Private International Law Finals Study Guide
Traditional Approach
“simplicity, convenience, and
uniformity”
Vested Rights Theory
each other. The act complained of
right theorists that it is not the
sustained in another state,
were received.
Melicor (D2019)
Concept Criticism Cases
Prof. Joseph Beale 
 Main Weakness: failure to remove Gray vs. Gray
An act done in a foreign conflict case with reference to Maine Law barred spouses from
jurisdiction gives rise to the considerations of policy and maintaining an action against
essence of a right if the laws of fairness.
the state provide so. The rights did not give rise to a cause of
vest in the plaintiff and he carriesDr. Salonga’s major defects: action.
it with him to be enforced in any (1) When it is stated by vested
forum he chooses to bring suit.
Alabama vs. Carroll
foreign law but the rights Mississippi law barred recovery
last act necessary to give rise to acquired under it which are against employer due to
the cause of action enforced by the courts of negligence of a “fellow servant.”
another country, there is at - there can be no recovery in one
once involved a self-delusion state for injuries to the person
of reasoning
(2) Not all rights acquired under unless the infliction of the
foreign-law are protected injuries is actionable under the
elsewhere, not is their law of the State in which they
protection always desirable
(3) the protection of rights and
other interests is not the only
consideration to be taken into
account
(4) the law protects not only
vested “rights” constituted
abroad, but often also foreign
legal relationships, capacities
or powers, out of which rights,
or the extinction of duties and
charges or the invalidity of
acts may arise.
(5) It is difficult and impracticable
to apply the theory where the
material aspect of a
transaction or event touch two
or more states equally.
Private International Law Finals Study Guide Melicor (D2019)

Traditional Approach Concept Criticism Cases

“simplicity, convenience, and
uniformity”

Local Law Theory Prof. Walter Wheeler Cook

It lends to the narrow minded who
- proposed to unearth rules by may be inclined to depreciate the
looking at the cases and other practice and equitable
concrete phenomena, including consideration that should control
behaviour of judges
in the adjudication of conflict in
cases in favor of an exaggerated
He observed that:
local policy on the ground that
(1) the power of the state to they and the sovereign they
regulate within its territory has represent can do as they please
no limitation except such as
may be imposed by its own
positive law

(2) in a conflict of laws problems

the court does not enforce a
foreign right but a right
created by its own law by
treating the case as a purely
domestic case that does not
involve a foreign element.

Caver’s Principle of Preference choice of law should be determined by considerations of justice and social expediency and should not be
(Prof. David Cavers) the result of the mechanical application of a rule or principle of selection

If a court is faced with a question whether to reject, as inapplicable, the law of the forum, and to admit in
evidence, as determinative of an issue in a case before it, a rule of law of foreign jurisdiction it should:

(1) scrutinize the event or transaction giving rise to the issue before it

(2) compare carefully the proffered rule of law and the result which its application might work in the case
at bar with the rule of the forum (or other competing jurisdiction and its effect therein; and

(3) appraise these results from the standpoint of justice between the litigants or of those broader
considerations of social policy which conflicting laws may evoke.
Private International Law Finals Study Guide Melicor (D2019)

Modern Approaches Concept Criticism Cases

Place of the Most Prof. William Reese

Prof. Ehrenzweig’s criticism: this Auten vs. Auten

Significant Relationship adopted an approach which identified
a plurality of factors that must be
considered in the light of choice-of-law
principles. This is referred to as the
“ m o s t s i g n i fi c a n t r e l a t i o n s h i p ”
approach.
approach is one which can be
used to support virtually any Haag vs. Barnes
result and is thus bound to
hamper the sound development
of the common law by saving the
court the difficult but necessary
effort of articulating the true
motivations which are the very
elements of growing rules.

Prof. Brainerd Currie attacked the

Auten Decision for its failure to
provide a standard to determine
which of the contacts were
significant and evaluate the
relative importance of a group of
contacts

Interest Analysis Prof. Curie advocated the application Prof. Ehrenzweig’s criticism: Babock vs. Jackson
of the interest analysis approach which conflicts cases were ordinarily N.Y.’s policy of requiring a
urged the resolution of choice-of-law concerned with private and not tortfeasor to compensate his
problems by looking at the policy governmental interest.
guest for injuries caused by his
behind the laws of the involves states negligence cannot be doubted.
and interest each state had in applying Prof. William Reese: viewed this
its own law. 
 method as unworkable because

 “it will require the court to decide
Under this approach, factual contacts each case on an ad hoc basis,
alone did not determine the outcome of since it still has to ascertain the
a case unless they reflected a state purpose of each potentially
policy which would be advanced by applicable local law rule to
application of the substantive state law.
determine which to apply.”

Hence there is true conflict if both

states, after analysis of policies, had a
real interest in having their law applied.
Private International Law Finals Study Guide Melicor (D2019)

Modern Approaches Concept Criticism Cases

Comparative Impairment offshoot of interest analysis approach;

developed by Prof. William Baxter. It
called for the subordination of the state
objective which would be least
impaired. The courts were asked to
weigh conflicting interests and apply
the law of the state whose interest
would be more impaired if its law were
not followed.

Functional Analysis Prof. Trautman and Arthur Von Mehren Milliken vs. Pratt
of Harvard developed the functional Von Mehren and Trautman point
analysis approach after determining the
“concerned jurisdiction” or interested out that the time the decision was
state.
made, the restrictive policy on the
- Looks into the general policies of the
state beyond those reflected in its right of the married woman was
substantive law and to policies and on the wane in Massachusets and
values “relating to effective and in other states
harmonious intercourse between
states

- next step is for the court to consider

the relative strength of the state
policy — called “policy-weighing”

-
Private International Law Finals Study Guide Melicor (D2019)

Choice of Law in Family Relations Choice of Law in Family Relations

MARRIAGE Divorce Hague Convention

between foreign divorce will be recognized in all
Extrinsic Validity lex loci celebrationis foreigners contracting stats if, at the date of the institution
of the proceedings:
Intrinsic Validity personal law (lex nationalii or lex domicilii) (a) the respondent or petitioner had his habitual
residence there, or
EFFECTS OF MARRIAGE
(b) both spouses are nationals of that state
Personal National law of the spouses; if they have (c) if only the petitioner was a national, he
Relations different nationalities, that of the husband should have his habitual residence there
Between prevails Divorce Not valid.
Spouses obtained by 2
Property Hague Convention
Filipinos
Relations of (a) internal law designated by the spouses Divorce Divorce validly obtained abroad by the alien
Spouses before the marriage, if none,
between a capacitating him or her to remarry shall be
(b) the internal law of the state in which both Filipino and recognized and the Filipino spouse shall
spouses fix their first habitual residence
Foreigner likewise have the capacity to remarry under the
Philippines law.
Philippine Law

(a) when one spouse is a PH citizen, Filipino Annulment and Traditional Approach

law will apply

Declaration of lex loci celebrationis

(b) even if the one of the spouses change Nullity

nationality subsequent to the marriage, the Policy-centered Approach

property regime will remain unchanged who has law of state or marital domicile (most significant
jurisdiction?
interest in status of spouses)

DIVORCE AND SEPARATION either: (i) state of

marital domicile
Divorce Hague Convention

or (ii) state where

Jurisdiction the granting of divorce or separation must
marriage was
comply with the national law of the spouses
celebrated
Most countries and law of the place where the application for
use domicile of divorce is made. PARENTAL RELATIONS
one of the
parties or Personal law of Under the Philippine law, the personal law of
matrimonial Child legitimate child follows that of the father;
domicile as illegitimate child follows that of the mother.
basis
Private International Law Finals Study Guide Melicor (D2019)

Choice of Law in Family Relations Choice of law in Property

Legitimacy of Personal law of parents (father usually takes CONTROLLING LAW

Child precedence if diff. personal law)
PH law refers to lex situs for both movable and immovable property within
the PH. The only time a PH court has to settle a problem classifying
Restatment
property is when it is located in a foreign country which distinguishes
Child will usually be held legitimate if this would between real and personal property.
be his status under the local law of state where:
Immovable lex situs
(a) the parent was domiciled when the child’s
status of legitimacy is claimed to have been Movable (i) owner’s domicile, or

created, or
(ii) lex situs, or

(b) the child was domiciled when the parent (iii) lex loci actus (law of the place where
acknowledged the child as his own transaction was completed)
Parental Personal law of the father controls the rights TRANSFER OR ACQUISITION
Authority and duties of parents and children

• reference to personal law of the father could Capacity to lex situs

grant parental authority jointly to father and transfer of
mother as in the PH
acquire
• reference to PH law also grants parental Extrinsic validity lex situs
authority to mother if child is illegitimate of conveyances
ADOPTION Intrinsic validity lex situs, unless the lex intentions is clearly
of conveyances established
Process Governed by lex domicilii of the parties (but
what if different domiciles?)
Effects of lex situs
(i) child’s personal law (since main object is conveyance
child’s welfare)

Exceptions to (i) where the transaction does not affect transfer or

(ii) however if child’s personal law is weak title to or ownership of the land (proper law is lex
lex situs rule
basis for jurisdiction (i.e. constructive intentionis or lex voluntatis)

domicile), has led countries to consider the under a policy

adopter’s personal law as having
reasonable basis for exercising jurisdiction
exclusively or concurrently with the child’s
domicile or nationality
(ii) in contracts were real property is offered by way of
centered approach,
a security for a performance of an obligation such
as loan, the principal contract is the loan while the
the forum court is not
bound to look to the mortgage is only the accessory. The mortgage is
law of the situs when governed by the rule of lex situs, but the loan is
the situs of the governed by the rules of ordinary contracts

movable property at (iii) testate or Intestate succession and capacity to

the time of transfer succeed are governed by the national law of the
was insignificant or decedent.
accidental
Private International Law Finals Study Guide Melicor (D2019)

Choice of law in Property Choice of Law in Contracts

SITUS OF CERTAIN PROPERTIES Extrinsic lex loci celebrations

Validity
Situs of location of the property (as long as property
personal found in the PH and within the reach of our Intrinsic Validity (i) lex loci contracts (where last act is done to
property for tax courts) bring the binding agreement into being)

purposes (ii) lex loci solutionis (law of place of

performance)

Situs of money (iii) law intended by the parties (lex intentionis)

Situs of debt unsettled in our jurisdiction Capacity to Personal law of the parties
Enter into
Situs of situs of corporate shares of stock is different Contracts
Corporation from the situs of the income derived from such
shares of stock shares
VALIDITY OF CHOICE OF LAW

situs is the domicile of the corporation

Choice of Plaintiff has the option to choose the venue
shares of stock of domestic corporation — has Forum when suit is in personam.

a PH situs • However parties have to specify it as the

ONLY venue.

PATENTS AND TRADEMARKS • It would be unenforceable if enforcement

would contravene a strong public policy of
tradename property right that may be asserted against the the forum

whole world. acknowledges no territorial • It is incumbent upon the party seeking to

boundaries of municipalities or states or escape the contract to show that trial in the
nations, but extends to every market where the contractual forum will be so gravely difficult
trader’s goods have become known and and inconvenient that he will for all practical
identified by the use of the mark purposes be deprived of his day in court

Arbitration Arbitration clause is valid, unless the greement

Clause is such as absolutely to close the doors of the
courts against the parties, which agreement
would be void. (PH jurisprudence)

Adhesion Contracts of accession are not prohibited as long as

Contracts it does not offend policy of law. subject to strict
scrutiny

• must not be one-sided; must be reasonable; must show

that parties dealt with each other on relatively equal
footing (check facts and circumstances)
Private International Law Finals Study Guide Melicor (D2019)

Choice of Law in Contracts Choice of Law in Contracts

SPECIAL CONTRACTS In the absence Restatement II says in the absence of an

of effective effective choice of law by the parties,
Sale or barter Law of the place where property is located (lex choice of law consideration will be given to the following
of goods situs) factors among others, in determining that with
which the contract has its most significant
simple loan Law of permanent place of business
relationship:

granted by
(a) place of contracting

financial
(b) place of negotiating the contract

institutions
(c) place of performance

loan granted by law of the place where loan is obtained (d) situs of the subject matter of the contract

private (e) domicile evidence, nationality, place of

individual OR incorporation, and place of business of the
subject matter parties

of the loan is (f) place under whose local law the contract
personal will be most effective
property
Limitations to (i) cannot select law which has no connection
pledge, chattel extrinsic and intrinsic validity are governed by Choice of Law at all with the transaction or the parties

mortgage, and lex situs (ii) if law selected should change and the
antichresis change is so revolutionary it was never
contemplated by the parties. In such case,
COGSA and Warsaw the law to govern is the law originally
intended.

COGSA suppletory to the provisions of the Civil Code (iii) law selected should not be interpreted to
applicability oust the jurisdiction which the court has
International Air where to bring action for damages:
already acquired over the parties and the
Transportation (a) in the court of the domicile of the carrier
subject matter

(b) in the court in his principal place of (iv) law selected cannot resulting to contracting
business
away applicable provisions of law especially
(c) court where he has a place for business peremptory provisions heavily impressed
through which the contract has been made
with public interest

(d) court at the place of destination. (v) use of cognovit clauses (also called
confession of judgment — valid in US if
parties were of equal bargaining power)
Private International Law Finals Study Guide Melicor (D2019)

Choice of Law Wills, Succession, and Administration of Estate Choice of Law Wills, Succession, and Administration of Estate

Extrinsic Under PH Law, for PH nationals

Probate of Wills Lex forii governs the procedural matter, but the
Validity of Wills (i) lex nationalii
court will look to the law of the foreign state as
(ii) lex loci celebrationis
to whether the extrinsic requirements were
complied with.

because for aliens:

(i) lex nationalii

common law rule:

(ii) lex domicilii

considers a will admitted to probate as valid at
(iii) lex loci celebrationis 
 the last domicile of the testator as valid
everywhere with respect to movable property,
JOINT WILLS by Filipinos are never valid; those but the probate of the will in his last domicile
executed by aliens in PH will not be valid if it does not affect the conveyance of the land
affects heirs in PH
 which is subject to lex situs


HOLOGRAPHIC WILLS — PH law applies to Administration Law of the forum

of Estate - principal administrator

wills made by aliens abroad or in the PH

- ancillary administrator
Intrinsic Validity National law of the decedent (Art 16)
Trusts (i) express choice of law provision will govern,
Interpretation national law of the decedent (rules of if none, then

of Wills interpretation under national law) (ii) courts will deem controlling the law that will
sustain the validity fo the trust, whether that
Revocation Person not domiciled in PH; Revocation done be the state where the trust is being
outside PH
administered or the state where the
valid when done according to:
decedent was domiciled

(i) law of the place where will was made

(ii) law of the place where he had domicile at Testamentary trusts

the time of revocation

- depend for their extrinsic validity on the will
which created them

Person domiciled in PH; Revocation done - rules governing wills as to capacity and
outside PH:
extrinsic requirements apply

valid if done according to:

- since a trust involves property, the rule of lex
(i) law of the domicile
situs determines the validity of the trust
(ii) law of the place of revocation (lex loci actus) created by the last will and testament
Private International Law Finals Study Guide Melicor (D2019)

Choice of Law in Torts and Crimes Choice of Law in Torts and Crimes

TORTS Alien Tort Act Grants US district courts over any civil action by an
alien for a tort committed in violation of the law of
Tort Traditional
nations or a treaty of the US.
(i) lex loci delicti commissi — law of the place
Philippine Rule Theory of Vested Rights — right of action is
where the alleged tort was committed
on Foreign Torts property right and may be enforced anywhere;
except when law provides a specific remedy for
Modern Approach
enforcement (i.e. Time Inc case where specific
(i) Most Significant Relationship — looks at the venue provided)
state’s contacts with the occurrence and
the parties
CRIMES
(ii) Interest Analysis

Law applicable lex loci delicti (territorial principle) — determines the

(i) first, determine if there is a true or false
specific law by which the criminal is to be penalized
conflict
and at the same time designates the state that has
(ii) apply law of the state with greater the jurisdiction to punish him
interest in having its law upheld

(iii) Caver’s Principle’s of Preference — rules Exceptions (i) crimes committed by state officials, diplomatic
that sanction some kind of conduct representatives and officials of recognized
engaged in by defendant in one state and international organisations (has to be done in
extends the benefit of this higher standard official capacity)

(ii) crimes committed on board a foreign vessel

of conduct and financial protection to the
even if it is within the territorial waters of the
plaintiff even if the state of injury does not coastal state (PH law follows English rule,
create analogous liabilities UNCLOS follows French Rule)

(iii) Art 2 of the RPC:

Foreign Tort May be exacted in any proper tribunal which

(i) offense while on a PH ship or airship

Claims may obtain jurisdiction over defendant’s (ii) should forge or counterfeit any coiner
person, the right to sue not being confined to currency note of the PH or obligations and
the place where the cause of action arises; securities issued by the Government of the
action for tort may be brought wherever the PH Islands

tortfeasor is subject to suit

(iii) should be liable for acts connected with the
introduction into these islands of the
see: conditions for enforceability of tort claim obligations and securities mentioned in the
preceding number

Product Jurisprudence requires minimum contacts in (iv) while being public officers or employees,
Liability order to create substantial connection with should commit an offense in the exercise of
forum to exercise jurisdiction — there must be their functions

action of defendant purposely directed (v) should commit any of the crimes against
toward the forum state national security and the law of nations
Private International Law Finals Study Guide Melicor (D2019)

Choice of Law Affecting Corporations and Other Juridical Choice of Law Affecting Corporations and Other Juridical
Entities Entities

Corporation SPECIAL CORPORATIONS

Personal Law law of the state where it is incorporated; thus, it Religious citizenship of controlling members determines
possesses only the rights and powers conferred Societies personal law
upon it in its charter Corporation Sole incorporated office (place of incorporation)
Exceptions to (i) Constitutional and Statutory Restrictions

transactional Derivative Jurisdiction is acquired if subsidiary is

the Rule of (ii) Control Test during war
completely dominated and controlled by parent
Incorporation corporation, such that it has not maintained a
Test separate existence.
Domicile or When the law creating or recognising them, or PARTNERSHIP
Residence of any other provision does not fix the domicile or
Foreign juridical persons, the same shall be understood Capacity to personal law (where it is formed)
Corporation to be the place where their legal representation contract
is established or where they exercise their
entitlement and where it is formed, or where it conducts its main
principal functions.
limitations business (domicile)
Jurisdiction over May be sued:

whether it has personal law

foreign those doing business in PH, with or without license

been constituted
corporations
or terminated
May sue:

(i) those doing business with a license

liability of personal law
(ii) those suing on isolated transactions
partners
(iii) those suing on contracts wholly executed and
consummated outside the PH
Personal service does not bind partnership property outside state in
(iv) those suing on action to protect trademark, upon partner general, except if firm is one by individual, his
trade name, goodwill, patent, or for unfair presence in the state might be a vlicd basis for a
competition
personal judgment that could be enforced on
(v) petition filed is merely a corollary defense in a property elsewhere
suit against it

(vi) corporation by estoppel (one who has dealt

with a corporation of foreign origin as a
corporate entity is estopped to deny its
corporate existence and capacity) — Merilly
Lynch Futures vs. CA

Private International Law Finals Study Guide Melicor (D2019)

REQUISITES FOR RECOGNITION OR ENFORCEMENT

1. The foreign judgment was rendered by a judicial or a quasi-

judicial tribunal which had jurisdiction over the parties and the
case in the proper judicial proceedings
2. The judgment must be valid under the laws of the court that
rendered it
3. The judgment must be final and executory to constitute res
judicata in another action
4. The state where the foreign judgment was obtained allows
recognition and enforcement of foreign judgment
5. The judgment must be for a fixed sum of money
6. The foreign judgment must not be contrary to the public policy or
good morals of the country where it is to be enforced
7. The judgment must not have been obtained by fraud, collusion,
mistake of fact or mistake of law