Conflict of Laws - San Beda PDF

266 2005 CENTRALIZED BAR OPERATIONS
PRIVATE INTERNATIONAL LAW

Private International Law or Conflict of most highly Hague Convention
Laws qualified publicists on the Conflicts of
 That part of the Municipal Law of a law relating to the
State which directs its courts and Form of
Testamentary
Administrative agencies, when
Dispositions)
confronted with a legal problem
most highly Hague Convention
involving a foreign element, whether qualified publicists on the Conflicts of
or not they should apply a foreign law relating to the
law or foreign laws. Form of
Testamentary
Elements: Dispositions)
(1) Conflict of Laws is part of the As to applicability
municipal law of the State; 3. Governs rights Deals with rights
(2) There is a directive to courts and obligations of and obligations of
and administrative agencies; States and their private individuals
relationships among and their private
(3) There is a legal problem themselves transactions which
involving a foreign element; and involve a foreign
(4) There is either an application or element
non-application of a foreign law As to persons involved
or foreign laws. 4. Governs only Governs individuals
Nature of Conflicts Rules: It is a part of states and or corporations
the national law of every state. internationally
recognized
NOTE: A factual situation that cuts organizations
across territorial lines and is affected by As to transactions
5. Recognizes trans- Assumes control
diverse laws of two or more States is
actions in which over transactions
said to contain a foreign element. sovereign States are strictly private in
interested nature
 Functions: As to remedies
1. To provide rules in deciding cases 6. In case of All remedies are
where either the parties, events or violation of provided by
transactions are linked to more International Law, municipal laws of
than one state jurisdiction; the State may resort the State, such as
2. To promote stability and to diplomatic resort to courts and
uniformity of remedies / solutions protest, negotiation, administrative
arbitration or tribunals
regardless of place of suit.
adjudication by
filing cases before
PUBLIC PRIVATE international
International Law International Law tribunals or may
As to nature or character even resort to use of
1. International in National, municipal force or go to war
character as it or local in character
applies in the  Sources:
international sphere 1. Civil Codes of different countries
As to sources
2. Constitution which contains
2. Custom, treaty Generally derived
principles on nationality and comity
and general from the internal
principles of law law of each state; 3. Special statues (E.g. Corporation
recognized by except any conflict Code, General Banking Law, etc.)
civilized nations and of laws question 4. Treaties and International
juridical decisions which is governed conventions
and teachings of the by a treaty (e.g.
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer
Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics). Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law),
Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal
Ethics)
San Beda College of Law 267
MEMORY AID IN CIVIL LAW
5. Treatises, commentaries and studies Revised Rules of Court (defendant

of learned jurists whose identity or whereabouts are
6. Judicial decisions unknown).
7. International customs
Minimum Contacts Test and
JURISDICTION Fundamental Fairness Test
 Due process requires only that in
I. JURISDICTION OVER THE PERSON order to subject a defendant to a
 Acquired by the voluntary judgment in personam, if he is not
appearance of a party and his present within the territory of the
submission to authority or by service forum he should have certain
of summons. minimum contacts with it such that
1. Jurisdiction over the person of the maintenance of the suit does not
the plaintiff is acquired from offend traditional notions of fair play
the moment he invokes the aid and substantial justice.
of the court and voluntarily  In both in rem and quasi-in rem, all
submits himself by institution of that due process requires is that
the suit through proper defendant be given adequate notice
pleadings. and opportunity to be heard which
2. Jurisdiction over the person of are met by service of summons by
the defendant is acquired publication.
through:
a. voluntary appearance or Long-arm Statutes
b. personal or substituted  Statutes which specify the kinds of
service of summons (section contacts upon which jurisdiction will
6 and 7 Rule 14 of the be asserted over a defendant outside
Revised Rules of Court) of state territory.
II. JURISDICTION OVER PROPERTY III. JURISDICTION OVER THE SUBJECT

 Results either from the seizure of MATTER
property under a legal process or  The test of jurisdiction is whether
from the institution of legal or not the law vests upon the
proceedings wherein the court’s tribunal the power to enter upon the
power over the property is inquiry.
recognized and made effective.
 This kind of jurisdiction is referred Ways of Disposing of Conflicts Cases:
to as in rem jurisdiction in contrast 1. Dismiss the case, either because of
to in personam jurisdiction lack of jurisdiction or refusal to
 Another form of jurisdiction is quasi assume jurisdiction pursuant to the
in rem which affects only the doctrine of forum non conveniens; or
interests of particular persons in the 2. Assume jurisdiction over the case
thing. and apply the law of the forum; or
3. Assume jurisdiction over the case
NOTE: Summons by publication is and apply foreign law.
authorized in three cases:  Theory of Comity – the application
1. If the action is in rem, or of foreign legal systems in cases
2. quasi in rem, or involving foreign element is proper
3. involves the personal status of because their non-application would
the plaintiff constitute a disregard of foreign
Where the suit is in personam, sovereignties, a lack of comity
jurisdiction over the defendant must be towards foreign states.
acquired by voluntary appearance or by
personal/substituted service of Principle of forum non conveniens
summons. However, service by  A court may resist imposition upon
publication may be allowed in its jurisdiction even when
accordance with Sec 14, Rule 14 of jurisdiction is authorized by law. The
CIVIL LAW COMMITTEE

CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon
 SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
reason given for refusal to assume an important public policy of the

jurisdiction is that to do so would forum;
prove inconvenient for the forum. b) Where the application of the
foreign law would infringe good
 In sustaining a plea of forum of non morality;
conveniens, public and private c) Where the foreign law is penal in
interests should be weighed: nature;
1. Private Interest of the litigant d) Where the foreign law is
a. Ease of access to source of procedural in nature;
proof e) When the question involves
b. Availability of compulsory immovable property of the
process for attendance of forum;
unwilling witnesses f) Where the foreign law is fiscal or
c. Cost of obtaining and administrative in nature;
attendance of willing g) Where the application of foreign
witnesses law would involve injustice or
d. Possibility of viewing the injury to the citizens or residents
premises if appropriate of the forum; and
e. Other practical problems h) Where the application of foreign
that make trial of the case law would endanger the vital
easy, expeditious and interests of the State.
inexpensive
2. Public Interest CHOICE OF LAW
a. Administrative difficulties
encountered when courts’ APPROACHES TO CHOICE OF LAW
dockets are clogged A. Traditional or Single-aspect method
b. Appropriateness of having  theories which have traditionally
the trial in a court familiar concentra-ted on one element of a
with the applicable state situation in order to connect a case
law. to a particular legal community
1. Vested Rights Theory
GENERAL RULE: No rule of o Rights acquired in one
Private International Law would be country must be recognized
violated if the courts should decide to and legally protected in
dispose of all cases, whether domestic or other countries. The forum
conflicts cases, according to the internal will not apply before a law
law of the forum but will simply recognize the
EXCEPTION: Where a foreign, right vested by said law.
sovereign, diplomatic official, or public 2. Local Law Theory
vessel or property of another State is o In conflict problems, the
involved, or where a State has, by court does not enforce a
treaty, accepted limitations upon its foreign law but a right
jurisdiction over certain persons or created by its own law by
things. treating a case as a purely
domestic case that does not
Instances Justifying the Application of involve a foreign element.
Internal Law to Conflicts Cases: 3. Cavers' Principle of Preference
1. Where application of internal law is o Choice of law should be
decreed; determined by
2. Where there is failure to plead and considerations of justice and
prove foreign law; social expediency and should
3. Where a case involves any of the not be the result of
exceptions to the application of mechanical application of
foreign law: the rule or principle of
a) When the enforcement of the selection.
foreign law would run counter to

Ethics)
B. Modern or Multi-aspect method e. advancement of forums

 approach where all the important interests.
factors of the case both territorial 6. Convenient Theory (forum
and non-territorial, are analyzed and conveniens)
the applicable law is arrived at by  the application of a foreign law
“rationally elaborating and applying in such a convenient forum,
the policies and purposes underlying which implies a susbstantial
the particular legal rules that come connection with a given conflict
in question as well as the needs of problem “must be analytically
the interstate or international understood as an exception from
intercourse.” the basic rule calling for the
application of the lex fori”.
1. Place of the Most Significant
Relationship TEST FACTORS OR POINTS OF CONTACT
 Adopts an approach which  Circumstances which may serve as
identifies a plura-lity of factors the possible test for the
that must be considered in the determination of applicable law
light of choice of law principles.  The most important of these points
2. Interest Analysis are the following:
 Urges the resolution of conflict 1. The nationality of a person, his
problems by looking at the policy domicile, his residence, his place
behind the laws of the involved of sojourn, or his origin.
states and the interests each 2. The seat of legal or juridical
state had in applying its own person, such as a corporation.
law. 3. The situs of a thing, that is the
3. Comparative impairment place where the thing is, or is
 Calls for subordination of the deemed to be situated. In
state objective which would be particular, the lex situs is
least impaired. decisive when real rights are
4. Functional Analysis involved.
 Looks into the general policies of 4. The place where an act has been
the states (beyond those done, the locus actus, such as
reflected in its substantive laws) the place where a contract has
and to policies or values relating been made, a marriage
to effective and harmonious celebrated, a will signed or a
intercourse between states tort committed. The lex loci
5. Choice-influencing Considerations actus is particularly important in
 Courts will prefer rules of law, contracts and torts.
whether they are forum law or 5. The place where the act is
another state’s law as long as intended to come into effect,
they make “good socioeconomic the place of performance of
sense for the time the court contractual duties, or the place
speaks” and are sound in view of where the power of attorney is
present day conditions. to be exercised
 These are five major choice- 6. The intention of the contracting
influencing considerations which parties as to the law that should
would lead the courts to the govern the agreement, the lex
choice-of-law decisions in a loci intentionis
given case: 7. The place where judicial and
a. predictability of results; administrative proceedings are
b. maintenance of interstate instituted or done. The lex fori –
and international order; the law of the forum – because
c. simplification of judicial matters of procedure not going
task; to the substance of the claim
d. application of better rule involved are governed by it; and
law; and because lex fori applies
CIVIL LAW COMMITTEE

whenever the content of the NOTE: If issue is substantive, apply

otherwise applicable law is foreign law, but if procedural, forum
excluded from application in a law.
given case for the reason that it
falls under one of the exceptions I. Statute of Frauds
to the application of the foreign a. Substantive - if the words of the
law law relate to forbidding the
8. The flag of the ship, which in obligation.
many cases is decisive of b. Procedural - if the law forbids
practically all legal relationships the enforcement of the
of the ship and of its master or obligation.\
owner as such. It also covers
contractual relationships, II. Statute of Limitations and
particularly contracts of Borrowing Statutes
affreightment 1. Statute of limitations
a. Substantive - when the
NOTE: The Philippines follows the limitation was directed to
Single-aspect method and our conflicts the newly created liability
rules are mostly found in the Civil Code specifically to warrant a
(Article 15, 16, 17). These rules specify qualification of the right
the geographical location from where (specificity test).
the governing law is found, consistent b. Procedural - if it operates to
with the traditional approach to choice bar only the legal remedy
of law. The difficulty in following these without impairing the
territorially rigid rules is the inherent substantive right involved.
rigidity and unjust decisions that may
result in its application. To avoid these, 2. Borrowing statute
courts have resorted to characterization  directs the state of the
and renvoi which operate as “escape forum to apply the foreign
devices” statute of limitations to the
pending claims based on a
CHARACTERIZATION foreign law
 The process by which a court at the NOTE: the characterization of a
beginning of the choice of law statute of limitation into
process assigns a disputed question procedural or substantive
to the proper area in substantive becomes irrelevant when the
law. country of the forum has a
borrowing statute. It has the
Three stages in Characterization: practical effect of treating the
1. The problem of classification foreign statute of limitation as
2. The characterization of the “point of one of substance.
contact” or the “connecting factor”
3. The extent of the application of the Depecage
law that is chosen as applicable to  The phenomenon where the
the conflicts case different aspects of the case
involving a foreign element may be
 2 Types of Characterization: governed by different systems of
1. Subject Matter Characterization – law.
calls for the classification of a  Allows the other relevant interests
factual situation into a legal of the parties to be addressed;
category. permits the courts to arrive at a
2. Substance-Procedure Dichotomy – functionally sound result without
directs to what extent the court will rejecting the methodology of the
apply foreign law. traditional approach

Ethics)
PROOF OF FOREIGN LAW A. Nationality Law Theory

1. By pleading and proof  The Philippines adheres to the
a. Written law nationality law theory. Article 15 of
i. By official publication the Civil Code provides that Laws
ii. Copy attested by officer having relating to family rights and duties,
legal custody plus a certificate or to the status, condition, and legal
with seal from secretary of capacity of persons are binding upon
embassy, legation, consul Filipino citizens, even though living
general, consul, vice consul, abroad.
consular agent or any officer in  It is for each State to determine who
the foreign service of the are its nationals (Hague Convention).
Philippines stationed in the Thus, the Philippine Constitution
foreign country to the effect enumerates those who are citizens
that said officer has custody of the Philippines.
(Section 24 Rule 132 of the
Revised Rules of Court)  Problems in Applying the Nationality
b. Unwritten law – by testimony of Principle
experts or writings of jurists 1. Dual or Multiple Citizenship
2. Judicial Notice (when the  This arises from the concurrent
laws are already within the application of jus soli and jus
actual knowledge of the sanguinis
court, such as when they are a. In matters of status, he
well and generally known or is usually considered by the
they have been actually forum as exclusively its own
ruled upon in other cases national, his additional foreign
before it and none of the nationality is disregarded
parties concerned claim b. In case the litigation
otherwise PCIB vs. Escolin arises in a third country, the law
56SCRA266) most consistently applied is that
3. To conclude that the parties of the country of which the
who fail to introduce proof person is not only a national but
as to the content of a where he also has his domicile or
foreign law acquiesce to the habitual residence, or in the
application of the forum law. absence thereof, his residence.
 proceeds from the theory that NOTE: Hague Convention on
the basic law is the law of the Conflict of Nationality Laws
forum and when the claimed formulated the following principle in
applicable foreign law is not Article 5: “… a third state shall, of
proved, then the court has no the nationalities which any such
reason to displace the basic law person possesses, recognize
4. Presumption that the foreign exclusively in its territory either the
law is the same as the law of nationality of the country of which
the forum (Doctrine of he is habitually and principally
Processual Presumption) resident, or the nationality of the
country with which in the
PERSONAL LAW circumstances he appears to be in
 The law which governs persons, legal fact most closely connected.”
condition, capacity, civil status, etc.
2. Statelessness
NOTE: Personal law governs a person  Stateless persons are generally
wherever he goes. The personal law of subject to the law of their domicile
an individual is either his national law or or habitual residence, and in default
the law of his place of domicile. thereof, to the law of their
temporary residence.
CIVIL LAW COMMITTEE

 A person may become stateless by a new place and intention to

the following means: abandon the old place must concur
a. Deprived of his citizenship for
any cause, such as commission of Legal Classification of Domicile
a crime; 1. Domicile of origin
b. Renounciation of one’s  Person’s domicile at birth
nationality by certain acts,  Legitimate child’s domicile of
express or implied; origin is that of his father and
c. Voluntary release from his an illegitimate child’s is that of
original state; his mother
d. If born in a country which  Upon emancipation, the child
recognizes only the principle of may acquire a domicile of choice
jus sanguinis of parents whose 2. Constructive Domicile
law recognizes only the principle  a domicile assigned by operation
of jus soli. of law to persons legally
incapable of choosing their own
NOTE: Convention on the Reduction of domicile (e.g. minors, mentally
Statelessness adopted in 1961 mandates disabled)
that the jus sanguini country grant its 3. Domicile of Choice (voluntary
nationality to a person born within its domicile)
territory if he would otherwise be  place freely chosen by a person
stateless, and the jus soli country to sui juris
extend its nationality to a person who  to acquire domicile of choice,
would otherwise be considered stateless there must be a concurrence of
when one of his parents is a citizen of physical presence in the new
the contracting state. place and unqualified intention
to make that place one’s home.
B. Domiciliary Theory
 The individual’s private rights, PERSONAL STATUS & CAPACITY
condition, status, and capacity are  In the determination of status and
determined by his physical location. capacity of persons, our Civil Code
follows the nationality principle
NOTE: The forum determines domicile when dealing with Filipinos.
according to its own standards.  When dealing with aliens, it depends
on which principle their country
General Rules on Domicile: follows but if the alien is in the
1. No person shall be without domicile Philippines, the nationality theory is
2. A person cannot have 2 simultaneous applied by implication.
domiciles.
3. Every natural person, as long as he is RENVOI
free and sui juris, may change his  A procedure whereby a legal matter
domicile at pleasure. presented is referred by the conflict
4. Domicile once acquired is retained of laws rules of the forum to a
unless a new one is gained. foreign state, the conflict of laws
5. The presumption is in favor of the rule of which, in turn refers the
continuance of domicile. The burden matter back to the law of the forum
of proof is on the one who alleges (remission) or a third state
that a change of domicile has taken (transmission).
place.  It literally means a “referring back”
6. To acquire a domicile a fresh
domicile, residence and intention 4 Ways of Treating the Renvoi Problem
must concur; to retain an existing 1. Rejection
domicile, either residence there or  If the conflicts rules of the forum
intention to remain must be present; refer the case to the law of another
to abandon a domicile, residence in state, it is deemed to mean only the

Ethics)
internal law of that state. Thus, the with the formalities prescribed
court will apply the foreign law. therein (Hague Convention).
2. Acceptance b. The forms and solemnities of
 If the conflicts rules of the forum contracts, wills and other public
refer the case to the law of another instruments, shall be governed
state, it is deemed to include the by the laws of the country in
totality of the foreign law (internal which they were executed
law and conflicts of laws rules). (Article 17 Civil Code).
Thus, the court will recognize the c. All marriages solemnized outside
referral back and apply local law. the Philippines, in accordance
3. Mutual Desistment Theory with the laws in force in the
 The forum court upon reference to country where they were
another state’s law sees that such solemnized, and valid there as
law is limited in application to its such, shall also be valid in this
own nationals domiciled in its country (Article 26 Family
territory and has no provision for Code).
application to nationals domiciled
outside of the territory. Hence, the EXCEPTIONS: The following are void
local court will apply local law. marriages in the Philippines even if valid
 This has the same result as the in the foreign country where celebrated:
acceptance of the renvoi doctrine a. When either or both parties are
but the process used by the forum below 18 years of age even with
court is to desist applying the parental consent;
foreign law b. Bigamous and polygamous
4. Foreign Court Theory marriages;
 Forum court assumes the same c. Mistake as to identity of a
position that the foreign court would contracting party;
take if the case is litigated in the d. A subsequent marriage
foreign state. performed without recording in
the Civil Registry the judgment
Double Renvoi of annulment or declaration of
 It is that which occurs when the nullity, partition and distribution
local court, in adopting the foreign of properties and the delivery of
court theory, discovers that the the children’s presumptive
foreign court accepts the renvoi. legitimes;
e. Marriages where either spouse is
Transmission psychologically incapacitated;
 It is the process of applying the law f. Incestuous marriages; and
of a foreign state through the law of g. Void marriages by reason of
a second foreign state. public policy.
CHOICE OF LAW PROBLEMS NOTE: These exceptions put into

issue the capacity of the parties to
I. FAMILY RELATIONS enter into the marriage and
 Under the New Civil Code, questions therefore relate to the substantive
of family rights, duties, status, requirement for marriage. Since the
conditions and capacity are governed personal law of the parties, e.g., the
by lex nationalii. national law of Filipinos, governs the
questions of intrinsic validity of
A. MARRIAGE marriages between the Filipinos
1. Extrinsic validity - governed by lex abroad, the above enumerations are
loci celebrationis. exceptions to lex loci celebrationis
GENERAL RULE: precisely because they are
a. All states recognize as valid controlled by lex nationalii
those marriages celebrated in
foreign countries if they comply
CIVIL LAW COMMITTEE

Rules on Extrinsic Validity of certain Effects of Marriage

situations: 1. Personal relations between the
1. Proxy marriages spouses
GENERAL RULE: where permitted  governed by the national law of
by the law of the place where the the parties
proxy participates in the marriage NOTE: if the spouses have different
ceremony, are entitled to nationalities, generally the national law
recognition in countries adhering to of the husband may prevail as long as
lex loci celebrationis rule, at least said law is not contrary to law, customs
insofar as formal validity is and good morals of the forum.
concerned.
NOTE: Internal Philippine law does 2. Property relations between the
not sanction proxy marriages, it is spouses
doubtful whether this will be  The Hague Convention declares
recognized here. that the governing law on
2. Common law marriages matrimonial property regime is:
GENERAL RULE: if valid in the a. The internal law designated by
State where the parties cohabitated the spouses before the marriage
while holding themselves out as man b. In the absence thereof, the
and wife, it is given recognition in internal law of the state in
sister States which do not permit this which the spouses fix their 1st
informal method of entering into the habitual residence
marital status
NOTE: common law marriages are  Philippine Rule on property
not recognized under the Philippine relations:
internal law  In the absence of a contrary
3. Marriage on board a vessel on High stipulation in the marriage
seas settlements, the property
 since nation whose flag the ship relations of the spouses shall be
is flying has jurisdiction over the governed by Philippine laws,
ship, the rule is that compliance regardless of the place of the
with this law is required for a celebration of the marriage and
marriage to be validly their residence.
contracted  This rule shall not apply:
4. Consular marriages 1. Where both spouses are aliens;
 for states, including the 2. With respect to the extrinsic
Philippines (Article 10 Family validity of contracts affecting
Code), which authorize their property not situated in the
consular or diplomatic agents in Philippines and executed in
foreign countries to solemnize the country where the
marriages in accordance with property is located; and
their domestic laws 3. With respect to the extrinsic
 marriage performed by a validity of contracts entered
consular and diplomatic agent into in the Philippines but
empowered by the sending state affecting property situated in
to officiate marriage is valid in a foreign country whose laws
the receiving state only if the require different formalities
latter has agreed to his acting in for their extrinsic validity.
that capacity. (Article 80 Family Code)
2. Intrinsic validity - controlled by the Doctrine of Immutability of Matrimonial

parties’ personal laws (either domiciliary Property Regime
or nationality).  That the change of the nationality
on the part of the husband or the
wife or of both does not affect the
original property regime EXCEPT

Ethics)
when the law of the original NOTE: However, in the case of

nationality itself changes the marital Tecson vs. COMELEC, Ronald Allan
regime hence, the property regime Kelly Poe and Fornier (GR No.
has to change accordingly. 161434, March 3, 2004), the
Supreme Court held that providing
B. DIVORCE AND SEPARATION neither conditions nor distinctions,
 Hague convention provides that the the 1935 Constitutions states that
granting of divorce or separation among the citizens of the Philippines
must comply with the national law are those whose fathers are citizens
of the spouses and the law of the of the Philippines.
place where the application for The 1935 Constitution confers
divorce is made. citizenship to all persons whose
 Grounds for divorce are dictated by fathers are Filipino citizens
lex fori. regardless of whether the children
GENERAL RULE: We only observe are legitimate or illegitimate.
relative divorce (legal separation) in the
Philippines. Divorce decrees obtained by  If the child is later legitimated,
Filipinos abroad have no validity and no personal law of the child follows
effects thereof are recognized in this that of the father.
jurisdiction.
EXCEPTION: Where a marriage Parental Authority over the Child
between a Filipino citizen and a  Personal law of the father controls
foreigner is validly celebrated and a the rights and duties of parents and
divorce is thereafter validly obtained children
abroad by the alien spouse capacitating NOTE: Reference to the personal
him or her to remarry, the Filipino law of the father may result in joint
spouse shall have capacity to remarry exercise of parental authority by
under Philippine law (Article 26, Family father and mother (e.g. Article 221
Code). Family Code).
Father’s personal law could
C. ANNULMENT AND DECLARATION OF grant parental authority to the
NULLITY mother of the illegitimate children
1. For states that follow the traditional (e.g. Article176 Family Code)
approach – grounds would follow lex
loci celebrationis. E. ADOPTION
2. For states that are policy-centered -  Under the Domestic Adoption Act of
applicable law is the law of the 1998, an alien may adopt provided
state of marital domicile. that he is:
1. of legal age,
D. PARENTAL RELATIONS 2. in possession of full civil
Determination of Legitimacy of a Child capacity and legal rights,
 Legitimacy of the child is governed 3. of good moral character,
by the personal law of the parents 4. no conviction of any crime
(either domiciliary or nationality). involving moral turpitude,
Philippine rule: 5. emotionally and psychologically
 The legitimacy of the child is capable of caring for children,
governed by the national law of the 6. at least sixteen years older than
parents. the adoptee,
 If parents belong to different 7. in a position to support and
nationalities, legitimacy of the child care for his children,
is governed by the national law of 8. his country has diplomatic
the father. relations with the Philippines,
 Personal law of the illegitimate child 9. residence in the Philippines for
is the mother’s personal law. at least three continuous years
prior to the filing of the
application for adoption and
CIVIL LAW COMMITTEE

maintains such residence until II. PROPERTY

the adoption decree is entered, A. CONTROLLING LAW
10. certificate of legal capacity to 1. Immovable property – governed by
adopt in his country to be issued lex situs.
by his diplomatic or consular 2. Movable property – may be governed
office, and by:
11. his government allows the a. lex domicilii – law of the owner’s
adoptee to enter his country as domicile.
his adopted son/daughter b. lex situs - the law of the place
where the property is located.
 The requirement on c. lex loci actus – law of the place
residency and certificate of where the transaction is
qualification to adopt may completed.
be waived for the following: d. proper law – law of the state
a. a former Filipino citizen who which has the most real
seeks to adopt a relative connection with the transfer.
within the fourth (4th)
degree of consanguinity or Philippine Rule:
affinity; or  Real property as well as personal
b. one who seeks to adopt the property is subject to the law of the
legitimate son/daughter of country where it is situated (lex
his/her Filipino spouse; or situs). (Article 16 Civil Code).
c. one who is married to a  Rationale for lex situs or lex rei
Filipino citizen and seeks to sitae rule: the property being
adopt jointly with his/her physically part of the country should
spouse a relative within the be subject to the laws thereof.
fourth (4th) degree of
consanguinity or affinity of B. CAPACITY TO TRANSFER OR ACQUIRE
the Filipino spouse. PROPERTY
 governed by lex situs.
 The requirement of
sixteen years difference C. EXTRINSIC AND INTRINSIC VALIDITY
between the adopter and OF CONVEYANCES
the adoptee is not GENERAL RULE: Governed by lex situs.
applicable if the adopter EXCEPTIONS:
is: 1. Where the transaction does not
i. the biological parent affect transfer of title or ownership
of the adoptee of the land
ii. the spouse of the  proper law of the transaction
adoptee’s parent will govern, which may be lex
intentionis or lex voluntatis.
 Inter-Country Adoption 2. When real property is offered by way
 A socio-legal process of adopting of security for the performance of an
a Filipino child by a foreigner or obligation:
a Filipino citizen permanently a. Mortgage of the land is governed
residing abroad where the by lex situs
petition is filed, the supervised b. Loan contract is governed by
trial custody is undertaken, and rules of ordinary contracts.
the decree of adoption is issued 3. Testate or intestate succession or
outside the Philippines. capacity to succeed – governed by
the national law of the decedent.

Ethics)
4. Under a policy centered approach, transaction which will uphold its

when the situs of the movable at the validity. The owner is thus
time of the transfer was insignificant permitted to choose between several
or accidental. legal systems:
5. When the issue involves 1. Law of the temporary resting
consideration other than the validity place (e.g. interim port)
and effect of the transfer – the court 2. Lex loci actus
may look into the law of another 3. Law of the place of destination
state which has a real interest in 4. Law of the last real situs of
applying its law. goods
D. SPECIAL TYPES OF MOVABLE  Rules governing Means of Transport:

PROPERTY a. in case of sea going vessels – the law
1. Choses in possession (tangible of the flag ; or
physical objects) b. as in states consisting of several
GENERAL RULE: governed by the law countries (e.g.United Kingdom) – the
of the place where the property is place of registry.
located at the time of transaction
determines the creation and the transfer 2. Choses in action (intangible
of interests (lex situs) movables)
a. Debts
 Rules governing different kinds of i. Voluntary transfer or assignment
transfers: of choses in action - there are 3
a. voluntary transfers of interests in theories as to the law which
chattels (other than assignment for should govern:
the benefit of creditors) – validity a) Law of the domicile of
and effect of conveyance as between the owner
the parties are determined by the b) Law of the place where
local law of the State which, with the assignment was
respect to the particular issue, has executed
the most significant relationship to c) Law of the place where
the parties. the debt is recoverable
b. acquisitions of title by operation of ii. Involuntary transfer of choses in
law (e.g. acquisition by prescription action
or adverse possession, validity and (e.g. garnishment) - governed by
priority of attachments, levies of the law of the state where
execution, statutory liens) – jurisdiction is effectively
governed by lex situs exercisable against the
garnishee.
 Rules governing goods in transitu: NOTE: Jurisdiction to which the
a. Seizure and arrest – Where the garnishee is amenable is the
owner’s creditor’s seize the goods in jurisdiction of the country
transit, the result is that the where the debt can be
transport is discontinued and a recovered, i.e., in any country in
temporary resting place is thereby which the debtor is present or
created. On the law of this place can be served effectively with
will depend on whether the seizure process.
was lawful or whether he has b. Negotiable instrument – governed
acquired a lien, pledge, privilege, or by the law of the place indicated
a similar right or what pertains to in the instrument or place of
that right. delivery.
b. Disposition of goods – questions c. Corporate shares – as against the
arising from transactions involving corporation and third persons, the
movables in transit may be resolved transfer or assignment are
by law of any place having governed by the law of the place
substantial connection with the of incorporation.
CIVIL LAW COMMITTEE

d. Goodwill - governed by the law of  when there is no fraud or

principal place of business. overreaching, and there is no
showing that the choice-of –forum
III. CONTRACTS clause would be unreasonable and
A. Extrinsic validity – governed by lex unjust, the clause must be given
loci celebrationis. effect.
B. Intrinsic validity – there are 3
possible laws that govern: 2. Contracts with Arbitration Clause
a. law of the place where the  In the Philippines, the provisions of
contract is made or lex loci the Civil Code on arbitration and the
contractus arbitration law RA 876 embodies a
b. law of the place of performance clear legislative policy in favor of
or lex loci solutionis settling controversies by a method
c. law intended by the parties or considered more expeditious, less
lex loci intentionis expensive and with greater chance in
some cases for substantial justice.
Philippine rule:  Many courts apply to arbitration
 The contracting parties may agreements the law of whatever
establish such stipulations, clauses, place the parties have designated as
terms, conditions as they may deem governing, thus sustaining their
convenient provided that they are agreement to arbitrate.
not contrary to law, morals, good
customs, public order, or public 3. Adhesion Contracts
policy (Article 1306 Civil Code)  Adhesion contracts are not entirely
NOTE: Hence, when the parties prohibited. The one who agrees to
stipulate that the contract be the contract is in reality free to
governed by the specific law, such reject it entirely; if he adheres, he
will be recognized (lex loci gives his consent.
intentionis) subject to the limitation  When there is no proof of
that it is not against the law, morals arbitrariness, abuse of power, or
and public policy of the forum. gross negligence, the contract or
 In the absence of an effective choice stipulation will be enforced. Such
of law, express or implied, the contract is valid if it is reasonable
contract will be governed, with and just under the circumstances,
respect to the particular issue and has been fairly and freely agreed
involved, by the law which has the upon.
closest and most substantial  When there is an oppressive use of
connection with the transaction and superior bargaining power, a
the parties Philippine court may be justified in
refusing to apply the contract or a
C. Capacity to enter into contracts – stipulation thereof on the ground
determined by the personal laws of the that there is no real arm’s-length
contracting parties (either nationality or transaction between the contracting
domiciliary) parties.
D. Choice of law issues in Conflicts 4. Special Contracts

Contract Cases a. Sale or Barter of goods –
1. Choice of Forum Clause governed by lex situs.
 parties may stipulate on the venue b. Simple loan granted by financial
of the suit in case of litigation institutions – law of the
concerning the contract. However, permanent place of business.
a case arising from a contract will be c. Loan granted by a private
litigated in the forum chosen by the individual or where subject
parties if the choice of forum clause matter of loan is personal – law
specifically identifies it as the only where the loan was obtained.
venue.

Ethics)
d. Pledge, Chattel mortgage, omission of the carrier his

antichresis – lex situs. servants or agents done with
e. Transportation by Sea: intent to cause damage or
i. Philippine ports to Foreign recklessly and with knowledge
ports – law of the country of that damage would probably
destination result, provided that it is proved
ii. Foreign ports to Philippine that the servant or agent is
ports acting within the scope of the
 Civil Code – primary law employment.
 Code of Commerce  suits may be prosecuted in any
 Carriage of Goods by Sea of the following places at the
Act option of the plaintiff-passenger:
f. International Air 1. court of the domicile of the
Transportation – governed by carrier
the Warsaw Convention 2. court of the principal place
of business of the carrier
NOTES: 3. court where the carrier has a
 Convention applies to all place of business through
international carriage of person, which the contract was
baggage or goods performed by made
aircraft for hire. It does not 4. court of the place of
apply to carriage of mail and destination
postal packages.  the action will prescribe if it is
 liability of carrier for loss not brought within two years
destruction and deterioration of from the:
goods transported to the 1. date of arrival at the
Philippines from a foreign destination
country is governed primarily by 2. date on which the aircraft
the Civil Code and not by ought to have arrived
Warsaw Convention. 3. date on which the
 the limit of liability for baggage transportation stopped
lost is $1,000 and for death of NOTE: the method of counting
passenger is at $100,000 (Alitalia the period of limitation is
vs. IAC and Pablo 192SCRA9) determined by the law of the
 period of responsibility forum (lex fori)
includes the time during which  With respect to transportation
baggage or goods are in the by successive carriers:
charge of the carrier, whether in  each of the carrier who
an airport or in any place, accepts the passengers or
whatsoever. baggage shall be subject to
 It does not operate as an the rules set out in the
exclusive enumeration of convention and shall be
instances when a carrier shall be deemed as one of the
liable for breach of contract or contracting parties insofar as
as an absolute limit of the the contract deals with that
extent of liability nor does it part of the transportation
regulate or exclude liability for which is performed under his
other breaches of contract by supervision.
the carrier, misconduct of its  the passenger or
employees, or for some representative can take
particular or exceptional type of action only against the
damage. carrier who performed the
 limits of liability shall not transportation during which
apply if it is proved that the the accident or delay
damage resulted from an act or occurred, unless by express
agreement the first carrier
CIVIL LAW COMMITTEE

has assumed the ii. will is executed in a foreign

responsibility for the entire country
journey.  National law of the
 as regards baggage or goods, testator; or
the passenger or consignor  Law of Domicile; or
shall have a right of action  Lex loci celebrationis; or
against the first carrier, and  Philippine law
the passenger or consignee
shall have the right of action NOTE: Joint wills executed by Filipinos
against the last carrier. whether in the Philippines or abroad,
Furthermore, each may take even though authorized by the foreign
an action against the carrier country in which they may have been
who performed the executed, shall not be valid in the
transportation during which Philippines (Article 819 Civil Code).
the loss, damage or delay  This prohibition does not apply to
took place. These carriers joint wills executed by aliens, hence
shall be jointly and severally a joint will executed by aliens in a
liable to the passenger, or to state where such will is valid shall be
the consignor or consignee. considered as valid in the
 In cases where the convention Philippines. As to joint wills
does not apply, the Second executed by aliens in the
Restatement holds that the Philippines, although the law is
validity of the contract of silent, it has been suggested that in
carriage as well as the rights accordance with the express policy
created thereby are determined, of Article 819 of the Civil Code, said
in the absence of an effective will should not be probated if it
choice of law by the parties, by affects the heirs in the Philippines.
the local law of the state from
which the passenger departs or 2. Intrinsic validity of wills – governed
the goods are dispatched, unless by the national law of the person whose
with respect to the particular will is under consideration.
issue, some other State has a
more significant relationship to 3. Interpretation of wills – governed by
the contract and to the parties. the decedent’s national law
IV. WILLS AND ADMINISTRATION OF 4. Revocation of wills

ESTATES  If the revocation takes place in the
1. Law governing the Extrinsic validity Philippines, whether the testator is
of wills: domiciled in the Philippines or in
a) testator is a Filipino some other country, it is valid when
i. will is executed in the it is in accordance with the laws of
Philippines – Philippine law the Philippines
ii. will is executed in a foreign  If the revocation takes place outside
country the Philippines, by a testator who is
 Lex loci celebrationis – domiciled in the Philippines, it is
governed by the laws of valid when it is in accordance with
the country in which will is the laws of the Philippines
executed; or  Revocation done outside the
 Philippine law Philippines, by a testator who does
b) testator is an Alien not have his domicile in this
i. will is executed in the country, is valid when it is done
Philippines according to the:
 Philippine law; or a. law of the place where the will
 National law of the was made, or
testator

Ethics)
b. law of the place in which the determining the state which has the
testator had his domicile at the most significant relationship, the
time of revocation; following factors are to be taken
into account:
5. Probate of wills – being procedural in 1. Place where the injury occurred
character, the law of the forum governs 2. Place of conduct
procedural matters. 3. Domicile, residence, nationality,
place of incorporation and place
6. Administration of Estates – Philippine of business
law and procedure follow the main 4. Place where relationship
principle of territorialism. The axiom is between the parties is centered
that the law of the domicile governs
distribution but the law of the State Conditions for the Enforcement of Tort
appointing the administrator or executor Claims
governs administration. Hence, 1. The foreign tort is based on a civil
administration is governed by the law of action and not on a crime;
the state where the administration takes 2. The foreign tort is not contrary to
place or lex fori. the public policy of the forum; and
NOTE: The Administration extends 3. The judicial machinery of the forum
only to the assets of the decedent is adequate to satisfy the claim.
found within the state or country
where it was granted so that an Philippine rule on foreign torts:
administrator appointed in one state  There is no governing specific
has no power over the property in statutory law but courts may give
another state or country. To due course on the theory of vested
administer the property situated in a rights or most significant relationship
foreign state, the administrator must provided that there are minimum
be re-appointed, or a new one contacts and the defendant can be
named in that state. served with summons.
V. TORTS VI. CRIMES

 Lex loci delicti comissi or law of the GENERAL RULE: Lex loci delicti or the
place where the alleged tort was law of the place where the crime was
committed will govern. committed will govern since it
determines the specific law by which the
Concepts of Place of Wrong criminal is to be penalized and at the
1. Place of injury (common-law same time designates the state that has
concept) – looks to the place where jurisdiction to punish him.
the last event necessary to make an EXCEPTIONS:
actor liable for an alleged tort 1. crimes committed by state
occurs. officials, diplomatic
2. Place of conduct – view the situs of representatives and officials of
torts as the place where the tortuous recognized international
act was committed. organizations.
NOTE: This is based on the
Obligation theory theory of state immunity from
 The tortuous act gives rise to an suits
obligation, which is transitory and 2. crimes committed on board a
follows the person committing the foreign vessel even if within the
tortuous act and may be enforced territorial waters of the coastal
wherever he may be found. state, as long as the effect of
such crime does not affect the
Theory of Most Significant Relationship peace and order of the coastal
 An action for tort may be filed in the state
country where it has the most 3. Crimes which, although
significant relationship. In committed by Philippine
CIVIL LAW COMMITTEE

nationals abroad are punishable 1. Its resident agent;

under the local law pursuant to 2. In the absence thereof, process
the protective principle of will be served on the
criminal jurisdiction (i.e. Article government official designated
2 of the Philippine Revised Penal by law or any of its officers or
Code) agent within the Philippines; and
3. on any officer or agent of said
VII. BUSINESS ASSOCIATIONS corporation in the Philippines
1. Corporation/Partnership 4. serving summons through
Personal law diplomatic channels
GENERAL RULE: Personal law is the law
of the state where it was incorporated or Right of a Foreign Corporation to bring
formed. suit
EXCEPTIONS: GENERAL RULE: No foreign
a. Constitutional and Statutory Corporation transacting business in the
Restrictions (Art. XII) Philippines without a license, or its
b. Control test during war – courts may successors or assigns, shall be permitted
pierce the veil of corporate identity to maintain or intervene in any action,
and look into the nationality of suit or proceeding in any court or
stockholders to determine administrative agency of the Philippines
citizenship of the corporation but such corporation may be sued or
proceeded against before Philippine
Domicile or residence of foreign courts or administrative tribunals on any
corporations valid cause of action recognized under
 when not fixed by the law creating the Philippine laws (Section 133
them, it shall be understood to be Corporation Code). Hence, acquisition
the place where their legal by a foreign Corporation of a license to
representation is or where they transact business in the Philippines is an
exercise their principal functions. essential prerequisite for the filing of
NOTE: A foreign corporation granted suits before courts.
license to operate in the Philippines EXCEPTIONS:
acquires domicile here. 1. Isolated transactions
2. Action to protect trademark,
Jurisdiction over Foreign Corporations trade name, goodwill, patent or for
 with the consent of the state a unfair competition
foreign corporation will be 3. Agreements fully transacted
recognized and will be allowed to outside the Philippines
transact business in any state which 4. Petition filed is merely a
gives it consent. This consent corollary defense in a suit against it
doctrine is established in section
125, 126, 127, and 128 of the Effect of Failure to Secure a license to
Corporation Code of the Philippines Transact Business
NOTE: all foreign corporations lawfully  The foreign corporation which does
doing business here in the Philippines business in the Philippines without a
shall be bound by all laws rules and license has no right to sue in the
regulations applicable to domestic Philippines, but can still be sued.
corporations except provisions for the Although the contracts entered into
creation, formation, organization or may be valid as between the parties,
dissolution of corporations or those it may not be enforced in the
which fix the relations the relations, Philippine courts.
liabilities, responsibilities or duties of
stockholders, members or officers of the 2. Trusts
corporation to each other.  When the trust contains an express
NOTE: service of summons upon foreign choice of law provision, that law
corporations doing business in the shall be applied.
Philippines may be made on:

Ethics)
 In the absence of express provision, 5. Judgment must be for a fixed sum of

the courts will deem controlling the money;
law that will sustain the validity of 6. Foreign judgment must not be
the trust. contrary to the public policy or good
morals of the country where it is to
FOREIGN JUDGMENTS be enforced; and
Foreign judgment 7. Judgment must not have been
 Decisions rendered outside the obtained by fraud, collusion, mistake
forum and encompasses judgments, of fact or law.
decrees and orders of courts of
foreign countries. Philippine rule:
 The effect of a judgment or final
Recognition of foreign judgment order of a tribunal of a foreign
 Passive act of giving effect to a country, having jurisdiction to
judgment of another forum without render the judgment or final order is
necessarily filing an action in the as follows:
forum giving effect to the judgment. (a) In case of a judgment or final
order upon a specific thing, the
Enforcement of foreign judgment judgment or final order is
 A foreign judgment is enforced conclusive upon the title to the
when, in addition to being thing; and
recognized, a party is given (b) In case of a judgment or final
affirmative relief to which the order against a person, the
judgment entitles him and it judgment or final order is
necessarily requires the filing of an presumptive evidence of a right
action. as between the parties and their
successors in interest by a
Requisites for Recognition or subsequent title.
Enforcement:
1. The foreign judgment was rendered In either case, the judgment or final
by a judicial or quasi-judicial order may be repelled by evidence
tribunal which had jurisdiction over of a want of jurisdiction, want of
the parties and the case; notice to the party, collusion, fraud,
2. Judgment must be valid under the or clear mistake of law or fact (Rule
laws of the court that rendered it; 39, Sec. 48 of the 1997 Rules of Civil
3. Judgment must be final and Procedure).
executory to constitute res judicata
in another action;
4. State where the foreign judgment
was obtained allows recognition or
enforcement of Philippine
judgments;
CIVIL LAW COMMITTEE


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266 2005 CENTRALIZED BAR OPERATIONS

PRIVATE INTERNATIONAL LAW

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

5. Treatises, commentaries and studies Revised Rules of Court (defendant

II. JURISDICTION OVER PROPERTY III. JURISDICTION OVER THE SUBJECT

CIVIL LAW COMMITTEE

reason given for refusal to assume an important public policy of the

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

B. Modern or Multi-aspect method e. advancement of forums

CIVIL LAW COMMITTEE

whenever the content of the NOTE: If issue is substantive, apply

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

PROOF OF FOREIGN LAW A. Nationality Law Theory

CIVIL LAW COMMITTEE

 A person may become stateless by a new place and intention to

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

CHOICE OF LAW PROBLEMS NOTE: These exceptions put into

CIVIL LAW COMMITTEE

Rules on Extrinsic Validity of certain Effects of Marriage

2. Intrinsic validity - controlled by the Doctrine of Immutability of Matrimonial

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

when the law of the original NOTE: However, in the case of

CIVIL LAW COMMITTEE

maintains such residence until II. PROPERTY

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

4. Under a policy centered approach, transaction which will uphold its

D. SPECIAL TYPES OF MOVABLE  Rules governing Means of Transport:

CIVIL LAW COMMITTEE

d. Goodwill - governed by the law of  when there is no fraud or

D. Choice of law issues in Conflicts 4. Special Contracts

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

d. Pledge, Chattel mortgage, omission of the carrier his

CIVIL LAW COMMITTEE

has assumed the ii. will is executed in a foreign

IV. WILLS AND ADMINISTRATION OF 4. Revocation of wills

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

V. TORTS VI. CRIMES

CIVIL LAW COMMITTEE

nationals abroad are punishable 1. Its resident agent;

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

 In the absence of express provision, 5. Judgment must be for a fixed sum of

CIVIL LAW COMMITTEE

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