuntan. the vaLdirr. goveutcd l>r rts acrual situs,.or the /e:r. /u,.t
CONFLICTOF LAWS
rI
THESITUSORECLECTICTHEORY
CONFLICT OF LAWS
\Eth respect to tire rights and obhgauons, and proPern' relauons. oi tire Filipino couple. ltowever' tl,ev are governed br' the nauonal lau' of the spouses. w-hicir regulates or fixes sucl't matters benveen thern; in other words' the iegal situs is the national law of the sPouses. (Art. 8(). Familv Code)
(b)
2.
the act or transaction involves propertyr real or personal, what theory do we apply, the nationality theory, the domiciliary theory,
If
CHAPTER
Art.
BII
THE PROBLEM OF THE *RENVOI''
1.
by the /er
titu.t
or
rhnuiti.
ln Anglo-American countries, the tenn used is "rernrssron", which means to refer a matter for consideration or judgment.
2. rWhen does the problem
of "renvoi" arise?
Everv internai or municipal hu'oix. state has two pnrts; (1) its purelv internal or don'reshc iav rvhicl.r appLies to dornestic cases; and (2J Its rules in Conflict of Laws rvirich tt appires to cases wlth some forergr.r
elernent.
of "renr-oi"
tr-,
r-vhetlrer the reference bv the iex/an (the lau' of the countr-v where the problem arises) to the foreign larv irrvolves (l) a refercnce to the internai larv of tl.re forergn larv or (2) a reference to the entlrer\ <.rf thc foreign iau,'.
In such casc, if thc hrst statc firllorvs the nationahn, thcorr', and the second statc fbllorvs the domtciiral\' tbcort, tiic problcrn of "rcnvoi"
wiil
rn<-rst
probabli
artsc.
of
60
THEPROBLEMOTTHE"RENVOI"
CONFLICT OF LAWS
CONFLICT OF LAWS
THEPROBLEMOFTHE-RENVOI"
6-!
counrry for 50 years andwho dies here, leaving a sizable estate. Art. 16, sec. par., of the New Civil Code provides that in testate or intestate succession, we should appi,v the national law of the deceased which. in this case..is Califotnia iavr But Cal-iforniat tnternal lav'has one ruie for its own citizens who reside there, and another rule fot its ciuzens who have their domiciles abroad. In the latter case, California law provides that the Iaw of the domicile of its deceased citizen should apply. Thus, while our Civil Code refers the matter to California law (the national law of the deceased), California lavr refers the matter back to us, telling us to apply the law of the deceased's domicile, which is Philippine lavz Should the Philippine court tasked to setde the estate of the deceased accept the "renvoi" and apply Philippine law, or insist that California intetnal law binding on its own citizens-residents should be applied, the same being the deceased's national law? This is the "tenvoi" problem.
ptobiem back to us, which would result in internauonal football. Hence. we should applv Phiirpprne lau, (the law of tl: d'e c ted bl, th. .or' flrcts rure s o f c arifornia,
them, while Carifornia ia.r'pro'ides no legitrme for such result, Helen. the Fihpino child, rvas gir.en a legrume .
makes acknowledged narurar children forcecr rre*s of ,rr"
*,iffi:tt;rfffi11i:
.hrr;r;;.;.
p*."i. ,J.t"gr*ug
^
instance, if those Frghtrng over the estate of trre deceased wire alr Californra citizens? \ibuld our Supreme coutt have still accepted the .,renvoi,, and applv Phihppine lau'?
Note: The Supleme Cor-rrt,-s ruirng was obviously rntended to favor the Filipino child. \x&at if no Filrpino .iur.n was involved, tike, fo,
3. Discuss why out Supreme Court accepted the ttrenvoitt in the case of The Mattet of the Testate Estate of Edward Christensen, Adotfo Aznat and Lucy Christensen v. Helen Christensen Garcia.
7 SCRA es 0e63).
Therl arc actually four (4) solutions that the court can adopt when_ it is confronted with a "renvoi" probrem like the chistensen case. What are they?
4.
ever
The case teferred to above is the first case decided by our Supreme Court which raised the "renvoi" problem.
This means that tl-re court d.es not want the probrem r<,, be sent back to us. That is, as in the case of the testate or intesrate succession
<-rf
of
appl1. iris
his countr\,,.
was a California citizen who had resided in the Philippines for a long time
prior to his death; hence, a domiciliary of the Philippines. In his vdll, he left almost his entire estate to Lucy, an acknowledged natural child in
Califomra, and ga'l'e a small legacy to Helen, an acknorvledged narutal child in the Phrlippines. Under California internal law, its deceased citizen may dispose of his estate by -ill in any manner he pleases, However, Califotnia law also provides that where its deceased citizen tesides in another country, the law of his domicile should determine his succession. Thus, while Lucy contended that the will of the deceased should be given effecg follou'ing California internal law, Helen insisted that Philippine law, the law of the domicile of the deceased. should be applied, under which she is a forced heir and is entided to a legrtime.
applying tire foreign rnrernal la*i prrirrpprne rarv rvas apphed. berng thc lau'of the deceased'.s domicrle, as direcred bv our .wn law (Art. 16, ,"..
As in the Christensen casc, our Snpreme Court accepted thc. referral or the transrnissio' of the casc back to us. so tirat instead
of
transmission.
(c) We mal follow the theory of desistment, or tire murual_ disclaimer of jurisdiction theory. Here, u'e refrain from applt,rng thc national Larr, of the dcccasecl foretgner, althougl.r our larv telrs us to d. s<>, if said rau, foil<;u,s tr.rc dorrucihan theo.' and drrects that wc appr' tire lau, of thc domicile of the deceased. So, in the end, w.e still anoh, philinnne law:
California internal iaw, one for its citizens who teside there and another for its citizens 'q/ho reside in other jurisdictions, the Supreme Court held that if it should refer the matter to California lau'. said law will toss the
62
THEPROBLEMOFTHE"RENVOI"
CONFLICT OF LAWS
CONILICT OF LAI\|
"RENVOI"
rl
63
fi
Under this tireor\i v'e would simpll do u.hat the tbreien courr rvould do if confronted wrth the same case. So ti.rat ri the Ca[fornia court (as in the Christensen case) would applv Ca[fornra internal larq we would do the same. If, however, said court would applv Phriiporne 1aw, u'e would follou,' suit. The advantage of this theorv is that regardless of forum, the appiicable lav'will be the same. But rt can also result in internauonal
ptngpong if we do what the Califomra court would do, court would do what we do, erc.
5; What is meant by t'double renvoit'?
br.rt
Suprcme (-oult hcld tirat therc \\'as rt() "rcnv6i'' irere bccausc rncl a tlorniciirar.r,.i tl'rc clcccasc,ci .\r-rr's (i. Rcllis r,:rs botir a. citizer 'r.blcm 'tcras. LlS,\.
l:i
I
ilq
iri
lrlv
ri:i
:ii,i
:,i;r:
the California
ciuzcn unci rcsrcicnt r>i'lexas at that trn-rc oi' i-1s clcath. lcit sonrc propertlcs in tirc l)hihpuincs. lJciolc his dcath, irc e\ecutecl rrvr, u'ills. onc iirllorviug'lcxas las'disPosinu oi hrs propcrtres 'l'exas, and anoti1cr. follorving l)hilippinc iaui clisposins of his properties in chilcr,rcu illcgitimatc in Bellis hacl sevcral thc l)hrJ.ippincs l)hihppincs. in thc bgt in l-rrs trvg rvrlls. hc dici nor sivc anvrhins to his iliegitrmare childrep
lJelLs.
Tire facts:
iJ:
--i&
,*r
:6'
'l{
ft
-lt ,il
This occurs when the local court, rn adopung the foreign court theorl', dtscovers tirat the foreign court acceprs the "renvoi." But since the foretgn law remits the case to Philippine law, being the iaw' oi tire deceasedt domicile, thc f<-'reign courr lrral discover thar Philipprne larv does not accept tire remission (as it applies the national larv o[ the deceased), so the foreign court, sitting as a Philipprnc courr, would stdl appl,v rts own rnternal lav": This is then rvirat our court will applr'.
l)unng thc scttlcmcur oliris cstate. lhc ilicgtmrrate chilclrcn t-,pposcci ir<-rtir r.vills bccausc thel had irecn cleprivcd ,.'f therr: lcgrtin-rcs. and rnsisting tirat Phil-rpprnc larv sl-roulcl l:e altplied.'l'hcrc arc uo cc>urpttls<.rn' heirs r-rtrdcr 'I'exas laq'. ancl -I'cxas lar',i iurtltcrrrtorc, docs tt()1 itavc conflicfs rulcs
governing thc strcccssron rtf tts citizcns.
Helcl;'lirc illcgitlr-ratc
cl.rilc'lrcn
bccausc unclcr'fcx',ts lnv'. rvhicl-r is thc ttattot-titl larr' r.,f tl-rc deccascd and t'hrcl-r rvc urust apph'r-rucier,\lt. 16, par. lrvo of thc Civil Coclc. thcrtc arc no compulson- ircirs and no lcgttimcs.
^rc
6.
sit-rcc
thc deccascd
Thev are not the same becausc u'hile "renvoi" invoh'es two laws, transmrssion actually involves three larvs.
"'lransmission" is the proccss oi applvrng thc larr,' state thru the law of a second foreign state.
of
a forergn
cxecnted tn'o rr'ills. ou.c t() go\-crn his cstate lr tl-rc l)irihppincs and tl-rc ()thcr to g()\'crn his 'l'cxas cstatc. lt tlust havc bccn thc itrtention ol tl-rc deceascd to i1?rvc l)irihpprne 1211' garlct-t1 his propcrtics in the Pl-rilippurcs, thc Suprcrrc (,our:t hcld tirat i'trllorvlrg '\Iitiano r' lJt'ittto. i0 Pltil. 867. tr provision rn a torcrg'ncr'.s u,ill to tl-rc cftcct lhrt lis pr<4rclrrcs ur thc i)hilipplnes
shall be drstnbutecl in lccordancc u'rth l)l-rilqtprnc iat' :tt'tti t'tot tn '.rccordanct' u'rtl-r hrs nlttional larv rs illcgal atrd votd.
Example: A Chinese citizen domiciled in the Philippines, dies in Engiand leaving some properties there. The English court u/ill thus have to setde said estate, and folloudng the domiciliar'' theory, it refers the' matter to the law of the domicile of the deceased, which is Philippine lavz But Philippine law, following the nationaiity theory transmis the mattet to Chinese law, the national law of the deceased. Hence, the English court will ultimately follow Chinese lauz
7. What is the case of Testate Estate of Amos G. Bellis o. Edward A. Bellis,20 SCRA 3r9 (1968)? Did it involve the "renvoi" problem?
All in all, in the absence of definitivc laws on the matter, how should we resolvc the "renvoi" problem in the Plrilippines?
8.
'lb quote thc late.|usttcc Irtlsardo 1,. Parasl " x -s -r it is suggestccl tiraf tl-rc thcon llc aci<>ptcd rvhich' c<,,trsiclcr:l'rg tirc ctrclttnst.lltc(s ('i a gtvcl] sltuztti()n, rvill bcst rcsuit in ihtlncss, ccluitr'. anci lusticc. ir<.lr'instauce. itl thc casc of long tin-re d<-,rnici[alres oi- tire l)irihplttucs. il urat' sccm desil'ab1c to presulne that thcv trttcndcd to dic rvrth l)hilpprne tutcrtral lat' tallng carc of tire distribntiou of their estatc in tlrc Philipprncs;
CONFLICT OF LAWS
64
THEPROBLEMOFTHE"RENVOI"
CONFLICT OF LAWS
"renvoi" (sirrgle rcnvoi or hence. it wouid be better to accePt the ..renvoi', to rejcct tire srngie remission). ln ali otl-rer instances. to be ti're tnore iestrabie soluuon (Paras' id'' p'
...,,irld u..rrr
217'i.
"
CHAPTER
CONFLICTS RULES ON
STATUS
AND CAPACITY
1. Considering that one's status starts with the beginning of his personalitl', when does human personalitv begin under our law?
Art.
.10,
Net'Ciril
C-oclc. proricles
chilcl shall be considcrcd bom lor all purposes that ar(' iavorable to rt, prouf,ed it be bor n later u,rd.r drc cr;ndrnons specified tn ti.re follow'rng arttcle." rvhrlc tire succeeding .\r:t. :t1 provides:
"Fc-rr
i[ it is alive at the tlme rt is completelv delivered from the' rnother's v'otnb. I-los'ever, ii thc Fetus had 'an intra-uterinc lttc of less than scvcn months. it is n<-,t decrncd born i[ it drcs *'ithin nvrinn'-four hr>urs aftcr'
its corrrplete cle[r'crt' frorn thc ntaternal rvomb."
follorving conditions:
66
CONFLICl OF LAWS
CONFLICT OF LAWS
CAPACITY
67
(a)ThcPlrrPoseisfavorabletotilefenrst'Llielirtistrvc:na
an srmpie donauon or is considercd
6) Il '
(-t>dc.
ireu'of the larent): rnci lr ts boru aiive uncict. .\rt' 'll of the Neu Crtrl
the bus company due to an injury to the fetus if a pregnant woman who is a passenger in a bus suffers an abortion as a result of an accident due to the negligence of the bus driver?
For pecunian'damages on account of injurr. to or the deatl.r of the unborn cl-rild, no. bccause the feus did not ver havc civil personalin. and an1' cause of action that accrued to tire unborn chiid was exringuished bv its pre-natal death. But For moral damirges suffered bv tire parents for the illegal arrest of the normal developmcnt of the fetus and on account of the drstress and anguisl.r attendant to its loss and the disappointment of theu parental expectations, ves. (Ceiuit. C.-4., 2 SCk,1
..Tl-rectr.r]personalinoitheclrildslrll]crlmmerrcefrotn
t]rennreofl-risconception,forallpr-rtptlsesfar'orablet<llrim.
subiectt()thefcquirementstlf,\rtrclc.lloftlre(]ivilCode.''
Depenclingontl-reconditionsrlfitsbirtlr.thcrcale.tlrereforc'
rwo ktnds oi children:
(a)
88'te6/)
4. S7hen is civil personality extinguished?
scr
drataslongastlrcclrildrsaliveupor-rconrpietcscparattorrfrt;mtlrcmodrer,.s
rvotnb, rt
i.s
(b)Extraordirrary_rr,ltlranintra-ttterinclrfeoflesstiranT f<rr: at least t-l hours aiter completc months, in u'hich case lt must livc j.U.'"r, from ti-tc trother's r'vomb bctore it is consrtlcled born and to
havc acclutrccl civil perst-'nahti''
Death in ti.ris article means "plrvsical death". not civil rnterdicuon which rs sometimes regarded as "crvil death", and rvhich merelv restricts, not extinguishes, capacity to act (Art. 38 Neu'Civil Code). A declaration of death in accordance with one's personal law (whether his national iaw
rs
fettls nuv be: l)urpeses bcneficial or lavorablc to tl'rc ti()n^Bor1: a stmlrlc be givcn (a) It r-r-ral ahcadrt
p';r,,1ln\'alreadr.beacktrtlrvlcdgedl>r.tlreihtjlcrevenbeft>rc i8 Phtl 866: (Da birtl-r [cru.t t. St'attitr' to bc sr-rPpor:ted c\rcr'l $-htle still rn thc alreadr'r:ntrticd is it (c)
declared as such?
"Absence" is considered a special legal status pertaining in the Philippine iaw to a person rvho has disappeared from his domicile, his whereabouts being unknown, witl.rout leaving an agent to administer his properrv-, or even if he had left an agent, the power conferred b)' tlt" absentee on the agent Lras expired (r\rt. 381, New Civil Code).
One's status of being absent is determined in accordance u'ith his personal larv (u'htch mav be his national iau' or the law of his domrcile), and jurisdiction to declare him as such also belongs to the countr\, of .x'hich he is a national or a dornici[art', as the case tnlrr' be. Hou'evcr, our own courts also har.e iurisdrction to declare an alien domicilian'in the Phdrppines as absent (ike when a Fihpino wife asks a local court to declare her al-ien husband an absentee) under the conditions laid dou,n
2'InConflictofLa\t,s,whatla.lr'determinesthebeginningof
one's personalilv?
His personal laur if ]re rs a citizcl-r oi a coutrtrt (like thc 1)hil-rppincs) nadonahn t[.,,rt. iris natjonal las'
tl-rat follor"'s tlrc
lf
hc ts a citlzer.r
.,i o .nur]tr.-thlt
Follorvs tl-re
domicihar|
the<-,r\. tl-re
3. Considering that civil personality begins at conception' from may the pare;rc of the unborn child recover damages
.iA
CONFLICT OF LAWS
CONFLICTOFLAWS
CAPACITY
69
lrv otrr Civil Codc (-\rts. 38,t,385. and 386). (See 'laalingu. I'ernandc\. l)lti/. 3 1'1
lf
death under
absence
of rwo
(2)
In either
Code is necessary.
\\'ithrn
leaving an agent to administer his propertv, or having left an agent. the power of the latter had expired, any intcrested person. relativc. or lriend may ask tire competent court to appoint a person to represent the absentee in all that mav be necessary'(Art.381, Nerv Civtl Code).'fhe Present spouse is, however, preferred in the apporntment when there is no legal separatron (Art. 383). (b) After the lapse oirwo (2) vears wlthout anl: news about the absentee or since the receipt ol the last nelvs, and frve (5) years if the absentee iras left an administrator of his properry'his absence mav be declared (Art. 38-1, id).
(b) For all other purposes except succession, an absence of fl) years, it being unknown whether or not the absentee still lives, is
(c) For the purpose of succession, an absence of ten (10) vears is required, except if the absentee disappeared after the age of seventy-five P5) yeats, in which case an absence of five (5) years is enough to open his succession (fut. 390).
The procedute is again Rule 107 of the Revised Rules of Court. 9. In what cases would an absence of four (4) years be enough for a declaration of presumption of death because of danger of death (otherwise known as .(extraordinary absence)?
(b) The heirs insututed in tl.re will of the abscntee. rviro mat
(c) 'fhe intestatc heirs,
present an authentjc copv of said will; if the absentec le ft no rvill; (d) Those w-ho rnay have over the propert-r' of tl.re absentee some right subordinated to the condrtion oFhis death. (Art.
385. rd.)
presumed dead
According to Art. 391, New Civil Code, the following shall be fot all purposes, rrcluding the division of the dstate
The procedure for dre declaratron of one's absence is found in tl-re Revised Rules of Court. Horvever, "thc iudrcial declaration of absence shall not take e ffect until 6 n.ronths after the publication in a
Rule 107 of newspaper of general circulation" (ALt. 386. td.).
8.
When may the absentee be presumed dead, and forwhat puqposes? (c)
(a)
For the purpose of remarriage. tire absentee mav 16 presumed dead after four (4) J'ears of absence. the present spouse having a wellfounded belief that the absentee is alreadv dead (Art. {0 Familv Code).
expediuons, etc.).
Rernernbeq thougta that for the pqpose of rernardage, extaordinary
t[Tere is danger
of
absence
of two (2)
.vears
N
10.
CONFLICT OF LAWS
CONFLICT OF LAWS
CAPACITY 7',
in Conflict of Laws? Vhat determines one's age of maiority it is the personal law status' personal Since age is part of one's
their national law), as well as the extrinsic and intrinsic vaiidiw of the donation. the subject-matter of the donation being located in Fiori<ia. Former Senator Salonga, however, mendons some criticisms leveled by U.S. and former Soviet Union authorities to the use of one,s personal law (whether his national law or domiciliary law) to determine his capacity to enter into business transactions with foreign elements, in that "it would be nothing less than outright infringement of the reasonable expectations of the contacting parties, and would result in erecting a formidable barder to intemational trade and intercourse". For every person "who entets into a transacnon with a foreign nadonal or domrcijiarlwould
then be compelled to gauge the capacity of the lattet by refetdng to the unfamfiar law of some foreign country". (Salonga, Private Internationai Law, 1995 ed., p. 250).
How' indee4 can we subject a foreigner who enters into a business
(whether
tt.
i.,.r-t.,
11.
a person that .r""uo"^t law or the law of the domicile) of not' or of maioritv vrhether he has reached the age
13' 1989' amended Republic Act. No' 6809, approved December to 18 years maiority of age the htt.234 of ,n. f"-ity Code by reducing the age But cases' special in law r"* ,ft. excepdons esiablished by existing
same
of
twenry-one
Note that also under the same Rep' Act No' 6809' thc responsiand guardians' for bility of parents (if the children live in theit company)
tt.
age'
hasbeenfetained.TheresultisthatsuchParentsandguardiansarestill (as to patents) and responsible for the damages caused by thel childten even ifthe chdd is above 18 years ofage (the aqe *.rd, 1", to guardians) -but is below 21 yeats of age' The defect of the provision of maiority) the chil&en are respect to guardians of minor chil&en, because if
with
contact with a Ffipino in the Phrlippines but who has no capacity to contract under his personal la$/, to Philippine lavr and hold him liable under the transaction, unless in determining his capacity to contract we apply the lex loci contractt$ which is Philippine lawl Thus, foliowing the practice in American courts, Senator Salonga suggests that Art. 15 of the
Civil Code applyrng the nationality theory be hmited to strictly familv and domestic transactions, wh-ile the law goveming the contract should govem ordinary day-to-day business contracts (id., p. 256). An example is the early decision of the Supreme Coutt in Iuular Coat- a. Frank, I t Phil. 236 (909), where said Court applied Phitippine law, being the law of the place where the contract was to be perforrned, and not the national law of the defend^nt, ai Illinois citizen, in determining his capacity to enter
into
a
are 18, they do not need guardians anymore' unless they already "Uor.. under some other drsabiJrtY'
12. $7hat
In counuies that follow the nationality theory like the Plulippines' national law and the capacity to contract of a person is governed by his U'S' and Great like the countries irr follovrs him vrherever he goes, while to conttact ls capacity one's Britain that follow the domrcil-iary theor,v, capacity petson's a governed by the iaw of his domicile' In other words, nationalii lex it is the ."o .o.,o,.. is governed by his petsonal law, whether
ti.
What about the use of names and surnames, which is also part of onets status? What is the law on the matter?
Traditionally, a. person's name was not regarded as part of his status because he could change his name at wiil, but our law nov' provides that "no person can change his name ot sumame u,ithout judicial authority" (Art.376, New Civil Code), and the procedute for the change of one's name is Rule 103 of the Revised Rules of Court. As held in REublic u. CA. and lVong, G.R No. 97906, May 21, 1992, "a change of name is a special proceeding to establish the stalus of a person involvrng his relation with others, that is, his legal position in, ot with regard to, the
of
The exception in the Philippines ate contracts involving real sitae applies includrng personal properry;in which cases the lex titu or hx rei Civil Code)' New 15, (Art' ifr. .up".i.y of the contractrrg panles
ot
For example, a Filipino who owns a' piece of property rn Fiorida' in the Phillppines' USA, wants to donate sard property to another Filipino
Forthedonationtob.,r"lid,therespectivecapacitiesofdonorand
N
rest
CONFLICT OF LAWS
CONTLICTOF LAWS
CONFLI
CAPACITY
79
of
the cornmunih'."
Even ahens can ask for change oi name rn the Phiiipprnes, provided they are domrciled here. In other u'ords, the starus. of an ahen is governed bv the lex rionirillii ot the law of lus domicil e (Ong Haan Tin u. fup., L-20997, Apil 27, 196\. But an alen whose citizenship is either conroverted or doubtfr:i cannot ask for a change of name under Rule
1,03 (Baws u. Rep.,
order of nobility that they possess (Sec. 17, Revised Naturalization Lau) In fact, our Constiturion (the 1935,1973. and i9g7) d;.;;;,;;;;;. of rovalry or nobilin: 15.
status.
L-23595,
Feb.
20, 196q.
As for Philippine substantive law on tJre use of names and sutnames, Atts. 364 to 375, New Civil Code, iay down the ruies on the use of sutnames by legrtimate, Iegitimated, adopted, and illegitimate
chjldren; married women as well as women whose marriages had been annulled or who are legally sepatated from their husbands; widows; and in case of identity of names and surnames between ascendants and
descendants.
Legislauve jurisdicdon over one's status is ihe power personal law to govern his status wherever he goes, iHt.
of his
,rral.i"t
of
Thus, our coutts can decide cases invorving the status and capacity foreigners brought before them, but in doing so, our courts
will
appl1,
I"- oi th.
a valid marc:nge arc the illeg:timate considered by Family Code as (Art. 165), whether the child is an acknowiedged natural child or a natural child by iegal fiction as defined by the New Cir'il Code or spurious, and they are all required to
use the surname of the mother under the Family Code (Art. 176). Howevet, the new Republic Act No. 9255, amendrng Art. 176 of the Family Code, now allows iliegitimate children to use the surname of the
father "iftheir fiIiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission rn a public document or pdvate handwritten instrument is made by the father" during the latter's iifetime.
separation in our country on a gtound available under his nauonal ilu, but not under our law, may obtain a favorable judgment from our courts, because it is his national law on legal separatio., th"t o*.o,rrts will appll:
lavr.
Regarding Filipino women who have been divorced by their alien husbands under fut. 26 of the Family Code, the rule on v/omen whose marriages had been annulled should iogrcally be applied to them
(See
May foteigners with titles of nobility continue using said titles in the Philippines?
14.
The right to use a title of nobiliw depends upon the national lav' the person concerned (X.abel, Conflict of Laws, Vol. I, p. 169). Such persons may condnue using thet titles of nobility in our country, but if they apply for nattrafization, they must renounce any hereditary tide or
of
r"
CHAPTER
CONFI"ICT OF LAWS
CONFLICTOFLAWS
CONFLICTSRULESOFMARRIAGE
75
of the contracting parties who must be maie and female; and (2) consent freely given in the ptesence of the soiemmzing officer (Art. 2). While the
formal requisites are:
(1) Authority
(2) A valid marriage [cense except in the cases ptovided for in Chaptet 2 of Tide I; and (3) A marriage ceremony which takes place with the appearance
M
as
of
any formai requisite shall also rendet the mardage void ab initio, except as stated in Article 35 Q), but an irtegul^rity i" the formal requisites shall not affect the validity of the mariage; the party or parties tesponsible for the irregularity will however, be civilly, criminally, and administratively liable (Art.4. id.).
or
states'
have different
*Uatf
The above formal requisites apply also to foteigners who get married in the Philippines. If one or both of the parties are foreigners, the foreigner must submit a certificate of legal capacity to contract marriage issued by the diplomatic or consular officials of hrs/her country in the Philippines before he/she can be issued a marriage license; while stateless persons or refugees need only to submit an affidavit stating the circumstances showing such capacity to contact marriage (Art. 21, id.).
Considering the above formal requisites
n"
'''n':'iug"t
rhe status of children' the validin'vzould create ver-v serious p'otl"'rrt in spotlsts' the authoriry and rights pcrsonal and propert\' t"louottt o[ tht rigirts of if por.rr,, towards their cirildren aod uirv uenia, trle respecrive o[ their familr" etc' succession of the spouses and the members
Philipprres, a conunon iaw marriage between Ffipinos in this country void (Enriqueqa. Ennque4 8 Phil565; Eugenio u. Wb4 185 SCLA 42r.
applv rn such Thus, rve should know what rules or laws to conflicts problems.
2. \flhat is Philippine intetnal law on the contract? marriages, or the validity of marriage as a '
The Familv Code presctibes essential
as rvell as
formal validity of
i:.tT^l
requlsltes
As to common Iaw marriages of foreigners who come to the Philippines as husband and wife, it would seem tlrat we should consider the marriage valid if valid under their national law or the law of the place vfrere the relationship began. This is to avoid injustice to the parties as well as thek chil&en, considering the different conceptions of marriage in foteign jurisdictions. But the mardage must not be contra bonot mores or
.universally considered incestuous.
fotthevalidiwofarnatriage.Theessentialrequisitesare(l)legalcapaclt},
76
CONFLICT OI LAWS
CONFLICTOF LAWS
CONFLICTS RULES OF
IUARRIAGE 7'
phihpprnes in accordance w-1th the larvs in force in the countn'- rvhere thev u,ere solemnizecl and yaiid there as -sucl'l. sirall also be valici in thts countrv. except those prol-ribiteci undcr Arucies 35ii). ('l). (5; and (6). 36' 37 and
i.e., marriages between ascendants and descendants. and broti-rers and sisters: and marriages that are hrghlv irnmoral (bigamous or poir,,gamous rnarriages rn Chrisuan countries thar prohibrt such marnagesT.
(2) \\e proxj tnaruages., w-hile thev are nor allowed under philipprne internal law, tlre rule in dre U.S. is tl-rat where perrnitted bv the law of tire pla.ce where the proxy particrpates in the marriage ceremoo)., thev are entitled to recognition at least insofar as the fonnal valditv of the marriage is concemed. This rule is intended to protect the wife and chii&en (Salonga. supra, p. 266). (3) As to rnarriages on board a vessel on the high seas, since tl:e country whose flag the ship is flving has juusdrctron over the ship, the rule is that compliance with the iaw of tire said countrf is recluired for tiie marrlage to be valid. In the LI.S. where each state has irs own law- on marriage, the lav' of tire domicrle of the ship owner governs (Salonga. supra, p. 267).
38"
In other words. we follo"v tire rule of ux in the countn' of celebrauon. tl-re n-rarriage except tir<-rse enumeratecl in sard Art. 26.
But,
be
a for:eign marriage
rrrarried 1Art. :5 {l}); 2) The marriage rs irnmoral for being bigamous or poiygamou
(Art.
35
{a})
identttv of tl-re other (Art. 35{5}). (-l) Onc of tire parties was psvchologrcall,v incapacitated at thc tirne oi the rnarriage to cornpll rvith the essenual marital obligations (Art. 36); (5) Tlie marnage is incestuous (Art. 37); ot (6) The marriagc is vord bl reason of pubhc pohcy (Art. 38). Consular rnrrriagcs of Fiirpinos abroad are rahd. As provided in -'\rt. 1i) of thc Famih'Codc:
"Marriages between Frhprno crtjzens abroad may be solcmrizcd bv a consul-general, consul or r,ice-consul <-rf the Republic of tire Phiirppines. Thc issuance of the marriage [ccnse and tl-re dr.rues of the iocal crvil reglstrar
(4) IF the parties or at ieast the husband is a lvluslim (s'hose religton allows piural malriages), it is beheved that we would recognize up to four marriages of dre same irusband (as recognizcd by the PhrJrppine Muslim Code on Personal Laws) to protect the rights of the wives and
children.
If the rnarriage rs valid under the law of one of the spouses rvhiie void under the law of the other. r'c should uphold the validrn' of
the marriage, uniess thc martiage is universallv tncestuous or liighh immoral (the same rule as to foreigners rvho get rnarried abroad).
For exampie, a Filipina rnalnes hcr,\merican first cousu.r ui Califorrua. where the marriage is valid, If the parties are both FrJrpinos, said martiage wouid be void fot berng against public pohcv (Art. 38 (l), Farnilv Code) But since the martiage is mixed and it is valid under rhc iex loti ce/ebrationil. we should uphold the rnarriage. tc-r avoicl absurdrfi, and to do justrcc t<, the wife and children, if anv. After all. tl.re rnarriaqe rvas perlormed in a
and
4. Vhat are the conflicts rules on marriages between foreigners solenrnized abroad?
nlehaliolr, but not the excepdons rvhich appll onlv to FiLprnos. But universallv consiciered rncestr.xrus rnarriages are exceptedl
0)
sn}1
\\c
of
lex lo,t
oi
tire
Fami11' Code.
CONFLICT OF LAWS
CONFLICTSRULESOFMARRIAGE
79
i
I il
r
7E
CONFLICTSRULESOFMARRIACE
CONFLICT OF LAWS
cherishes
As a general rule, the personal reiations of the spouses are go'erned bv the national law of the husband. Reason for this is because
'urhen a woman marries a foreigner, she usuallv loses het nationaliry and instead foilows that of the husband. Another reason is that the husband is
one be6. What about a mixed marriage in the Philippines; i'e', tween a FiliPino and a foreigner?
the FrLpmo -that is. PhiLppine law- should be followed; otherwise, our public policy would be violated. This is true both as to the extrinsic and lntrinsic validiW of the marriage.
usuaily the head of the famrly, so that the husband's personal iaw governs the personal relations of the spouses.
It
of
ipso
frst
cousin in the
PhrJrppines, sucl, marriage being prohibrted by the Familv Code' Thev cznnot also marrv without a marriage license, unless the mardage is one exempt from such [cense.
In the Philippines, an alien woman who manies a FiJiprno husband farto becomes a Filipino citizen if she does not suffer under any disqualification for naturalization as a a FiJipino citizen (Ahojta l-in Yao a. Conn. of lnnigration,4l SCRA 29Q. At exception was, howevet, held in Djananton a. Domingo,240 SCLA746 (l gg5),wherein the Supreme Court ruled that "rnauiage of an alien woman to a Filipino husband does not tpto faao 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 hete as an alien". As for a Filipina who maffies an alien husband, our Constitution provides that she "shall retain her Philippine citizenship, unless by het act
or omission, she is deemed, undet the larg to have renounced her citizenship".
B. MARRIAGE AS A STATUS
1.
Marnage as a stalus carries with 1t mplications in rwo aspects: the aspect of personal rights and obiigations of the spouses, and the aspect of their properry relations. As to the first asPect! the rights and
obligations of the spouses are purelv personal to them and are not ordinarily interlered with bv the courts. As to the aspect of the properq'' relations of the spouses, the law lavs down certain ruies and ludicial
sanctions, as thef mav afFect public interest'
What law, then, should govern the personal telations of a Filipino wife, who retains her Philippine citizenship, and her alien husband? By p*ity of reasoning with Art. 80 of the Family Code on the property relations of husband and wife, which provision has abandoned fut. 124 of the New Civil Code providrng that the national law of the husband shall applv to the property telations of spouses of different nationaiities, it will be the national iavr of the wife or Philippine law, that would govern the spouses'personal reiations. This change of rdle was intended by the framers of the Family Code to protect the Filipino wrfe (because in many cases of mixed mariages, it is the rrtrfe who is the Filipino) ftom the harshness or sttictness of the personal law of the al-ien husband, thus depriving her of her basic, fundamental rights. Many alien husbands have divotced their Filipino u'ives under their petsonal laws. This should not, however, preclude the wives from claiming the rights due them under Philippine law as such wives of their alien husbands, like the rights to support, to the custody of thet minor children, as heir of the husband, and in the division of the properties acquired dwing the marriage. (See Minutes of Committee meetings of Nov. 75,22 and 24,
1e86)
of the spouses in
Conflict of Laws?
personal ;:elations of the sPouses are governed by Philippine law since we follow the nationahtv theon (Art' 15, New Civil Code). Other countries that foliow the natlonali* theo{'
In the Philippines,
to each other. On tl,e other hand, in countries tl-rat follou'the domicrliarl, theorl', the personal reiations of the spouses are governed bv the iaw of theit domicile. 3.Suppose the spouses are of different nationalities, what law
will
govern theit personal relations, the law of the husband or the law of the wife?
80
CONFLICT OF LAWS
CONFLTCT OF
LAWS
CONFLICTSRUL6SO[
MARRIACE
'I'hc- cotrrt nle\: cxclrrpt one sp()r,rse Living u'rth the other
fro111
Or onlv the husband changes nationalin'? Or there never was a cornmon nationalit\. betwecn the spouses? What lar,r'will govern the personal relations of the spouses?
(1) if rhe spouscs irrvc thc sarre niluonaLitl but thev acquite a ncrv nationalifi' bl their cornlrtoll act. thcir nerv national lau's'ill goverlt
their pcrsonal relattons.
ti ti-rc iattcl sirould hyc rbroad. or for otirer vald and compelling
re^s()ns which sl-rould not be ittcornpatrble rvith the sohclarin of thc' fimih' (Art 69' rd)'
(3)Thcspollsesar:ciointlr'resllor-rsibleforti-reSuPP()ftofth('
famrlr- (Art. 70' id
)
(2)
rnarringe, tl-re larv oF thc last com!n()n natlonaiit\- of the s1;ouses rvould govern. to avoid preiuclice tc., the rvifc rvho r.r'or:id suf[er a cirangc in her rights .,r'rthout rnr free erercise of chciice on her part (as provided in dre )-Iague Convention oi 1905) (3) ii the spolrscs retain thel' diifcrcnt nauonalities after the rlarriage, it l'ras beet.r suggested that the national larv of both slrouses slrotrld govern (l{abcl, rd.. p. 327). Anothcr rvriter. lrorvever. offers a bettcr sohrtion; i.c., applr' the lav' of the l.rusband rt the time of thc' nrirrriage (\\blf, Prn atc lntemational J--a*',361), 361). 1'he result, rt is clauncd, rvill rrot necessarih'bc unfair to ti-rc wife, bccause the tiren national lal' of the husbtnd r-nay c\relr bc urorc far-cilablc to her than hcr o*'n nxt1ol1al lav: llcsiclcs. sirc shotrld aL'eaci1. knorv t'hl[ thc husbanci's nxtionxl lfl\\i
rvas rvhen thev got tr-rarricd.
of the ht>usehold shnll bc the ttght rnd dun of both sPouses ('\rt' ?f id')'
of the spouscs neglccts his or i-rcr cllrtles tti thc ulltoll or .a"rt'"'t"' acts u'hich tend tc' brrng dal'rt{er'
c-rr:
dishonor.
to tilc otilcr {)r: tlle fatl'Iih" t}re aggr:tevecl 72' id )' spouse n'rav appll' to the colut for reLef (Art
ir-riui'r'
otiler' lhc busrness, or actrvitt'' wlthout the consent of the qrouncls latter nlav ob;ect only orl valicl' serit>tls' atlcl moral
profcssion' occuPxuoo'
('\rt.
73. id';
Some excepuons to the lbove rulc rvould bc, if tl're national lar.v of tl're irusband violatcs the pubhc polio' of the [otr-un, or the national larv of tl're t'rfc happens to be the larv of the forum. rntended as it is to pr()tcct the wife's rigi-rts. 5. Finally, what are the personal dghts and duties wife under Philippine law?
tire sPouscs For the saffIe feaso,l th;rt tlle persoual relatrons of if tirev are of differcnt are governccl br. the personal laN of the hnsband relations' ot 1<' natilnalties. the same rule also applies ro their ProPert\ tlrc prt,pern l'('gllll(' that guverrrs lhctr tllrttagc'
are, in the absence oF a marrrage settlcmcllt of the place of- thc bets,eeu them, governed br- Phihppine lar'"" rcgardiess (A't. 80, Fan-rllt' Codc) celebrarion of the rnar.r.iage and ihei-esid"nce
of husband and
in tlre ?}rilrpprnes,
reladons
of thc spouses
iove, respect and fidclitr, and render urutual help and support (Art. 68, Fanill'Code).
(r) The spouses have the right to fix togcthcr tire far-mh' dor.mcile. Ilorvever, in case of disasreemcnr berlvecn them, thc court
shall decide.
If
r-'f
thatoncoithespousesrsaliiliprno;rr-rdt1-reot,hef.andjen,sdl]1)1ri|lp-ptnc -fl'ris.rvas the rntcutton ot,ttl' ialv rvill govcrn tl-rerr pr,opctn relauons (,ode. consrderir-rg tl-rat ln mtlst mtxed
Commrttee that frarned tlre Familv the Committee r'vanted tc' marriages. tt is tl.re rlrire who is the Frhpino' and
S2
CONFLICTSRULESOFMARRIAGE
CONFLICTOFLAWS
CONFLICT OF LAWS
CONFLICTSRULESOFMARRIAGE
83
Philippine iaw to the prorect the v'rfe in such a mauiage bv appiying husband or the wfe it is the whether spouses, the of prop"rqu relations Art. 124 of the New thus amends ruie This ciizen. who $ the Filipino a Filipino and a between mauiages in mrxed that Civil Code to the effect relations the property husband that governs the foreigner, it is the law of Civil Code Revision of of the spouses. (See Minutes of meetings Committee, Nov. 15, 22, and 24, 1986) The exceptions under Art. 80 of the Familv Code
(l)
are:
the srrsre'r
changed the svstern or tire regrme to the absolure colnmurufi: regin-re. Thr.rs. coupies wiro get married under thc Far'ih. (,ode rvho ciicl
Fa'rlh'code
a marnage
settiement irave
If both sPouses
real properry whether situated in the Phijippines or in a foreign counttl-, in rvhiih cases the lex situt wlll govern the formal-ities to be observed for the contract's validrty (Art. 15, New Civil Code)
C.
1.
7. Suppose the husband or the wife or both change nationalities, will the rules stated in the preceding question be the same?
Yes, under the
if thc
remedy
if
regime of the
husband or the wife ot both, the originai Property regime that Prevailed at the startof their marriage prevails. The reasons for this doctrine are: mantal peace in the spouses' ptoperty telations is more or less guaran-
Sincc a voidable rratriaqe rs r.ahd until annr.rllecl brt a coun it has ccrtain legai effects: narnelr':
r,i
teed; the sPouses will not be able to preiudice creditots, who in nrm cannot leopardlz.e the interests of the spouses; and even the spouses may protect themselves from each oth.4 0 Rabef Conflict of l,aws, pP. 453, 354) 8. Is immutability of the property regime of the spouses the same
as
lt
ll'
'fhc chilcllcn
are legidnratc
,f
annulnrcnt.
No, forwhile a subsequent change of nationality by the husband or the wife or both does not change or affect the otiginal ProPerty regime, the law that creates and governs said regime may change' However, maffiages solemnized before the neur law takes effect are still governed by the old laur A good example is the change that the Famil;' Code introduced in the prcperw relations of the spouses. Whiie the New Gvil Code established
of
On the othcr
l-rar-rd.
(l) It cannor bc contalld;rtctl. (2) The onlv propcrtl' rclationshrp bctwccn thc parties is
co-ownership
(see
l'i
64
CONFLICTSRULESOFMARRIAGE
CONFLICT OF LAWS
CONFLICT OF LAWS
'fhc chiidrcn are illesitilrratc' c\cePr chjidrcn of (-oclc mrrriagcs tttlclcr' t\rts' 3(r and 53 of thc i'ar-l'rii''
(3) {'1)'l'hc matriaqc mav be artackcd ciirccth'or cciliaterallr'
votcl
Tl-re above article also protects tl-re spouse who behe'cs that his marriage rs null and void fr'm being crrarged rvitir brgamv or her if he or she marries agar'. because tirerc would alread. be a iudicral declarauon
(5)'l.hcnauiagccal]suiibctt-t.rprtgtrcdevcnal.tcrtlrcdcatlrclt
the spouses.
of the nullirr- oi
l-us
thrs
provision is retroactir.c. Tirus. a marr{age void for lack of a marriage iicense still neecls a judicial deciaradon of nulltrl before the patries can mary again (Repubtit t. C.,4. and Cairo. 2j6 SCLL4 257: Doningo u. C.,,1., 226 SCk4 57e. khas also been held that .uvhere a party contracts a second marriage on the
Note: In Catlou l-nrr'. tl-rcrc ate oni\' nvo cxtegotles of tnrrrlagc: loid anci valid. Void mrrriages are considercd anrlullabic' such that tl-re is callecl rctnech' to cleciare n ,r:r^.rinf. nuli and voicl r'rnder Canon Larv rvith confr'rsed bc not annulment. Alnttlurel-lt ilr'(lanot-r l,arv shoulci'
ar)trttlurent
(tlll
A conttnon mistalie of nou-larwers and even some lau'r'ers and a uratriage undcr Art' 36 of the iudges is to call thc rernccly to nuilifi'
mere l>elief that his or her spouse is alreadv dead u'ithout fiiing n sulnllary procceding under Art. 41 of the Farnilt' Code, the second marriage is bigarnous and void (lr)auarro u. Domagtoy. 259 SCk'1 124. 3. Vhat are the conflicts rules on annulment and declaration of
Farnili 6esll (based on the psvchok>grcal incapacitt' of onc of the s1>orrses) -lhis rs r-rr-rll and annui'rcnt. is rvrong, L".nrr*., t5e *rartiaqc ''der ;\rt. 36 (-ailou [r<>n-r void (ti-ris ground having l;cetl talien bv thc l-alrrilr'('t>tlc c'tf cleclar';rur-rn 1.at9, anti thc rctnccll to dcclare thc rtlal-r:tagt 'ts such is nr"rlliw of rnarriagc, not attntllntcnt. 2.
nullity of marriage? In Conflrct of Larvs. the grounds lor annulment of marriage, and tl.rose for the declaration of nulliry oi rnarriage, are the grounds
provided for by the lau' alleged to have been violated which,
irr
parties temarrv u'ithout going to court' since after all' the marriage does not exist at all?
No. Undcr r\rt. -{0 oi t}rc Farnth'Cr>de s'hich ls I ne\\'pro\tlslol)' "the absolute nullin, oi a prcvious mar:rirgc nril be inr'oked for purloses o[ rcmarringe n,-t ,i't. basis soleit of a finai judgmcrlt declartng sucli previous rrrarriagc void."
If
general, ts the 1r.v /aci ce/ebralionz.r' or the law of the place where tl're rnarriage rvas celebrated, rvith certain exceptions. Tire reason is this:
Considenng drat it is thc iex iorz tv/ebratiarzi that is usually applied to determine whether a rnarriage is valid or not, it is the same law that also determines rvhetl.rer a marriage is voidable or not, and r.vhether it is vord or not. T'lius, if Filrpinos get married abroad, the /rx loci ce lebrationi.r rvlll determine the Erounds for annulment (Art 2(r. Farnily Code). For
example, two Filipinos get married in England. Let us assurne that sterihw
the l1ot to assulne tirnt hts or her tnurilge is null antl void' ct'cn if such bc oii-rrs cleclaratiou oi the nulht| fact, but he or she musr Frrst seek a
MrattlrefrarnersoftlieFanrilr'Criclervat.rte.]rr.astbrilPe|Soll
ludrcial
is a gr:ound for annuLnent of rnarriage in England. The marriage of thc rwo Filipinos will be annullable on the ground of steriliw. even if sterilh, is not a grour.rd fot annuLnent undcr the Farnilv Code. This is because Englrsh lawis the icx loti celebrationil.
or her marriage before l1latr\/ing again; otherrvise' ltis or her second bigarnous (See LV'te.gal u' Senpio-Diy' rnartiage will als,, be void ^.rd "'"" u' 11) Sall'|+99; I'cta.ch Consuesru GSIS' )7 SCk'1 J/'i) This neu' provisionirrtheFarnilr,Codeabandc>rrsti-reolddecisionsoftlre
perform:irtcc. Supreme Court to the effr:ct that rvhere a marriage is illegal or void from its n() itrdicral declee ts n('ccssllt'\ to estrblislr rts inval-rdin'
Q)e,oph u. lv4endoia.
abroad. tlre grounds are the exceptions to tlte lax loti teiebralionit rn Art. 26
o[
38.
t]re Familv Code; namelyi Articies 35 (l), (1), (5), and (6);36, 31,and
rt
Pl'il. E1j;
PrcDlc
r" '\rt'ian'
100
Phit' l03i)'
as to foleigners rvi.lo get married abroad, tire exceptrons to thc ioti n/ebutiorzi would be the same as those in marrtages as a contract. r.rarnell', rnarriages th.at are highly i66o.ai (lilie bigamous and polygamous
iex
CONFLICTOFLAWS
86 CONFLICTSRULESOFMARRIAGE
t-rtn s) rnarriages benveen Chris
an d
CONFLICT OF LAWS
CONFLICTSRULESOFMARRIAGE
87
univelslllt
tnces tuor-ts
fiIarrlages' nrarrlage^s:
as
oPpl)' tt'consulal Tire above rules do not' howe\'er' o[ tire parues' ot iaw oi the domicile to rvhich eithet the n^u"lli'i"*
J4.l:ruti-
Jann.60 Phil.a{1
(3) On N{arch 11, 1911 , a Divorce Law (Act 271Q was passed
dre
cir"se
in
or over cases for annulment 4. What courts have iurisdiction declaration of nullity of mariage?
the Phiiippines, but it recognized onlv two grounds for absolute divorce. adulten on the part of dre wife and concubinage on the part
of the husband; and in either case, there tnust be a previous conviction. Many couples did not, therefore, apph, for dlorce under this law because thev did not want their children to have convicts For thetr parents.
Re for:eign divorces obtained bv Filipinos duting the effectivrq' of Act 2710. the Supreme Court held thtt the foreign divorces were vaiid only if the ground tirerefor was anv of the rwo grounds allorved under Act 2110 (Baretto Goniak.r a. Gon3tlet, 28 Phtl' 6,]. Thus, a foretgn divorce obtarned bv a Filipino couple on the ground of desertion on thc part o[ one of thern was l-reld void, being contrall' to larv or the fundamental pohc,v of the forum (Stkat t. Canton' 67 Phi/. 207;"4rca u. .fauier.50 OG
ij
t,
Since we
to take cognizance
our courts have turisdrcl3n follow the nauonairq' theory" rn c^ses and nulliw suits in marriage
$ i
";;;t;*t
Phfippirres.
ln other countries' it is usuallv which has the t;; t"ttt' srncetl",tt 1s the place reason who have it"isdttt'o,' t';;; Another of tl-re soouses
greatest
inter"" i"'ilJat-t'Jt "iooo"t *ll:'ot' not to to"tptl tl.re perues' it u pr^<:tical one: in or<ler to for t}-ris 'oit to their country of nari.nalitr iust domiciied i'-' o"" tntiio'' "*"
)5)8
,t19t4'l)
'"
hle a case Iriliplno ciflzcn or domiciliar'r'can if the defendant o[ nulliry of marrtage even status of for annulrnen' o' attttJ'*on petsonal i'-"'olit the
In the Philrppines'
(4) During tire Japanese occupation, a law allowing absolute divorce was passed (Executive Otder No 141) allowing divorce on 10 grounds. Manv Fihprno coupies took advantage of this lau' and sought drvorce under its provisions.
(5) Executive Order No. 141 u'as eftecuve in thrs country until October 23, 1944 rvhen General Douglas N{acArthur reestablished the Cornmonwealth Govetnment, rvhich resulted in the repeal of Exec.
rs a
non-residt"'of tt"o.'ntrv' can be-acqtrired over the plalnuff n'-'a to' 1o'i'Acflon tlill,,lrl
Such
tn'"'
tl-re
defcndant by
pubrictuon o f ^""''*Jl' ?"' l:- c *.. oi.o Sec 6' nerv Rule on Declarauon on Ma'v 15' 2t)03)' Matriage which took effect
CIil
;:f#i;X*;
Order No.
1.11
D. ABSOLUTE DIVORCE
1'
(6) Act No. 2710 was later repealed by the Neu' Civil Code, wirich allows and recognized onlv legal separation. The draft of the Code had provisi<-rns on divorce, but during the discussiohs over the draft of the Code in Congress and with the strong opposrtion of the Catholic populauon
of
Sparn
Filipino spouse can also remarr) (Sec par. , Art. 26, Famih Code)
88
CONFLICTSRULESOFMARRIAGE
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CONFLICT OF LAWS
CONFLICTSRULESOFMARRIAGE
#,
89
I
E
of
t
a
as he was
a Fiiipino as being still marned to his or her aiien spouse, aithough tire iatter is no longer marrted to the tormer. and mal
alreadv have another spouse.
(b) The above provision does not applv to a divorce obtained bi' a Filipino abroad from his or her Fihpino spouse, which divorce is void because our law does not allow drvorce
as
NOTE: It is rmponant to remember the rwo foregorng cases of Pilapil u. Somera and Van Dorn a. Ronillo if similar cases anse rn the funrre under the second para$aph of Art. 26 of the
Family Code wluch recogruzes a divorce vahdly obtarned bv the alien spouse of a FiLprno citizen abroad and allows the Fdiprno to maffy
and Filiprnos are governed bv Plr.ilippine law wherever they go to their starus and capacity (Art. 15, New Civii Code).
^g:n
(.) The above provision likewise does not applv to a drvorce obtained by a married Frirprno urho v'ent to another
country', became naturalized therein. and iater drvorced his
4. What are the rules on the validity of foreign divorces obtained by foreignets abroad?
(1) The Hague Conventron on the Recogniuon of Divorce and Legal Separation concluded on June 1, 1970 states that a foreign divorce u'ill be recognized in the contracung states if, at the date of the hling of the proceedings:
(a) The petitioner or respondent had his or her habitual residence in the state v'here the divorce was obtained; (b) If both spouses were nationals of said state; or (c) Although the petrtroner was a national of another country, he or she had his or her residence in the place where the divorce was obtained.
Filipino
Filipinos to obtain naturalizaflon in other countries wirich allow divorce, only to be able to divorce dreir Filipino spouses. 2, May an alien who had divorced his Filipino spouse in his home counry come back to the Philippines and ask for legal separation
and separation of property against his Filipino wife on the ground of the latterts adultery?
No, because a spor-rse who accuses dre other of adultery must be an offer-rded spouse: i.e, he must sull be married ro tite latter. Hcre, the alien had no legai standing to accuse his forrner FiLpino wife of adultery because their malital bond had alreadv been severed r.vhen he filed the adulterv- case and could no longer be an offended spouse (Pilapil u. Ibay
Somera,
(2)
latter st2te.
In the United
States, a state has the du.ry to recognize a if the spouses were domiciled in the
":/98E).
3. Compare the above Pilapil v, Ibay-Somera case u. Romillo, 139 SCRA 159 (1985).
T'ire rwo cases are similan
with
Van
Dotn
recognized under the same circumstances that a divorce obtained from a sister state is grven recognitron. (Rabel. Conflict of Laws,. 1968, po.
s00-s27)
In
the American husband of Alice Reves, and thc latter, obtained a divorce in Nevada, U.S.A. Thereaftcr, Alice Reyes marrie d agarn in Nevada. Later, Upton came back to tire Phihppines and claimed that a business in the name of ALce Reves was their conjugal properfir and that the latter should render an accounung and let hirn managc sard business. The Suprerne Court held that the drvorce obtuned b1, Upron frorn ,\hce rcleased rhe latter from their marriage, and Upton had no legal standrng to sue Alice
In
dre Phfippines,
if both
of divorce obtained by them abroad if valid under tbeir national law. Thus. in Recto u. Harden L - 6897, l'lou. 29, 1956, <>ur
decree
Supreme Court held that -
"In
as much as
LUNI.LII
CONFLICT OF LAWS
(JI LAW5
CONFLIC TS RULES OF
MAI{RIAGE
91
90
CONFLTCTSRULESOFMARRIAGE
bv the laws of the and dissolution thereof are governed United States which sanction divorce'"
under the personal law of the husband as welr as those avaiiable u'dcr tire larv of tl-re wrtt are ali availabie grounds for granung the leeal
separation. (Hague Conr.'enuon on l-esal Separation.
.\rt.
8).
4. What coufts ma)' grant legal separation? Or, in what counrrv should the case be filed?
Jurisdicuon rn tl.re case of ahens is not assurned by the forum unless the nauonal larv of the parties is rviliing to recogmze its jurisdictron.
(a)
the mardage and Absolute divorce (a vinato natinoni) dissolves the pames can marry again'
Legal sepamtion or relative divorce (a nerca
et
from bed
"--"a
U"ta
if thev drd not get married in tiris countnr \X,'hat is importanr is that the court has iudsdiction over both parues.
here. even
annulment of marriage' 2. Distinguish legal sePatation from in annullegal separation, the marriage is not defective; ment, the marriage is defective'
(a)
In
(c) Most countries assume jurisdiction over cases for legal separation on the basis of ti"re domicile oi one of the parties or thc
matrimonial domrcile. The rationale for tiris nrle is tl-rat the larv of tl.rc domicile of the parues is that u'ith v4ricir fhev are most intirnateh' connected (Goodnch, Conflict of Laws, 3rd ed. .395-396). 5. Is
@)
annulmengthegtoundsmustexistatthetimeoforbeforethecelebration
of the
marri4ge.
it necessarv that the cause for legal separation take place in this country for our courts to have jurisdiction over the case?
to each other (c) In legal separation' the parties are still marded and the aside is set and cannot remarry; in annulment, the matriage parties can marry again'
No. There is no such requirement in the liamily Code. Again. what is important is that the court has iurisdicuon over the partics, and that the procedural requirements of the Rules of Court are complied with.
the legal sepatation' the grounds ate those given by inasmuch concerned, parties nationailaw ot the aomiclliarv law of the
(d)
In
on the other hand' questions as the question is one of satus; annuiment, genelal rule' the gtounds the very existence of that starus; so that as a
forannulmentarethosegivenbythelexlocicelebrationli,subiectto
certain excePtions. 3. What ate the
(a)
It is important to empl.rasize here that Arl 99 of tl-re New Civil Code requiring that tlre peutioner must have resided in the Philipprnes if ti-re cause for legal separatlon arose in a foteign countr)', has been expressll'repealed by the Familv Code (,'\rt. 254) and is no longer applicable.
6. What are the grounds for legal separation under the
internal larr
of the Philippines?
(1) Repeated phvsical r'iolence or grosslv abusive conduct against
Gor. given by their personal law (whether national law oi,h. do-t"iliary law, as the case may be)'
,"p"r"aior,
If
*.
@)
If
the petitioner, a comlnon child. or a chrld of the peutioner: (2) Phvsical violence or moral pressure to compel the petitioner to change religrous or politrcal afhliatron; (3) Anempt to corrupt ot induce the petitioner. a common child,
92
CONFLICTSRULESOFMARIUAGE
CONFLICT OF LAWS
CONFLICTOFLAWS
CONFLICTSRULESOFMARRIAGE
93
elrgage rn prostrtuuon, or connrvance rn such corruptron or inducement: i-1) i'-inal iucigmer.rt sentencing the respondent to lflrpnsonmenr
(r vears, even if pardoned; (5) Drug addiction or habituai alcoholism of the respondent (6) Contracung bv the respondent of a subsequent bigamous marriagc. wirether tn the Phiiipprnes or abroad; (7) Lesbianrsm or hornosexualigv o[ the respondent;
of tnore tiran
survive?
10. [f one of the parties in a legal separation case dies during the pendency of the case, should rhe case be dismissed
or
dis it
The case should be dismissed because it is purely This is true even if properties are involved. po.*itiro,rt
separation, there can be no effects,
11.
"
d:.;;;;;;;
personal one.
(8) Sexual infidehty or petversionl (9) Attempt bv tl-re respondent agaurst the life
cause
of the petitioner
(10) Abandonment of peutioner bv respondent without justifiabie for more than one vear. (Art. 55, Familv Code)
spouse?
Does the offended spouse inhsril from the guilty spouse? Vhat about the guilty spouse, does he or she inherii nom ihe irrrro"".r,
7. What are the defenses to legal separation under Philippine internal law?
(1) Condonauon oF the offense or act complarned ofi (2) Consent of the aggrieved parry to the commlssion of the act ot offense cornplarned of; (3) Connivance berween the parties in the coramlssion of the offense or act constiruting the grourld for legal separatron; (4) \lhere both parues harre grven ground for legal separauon; (5) Collusion berween dre parties to obtain legal separation; (6) Prcscripuon. L\rt. 56, Famill Code)
Of course the offended spouse inherits from the gr:ilty spouse because the parties are still martied to each other.
from
innocent spouse bv intestate succession, aod provisions in the will of the latter favorable to hrm or het are revoked by operauon of law (Art. 63 (4), Family Code).
tJ-'e
she is drsqualified
ftom inheriting
8.
Vhat is the prescriptive period for the filing of the action in the
Philippines?
granted rn the preceding articres" (meaning the right to inherit by inteJtate succession). But there must be a decree of legal separation as stated in Question L0 hereof.
civil code, stating that "in case of legal separation, if the surviving spouse gave cause for the separation, he or she shalr not have any of the nghts
Hovrever, to disquali$, the guilty spouse from inheriting from the innocent spouse by intestate succession, the latter must Flre Ias" of " legal sepatation against the former. This is provided in Art. 1002,
New
r'ears
9. Can the wife drop the name of the husband after the decree of legal separation? No. because therr are still married. And this is truc wl-rether she is
t}-re
As heid tn Ltperal u. Repuhitc,6 SCl..1 J57. tl'te wrfe who has been gtanted legai separation cannot petiuon to be allowed to revert to her marden name.
CONFLICT OF LAWS
CONFLICT OF LAWS
STATUSOFCHILDREN
95
The second paragraph of r\rt. 164. hower.er, inciudcs a special kind of leEtimate childrenl nameh'. children conceived as a result of the artiirciai inserunatron of the wife with tire sDerm of the husband ()r rh^1
donor or both, provrded the children were born under the conciitrons prescribed rn said Arucle of
a (Please see cofiunenrs on chjldren bv arnficial
insemrnation
CHAPTER
of this same author in her "Handbook on the Famrir. Code of the Philrpprnes". 1995 ed., pp 258-269).
As for the exceptions to Art. 165 of the Code definingrvho arc: iliegJrtimate childr-en, tire excepticins refetred to are tlte chiidren born oi void marriages under Art. 36 (r'oid because of tlie psvchologrcal rncapacit,v of one of the spouses) and under Art. 53 (those born of tire fust martiage of parues before sard ltrst marriage irad been ar.rnulled cx" declared void, and who marfl' a second time without deliverrng the presumptive legitirne of the chridren of their ltrst rnauiage). 5.
STATUS OF CHILDREN
A. LEGITIMACY AND ILLEGITIMACY
1.
If
are:
lf
the fatl-rer gol'erns (Rabel. id')' theory (Art (b) In the Phrlippines. since lve foiiow tl.re nationaLrrl
(1) To bear the surnames of the father and the mother, in conformity wrth the provisions of tire Civil Code on surnames; (2) To receive support fron.r their Parents! their ascendants. and in proper cases, their brothers and sisters, in conforrniw rvitl.r thc provisions of this Code on support; and
(3) To be entrtled to the legiume and otl-rer successionai rights
lau' of the Pa(ents applies' 15. Nerl Civrl Code)' th" common national narional law of the father and tf thev have diffetent naoonalioes' the
goverfls.
internal
law?
..clrildrenconcetvedorborlrdurrngt}remarriaqeoftl.reparents',;u'lrile
eacl-r
of
the parent's
estate divided bv dre number of legltimate cirildren (Art. 888, Nev' Cn'il Code); while in intestate succession. iegrumate children inherit equallv (pcr
upita) v;rthout distinction as to age or sex, and even if they spnng from different marriages (Art 979. id.)
96
STATUSOFCHILDREN
CONFLICT OF LAWS
CONFLICT OF LAWS
STATUSOFCHILDREN
97
B. LEGITIMATION
1.
An.
176
of
che
of
the mother;
the mother; (3) To suppott in conformir,v \\'lth this Code; (4) To the legrtime, which is one-half of the iegtime
of
legitimate child.
a process wherebv children vu'ho in fact were not born rn lau'ful wedlock and should, therelore, be ordinarily considered illegitimate children are, b,v fiction of lav' and upon compliance vrith certain iegal requirements, regarded b)' law as "legitimate", it being supposed that thev were born after their parents had alreadv been validlrmarried (I Manresa 550).
Remembet that under the new Rep. Act No. 9255' illegitlmate chi-ldren may now use the sufname of the father "if ther affiliation has been expressly recognized by the father through the recotd of birth appearing in the civil regrster orvrhen an admission in a public document or private handwritten instfument is made by the father" dudng the iatter's lifetime.
5. What lawgovetns the rights and duties between parent and child?
In Cont-lict of Lalvs, the requisites of legrtimatron are generallv considered those prescribed by the national lau'ofthe parents, and it the latter have different nat-ional lav's, the national larv oF the father (I Rabel, id., p. 575). In countnes following the doraiciliarv theory, however, the
personal law being the lau' of the domicile, the law of thc domrcile of the parents or. in proper cases. the law of the domrcile of the father, should govern. 2. \7hat is the internal law
the child is legrtimate as determined bv the above rules, either the common personal law of the parents, or the Personai law o[ the father if the parents are of different nationalities, governs. (R-abel, id.).
(a)
If
children?
Our internal law on legfurnadon of children to 182 of the Familv Code.
rs
the child is illegtdmate as determined by the above rules, the personal law of the mother is clecisive, unless the chiid is subsequently tecognized by the fathet, in which case the rules on legitimate childten (b)
if
will be apphed
(R.abel, id.).
(c) In the Philippines, agarn since we follow the nationaiity theorl', the mother governs if the child rs illegtimate. unless the child law of the is again tecogruzed by the father, in which case the personal law of the fathet (whether it is the same as the mother) appiies.
Under Art. 177, the foliowing requisites lrrust colrcur in order that a child rnav be legitinrated: (r) The chiid was cotrceived and bom outside lawful rvedlocli. (b) The parents. at the time of the child'-s conception. rvcrc not dtsqualified by anf impediment to lnarrv each other.
6. What is meant by the doctrine of immutability of status? This doctrine means that the status oFa child (whether legitimate
or illegttimate) is not affected by a subsequent change of nationaliw of the parents. But the nghts and duties of patent and child, or child and
parent, would, after the parents' change of nationaliry be governed bv the new national law of the Parents (I Rabei, id., pp. 606-607)
of btth. Chtldren that fali under Art. 177 of the Family Code are, therefore, ip.ro -farto legitimated upon the subsequent marriage of the parents no matter how lonE a period of ume has elapsed from tl-re birtl'r of said children to the time oF the matnage of tI-reir parents. (See also comments by this samc author on Arts. 177 tr,r
98
STATUS OF CHILDI(Li\
CONFLICT OF LAWS
CONFLICT OF LAWS
STATUSOFCHILDREN
99
tl.re Famtlr,
bv former Pres. Corazon Aqurno on December 11 ,1986 regardrng nonresident aliens u'ho were aiiou'ed to adopt under pD 6L)3.
3. If the personal la'.r' of the parents, or of the father in proper cases, changes, is the legitimation of the child affected?
No, because legirlnauon crextes a permanent starus of tire child, so this starus is irnn.rutable. However. the rights and duties of parents and legitrmated children tlav be modified b,v a change of the personal law of thc parents or of the f:rthcr. as the case rnal be. The immutabhw of the status o[ a legrumated child is verv clear under Art 180 of the Family Codc which provides tirat "the effects of legitimatron shall retroact to the tjme of tire cirild's blrth". Aiso, Art. 178 provides tirat "the annulment of a vordable marriage shall not affect the
legrumauon".
(c) Subsequenth: ali the provisions of PD 603 and E.recurive Order No. 91 on substanttve marters were repealed bv'fitle \rII of the Familv Code. Certain procedutal provisions of IrD 603 on adoption (Arts. 32 to 38) were not, hov'ever. repealed bv the Familv Code. Under the Famil,v Code. aliens v!'ere not allowed to adopt in tirc Art. 18.+ (3) thereof. and non-resident a[ens were allowed to adopt FiLpino children oniv under the iau' on Inter-Countr,v Adoption (Republic Act No. 8043) which wa. signed by former Pres. Fidel V Ramos on.]une 7 7995 Under this law, tl.re adoptlon proceedings are to be heid in tire home countrv of the adopters.
PhrJrpprnes anvmore except those reterred to rn
(d) StlX later. on Februarv 25, 1988, former Pres. Ramos signed Republic Act No. 8552, other-wise known as the "Domestic Adoptron
on
(1) (2)
'Io
Ib
it is "thc
proper cases, their brothers and sisters; and (3) To the legidme and other successional nghts granted las' ro
act rvherebv one person is received as the offspring of another although he is not sucir bv natuLe".
bl
This dehnitron was based on the theorv that adoption is mainlr, for the benefit of the adopter, so that those who have no children or
have lost them. may have tire solace and joJ's of parenthood. and ti-rat thc
r legiumate
Note: In
child.
De lot Santo s u. I-ztiano, 60 Phil. J28, ttwas held that the
legitimated daughter
legitrmate niece.
of
ma1,
C. ADOPTION
1.
of adoptron has, howevet, changed, and it rs now considered more for the beneltt of the child than for the adopter, and pursuant to this modern trend, it has been held that adoption does
@) The ratronale
Ref>ublir'
98
las'on adopuon vas PD 603 (the Child and )buth \ielfare Code), which erpresslv repealed all the provisions oi tl-re Nerr,' Civil Code on adoption.
(b) PD 603 was later amended br,Execudve Order No. 91 signed
Phit.66r.
'Adopuon is thus given a sociai and morai purposel that is. to e stend to the orphan or to the child of the indigent, the incapacitated ol
lOO STATUSOFCHILDREN
CONFLICT OF LAWS
CONFLICT OF LAWS
STATUSOFCHILDREN
101
of adoption
has
alleged cases of Filipino childten who, after ha'ing been adopted br, foreigners, were killed for organ transplants in the fore4gr homes of theu adopters. Hence, the Commrttee believed that bv limrung adopuon of Frirprno children by al.iens to former FrJrpino ciuzens (and/or the6 spouses)
reiated by blood to the adopted chiidren, the latter would be given some measure of protection bv the adopters who are their relauves by
consangurnirv.
(b) If dre child does not reside in the countrv of his citizenship, the personal iaw of the adopter u'tll govern, or the personai lau' of the adopter and that of the cirild wrll be applied concurrentl\,.
(c) Republic Act No. 8552 or the "Domestic Adoprion Act of 1998" again allows aliens (who are not former Filipino citizens) to adopt
of the adoption?
(1) They have the same qualifications
as tirose required
the adopuon are determined by rl-re same law that created the reiationship of adopuon. The iegal effects tirat flow from the adopuon are: (a) Tire successional nghts of the adopted child; (b) The parental authorin' of the adopter over rhe adopted child; (c) The use bl the adopted child of the surnarne oF tl-re adopter.
oi
of
Filipino citizens (See Sec. 7(a), Rep. Act 8552); (2) Thet countnes have drplomanc relations wrth our countrf, (3) The,v have been livingin the Phihppines for at least three (3) years prior to ti-re fihng of the peution for adoption, and maintain such residence until the adopuon decree rs
entered;
(a) They
An important problem in adoption in the Philippines is whether aliens can adopt in our countrv. What is Philippine law on the
5.
(5)
have been certified bv their diplomatlc or consular offices or b1' any aPProPrlate govemment agenc' that thev have the legal capaoty to adopt in their own countries and Theil government allows the adopted child to entet their
matter?
(a) As stated ir.r tl're discussion
Acl
8552).
of Quesuon No.
1 hereof, rvhiie
the Civil Code of the Phrhppines did not allon' non-resident aliens to adopt, PD 603 liberalized rhe Civil Code provisions on adoption and allorved even non-resident aliens ro come to the Phdtppines and adopt our childrer-r here. (b) The Farnilr Code, howei'er, became strict in adoption of
aliens rn the Phiirppines because
(d) As for the foliowing a)rens: (1) A former Fihpino citizen wl,o seeks to adopt a relatjve within the 4th degree of consanguiniw or affiniw; or (2) One who seeks to adopt the legrtlnate son or daughter of his or her Filipino spouse; or (3) One',vho is married to a FiLipino citizen and seeks to adopt jointly rvith his or her spouse a relative within the .1th degree of consanguiiltv or affnrq, of the Frlipino spouse; the same Sec. 7(b) of Rep. Act. 8552 provides that d.rev need not compiv wrth dre residencv in the Philippines required of real aliens and they also need not submit a ccrtificatron that the'r' have the capacitr
tirat drafted the Code (of rvhich this author was a member) that some Filipino children adopted bv aliens and brought bv the latter to their home countries suffered culrural and psr,chologrcal shocli ar.rd could not adiust to theil neu'hves in the foreign countries of their ioreign adopters. AIso. rnformauon was received that old alien pedophiles. after iravrng been allou'ed to adopt Fihprno children in thc Phrlppines, rvould. aitet
bringing said children to tireir home conntries. simply abandon these children after tl'rev had satisfred their sexual destes on them. There rvere even
consulat office of their countrv in the Philippines or an1' other government agency. Note. however, that the special kinds of aliens enumerated above
rO2
STATUSOFCHILDREN
CONFLICT OF LAWS
CONFLICT OF LAWS
S'TATUS OF
CHILDREN
TO3
bv Rep. Act 8552 are requtred to be related to the ciriid to be adopted N.rthln the .ltfi degree of consangutnrfi'or affrnrn. Art. 184 of tirc Famiir Code wirrch the above pror.isiou of Rep. Act 8553 arnends drd
of adopuon
as folior,r's:
not Lmit the degree of consanguinin' betu'een tl.re adopter and adopted child. On the otirer irand. Sec. 7(b) of Rep. Act 8552 includcs children related within the 4tir degree of afhnin' to rhe adoprlng parenr. which relationslrip of afhnin was nor included in Art. 184 of the Famiiv Code. This author cannor understand, though, whv Rep. Act 8552 rn the above prol-ision hmits the degree o[relauonshrp bv consanguinlfl, 6f rhe adopter and tire adopted child onlv ro rhe 4rh degree, This means that
a former Filipino would not be able to adopt the child of his or her hrst coustn (5th degree) or his or her second cousrn (6th degree). Since the
berw'een the biologrcal parent /parenrs and the adopted child are severed and the same shall be vested in rhe adopter/ adopters, except in cases where the broiogrcal parent is the spouse of the
adopter. In other words, parental authorltv over tile adopted child is uansferred to the adopter. (2) The adopted child shall be considered for ail intents and purposes to be the iegrtimate chrrld of the adopter/adopters, and as such rs entltled to all the rights and obligations provided bv law to legrtimate
children.
relative bl'
blood, who is now an alien, can glve to the child once the latter is brought
to the adoptert foreign home, it is irnmarerial how close thev are related
(3) in legal and intestate succession' the adoptet/adopters and the adopted child shall have reciprocal tghts of succession witirout dlstlnctlon from legrtirnate hliatton. 'Iestamentary succession will, however,
by blood.
appll if the adopted child and the adoptet or adopters had left
(Secs. 16, 17, 18, ReP.
a will.
Act 8552)
of Republic u C,A. and lfughes, 227 SCRA 401, and Republic u Judge Toledano, GR. 94147, June 6, 1994, decided by the Supreme Court, denied the joint petitions for adoption filed under the Family Code by former Filipino wives, nou'funerican citizens, and their American husbands, because what the Famill' Code only allorved was ioint adoption b,v Filipino cirizens and their aliens spouses. Are these decisions still good under Rep. Act 8552?
6. The cases
8. There are
still other important points to remember regarding the nature of adoption in the Phitippines law; namely:
(1) Adoption proceedings in our count4'are always iudlcial and
in rem ; i.e.. publication is tequired as constructive notice of tl-re petition for adopuon to the whole rvorld, since adoption creates statlls.
(2) Since there can be no valid adoption without a court decree granting the same, a ntere agreement of adoption berweerl the adopters and tbe parents of the child is not a valid adopuon (Santot-\'nigo u' kepublic, 95 Rep. 244:), nor the fact that the child had been adopted dt .facto (ampon) by the alleged adopting patents (Ltiatin u.ludge Canpol 92 SCK4
2
No more Act
8552
if
can
7 (b) of Rep.
But, Rep. Act 8552 still requires that husband and wife must
jointly adopt, rvhich joint adoption was also required br. the Famih.
Code, except when one spouse seeks to adopt his or her own illegrttmate child, or when one spouse seeks ro adopt tl.re iegiumate child of the other spouse (Art. 185, Famii,v Code). Republ-ic Act 8552 adds tl.rat in cases where the spouses are legally separated (Act. 7, sec. par., sub. par. {iii}). the husband or tl-re wlfe can adopt alone, and the consenr of the othel spouse to an adopuon Frled by one spouse is no longer necessarv.
t0)
(3) Nerther is the mere registration
of the child in the civil regrstry as the child of the adopter a valid adopuon, This even amounts to the crime of simulauon of btth punishable bv pison mayor in the medrum period, and a fine not exceeding P50,000.00 (Sec. 2l (b)' Rep' Act 8552)'
(a) The capaciry and tght of the adopter to file a petition for adoption, are governed bv the law in force at the time the petitron is filed, and cannot be impaired bv a new iaw disquahfuing lrrm or her for adoption
IO4
SIATUSOFCHTLDBEN
CONFLICT OF LAWS
CONFLICT OF LAWS
(Repabtu t'. C-4. andBobilu. GR92326.24 Jan' /992;Republ;cu. Mi//er, GR t 2 i9j7,,4Pri/ 2/. / 999;. 9. Should we in the Philippines recognize a foreign decree of adoption?
While there is no provision of law nor jurisprudence expressly requiring the PhiLippines to recognize a foreign decree of adoption, it is believed that under Sec. 48 of Rule 39 of the 1997 Rules on Civil Procedwe, \r/e can recognize such foreign decree of adoption provided the foreign court had junsdrctron to render said decree; and that there was no want of notice. collusion. extrinsrc fraud, or clear mrstake of law or fact leading to the foreign decree of adopt-ion.
This is particulady tme if both the adopter and the adopted child of the Forum that decreed the adopflon (R-abel,
CHAPTER
the adopter?
No, adoption does not confer on the adopted child the citizenship
of the adopter. Adopuon is a matter politicai. and not civil, in nature, and the ways in which tt should be conferred lav outside the ambit of the Civil Code (LIgt l)ndanand Tberkehen u Republir. I 2 SCk4 400; aho Ching L-eng u. Galang, L-/ 1931, 2i OcL 195E.
for the transmission of successional nghts; the unitary or single system, and the split or scission svstem.
Under the unitary or single system, onll' one iaw determtnes transmission of real as well as personal properties. In countries following the nationality theory like the Phfippines, the national iaw of the deceased governs the transmission of both real as well as personal propertles, while in common iaw countries or countries that follow the domicihan' theorl', it is the law of the domicile of the deceased that governs. However, under the split or scission system, which England the and Uruted States adopt, succession to real property is governed bv the /ex itat, sAt:ie succession to movable or personal proPerw is governed bv the law of the domicile of the deceased at the time of hls death.
In the Pluhppines, we follow as already stated, tire unitary or single system, in that Art. 16 of the Neu' Crvrl Code applies the natronal law of the deceased, whatever may be the narure of the property and
regardless
I06
CONFLICT OF LAWS
wtLLs,
SUCCESSION , and
ADMINISTRATION
107
2. When we talk of validin' of u'ills, u'e refer to both its extrinsic and intrinsic validiw. Vhat does each validin refer to?
-fhus,
Extnnsic validrn' deals n,rth the forms and solemnrties mahrng of wrlls, rvhich rnclude the age and resramentan, capacitl'
in the of tl-re
(a) Frirprnos canriot make yoint u'ills u']rether bere or abroad. jotnt wili rnade bt' tu'o Fiiiprnos in a foreign counrrv is void even if valrd under tire iex ioci ceiebralioni.r ({fi.819. Neu'Cir.il Code).
a
testator and the forrn o[ the will (whether orai or wrltren, pubhc or pnvate instrumen!. notarial or hoiographrc. the nulxber o[ wrtnesses.
etc.),
Intrinsic validitv concerns itself wrth the otder of succession, the amount of successional flghts each heir gets, and such other matters that fall under the term "substance" as distingurshed frorn ..form.s
and solemnities "
3.
ft) Joint wiiis made bv aliens abroad sirall be consrdered as valid tire rn Philrppines if valid according to thelr iex nationttlii <;r lex domitilii or il valid under tile lex loci cehbratioarl(Arts. 816 and 17, id.) (c) Joint wiils made bv aliens rn the Philippines are void even if valrd under thek /ex nationalii or lex dani,;liii, tn otder tlrat or-rr public pohcv
on joint wills ma1' not be militated agatnst.
(d) A iornt u,i.ll executed bv an aiien and a Filrpino ciuzen abroacl will be vahd as to the ahen (if his national la-'r,, iaw of the domicile, or the /ex /ori tvlebratiorzi allows it), but void as to the Filipino, tlre same being
oI
rvills.
of wills?
(a) if a Filipino makes a will abroad, ire mav cornply with the formalities of Philippine law (lex nationalit) ot the lex loci nlebrationi.r (the larv of the place rvhere ire was at the time of the execuuon of tire wili l.\rt. 815, Neu' Cir.il Code). T'hus, a FiJrprno docror u'orking in Neu']brli rnav execute a will rn accordance with Philippine iaw 01 New lbrk lauz
against our pubhc policy on jornt rvdls. 5. rJflhat are the conflicts tules on the intrinsic
validity of willsl
general ptoposinon. conflcts rules on tl,e inuinsic vahdrry oF wrlls are determined by the /ex nationalii of the deceased in countries that foiiow the nationalin' theory. and bv the lex donui/it at tl'Ie ume of death, in countlies that follow the dorriciliary theorv
As
(b) If an ahen makes a will abroad. he rnav complv witl-r the forma]rties of his /ar nationa/ii (the law of the countrr, of which he is a citrzen). t.he lex donidlii (the law- of his domicile) (Art. 816, Neu, Cir.,il
Code), or tlre
/e.:y /oct ce/ebrationit (the law of the country rvhere he,was at the tirre of the execuuon of the will). (Art. 17. i.d.).
Midano
Be//u'
r.
an al-ien makes a wil] in the Philippines, he may comply rvitlr tlre forma-lities of his own country (/ex nationalil or of philippine last (/ex lod celcbrationi.) (c) (d) As for a holographic will. u'hrch musr be entuelv writren, dared, and signed bv the hand of tl.re resraror hlnself, it rs subject to no other form and mav be made in or our of the Philippines. and need nor
be witnessed (Art. 810. New Civii Code).
If
We must not forget, however, that in case <-rf confhct berrveen the nationalry theorv and the domiciltarv theory, w can treat the case as one of "renvoi" as in the Christensen case cited ear[et in this rvork, so that we can still appl,v Philippine law even if the deceased was a. cittzen
of
another countrv.
if
In civil law countries hke tire Phihppines. the nauonal larv of the
108
CONFLICT OF LAWS
CONFLICTOFLAWS
the t,I.S. and Great Bntain which follov, the spltt or scission svstem. rb,e iex riomialit of the deceased deceased apphes.
at the rime
of
(a) As in contracts. the provisions of a wili shalr be intelpreted in accordance wrth tire testator's intenuon. If the terms ar. .le^r and
unambrguous, the hteral meaning of dre supulauons shall control. otherwise. the evident intention of the testator must prevail by not only refernng to the context of the will but also taking into account the contempor".r"Lr,r,
(a)Undet Att. 829 of the New Civil Code, a revocation done outside the Philippines bv a person who does not have his domrcile here, rs valid if done accordtng ro: (i) The law o[ the place where the will vras rrrade (/ex lotz
celebrationis);
or
the testator's intention cannot be ascertained by the preceding rules, the interpreration of ambiguous words must be made in accordance wrth the law which was mosr probably rn the mind of the testator when he used those words and with which he is presumed to be
most fami[ar.
(c) If dre will admrts of different interpreta[ons, that which will make the dispositrons operative shall be preferred. The interpretation that will grve the will rhe mosr favorable construction to accomplish rts purpose shall be made (Arts. 788-792, Nerv Civil Code).
(b)
If
of revocation
(/ax
A problem here wouid arise if the testator revokes his vdll while domlciied in one country and later, changes hrs domicile, then dies in the latter state. If the laws of hrs former
domicile and irrs domrcile at rhe time of l-ris death are different, which law applies? Common sense and logrc should applv the law of the domrcile at the time of the testatork death'
with the policv of respecung the will of the testator, provided that this
can be ascertained.
savs
I-lkewrse, suPPose a non-domrciiiarv makes the revocation in accordance with the law- of the place where he *'as at the
What is probate, and what are the conflicts rules on probate of wills?
10. (a) Probate is the process of proving before a comperenr court the due executron of a will, that the testator u/as possessed of tesramentary capacity, and the approvai by said court of the will.
trme, are we not going to recognize the revocation? Why indeed does the Civil Code ignore the law o[ the place of revocation, when we follou' rhe lex /oct ceiebrationts tn determining: the validity of rvills executed abroad? Is not the desite of the testator to revoke his wili as imPortant as his
desLe to make a will? (b) If the revocation is done in the Phihppines, tt is valid if made in accordance with the provisions of our Civil Code (Att 829' id')' the revocation is done outside the Philippines bv a Person who is domiciled here, it rs yalid if made in accordance with our law (the tex d.onirzli) or the /cx ioti actu of the revocauon (the place u'here the revocaoon was made) (see Art . 17 , pzr- 1. New Civil Code)' (c)
if
(d) Tirere is no period of prescupuon for tiie probatc oia will. For the probate of a wiii is not exclusivelv established ur thc interest of the survrtng heirs but primarilv for the protection of the tcstator's expressed wishes in the disposrtron of his properties. Since the probate of
110
CONFLICT OF LAWS
CONFLICTOFLAWS
111
validlr. executed u'ills is requted bv pub[c poiiq,. tl-re State could not havc intended the Starure of Limrtauons to defeat said pohct (,Gueuata t. Gaeuara. 'CR L-5105, .lan. )/. / 956;.
(e) Wills proved and aliowed in a forergn countr\! according to the laws of each counnv. may be allowed, frled. and recorded by the proper court in the Philippines (Rule 77, sec. 1, Revised Rules of Court).
appointed by the testator rn his will). an administrator vzith a will annexed (one who is appointed bv the court if there is a will but no execuror is designated therein), or an administrator (if there is no will, the court appoints an administrator of the estate of the deceased).
(d) The executor is qualified, and the administrator of the estate is appointed, by the court of the counw where the deceased was domiciled
(f Although
at the time of his death; or if he was a non-domiciiiary the countrv where his properties are found.
(e) The rights, powers, and duties of the executor or administrator are coextensive with the terdtorial jurisdiction of the court that qualihed
meritorious. cannot ha'e. as a general rule, automatic extraterritorial effect. But instead of provrng all over agarn the due executjon of the urdl. it rs ordina'ilv sufficient to ask for the enforcement here of the foreign
judgmenr
of the probate
abroad.
of
(f
(g) The evidence necessary for the probate or allowance of wills
domrcde is called
which have been probated outside the piril_ippines are: 1) The due execurion of the wi_1l in accordance u,,ith the foreign law because we cannot take judicial notice of foreign laws. 2) The testator had hrs domicile tn the foreign counrrv urhere the will was probated; 3) The will had been adrrutted to probate rn said counrry; 4) The foreigntribunal is a probate courr;
5)
in othet counfties whete the deceased also left properties, is called ancillary
administration.
(g) As held by the Supreme Court inTajtagu. Bengaet Consolidated,
Inc., 26 SCRA 242, the domiciliary administrator of the estate of a deceased American citizen in the U.S. has no Powet over and is not entitled to the possession of the stock certificates of shares of stock owned by the deceased in a Philippine colporation, which certihcates must be delivered to the ancillary administator of the deceased's estate in the Philippines, to be administered by the latter in the nature of assets of the deceased liable for his debts or to be distributed among his heits.
12.
11.
deceased persons?
(a) Bv "adminisrration" is meanr the process of determiniog and realizing the assets of a deceased person, the pavment of tl-re debts of the estate. and the actual drstr-rbution of the residue ro the heirs.
of Laws?
the deceased had properties but left no heirs and no will, how can the country where the ptoperties are located claim said ProPertles?
If
(b) Lik" probate, administration is procedural in narure. Therefore, it is tlre lex.fori that go'erns, not the larv tirat determines how the estate of
There are rwo theories adopted bv different states so that they may claim the properties ieft bv a deceased who left no heirs and no will.
First, some countries includrng England and most American states adopt the theory that such propenies have become ownedess (bona uatantici);
is
112 WLLS,
CONFLICT OF LAWS
CONFLICT OT LAWS
hence, thev should revert to the state uzhere thev are situated bv escheat.
in
the Philipprnes and some civil iaw counuies, the theory adopted
is that the State is the last het of a deceased person. Hence, the State succeeds to the propercies left bv sard deceased as an heL.
difficulty if a foreign element is not involved in the case. But suppose the domiciliary of one State leaves propenies in other states? How can those othet States claim for themselves
1ji. There is no
in the Philippines but with no heirs and no vdll. If we apply Art. 16, par. 2 of the New Civil Code, the national law of the deceased appl-ies to his succession, and if Chinese law- provides that the home state of the
deceased (China) inherits as his last heir, China can claim said properties and business interests for itself. The Phitippines can, howevet, claim said properties and business interests, by adopting the.theory of "caduciaq' dghts" of the State. This is in consonance with the proposition thar in a situation such as this, "rules of conflict of lav;s are largelv abandoned and each country eppears to work on the principle of seizing all property of tle deceased lying within its borders"; i.e., the Philippines should regard said prcperties as ownerless or bona uacaxtia.In short, the properties pass to the Phiiippines as an incident of soverergnty, not as afl heir @lackt Law Dictionary, Abridged, 5th ed., p. 92).
L.
E
CHAPTER
PROPERTY
Are the conflicts rules on real and personal properry the same?
Almosr
alJ ieea] systems
sitae. r.e.,
the
ro
on
c e
rn
logrcal' 'As
t'e pr'ce'whe'e
re a r p
nghts ovsr rt. evervbody reckon wrth the law of iuch 564). Indeed, u ."r.r.n."
ro
il ;. ;, :";1i: .. ::l :,:rr. fl":::Tj *:,;;a is rhe natural cenrer of ^ .o"..;;;;,ir'rlr. ,n.* mav be expected
rop er n.. +
.1:
,r.in!
pir.",;6ri"iii*'
the /ex i/u.,.of real
to
p.
er tai n
qi
predic
expectations
to ta bil*i;
of
the parues,
,, d.oL;;;i'rr.i
;;,il;;;'
Laq
p en
u'herever he wenr. Therefir.l "*'* i"t ra. he carried with hrm sir.; ;;;lro., aa not have , n*"j sltus, an artificial situs rv glven to them; namely, the personal l^* "s ov/ner.
Tl-re same cannot be said of the law movables. The old rule during the Middle
r; ; ;-" ;
of the
^H
": : ;;r^:
"a;lr;
b.."
Recendy, in ma
for the patties and thrd persons *ho -uy be affected by ights in ren
:il;;;;:;;il^i;1Tl:1i.#::":#lT:*11ili.ff::,i:l
^d;;;;;ft;'r#:t
has at.so
114
PROPERTY
CONFLICT OF LAWS
CONFLICTOFLAWS
PROPERTY II5
created over personal properues to have those nghts enforced and made effecuve 0il,blff. rd.). As the place wi'rere tl.re ProPerties are located has the iegal and coetctve power to enforce sald rlghts, the lex .rltu.t or tlex rei sitae zpphes to said properues (Goodricir, Confuct of Laws, p 470;.
Example: X, a California ciuzen domiciled in Caiifomia, sells to Filipino domrciled rn the Philippines a piece of land located in Florida,
(a) The exrnnsic validrn'
USA.
(the formalitres) is
are govetned by
2. How about in the Philippines, have we also adopted the rule of the lex situs or lex rei sitaewith resPect to personal properties? Yes, for Art. 15 of the Neu'Civil Code provides that "real as well as personal properly is subiect to the iav/ of the country
is govemed bv
Flonda
properw
of Art.
80
of
where ir rs situated''.
ila.r to the exftinsic validity of contracts applying involvingteal properties not siruated in the PhrJrppines).
the lex
3. Vhat was the reason given for the change of rule in the New
Civil Code?
The late Senator Lorenzo M. Tanada, Chairman of the Special Committee on the Neri" Civrl Code, explained thc reason thus: "Now that there has been a great increase in the amount and variew ofpersonal properfi, not immediateli' connected with the person of the owner, it was deemed advisable bv Congtess of the Philppmes to adoPt the doctrine <:f iex rci ilae also to movables"
lndeed, it
l-ras
5. What are the exceptions to the rule of the /ex situs sitaewith respect to teal properties?
ot lex tei
The exceptions to the application of the lex itus ot lex rei silae with respect to real properties are the foliowing:
(1) Succession: In civil law countries iike the Phrjlppines' testate and intestate succession, vrhether the properties are real or personal and wherever thev tnav be located' is governed by the natlonal iaw of the deceased, not the lex sitas. including the order of succession, the amount o[ successional nghts' and dre intrrnsic vahdrr,v of testamentarv disposiuons (Art' 16, par. 2, New Civil
from its owner, wiro mav be taxed on its account at the piace where the
property is located. althougl'r ire is not a domrciiiarn citrzen or resident of tlre state which imposed the tax (L4anila Ga.t Cor. u. Colleclor, 62 Phi/' 89r. In fact, the concept of movabie proPern, has so grown in tl-re Philrpprnes that even lntangible properties like sltares of stock in a corporation' franchises, credits and tl-re like are nou' considered movable propern' although thev have no phvstcal or materiai srtus.
4. What matters connected
Code). Capacrw to succeed is also governed the deceased (Arr 1039. id.).
bl
of
Iex situs?
Extrinsic and intrinsic validitv of transactions over real proPerh such as alienauons, translcrs. and mottgaees: capacitl'' of the contracting parties; interprctation of documents, eFfects of ownersl-rip; co-orvnership; lccession: usuFt'uct: lease: easement: quieung of utle: registration: prescrrpuon; pohce power: cminent domainl and taxation are govemed bv the
iex.ri/u.;.
Example: A Filipino landowner hires a J'apanese gardener for the latter to convert into a Japanese garden a parcei of land in the Philippines' This contract is not
governed bv tl, e lex ita.r akbotgh the land to bc developed is located in the Phrlrppines' \'Vhat governs is the proper larv
of
115
PROPERTY
CONFLTCT9FLAp5
CONFLICTOFLAWS
PROPERTY I77
(3) in conttacts where reai ptoperhr is grven as secunw b,v wav of mortgage to secure a principal contract (such as a ioan), the loan rs governed bv the proper laq,' of the contract berween the partres, while the accessory contrzct of mortgage is governed bv rJ;'e hx itat.
(a) While the valtdrq,'of a transfer of land must, as a rule, be determined bv the lex iltus, the validiry of a contract to transfer is determrned by the proper law of the contract (Salonga, Priv. International Law, 1995 ed., p. 473). The obvious explanation for this is that while the transfer of land involves the t-itle theretq a mere contract to transfer is a personal contfact that dogs not create dghts in reru. (id.)
(2) Goods in ftansit are governed as follows: (a) As to liabfity for loss, destrucuon, or deteriorauon of goods in transit, the law of destination is applied (Example is Art. 1753 of the New Civil Code). @) Th. varidity and effect of seizure of goods in ttansit are governed by law of the place where the goods were seized w*rich is their temporary situs. (c) Disposition or alienation of goods in transit is genenlly
governed by the propff law of the contact between the parties (the kx loci wlantath or hx loci iilentiorn).Th. reason is obvious: such disposition or alienarjon is effected through a contractual obligation. In some states, however, the transfer of tide to chattels is govemed by the law of the place where the chattels are
in applying the rule of the lex situs or lex rci sitae to movables or personal properties, and how ate they to be resolved?
6. What are the difficulties in possession) and has a fixed sirus, there rs no problem. But there are many different kinds of personal properties that do not have hxed situs, like those that are usually in mouon or have changrng sirus (e.g., vessels and goods in transit). or intangrble personal properties like rights and shates of stock in a corporation which, because they have no material existence, do not also have material or tangible sirus.
(1)
the personai property is tangrble (called chose
If
8. What are the rules in grving constructive situs to intangible petsonal ptoperties or choses in action?
lntangible personal properties or choses in action may be credits
follows: (2) The aforesaid personal properties which are usually in mouon or do not have tangrble existence are thus given artificial or
constructive situs, which will be discussed in the succeeding questions.
(l) Involunary ftansfer or assignment of a debt (gamishment) 7. What constructive situs is given to choses
usually in motion?
(l) Vessels, in view
(a)
of their inherent mobihry are governed by: The law of the flag, if it is a public vessel; ft) The law of the country or place of regrstry. if it is a private or commercral vessel, If, however, the vessel is docked at a foreign port, said port is deemed as its
temporary situs.
(2)Voluntary assignrnent or transfer of credit - The proper Iaw of the contract controls; i,e, the proper law of the original transaction out of which the chose in action or credit arose. There are other theories like:
(aa) The law of the place where the assignment is executed - This theory is criticized because the law of the place where the assignment is made may be purely fortuitous or
118
PROPERTY
CONFLICTOFLAWS
CONFLICTOFLAWS
PROPERTY
119
accidental. oI there mat'' ha\re been several assrgnmenrs all vaLid accordrng to their respective /e;yet actu:.
of the piace rvhere performance or ts normall-r' expected - firis theorv ma\'-. however.
contemplate muinple situation, since recovcn'mav be made in any iurisdrction wirere tl-re debtor mair be made subiect. (cc) The nat-lonal iau' of the parues or, in a proper case.
Attaching or execudon credirors are not bound bv the ransfer unless entered in the books of the corpor a6c>n (LJnson t: Dionmito, 6r Phil' 53-i), unless said creditors actuallv knew of the
a.
Summerr,44 pbit.
i0,
parties mav have dtfferent personai laws, or a needless invesugation of what the personal
tl-re
laws of tire Parties is inevitable. (3) Situs of a debt for taxatron purposes rs the domicile of the creditor, where the collecrible cred.tt may be taxed. (Minor,
(2) Chattel mortgages or pledges of corporate shares of stock, even if registered in the colporate books, do not bind the corporation, but the parties are bound as long as they are validly entered into by them (Monserat u. Cewn, 5S Phit. 26/).
id .PP l8l-282)'
(4) For the purpose of administenng debts. the sirus is tl.re olace where the assets of the debtor are actualiv situated (Minor, ta, OP 283-285)'
loci uolantatis
intentionit)bectusethis is really a contract. In many cases, the proper law of the contract is the place where the certificate is delivered to the buyer (Cheshire, id.,p.62!.
or not
(aa) The iaw governing tire nghts embodred in the instruffrent CX'blff, rd.. p. 561). Thus. rf it is a Phihppine check, Philippine law will applv; rf it is a California check,
(4) Taxation on dividends received by corporate shates is governed by the law of the place of incorpotation. Thus, taxes on dividends from shares of stock in a Philippine corporation may be taxed here, although the owner of the shares does not reside in this country (Matila Gar Con a. Co//.,id) (d) Franchises:
Franchises are special pdvileges confened by the govemment on an individual or a corporation and are subject to the Iaw of
Calitbrr-ria lau' applies. (bb) The Arrerican Restarernent, hou.ever. ciarrns that the sirus is the place where the instrument $'as executed
of
(e) Goodwill of a business, and ta:ration thereon: Art. 521 of the New Civil Code provides that goodwill of
a
rs gencrallv the la*' of the sirus o[ tl-re instrument at tl"re tinre of transfer. deliver)'. or negotiation (Cheshu'e, Prir'. Int. Law, p. 622).
business is property and may be transfered together wrth the right to use the name under which the business is conducted. The goodwill of a business, as well as taxation thereon, is governed by the law of the place where the business is carried on. "Goodwill" is the patronage of any established trade or business; the benefit acquired by an establishment beyond the value of its capital stocks, funds, or property, in consequence of the genenl public patronage and encouragement that it receives
r2O
PROPERTY
CONFLICT OF LAWS
CONFLICT OF LAWS
PROPERTY I21
(See Menenrieiu
(.6\
ln
Philtps Erporr
B.It.
u,
tradenames, and
tigirt ro
Supreme Court reiterated its earlier ciecision in Wesnrn E quipment and Suppn Co. u. fu1et 57 phil /t j (7927), that a corporariont
/1) As a general ruie, patents, copvrights, trademarks, and tradenames are, in the absence of a ueary protected onl,ir by the state that granted or recognized them (lVolff, td., p. 558). (2) In the Philippines. Art. 520 of the New Civil Code provides that "a trade-mark ot trade-name duiv regrstered in the proper government bureau or office is owned bv and
pertains to the person, corporatlon. or hrm registenng the same, subject to the provisions of special laws." (3) Under Sec. 21-A of Rep. Act No. 166, as amended by Sec. 7 of Rep. Act. No. 638), any foreign corporatlon or;urisuc person to whicir a mark or trade name has been registered or assigned under this Act mav bring an action for inftingement, fot unfair competition, or false destgnatron of origrn or faise description, whether or not it has been licensed to do business in the PhiJrppines under the Corporation Code, at the time it brings
properry and cannot be rmpared or defeated by subseq"uent appropriauon bv another co{porarion in the same field.
(7) Speaking
use its corporate and trade name is a proper$ nght, a ngbr in rem,wlich is enutled to protec[on like any otl.,., tungibi.
of
Cament MJg. Cor. u CA' 25/ SCk4 600 (/ ggj),ireld that.,actual use in commerce in the Philipprnes is an essenrial prerequisite for the acqursiuon of ownership over a trademark pursuant to Sec. 2 and 2-A ol dre Phihppine Trademark Law" E.A. 166)
jn Enera/d
(8) in 1998, Congress passed Rep. Act No. 8293 known as "The Inteliectual Properq'Code" and establishing the Intellectual Property OfFrce. Under Sec. '123 of the Acq certain marks cannor
be registered, among whicir are those "x x x identical wrth, or confusingly srmilar to, or constituting a translatron of a mark which is
of
the
PhrJrppines to be rvell-known internationally and rn the Philippines, whether or nor ir is registered here, as being the matk of a person other than
country which
^ny
forcrgn
properfv ngirts to which the Phihppines is also a partv or which extends reciprocal rights to our nationals by law, "shall be entitied to benefits to the extent necessarv to give effect to any provision of such convention x x x". Such foreign corporauon even if it is not engaged in business in the Philippines may nevertheless bring a civil or admtnistrative action for opposition, cancellation. infringement, or unfat compefltion, as provided for in Sec. 160 of the Act. However, under Sec. 156, same Acr, onlv ownerc of registered marks may recover darnages from anv person who infringes his rights.
CONFLICT OF LAWS
CONFLICTOFLAWS
CONTRACTS
123
of contracts?
As a general rule, the exrrnsic validrty of contracts is governed by rhe kx loci cehbration*, otherwise calfed lex loci contractut.
M
CONTRACTS
1.
CHAPTER
Att. 77 of the Civil Code of the Philippines ptovides that ..the forms and solemnities of conftacts, wills, and other public instuments shall be governed by the laws of the country in which thev are executed". And
Sec. 9
of the place
where the
2. Are there variations of the rule of lex loci celebrationis in determining the extrinsic validity of contracts?
Yes, there are variations.
of
Laws?
"Contract" is dehned bv Art. 1305 of the Civrl Code of the Phihppines as "a rneeting of minds betrveen lwo Persons whereby one binds hlnseif, with respect to the other, to give somedting or to render
some service".
(a) Suppose a contract is entered into by parries in rwo different countries bv cablegram, telex, or fax. \fi/hat is the place
of
execution?
conftact may create a status like rnarriage, or creates or uansfers real rights or title to properry (like sale), the specific subject of "contract" in Confuct of Laws is limited to purely civil or commercial
Although
transactions.
Every state, in the exercise of its sovereigntl', has the nght to determine its own law on conuacts. As long as there is no foreign element in a contract, questions pertaining thereto are governed by the Iarv of the forum state. It is when there is a foretgn eiement in a contract that problems arise, for then, the forum v'ill have to decide what ]aw shouid be applied in deterrnining the existence or non-existence of a
contract, as well as its validrq', bodr extrinsic and intrinsic, and the capacity of the conftacting parties.
Arl 1,319, par.2 of our Civil Code states rhat "acceptance made by letter or telegram does not bind the offeror except from the time it came to his knowledge. The contract, in such a case, is presumed to have been entered in the place where the offer was made. In the PhJrppines, the bx loci alebratioaziis, therefore, the country of execuuon.
(l)
(2) In American laq however, a contract is deemed entered into in the place where the acceptance of the offer is posted or mailed.
@) Suppose the place of execution was meteiy casual or
accidental like a Chinese and a Filipino who, meeting accidentalll'
in Hoogkong, entered into a certain contract or agreement there to be performed in the Philippines.
CONFLICI OFLAWS
CONFLIC-T OF LAI,VS
124
CONTRACIS
has the most significant Itt stttlt :r clls(" lh( l;r*'rvirich shortlcl bc applied ln .tircrrvords' reiel.t.tlsltlptt' ti"l ''^"t"t tt.tt rvhich the partres must hav-c tht'c.rtrl tttt"'ttl 'q-t1''t' 'i'tt iarl. transactl()n' tc; qt'-c eifect t() tilclI assrttrctl ri'ottitl lrc aPPitecl 3.
CONTRACTS
725
what law will govern the incapacitv of the alien in the following specific problem? An 18-yr. old alien, who has no capacitv ro contracr under iris
x1s' wav oi other excePtlons established and rmportant an contravenes ctr lu loti ielebrationi't to it wouid work gross injusuce to pohcv of tt-" toru-; or mores' ^PPI\; bonot i*"*; orli tire ftan'saction is contra the people tr
wiren the
nadonal iaw wherein the age of maioriry rs 21, enters mro a contract in the Phihppines. can he later plead his incapacrtv under his national raw to er.ade the contract?
Remembettit"'ft"t""tcementolaforeignlavrsonlvamatt:r to comlq'' cases arc clear excepuons of conuq" and tire foregorng B. CAPACITY OF PARTIES
1.
'i"
No, because to apply the narional }aw (or iaw of dre domicile) of the alien in determining his capacity ro conftac would require Fil_ipinos to fust ascertain what the personal law of thar alien is. sometimes with
great difficulry such drat busjaess uansactions.xrith aliens would be greatly
impeded.
4. The weakness of applying the national law of the conracting party as to his capaciry in the foregoing cases is thus seen. How can such difficulties be avoided under our law? the conrract is entered into in the Phiiippines, or rhe ti're contract would be in the Philippines, vre should apply, not the personal law of the parties, but the proper law of the contract or the law mtended bv the parues, to determine tl.reir capacity. (see Paras, supra, ciring dre Geneva Conventibn and the German Civil
(a)
contract? Parties to a
tiril is personal la'r' oi tire O^'Jt" ff the domrcile theorl" and bv tl-re law of countries followrng the nadona[w conff2cts tl-'et'rv' Excepuons are in countries r"["*"g t;Jt"ttiiiti"u botl.r reai and
personal,
gc,l':t"td
If
performance
of
of p'op"'ties' involving aliet'otioriot encumbranct to'lt'"cttng parties is governed tl-tt in which *'"t t^p*'* t'f bl
the /ex rilzt'
Code) (b) We should limit the application of Art. 15 of the Civii Code (on capaciry to conftact) to agreemenrs involving familv and domestic
telati.ons, while we should apply the proper law of the contract in business or commercial transactions (Salonga, supra, citing Rabel).
in the llilpp,n.,t1,::.^':?:'[,il;r:T".,, governed Dr I thrt cepaciw of I Frirprno ls theort'' b".nrr.. ve folion' the nadonaliry
(b)
* iJ:i::
2'
sPecific Problem?
the age into a contract in ltaiv where A 20-vr' old Filiprno enters ltalian under plead irrs incapacin cii maiorrtv i' 21 ;' ;:;ililer contract? under tht ceiebralionu) to avoid [abiiiw Iau' (tr"lrich is the /rr ioct c()nffact (RcP' hct has dre capacin'to No. llc<:ause r'rnclcr l)hil' latrr tt'tt;^1-L:.]'ot t. 18 vears)' 11 6809 has rcclucecl tot"'^t' of Filipinos is govetned ";';:';;;;;"q capacifi' Phrhpprncs pror'ides that
the
(a) Broadly speaking, the intrinsic validiry of a conuact is governed b1' the proper 1aw of the contract; i.e., the /ex loti uo/antatit
or the
ft) In Amencan lau'(1)The Amencan Restatement of 1934 required the application of the proper law of dre contract, or the law of the place of performance.
bv therr nattonlrl
hw
'o
126
CONTRACTS
CONFLICTOFLAWS
CONFLICTOFLAWS
CONTRACTS I27
(2) According to ti-re Second Restatement' howcver' the la.r, to be applied should bc the larv clrosen br. the parues: tt none' the lav'of the state u'hrcir has the most slgnlllcxni relationship to the parties or to the transacilon (3) Prof. Raleigh \4rnor advocates the application of the followtng different laws:
nkbrationit' (i) As to the perfectlofl of the contrac t - lex loci loci hx consideration the of validrry (ii) As to the
considzrationis.
wiren the change is so revoluuonarl' that it could never have been contempiated bv tl-re parues Oiblff. supra. zl30--131).
(c) Several laws mav be selected. each o[ which u'ill govern ti-r different elements of the transacuon (Chesirue, Private International Lau, p.236)
(d) If under the selected law, the contract is legal. but in the place of performance, it rs illegal, the selected law should prevail and the contract should be considered legal (II Rabel, supta, p.537). Orherwise, the place of performance, which couid be merely accidental, wili control. Besides, the place of performance mav be different under different larvs fWolfi, supra. p. 135)
(e) Assuming that the law ol the place of performance can be ascertained, (as when it is expressly agreed upon b1' tlie parties), still, quesuons of substantral and essentral vahdtry (such as whether the contract is valid' t'oi.dable, or void) should be governed by the proper ia.r" o[ the contract. Onlv minor details (such as the time of ptvment during busrness houts) should be governed by the law of performance (Chesite, supra)'
(')
(c)
A.,.Gff;::T#::f;ilffi
/;;i;ci
ntu'ln ni:
In the Phil-rPPines:
(l) l&'e have no specific provision
of lav'applicable to
conflicts rules on tl-re intrinsic validiw of contracts' Horvever, the poiicy oi our law is to give effect to the in rnteorion of the parties' Indeed, the parties may establish
their.contractssuchtermsandconditionsaStheymaydeem
convenient, ptovided they are not contraly to law' morals' good customs or public policy (Art' 1306, New Civil Code)'
(2) Thus' rve should appl,v the ProPer law o[ the contract' by the i.e.. the lex lotz aohtnlalei (the law expresslv agreed upon upon parti.es) or the /ex loci inlentionis (the law lmpliedl-v agteed ty tl,. po.u.r), as determined by manv factors' especially the iaw that has the most substantial connection widr the transaction, by the or the law that may be presumed to have been intended
may stipulate on the proper law of the contract, thev cannot stipulate on the jurisdiction of courts or to oust our courts of therr: judsdicuon (Molina r. De la Naa 6 Ph;/. 12). (f)
\\hile
ti.re parttes
(g) The parties cannot also contract away aPpLcable provisrons of our law that are heavily impressed wrth publ-ic interest or which involve public policy (like our iabor laws) (Pakzstan Internationa/ 'Airlinu u Opk'
1e0
scK+e2.
in 2. But there should be limitations to the court's choice-of-law what determining the intrinsic validity of contracts' Can you state thev
are?
of
(h) American law recognizes "cognovit" clauses if the parties werc equal bargaining power and the debtor voluntarily agreed to sald
clause.
no connection (a) Generally, the parties cannot select a law that has
at all
"Cognovit" clauses specify rvhich courts would have iurisdiction in case of breach or default in payrnent' or it mav
be one that waives the debtor'.s right to notice (otl.rerwise knorvn as confession
of iudgment).
p) If the law selected should change' rt ls the new law that should law can be applied, for it may be presumed that the Parties knew that
^l.,uou.
b.
12S CONTRACTS
CONFLICT OF LAWS
coNFLIcroFLAws
coNTRAcrs
t2g
5. Lease
of
Based on our existing lau's, state the conflicts rules in the foliowing special kinds of contracts:
1. Barter. salc. donauon:
wili apply
.Jn..:
(b) Capaci6' of the parues - /ex situ.r (c) Intrinsrc vahdrq' - kx vlut
2. Lease of properry:
real rights, such as those for a period of more tl-ran one vear br is regrstered, apply lex sirus. (b) if the lease is from montl-r-to month, week-to-week, or da,vto-day. and does not cteatc teal nghts, apply the law on contJacts: (a)
(1) Extnnsic validitrl
! c
If it creates
b L]
(b) Capaciry of.f.. . n"rues _ personal law of the parties Intrinsic validrty G) - /ex bi aoluntatit or lex loci i inteilioni.r j nut an agency to alienate or encumbet real property is governed by the /ex itat. :
$*
contracts applies.
(b.)
(2) Capaciw of the parties -personal ]aw of the parties (3) Intrinsic vahdity - lex loti uoluntath or lex loti intentionit
3. Pledge, chattel mortgage, real estatc mortgage, antichresis: (a) Extrinsic validiry
(b) Capacity of the parties * lex ntul (c) Intdnsic validrq' - lex iltas These are governed bl'the lex situs because they are contracts of encumbrances of property, real or personal. But since they are accessorv contracts, if the principal contract secured bv them is void, thev are also void.
4. Conuact of loan:
kx .rilat
such declaration
Unes
a.
1753, New Civil Code). (e) If the Carriage of Goods by Sea Act governs, the limitation of the liabiliry of the carier underiaid Act applies, unless the shipper declares the goods and inserts
validiry - lex hci uolnntatit or /ex /oci intentionis (d) Uabilitv for loss, destruction, or deterioration of goods in transit _ law of destination of the goods (Art.
I{
the Warsaw Convention, ,m.nd.4 ,o oihi.h ^, came a party in 1951 (santos III a.
tine4 210
*.
b",_
SCk4
(a)
j6 (t 994.
Nortbwett oient,4ir_
rclebrationi.r
(c) Capaciry of the parties - personal law of the parties (d) Intnnsic validiq - lex lorz uoluntatis or
/ex
(b) But
if
If
conuact.
255 SCRA 3S
KLA4 RUal Dach Airitu ,. C)1..', os SCRA 237-(1965); (t 975); Sabena Eelgian lyorld Airlinu t. C_4".
(7
tT**a SCLA
Its agents, the carier is liable for damages beyond those by the Warsaw Convenf_ion
*" .roi..
ol
ajt
ltiprqr.'p"r2;,-;;
e96).
CONFLICTOF LAWS
CONFLICT OF LAWS
TORTS
131
F"
who, contrary to law. wilfully or negligently causes damage ro anothei. shall indemni$ the latter for the same". This is a new provision under chapter 2 of the code on Human Relabons, which is an enrirely neu,
Chapter in the Code.
(' A ,
J
= L'
.'t
.l
4rt.2176 of the same Code, on the other hand, tetains the Spanish
concept of cupa aqailiana ot quasi-dtlict. It provides:
"\X{hoever by act or omission causes damage to anothet, there being fault or negligence, is obliged to pay for the damage
done. Such fauit or negJigence, if there is no pre-existing contractual
CHAPTER
M
TORTS
or
a
c <. E
tn
t .t
s
3. In Conflict of Laws, what law governs liability for torts, and what ate the reasons for the tule?
(a) Liabfity for torts in general is govemed by the /ex loci delicti commbii; i.e., the lav of the place where the delict or wrong was
-.t
(b) In Spanish lavr, the concePt of "quasi-dehct" lalpa fault or negligence caus$g ra.. all acts or omissions committed through
damage to another Person causes
aqailiano
committed.
@) Reasons
(1) The state where the social disturbance occutted has the
through It covers aII cases where do so; i'e'' unintentional wrongs' negligence, or with no tntentiorto
of the rnjury;
and
"tort"-has a broader'meaning' (c) In American lavi however' through negligence' but also covers legal wrongs toi o"fy commrtted willfi:l tntent' but of course' independent those committed with *^Utt t' covered by
for it
of conftact and of conffact' Otherwise, it *tt U" breach another field of law, conuact law
4. In applying the rule of lex loci delicti conmissii , how is the locus delicti determined, especially if the wrongful conduct is committed in one state and the iniuries are sustained in another, or the conduct is a continuing act that spans several states (like in the U.S.)?
There are at least three (3) theories tn determrningwhere the bcat
2.Vhatistheconcept'of'(tott''inthePhitippines?
Civil Code is a blending Our concept of "tort" under the New American tort' which mav be of the Spani sh cr'tlpa-aquiliana and the but also with malice not onlY ifttotgft fauit or negligence'
committed andwillful intent'
ddictik:
the act began. This is so since the rules on tort are intended to regulate human conduct, such that a person who willfully and negligendy acts contrary to the social norms must be held liable for the
dekcti is v.rhere
132
TORTS
CONTLICT OF LAWS
CONFLICTOF LAWS
TOf,TS ur3
Upon their return to New York. Babcock sued -Jackson for damages under Nev'York lavi Ontario,s law does not al.lov,
an1 reco\/en'. Can Babcock recover damages from Mr. Jackson under Ner*'' York La'u'?
onasueet-instate\lThelocusdclictirsStateX'because
that rr/as where the negligent act occurred'
"ccidentallt'
that wrthout an wrongfui act became effecgve The reason is necessit\ fot no is injurf the,. is nothlflg to ptotect and there
;udicral telief'
Yes, for, except for the minimum conract \rrlth Ontario law as the accident happened in that place, ali the dominant contacts and factors connected with the accidentwere in New York; namely, the parues resided in that place; their guest-host relationship started in New York and was to end rn Nerv York; and the car where the parries rode was garaged, hcensed, and insured in New York. So, the state of Nerv York had the most significanr relationship to the case. ,Q) Saadi,4rabian -4irhnu r C-4, 297 .tck4 a69 ( 998); Here, our Supreme Court held that Philippine law should applyi because it was in the Philippines that private tespondent
.
Held:
Y'
locat delictiis the place
which has
wtongful act' the most substanrial connecdon wlth the Example: The situs of the radio station whete
a
]ibelousbroud.".tismadeisr\elonsdzlicti,evenifthe
broadcast is heard in manv Places'
working for respondent here; plaintiff's natrona]itv and domicile rvere here; we were intrmatelv concerned with the ultrmate outcome of the case not onlv for the benefit of tl-re litgants but also for the vindication of
deceived pla:nnff-stewardess; plainbff was
5.
in determining is, some modern theories have been developed liabitity for totts. Please state what thev are'
(a) The
our country's svstem of lau'and justice in a ttansnadonal setung. Hence. the lorus drlittiwas the Philippines
de
This de as stated in the Second Restatement a case of tort is that the rights and obligations of the parties in with respect which' state the determinei by "the local law of to relationshLrp significant to th" p^rdiar issue, has the most
the occunence and the Patties"'
of 1969' is
ExamPles;
N'Y'2d 47); 191 It'E' 2d 279 lr'{rs' Jackson left New \brk' and (96)'' Babcock and Mr' Mt'Jackson for a their residence, in the Jackson car driven by
it was a case of false c.rnflict. If, horvever, the case poses a real conflict berween the interests of two or more States. if the interested forum finds that
the other State has a greater claim rn the :rpplicauon of its law to a glven case, the forum should vield and applt' the larv of the other state. Or, if the forum is disinterested in the case, it can
dismrss the same on the groun d o( lbran rcfl Lvnuettien,r. In short, the State which has the rnore relevant and rveiglrw interests in the
(l)
Babcock u. Jackton,
l2
Canada' Mr' weekt trip to Canada. \X4rile uaveiing in Ontario' badly hurt' was of the car and Babcock Jackson lost conttol
134
TORTS
CONFLICTOF LAWS
CONFLICT OF LAWS
TORTS
135
case
deJicil.
applied bv the forum wirere tl're case is rrled @aras, supra. p. 39.r. citing Amencan cases).
of
conduct and
7. Is a foreign tort actionable, or may be the subject of an action for damages, in the Philippines?
(a) Yes, provided we acquire lurisdictron over the defendant (because an action for damages is an actron in penonam)and certain conditions are present, namely: (1) The foreign tort musr nor be penal ln nafure;
Example: As a resuit of an illegal sale of iiquor to X in the State of Minnesota, T, a passenger in the car driven bv X in an intoxicated state, was hutt in an accident that occurred in the State of\nisconsin. Sued for tort by f in Minnesota, X moved to dismrss the case on the gtound that the accident happened in Wisconsin, the law of whiclr required that rvrongful act and the injuty should happen
(2) The enforcement of the torrious habi[n, shouid nor con_ travene our public policy: and
in the
Held: To appiy Minnesota law to the case would be more in conformiry wlth the princrples of equiry and justrce since X'.s wrongful conduct was completed s'ithin N.&nnesota where X became intoxicated befote leaving said State and before going to Wisconsin rvrth T. Besides, the parties both lesidents of \4tnnesota whose law
dernanded a higher standard
"vere
licti nmmis.riibecause in
of the action
of
questron whedrer d1e act complained of rs considered the proxrmate cause of the injury, are ali governed bv the lex loci delicti tommixij.
(3) The burden of proof and the defenses drat may be rnterposed by the defendant are aiso governed bv hx loti de/icti commnit.
Wisconsin rvl.rere the accident happened. (SclLnidt u Dnlcoll Hotel. 249 Minn. 375, N. LV'. 2'/ 365 119a7iS
(c) Example of a foreign tort actionable in the Philippines: X and I both Ftlipinos, were vacationing in Hongkong. One day, while
driving a rented car, X ran over \'. rvho was walkrng. causing tl.re latter to be hospitalized in Hongkong. Upon rhe rerurn of both to the Phiirppines,
sued X for damages adsing from the rott commirted bv the latter while thev were in l{ongkong. Will tlie action prosper? Yes, provided rt is hled within dre period prescribed by Flongkong
/a,r
r/c
hilt ,rtmmit.rii.
(d) ll-tlrt' r't'ssc'ls come trom different states rvith identical lau's, appll s;ritl rtlctrttcrl linvs. (c) ll- tlrc vcsst'ls cot::t' frotn different states urith di[ferent laws, tlre /r-v /oti rbhrtt tontntt.t.tu ls llt(: llcnerlrl maritimc law as understood and
of prescriptron is subsrantive and not procedural. The kinds and measures of darrrages recoverable b1Y, and the defenses that X mat' put up, should also be governed bv Hongkong law, which is rhe lex lott delicti commilsii. But all procedural marrers hke the period for filtng the answer, the period for appeal. etc., sl-rould be governed 6v rhe lex./ori. whrch is Phihppine law.
Iaw, dre lzx bci rhlicti tvmmhlii, since the penod
136
CONFLICT OF LAWS
CONFLICT OF LAWS
8. What is thc Alit'rr 'lirrt Act, and do vou know if it has been applied in cast's lilctl lrr trilipinos in the United States?
the United States. which was enacted civil acuon hled by ,rn alrcn lor a rorl commrtted in violation of the law of nations or a lreah' r>f tlrc Unrted States.
17U9, grants t I.S. tlsrrrcr courts original jurisdrctron over any
ol
in
(b) It was under the above law that the United States Court of Appeals upheld the jurisdrction of the distnct court of Hawaii over a class actron for damages filed by almost ten thousand Filipino victims of
human nghts abuses and tortw'e comrnitted bv dre iate President Ferdinand Marcos and his ofhcials rn the Philippines during the Marcos reglme, resulung in a nearll US$2 briiion judgrnent in favor of the victims andf or
CRIMES
1.
a.
Marcot-Manotoc, / 25
LEd.
2d 661 ,
17
3 S. Ct. 2958.
(a) Whiie both tort and crime are wrongs, a tort violates pnvare rights u'hile a crime is committed against the State.
(b) Tort acuons are instituted by the mlured person against dre
ttongdoer
act.
in character, so that the tortfeasor can be made liable for his wrongful act in any furisdicuon where i-re mav be
(c) Torts are transitorv
found. Crimes, on the other hand, are iocai and can be prosecute d onlv in the places or states rvhere the crimes are committed. 2. How does the court determine whether a wrongful act is a tort
or a crime?
The determination of whether a wrongful act is a tort or a cnme depends on the charactenzation of the act in the state where said act is committed.
138
CRIMES
CONFLICT OF LAWS
CONFLICT OF LAWS
CRIMES
139
parw. Such civtl actron shall proceed independentlv of the crir'i'rai prosecutlon, ar-rcl shall recluire onlv a preponderance of evidence."
Take the ofienses classifed as "'criminal negligence" r.rnder Art. 365 of the Revised Penal Code. They mav be ptosecuted as crimes bv the State. On the odrer hand, the vrctims ma,v file separate actions for damages against the offenders based on torts.
(d) Real or eclectic theorv _ Anv srare whose penai cocie has been transgtressed upon has jurisdrcuon to bring to iusuce tire perpetrators of the crime, whether the crime was commrtted rnside or outside rts own terrttory. crimes under thrs theon'would rnciude pitacy, slavery', drug tratficking, imrnorai tmffic in women and
children, etc.
G) Cosmopolitan or universality theory - Any state where the criminal is found or whicir has obtained custody over him, can trv him for the crime he has allegedly committed, unless exrradidon
apphes.
Vhat are the different theories that determine whether a state or a legal system has jurisdiction to take cognizance of criminal
3.
cases?
(a) Territotial theory - Under this theorli the state whete the crime was committed has juusdiction to tr\: the case, and its penal code and the penalties prescribe therein rvili apply The teason is that the aggrreved state is dutl'bound to prosecute and punish the offender as his
(0
The State of which the victim is a citzen or subject has jurisdiction to Prosecute the offense.
crime affects direcdt'and particularlv dre drgruq,, authoriq', and soverergnh' of the state w'here saici crime is committed.
4. Which among the theories enumerated above, do we follow in the Philippines? In the PhiJrppines, we foliow as a genetal rule the territorial theorl', of exceptron, the protectrve theorl'.
'lhis theort mav be of two kinds: (1) The subjective, territorial principle - under which the
state wllere the crime was begun may prosecute the same, even
and by wav
state.
(2) The objective territorial principle - under which the state can prosecute crimes begun abroad but completed rvithin its territory. fParas and authorities cited, supra, p. a0a)
.In other words. we cannot prosecute a cdme committed abroad or murder) in the Philippines, because it is committed outside our territorial jurisdicuon.
(Like bigamy, rape,
We also follow the rule o[ generaltrv in criminal lau'; i.e., al] persons, whether Fihpinos or aliens, are subject to our penal laws and can
be prosecuted ior theirviolauons (Art. 14. Civrl Code of thc Phihppines).
5. In what cases do we follow the protective theory, such that even if the crime was committed outside our territorial jurisdiction, the crime is triable bv our courts?
Thev are the cascs tncntloned in Art. 2 c,rf thc l{evised l)cnal Code, lo wil: "Except as provrded n thc treaties and laws of prei-crenna)
(c) Protective theorv - Anv state whose nacionnl interests mav be jeopardtzed has lurtsdictron over cnmrnal offenses. even if comrnitted outside its territorii and in some cases. even if committed
bv an alien.
140 cRlMlrs
;rl)l )lt(
CONFLICTOFLAWS
CONruCTOFLAWS
CRIMES
141
,rtr.tr. llr(' l)r()\'lsl()11s of this code sirall be enforced 1.r .rl\' \r'lllrlr) lll(' l)hihpprne Archrpelago. including its :lilltr,s!)ll('t('. lts ll)tc:fl()r waters and maritrme zone but also otllsltlt'tts lttrts<1tcuon, agzlnst those rvho -
(l)
Philippine
whose flag is flown bv rhe vessei has jurisdrction. excepr if the crtme affects rhe oeace. order, securiry', and safew of the territory. paras. rd., ctting Bnedy, Law of Nauons. p. 180)
Sirould forge or counterieit anl'corn or currency note of the Philipprne Islands or obiigations and secudties issued bv the Government of the Philippine Island; (3) Should be liable for acts connected with the
(2)
\Xhile betrg offrcers or emplovees, shouid commit an offense in the exercise of their official functions; or
(4)
(5)
6. Do we have jurisdiction over crimes committed on board foreign vessel if said vessel is within our tefritorial waters?
Tl'terc aretwo ti-reones that have generally been used, and which determining our Supreme Court has appl-ted ln the old opium cases, in the emphasizes Rule (which Enghsh the this quesuon of iurisdtcuon; nationality the (wi-rrch stresses Rule French territorial principle) and the theory).
The above two rules were also cited and compared by the Supreme Court rn the case of people t. lWongCheng,46 Phi/. 279, although rhe Court also held that as we were at that time a tertitory of the United States, we follow the English rule which was the one prevaihng in the United States. This case, however,'involved the crime oi smoking opium in a forergn vessel anchored rn Manila Bay, which the High Court held was a breach of our public order because ofthe pernicrous effects that ir produced in our terdtory. In shott, dre Suprerne Court actualiv applied the French rule to the case, not the English Rule. Nonetheless, as observed by the lateJustice Paras in his book rn Confhct of Laws, "the difference between the two rules is largely academrc and theoretical, the two rules being essentially the same. Thus, if aboard a German ship anchored in Maniia Bay, the crime of murder is committed, under the English rule, the Philtppines would have junsdiction in view of the general rule. Under the French theory, the Phiiippines would also have iurisdicuon under the exception, for the crime indeed affects the peace
and secudty
of
(a) English Rule: The territory where the ctrme was committed (in our problem . the Phiiippines) will have
iurisdiction
excePt:
the English or French rule on the matter is not signihcant: The effect is the same". (?aras, supra, pp. a10-a11)
7. Did the United Nations Convention on the Law of the change the above rules?
Art.27 ofsaid Convention pardy provides: "Criminal jurisdiction on board a foreign ship
Sea
(a) In matters reiating to the internal order and drscipline of the vessel; and (b) Those which affect soleiy the ship and its
occupants such as minor or petfv criminal offenses committed bl' members of the
crerJ/.
International
The criminal junschcuon of thc coastal State should not be exercised on board a forergn ship passrng through the territorial sea to arrest any person or to conduct any rrvesugation in connection with a crime committed on board the shrrp during
1.
CONFLICT OF LAWS
142
CRIMES
CONFLICTOFLAWS
cases:
(b) If the cnme is of a krnd to disturb the peace of the country or the good order of the territoriai sea;
In short, under the rules of said Convention Philippine courts do not acquire jurisdiction over cdmes commrtted on board a foreign vessel even if it is within our territorial waters as long as the effect
Iu
BUSINESS ASSOCIATIONS
A. CORPORATIONS
1.
CHAPTER
of Ftench rule to the effect that we have no iurisdiction over ctimes committed aboard foreign vessels even if they are found within our
territorial waters except when the crimes affect the peace, order, securiry and safety of our countty and territory.
such cdme does not disturb our Peace and order. Th,rs is similar to the
A corporation, accotding to Sec. , of the Corporation Code of Phihppines, "is an artihcial belrg created bl the operation of las', having the right of succession and the powers, attributes, and properues cxpressly authorized bv law or incident to its existence", rvl-riie Section 123, ol the same Code, defines a foreign corporation as "one formed. c+'ganrzed or existing under any lar:,'s other than those of the Phtlipprnes and whose laws ailou,'Fil-ipino citizens and corporations to do busi.ness in its own countrv or state".
fie
governing law
of
a corporation?
(1) The theory that the personal law is the law of the place of itlcorporation:
Under this theory, horvcver. l corporati<rn carr cvaclc rnaul responsibilitres bv simply orgrnizing irr onc st;rlc and perfbnnrng its ftrnctions in anotlrer staf e.
CONFLICT OF LAWS
coNFLIcr oF LAWS
BustNESs
ASsoctATIoNS
l4.s
(2)
'l'lr
tlrt.orv
( )rrc tlrllrtrrltv of thrs theoq'rs tl-rat tire board mav meet in tlrllclt'rrl st;rtt.s, ulthough ti-us defect mal be cured bl expresslv pt,,r'ttltttl' rrr tlrc articles of ilcorporaUon ot bv-iaws w]rere tire prtrrctp;rl n)('cur)g place of the board is.
.f
lc,cated. piace must be withrn the Phiirppines". Thus, the place of incr )rPoralon of a PhrJrppine corporatlon rs also its domicile.
For the purpose of determrnrng a corporanon,.s domrcile. Sec. corporauon Code requrre. ,rrn, ,i," arilcles of rncorp.ration n phrirppinc corp( )rauo, ,)Lrsr srare ,n. rrio.. ,"lr"r; ,;. ;;;;",:;;.
of
tl-re
..whicrr
-l'l.re
As for a foreign corporation that has been granted a jtcense t<; operare or r() do busrness rn the phi,rppines, it o.quo., ao*r.rr. i., ,rri, countrv by vrrrue ol said license. As heid bi, the Suprem
lr.;s6i4 1 s, a.
Mirt
aa t,,. S
t.r
enr. l n t.. l g 9
Cll I
fre,rule.requiri"g foreig.r corporatlons ro secure a rrcense to do business in the PhrJrppines is to enabrc the courts ro exercise jurisdiction or the regulatron of
tl-reir activitres rn
Coun in
C*)i*
our counff\,.
5. Vhal are the exceptions to the theory that the personal law or the nationality .f a coqporation fotows the place of its incoqporation?
in
of
(a) For constitutional purposes, even incorporated in the phiJrppines. it ."r.no, exproit
incorporation.
This is rmphed from the deFrnrtion of a foreign corporation by our Corporauon Code as "one formed, organized or existtng under any lar.vs other than those of the Philippines x x x". In other words, if the
corporadon
fesources nor operate pubhc urrhties unress 6070 owned (Art. XII, secs. 2, 10-11, 19g7 Consurutron)
"r'as
organized
rr
pierce of coryorate rdentin. and go lrrto t1.,. .the 'eil controlJrng stockholders to deter'rinc *l-retrrer
a
(b) For wartime purposes, we adopt rhe control test; i.e.. ';;;; we corporauon is an enem',
"^"";;
corporarion.
According to Article 51 of the Ner.v Civil Code, "When the larv creating or rccognizing them, or anv otirer provision does not F1x the domicilc of jr-rndrcal persons, the same shall be understood to be the place whcrc tlrcrr legal representation is estabiished or where thev exercise dreir pnncipal hrnctions."
l'.r,crr
corporaflon during the last Wbrld War for the purpose of freezrng its assers (Dauid Winethop u phil. Tnul. L_)g69. 3/ /an. , 195?).
fictt<_in also permrts the courts r<r lmpose personal riabilrn, on the stockholdcrs if the c'rporadon form has been used_ ro defeat the pubhc ..,nlr",rr"r.",
Thus, a German_controlled corporation, even ii incotporated in the pl-riJippines, was considered an coemr.
as de.falo ursofar
tk'li.cttvclv organizcd corporation which the lau'regards 1rs lnll()c(.nt third persons are concerned can possess a
zr
or
.\Ck,1 205).
lurtif,
CONFLICI'OF I ,\\VS
6.
Vhat matteis
of the corporation?
How may our coufts acquire jurisdiction over doing business in the Philippines?
9.
a foreign corporation
tire placc ()l rnc()rp()ra[on) governs the tequisttcs for t]re formation of tire corporatt<)n. thc reclulr'ed nurnber of mcorporators and tire members ,.,f ti.re floard of I)trectors. the kincls of shares of stock aliowed, thc transfer ()[ stocks in a rval tl-rat it wr>uld be bindrng on ti-rc corporation. the rssuance, aln()unt and legahw of tirc diviclends, and the powers tncl duues of the offtcers. stockholders, and mernbers.
7. ttr(/hat law determines the
Bl
r
service
of sumrrons
ra*,for
(b) If no such agent, on rhe governrnent official desrgnated by law ro thar effect; or (c) On any of its officers or agents within the philipprnes. (Sec. 12, Rule 14. 1997 Rules on Civil I'rocedurej.
10. suppose a foreign corporation transacts business without first ,btaining the necessary license, what is the status of its contract?
of
pertormance. To be vahd and binding, such acts or contracts must bc authorized bv both larvs. If valid in the place of incorporation but void in tlre place o[ performance, or atce uer.ra, the vahdiq' of said acts or contracts is doubtlul and it mav not be griven effect at all, without prejudicc to the principle oi estoppel (Sec. 119, Corporatton Code; Paras, supra, and authorities cited, p. a29). 8. May a foreign corporation sue and be sued in the Philippines?
Yes, if it has the necessarv hcense to do business here (Sec. 123. Corporation Codc). The license is required not to forbid the foreign
is unenforeceable; i.e.. the corporation cannor sue in )ur courts until the necessaq' license is obtained. After the issuance of tire license, suits mav be instiruted even on the pre-license contrzcts
,
The conrract
which are
But the person who contracted with the corporation may be considered in estoppel if ire had received benefits from the ..rnr.n., ;lrietcher, vol. I, cvclopedia of Law of pr-ivate corporations, sec. g520).
11.
corporation from perfolnng single acts but to prevent it flrorn acquiring a domicile for purposes of business u'ithout takrng the steps necessanr to render it amenable to suit in the local crsutts (hIarcltall W'e 1l.r d:" Co. u. E/vr Cu.. 16 l'hti. -11 'Iiansacting ol dorng business connotes a continuity of business dcalings and arrangemenrs (Mentholulum Co. u. EllerCo..72 Phil. 521).
Yes, because the corporation cannot put rrp by way of defense tts own failure to comply with the lauz (Gen. Cor. of the phi/. I/. (J nion In.r.
\ode! of' Canton, 48 OG #1 , Jan. 1952, p. 7). But rhe court must be abie to acquire jurisdiction over the corporadon.
12' If the corporation sells its products in the philippines through an agent, is that doing business here?
<>rdinalv l>ursiness
czisual
llvcn a single rct or transaction ma); however, l;e an act of o[ the corporation if it is not merell incidental or
blrt of srrcir charactcr as to drsunctlv indrcate n purpose to dc-, other l>usincss rr tlr(' statc and to make the state a base of operations for thc conduct ol' a part of tlre forcign corporation's ordinan' business ( R;r I '.r.sl Jnlrrntltontl lml,rnl tnJ [\Vorr Corporalion Nankai Kogyo Co., Lld., L "'.
lli2l. \ot'.
10. l()6:'\.
agent, it is doing business here, because thc agent is acung oi its princrpal (Mentholatan (.0. t'. Man,p!/inaz, supra).
tion sells its goods in the Philippines througrr an cxclusive ;istnbuung onl'in behaii
If the forergn corporation sells its products in the phihppines rhrough a resident rnerchant on commrssion basis. it is rhe merchan,. .r.r, the corporation, thar is doing business here. But if the foreign corpora-
l{E
CONfLICTOFLAWS
coNrLIcroFLAwa
"usINEss
AssocIATIoNs
teg
lit. May a forcign corporation not doing business in the Philippines euc?
Ycs. tn (a) rsolated transactrons; (b; to protect its reputation, corporare nam{and goodwilt
allowed to sue on
the cessation
to contracrs""'entered into
ntered into ptevious to l1'11lt""ln'.1lif#:T:.""1 enhcal rule should also apply p'or to the of
local coutt
B. PARTNERSHIPS
Vhen does
.1 a
partnership exist?
(c) for infringement of trademark or rade-name, unfair competition or false description of products, and
infringement of patent (Sec. 160, id.).
14. What about mul 'national or transnational corporations, what law applies to them?
"?'il$ffi il"1i
3;
; ;i'
p;#'
,,"tPttton'
l_r.j;!"rtnership,
ln the phrhpprles.
These ate actually branches of a big, mother corporation in a hfttrly industroli"ed, hrghly developed foreign country but doing business
in many countries of the world through branches that have been incorporated under the law of each country .or state where it has
extended its business, in association with local businessmen. Since they are incolporated under the local law of each state rvhere they are doing business, the branches are sE)arate entities govemed by the said local laws, but in reality, the major decisions in their operation and management are controlled by theit mother or parent corporation. However, the branches, having incoqporated in the states where they are established, are govemed by the intemal law of the said states, and their personal laws are the local laws of the host states.
getting away from dre old common simply an aggregate of individuar,. end& distlnct from the partners.
tnscrlverrcl proceedings (Sce Canpo., t\r,r,ao jJ'Co. t: puc. Cont. Co. 14 phil. 91 6). However. in the ,T,."0 Sor.J .a^, , n.-_ ,r_.1. has been developed,
15. May a foreign corporation be sued after drawn from busineee in the Philippines?
Ye s,
it
Code of Commerce).
IJke Ph'ippine colporatl.ns, trre personar or governing raw of partnership is the law of
the
countn'#;.";
15
on contracts previously entered into by it. After all, fairness demands that the citizens and residents of the Philippines be affotded the opportunity to sue thcse foreign corporations locally, instead of requiring them to sue in thc foreign countries where they are domiciled. By the same token, thc f<rrcign corporation that has with&awn should also be
Thus, marrers iike organiza,.ron, caDacin ct., tr., r.,n uirrn, " persons, dissolution and wrndrng rp. personal law or the taw of ^,. ^ttgnl,*n".1 t1.," ,,oi" *h";:;
o
f its
con tra
;;,
thc partnership,.s
crcated.
For example. in
New
\brk
case wl:ere a
the liurtted partner rrl,.nr l),nlnr'r',lrt1, ttr l'Jt's'\irlh .l1 vils irelcl that enl;rrge thc liabihn'oiwa:, ilr)l lt,rl,l, ,rtr,l llr,rl l\t lr \'"tli l'ltu'c()Llld n()t \t'il: ltl('l llll(l( l ( .ttl>rltr lalv sll)IPII bccause tht contfact a hililtt rl tlrc
clrt(
f'(
lt,rt
187
'\'S'
of a partnership?
t-:f
dornesnc cor?orauons' p^rtncI'sl)ll)s ()r:ganlzcd under Phdippine iarv is' Iike vhcre thel :,tl_,. pl^.., rvhcre their legal representation is estabhshed of cxercisc their princrpal funcuons"' C)onsequently' a Partnership created in one state domiciled conclucts its main business in another state n1a' be considcred
rvhicl.r rn tlle latlel state
but
of corporations 5. Are the constitutional limitations on the Powers also applicable to PartnershiPs?
a partnersirip is Yes, so that unless at least 609'i' of tl're capital of development the tn owned bv Fihpinos' tl-re partnersl-rip cannot engage public utilitres' and exploitatron of our naturai resourccs' nor operate
of tire proper foreign lawl and thc exceptions to the apphcauon of the proper forergn law or comin'are also appltcable to foreign judgments.
2.
rvhich is not owned Netthet can a partnershtp 600''o of thc caprtal of lancls in the agricultural b-v Filiputos o.q,rir. bv putcirase or otherrvrse
Philipprnes. rn the Philtppincs Forergn partnerships may be mortgagees of land acquire said for 5 vcars, rer"re*nbl. for another 5 )'tn"' but tirey callnot iand rn a foreclosure proceeding (l{ep' Act No 133)'
Enforcement means that the plaintrff or petitloner wanrs the out and make effective the foreign judgment. ',vhiie recognition rneans that the defendant or respondent is presenting the foreign judgment merelv as a defense, on the basis of ru judicata.
court to
p<-rsitrvelv carr\,'
in to
a receiver for a foreign Partnership with respect the PhilipPines' does the receiver also act as such assets of said partnership in its home state?
(b) Enforcernent implies an act of soverergr)t\': rcc(,gnlu()n il)of iustice (Perkin t'. Ilenpae/ C,onrolitktd hlintng(.0.. L-|981-82, May 28, 1951).
volves merelv a sense
(c) Enforcement reguues a scpar:rtu acuon ()l procecdir,g brouglrt preciselv fo make tirc fcrreign judgnrcr.rt cffccuvc: rcc<>gnition, berng a ()r pr'occcriinu but imphes that an matter o[ defense, necds no ^cti()n action or proceeding has alrcadt' becn hled tire defcndant rvho is ^galnst invokrng the frrreign iudgment.
boriDdarit,. rrl'tht'
152
CONFLICT OF LAWS
CONFLICT OF LAWS
RECOGNITIONANDENFORCEMENT
oF FORETGNTUDGMENTS
153
oi
l',xirlrr;rlt: of tecognition: An Americarl presents a forergn decree clrr,,rt t :rs :r tltictrse in a case for btgarnv zgalnst him rn the
(c) There must be no lack of iurisdicuon. no wanr of nouce. no collusion. no clear mistake of larv or fact I Ruie 39, sec. 48. 1997 Rules on Civil Procedure). (d) The foreign iudgment lnust not conraveoe a sound and
established public po[cv
l)hih111rtrrt's.
lixampleofenforcement:AFitipirrawhoi-radbeendir'orced bv hcr alicn husband under Art' 26 of the Familv Code and who rvas
of the forurn.
to cle,lcd bv the iocal civil regrstrar a rnarriage license for hct to be able official said n-rarrv agaln, hles an actlon with the proper: court to cornpel to issue to her a marriage license on thc basis of the divorce decree obtarned from.her l:v her alien husband'
(e) The judg'rnent must be ret.iudirata; i.e.. the judgment must bc final; dre foreign court must have iurisdicuon over the subject marter and the partres; the judgrne nt rnust be on the rnerits; and tllere was idennn' of partres, subject lnatter, and cause of actron.
have
becn prcsented.
Rules
of Court)'
(b) The foreiEn iudgment rlav conravene 2 recognized and cstablishecl policv in oul country. An exampie is a foreign decree o[ drvorce obtarned abroad; oI a foreign bv a l;iliptno from iris Fiirpino "r"rfe babv to t]rc Filipino a o[ custodl jrrclgrr.rent awardrng thc
f
"Tl're effect of a iudgment or Final order of a tribunal oi a forergl countr\", having jurisdicuon to rendcr the judgment or final order, is as folkrv,s: (a) In case of a judgn.rent <.rr tlnal ordcr upon a speciiic thing, the iudgment or hnrl order is conclusive upon the trtle to the tlring; and (b) In case of a judgrnent or Ftnal ordcr against a
:;:*::,:,:T':,LT. :"-:"*
In eithcr .n.",
al-,.
:li""" "'H,
d'lhe ir
'l'lrc irtlrrilrrtslr.irtton o[iusticc in the countn v.there the foreign or not beyond lrrrillnrcrrt ( lttll(' ll()lll ttt;tY lrt' shockrngly corrupt
(t.)
rt'1 I rr ,,tt-l t
be repcllcd bt' evidence of a waut <-l[ jurisdicriolr, \r'anl oi notice to tire par6,, collusion, fraud. or clear nristak< of larv or fact". 6. \$[ihat are the differences between the effects of a final iudgment
11.
75)
whar irfc tltc (.r,n(litir,trr .rf r..(luifr:mctrts bcfore a local court in the PlrilipprlrrI ('lll ettftrrt'r ot tt't'ttgtrizt t firrcign iudgment?
(:r
or ordCr under the above rule, and the cffects of such iudgment or order under the former Sec. 50 of Rulc 39 of thc llevised Rules t,l' Court, which the foregoing Rule in tlre 1997 Rulcs of Civil Procc' dure amended?
(a) Under thc forrner Sec, 50
(l,l Ilr, ;,t,l1,tlt,lll lllllnl ltt "ll;tt11'11 rrl t"ttttltt'tctal matl(:r' n()t
I lltllr
ttrtt',t
l"
'trlt'r1tt,rlt'
of Rule
39
of
r oNt't
tt I ([,I Aw\
(.(llill
I'rt{ l,rtt lrtrllrltlr ltl tfl rtt4 (t i ,l lilrllrtil(il1 'rl ,r lrrt(.tptt ( Qlltl illroil ?l sl)('( rltr lltttr!'t rt,,r', rrltr,r,lt , lil'rlrlrtt rl r ililr lilrit\,( illxrtl llt(. ltllr. to tlr<.
,r
qn['
'rj'"':?slw
', i. ,r i, l"
tlltttt'. lr',rtlltt1,
('1l1lt ( (,ult lr.rrl
tlrr rvlt,,lr r,r,,,rlrl, lrr,rvtrl<'<l lltr.lrrr llIl| lo lrtttrrltr lrtr)tilrililr r' ,r,il(l lil(ll'ilrrttl
11
1, Irttr,ltttl!, itfrttttt,,t
CABAIAIUAN CIIY
lltrtlrt scr. ,lll. lLulc 1(), ol tlrc l()()/ l{rrlt.:, orr (,tvtl l)ror-t:tlufc, ltou,t'r''r'r. itll ;rrtl1|ttcltls (,t ()t'(l('rs ol lor<'t1'rr ( oulli\, wllt'llrcr rn rcn ot itl Penonutt, ilr(' c()nsidrrccl rncrclv fnrnil filtr( ( )r l)r('sunll)lrv(. cvrclcncc of a right bctwcr:n the partrcs at)d th('rr su(( cssr)ts ut ult('r('st Iry a subse<1ucnt ude, arrd both kinds of ;udgmcnts,rr('riul)l('('t to tlrc tlrlcnscs of want o[ jurisdrction on tbe part of thc foru:r11r c()rrrt. w,ult o1'notrcc to the defendant or respondent, collusion, fratrrl or t:lt:ar rlrstake of law or [act. @) The formcr Scc. 50 of Rr.rlc 39 of the Revised Rules of Court covered only final judgments. Sec. 48, Rule 39, of the 1997 Rules on Civil Procedure, includes final orders. Both, however, must comply
rer
**************)k*