REVIEWER IN CONFLICT OF LAWS

Lance Bryan Tan

2013-0226
Arellano University School of Law

DEFINITION OF TERMS

Conflict of Laws
- or Private Internatonal Law
- that part of the municipal law of a state which directs its
courts and administratve agencies, when confronted with a
legal problem involving a foreign element, whether or not
they should apply foreign law or foreign laws.

Public Internatonal Law

- the body of legal rules which apply between sovereign
states and such other enttes as have been granted
internatonal personalites.

Elements:
a) Conflict of law is part of the municipal law of the state
b) There is a directve to courts and administratve agencies
c) There is a legal problem involving a foreign element
d) There is either an applicaton or non-applicaton of a foreign law

Conflict problem
 Comes onto being through variance in the municipal laws of the countries
involved. Indeed, the sad truth is that there is a multplicity of governments with
separate legal systems

G.C. Cheshire three-fold functon

a) The determinaton of which country has jurisdicton
b) The applicability to a partcular case of either the local or the foreign law
c) The determinaton of the force, validity and effectveness of a foreign judgement

How conflict of laws are observed?

 States may observe conflict of laws by complying faithfully with its “conflict rules”
The rule must be applied to the end that justce will be served. State must also
try to harmonize their own rules of equity with the legislaton and jurisprudence
in other lands
 Private individuals may in their own way abide by our conflict rules by observing
them and by complying with juridical decisions on the subject

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DISTINCTIONS BETWEEN CONFLICT OF LAWS AND PUBLIC INTERNATIONAL
LAW

CONFLICT OF LAW BASIS LAW OF NATIONS

1.) MUNICIPAL Nature INTERNATIONAL
2.) PRIVATE Persons Involved SOVEREIGN STATES
INDIVIDUALS & ENTITIES POSSESSED
OF AN INTERNATIONAL
PERSONALITY

PRIVATE Transactons GENERALLY

AFFECTING PUBLIC
INTEREST; THOSE WHICH
IN GENERAL ARE OF
INTEREST TO SOVEREIGN
STATES

RESORT TO Remedies/ MAY BE FORCIBLE

MUNICIPAL Sanctons OR PEACEFUL
TRIBUNALS
Forcible:
1. severance of
diplomatc
relatons,
2. retorsions,

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 3. reprisals,
4. embargo,
5. boycott,
6. non-
intercourse,
7. pacific
blockades,
8. collectve
measures under
the UN Charter,
and
9. WAR

Peaceful:
1.diplomatc
negotaton,
2.tender & exercise
of good offices,
3.mediation,
4.inquiry and
conciliaton,
5.arbitraton,
6.judicial settlement
by the ICJ,
7.reference to
regional agencies,
8.reference to the
UN

Dualist School of Thought

 Two subjects are world apart, atleast insofar as the above-mentoned distncton
are concerned

Monist School of Thought

 In essence both of them manifest a single concept of law, ultmately addressed to
the same individual

Sources of Conflict

Direct
Constitutions
Codifications
Special Laws
International Customs
Treatises and
International
Conventions
Judicial Decisions

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Theory of Comity
- we apply the foreign law because of its CONVENIENCE, and
finally, because WE WANT TO GIVE PROTECTION to our citzens,
residents and transients in our land.

Theory of Vested Rights

- we SEEK TO ENFORCE not the foreign law itself but THE RIGHTS
THAT HAVE BEEN VESTED under such foreign laws.

Theory of Local Law

- We apply foreign law not because it is foreign, but BECAUSE
OUR OWN LAWS, by applying similar rules, REQUIRE US TO DO
S O;

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Theory of Harmony of Laws
- In many cases we have to apply the foreign laws so that
WHEREVER A CASE IS DECIDED, i.e., irrespectve of the forum, THE
SOLUTION SHOULD BE APPROXIMATELY THE SAME
- thus, identcal or similar solutons anywhere and
everywhere. When the goal is realized, there will be a
harmony of laws.

Theory of Justce
- the PURPOSE OF ALL LAWS, including Conflict of Laws, is the
DISPENSING OF JUSTICE;
- if this can be attained in many cases by applying the
proper foreign law, we must do so.

Comity
- the RECOGNITION that one naton allows within its territory, to
the LEGISLATIVE, EXECUTIVE OR JUDICIAL ACTS OF ANOTHER NATION,
having due regard both to INTERNATIONAL DUTY and CONVENIENCE,
and the RIGHTS OF ITS OWN CITIZENS, or other persons who are
under the protecton of its laws.

Characterizaton/ DOCTRINE OF QUALIFICATION

- the process of determining under what category a certain
set of facts or rules fall
- the process of deciding whether or not the facts relate to
the kind of question specified in a conflicts rule.
- Also called the doctrine of qualification
- The ultmate purpose is to enable the forum to SELECT THE
PROPER LAW.

Status
- the place of an individual in society, and
- consists of personal qualites and relatonships, more or less
permanent, with which the state and the community are
concerned.
- Among the things which make up the status of a person are
the ff.: his being married or unmarried, widowed or
divorced, his being a legitmate or an illegitimate child of his
parents, his being a minor or his having reached the age of
majority; his capacity to enter into various transactons.

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Capacity
- merely a part of status, and the sum total of his rights and
obligations.
- The Civil Code distnguishes 2 kinds of capacity: CAPACITY TO ACT
and JURIDICAL CAPACITY.
- Capacity to act or ACTIVE CAPACITY is the power to do acts
with legal effects
- Juridical capacity or PASSIVE CAPACITY is the fitness to be the
subject of legal relatons

Personal Law
- The law that attaches to an individual, wherever he may go-
- a law that generally governs his status, his capacity, his
family relatons, and the consequences of his actuatons.
- This may be the NATIONAL LAW of his DOMICILIARY LAW or
the LAW OF THE SITUS depending upon the theory applied
and enforced in the forum.

Natonality Theory
- the theory by virtue of which the status and capacity of an
individual are generally governed by the law of his
natonality.

Naturalizaton
- a judicial process of acquiring citzenship where formalites of
the law have to be complied with, including a JUDICIAL HEARING
and APPROVAL OF THE PETITION
- it may also mean the acquisiton of another citzenship by
such acts as marriage to a citzen, and the exercise of the
opton to elect a partcular citzenship.

Domiciliary Theory
- the theory that in general, the status, condition, rights and
obligations, and capacity (SCROC) of a person should be
governed by the law of his domicile.

Situs or Eclectc Theory

- in general, the capacity, legal condition, or status (C.LC.S) of an
individual should be governed by the law of the place where
an important element of the problem occurs or situated.
- If the partcipation of the individual concerned is actve as
when he does the act voluntarily, the governing law is the

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 law of the actual situs of the place of the transacton or
event.
- If the partcipation is passive, as when the effects of the act
are set forth in the law, the governing law is the law of the
legal situs or the legal situs of an individual is supposed to be
his domicile.

RENVOI
- literally means REFERRING BACK;
- the problem arises when there is doubt as to whether a
reference to a foreign law is a reference to the internal law of
said foreign law, or is a reference to the whole of the foreign
law, including its conflicts rules.
- renvoi (from the French, meaning "send back" or "to
return unopened") is a subset of the choice of law rules and
it may be applied whenever a forum court is directed to
consider the law of another state.

DOUBLE RENVOI
- occurs when the local court, in adoptng the foreign court
theory, discovers that the foreign court accepts the renvoi
- Double Renvoi or the Foreign Courts Doctrine which will
also ensure parity of result so long as no other relevant law
is using it. In this scenario, the forum court considers that it
is sitng as the foreign court and will decide the matter as
the foreign court would.

Transmission
- the process of applying the law of a foreign state through
the law of a second foreign state.

Marriage as a contract
- ARTICLE 1 FAMILY CODE:
Marriage is a special contract of permanent union between a
man and a woman entered into in accordance with law for the
establishment of conjugal and family life. It is the foundation of
the family and an inviolable social insttuton whose nature,
consequences and incidents are governed by law and not
subject to stipulatons except that marriage settlements may
fix the property relatons during the marriage within the limits
provided by the Family Code.
- marriage as any other contract has two kinds of requisites:
the formal and the essental requisites.

Marriage as a Status
- carries with it implicatons in two fields:

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 1. the realm of personal rights and obligatons of the
spouses; and
2. the realm of property relatons.

Annulment
- the remedy to a voidable marriage, i.e., a valid marriage
untl annulled.

Absolute Divorce
- a mode of dissolving the marital tes granted for causes
subsequent to the marriage ceremony. There is no Divorce in
the Philippines.

Legal Separaton
- or divorce a mensa et thoro
- or separaton from bed and board
- or relatve divorce
- does not sever the marriage bonds
- Reconciliaton prevents a suit for legal separaton or
rescinds one already granted.
- Can be granted for causes subsequent to the celebraton of
the marriage
- The grounds are those given by the natonal law of the
partes concerned inasmuch as this is purely a question of
status, the validity of the marriage being presumed or
admitted.

Some Grounds for Legal Separaton:

Grounds for legal separation
a) Adultery
b) Concubinage
c) attempt by one spouse
against the life of the other
National law of the parties
a) if of the same or common
nationality- the common
national law governs
b) if of different nationalities-
the grounds given by BOTH
national laws should all be
considered proper grounds
NOTE: Residence requirement
if suit is brought in the
Philippines:

a) if cause
occurred in the Philippines-
NO RESIDENCE
REQUIREMENT
b) if cause

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 occurred outside the
Philippines- ONE YEAR
RESIDENCE is required in our
country

LEGAL SEPARATION DISTINGUISHED FROM ANNULMENT OF MARRIAGE

LEGAL SEPARATION ANNULMENT

Can be granted from causes
arising after the celebraton of
marriage
Grounds are given by the
national partes concerned
Presumes the validity of
marriage
Can be granted for causes
existng prior to or at the tme
the wedding takes place
Grounds are given by the lex
loci celebratonis
Questons the very existence
of the status

GROUNDS FOR LEGAL SEPARATION:

1. repeated physical violence or grossly abusive conduct

directed against the pettoner, a common child, or a child of
the pettoner
2. physical violence or moral pressure to compel the
pettioner to change religious or politcal affiliation
3. attempt of respondent to corrupt or induce the pettioner, a
common child or a child of the pettioner , to engage in
prosttuton, or connivance in such corrupton or inducement
4. final judgment sentencing the respondent to imprisonment or
more than 6 years, even if pardoned
5. drug addicton or habitual alcoholism of the respondent
6. lesbianism or homosexuality of the respondent
7. contractng by the respondent of a subsequent bigamous
marriage, whether in the RP or abroad
8. sexual infidelity (adultery or concubinage) or perversion
9. attempt by the respondent against the life of the
pettioner
10. abandonment of pettoner by respondent w/o
justfiable cause for more than one year.

Notes:

Mere preponderance of evidence will suffice to prove the

existence of any of the grounds, although in no.4, previous

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 criminal convicton is essental in view of the necessity of a
“final judgment”.
Abandonment as used herein is synonymous to criminal
deserton, i.e., a husband’s or wife’s abandonment or willful
failure without just cause to provide for the care, protecton
or support of the spouse who is in ill health or necessitous
circumstances. This includes both the INTENTION to ABANDON
and the EXTERNAL ACT by which the intenton is carried into
effect.

Paternity (or maternity)

- the civil status of the father (or mother) with respect to
the child begotten by him (or her).

Filiaton
- the status of the child in relaton to the father or mother.

Parental Affecton
- the love of the parents for the child

Filial Affecton
- the love of the child for the parents

Legitmation
- a remedy or process by means of which those who in fact
were not born in wedlock, and should therefore be ordinarily
considered illegitmate children, are, by ficton and upon
compliance with certain requirements, regarded by the law
as legitimate, it being supposed that they were born when
their parents were already validly married.
- The requisites for legitimation are those prescribed
by the national law of the father.

The following consttute the internal requisites for the

legitmaton of an illegitmate child:

1) The child must be conceived and born outside wedlock of

parents who at the time of the concepton were disqualified
by any impediment to marry each other.
2) There must be subsequent valid marriage

When we menton the relatonship between the child and the

parents, we inferentally include also the following matters:

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 a) presumptions of legitmacy and illegitmacy
b) rights and obligatons of parents and children c)
parental authority
d) reciprocal support

Adoption
- the process of making a child, whether related or not to
the adopter, possess in general the rights accorded to a
legitmate child.

CONFLICTS RULES ON ADOPTION

1) Whether or not the status of adopton has been created

depends on the natonal law of the adopter.
2) If the adoption takes place in the Philippines, our country’s
procedural requisites must be complied with in accordance
with the theory of lex fori in procedural matter.
3) Adoption cannot be allowed without judicial approval.
4) The following are not allowed to adopt:

- The GUARDIAN WITH RESPECT TO THE WARD prior to the approval

of the final accounts rendered upon the terminaton of their
guardianship relaton;
- Any person who has been CONVICTED OF A CRIME
INVOLVING MORAL TURPITUDE;
- An ALIEN except:

a) a former Filipino citizen who seeks to adopt a relatve by

consanguinity
b) one who seeks to adopt the legitimate child of his/her
Filipino spouse; or
c) one who is married to a Filipino citizen and seeks to adopt
jointly with his/her spouse a relatve by consanguinity of
the latter.

Note:

An alien with whose government of the RP has no diplomatc

relatons may not be adopted.

Adoption of a foreigner does not grant said foreigner

Philippine citzenship.

Doctrine of Immutability of Status

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 - theory that the STATUS OF A CHILD- HIS LEGITIMACY- IS NOT
AFFECTED BY ANY SUBSEQUENT CHANGE IN THE NATIONALITY OF
THE PARENTS.
- However, the national law of the parents will be changed
should the parents effect a change of natonality: the
rights and obligatons of parents and child will now be
determined by the new national law.

Example: A Filipino illegitmate child who becomes a legitmated child

of his Filipino parents by virtue of recogniton by both parents and
their subsequent valid marriage, contnues to be a legitmate child
even if the parents should subsequently embrace another
natonality.

The parental and filial rights and obligatons will now be governed
the NEW natonality, but the child is considered stll a legitmated
child, despite any contrary rule under the new natonality.
Moreover, the new rights and obligatons will be effectve only from
the moment the new nationality is embraced, not before.

Guardianship
- there are generally 3* kinds of guardians
1. Guardians over the Person*- appointed generally by
the courts where the ward is domiciled. Their powers
are coextensive with the authority of the appointng
court. Hence, a guardian as such, is not permitted to
sue in other jurisdictons unless his guardianship is also
recognized in such foreign courts. However, he may
litigate in his own individual or private capacity.

2. Guardians over the Property* - appointed by the

court where the property of the ward may be found;
their powers are fixed by the appointng court, and
cannot have extraterritorial applicaton.

Should the ward have propertes in foreign states,

ancillary guardianship proceedings are imperatve.

3. General Guardians* (over both the person and the

property of the wards). Can generally be appointed only
by the court of the country where the ward is
domiciled and where the propertes are located.

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 Powers are coextensive with those of the court that
designated them.

4. Domiciliary Guardians (appointed by the courts of the

domicile of the wards)

5. Ancillary Guardians (those appointed elsewhere) Real

Property
- part of the country where it is located.
- Its immovability makes it logical that it shall be subject to the
laws of the states where it is found (lex situs/lex rei sitae)

Personal Property
- movable property
- governed by the law of the owner (MOBILIA SEQUUNTUR
PERSONAM)
- may be tangible or intangible
- TANGIBLES- Choses in possession
- INTANGIBLES- Choses in acton (such as shares of stock,
franchises, and copyrights)

REAL AND PERSONAL PROPERTIES

FACTUAL SITUATION POINT OF CONTACT

1) Real Lex rei sitae (Art. 16, NCC)
prop
erty
- extrinsic and intrinsic
validity of alienations,
usufruct, transfers,
lease, mortgages,
easement, capacity of
parties, police power,
interpretation of
eminent domain,
documents,
effects of - national law of the
taxation, ownership, decedent
co-ownership, - national law of the decedent
quieting of title, accession, - lex loci voluntats/ lex loci
registration and intentonis
prescription
- the principal contract (usu.
Exceptions:
a) successional rights b)

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 d) contracts where the real
property is given as
security
Tangible Personal Property a)
in general
EXCEPTIONS: SAME AS THOSE FOR
REAL PROPERTY
b) means of transportaton
- vessels
- other means
c) thing in transitu (these
things have a changing
status because they
move)
- loss, destructon,
deterioraton
- validity and effect of the
seizure of the goods
- dispositon of alienation of
the goods
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Loan) is governed by the
proper law of the contract
(lex loci voluntats/ lex loci
intentonis
note: the mortgage itself,
however, is governed by the lex
rei sitae. There is a possibility
that the principal contract is
valid but the mortgage is void; or
it may be the other way around.
If the principal contract is void,
the mortgage would also be
void (for lack of proper cause or
consideration0, although by
itself, the mortgage could have
been valid.
n) LEX REI SITAE
Exceptions: same as those for
real property except that in
example concerning the
mortgage the same must be
changed to a pledge of
personal property.
- law of the flag (or in some
cases of the place of
registry)
- law of the depot or
restng place
- law of the destnaton
- locus regit actum (where
seized) bec. Said place is
 their temporary situs
- lex loci voluntats/lex loci
Intangible personal property intentonis

a) recovery of debts or
involuntary
assignment of debts
(garnishment) a) where the debtor may be
b) voluntary assignment effectvely served with
of debts summons (usu. The
domicile)
b) lex loci voluntats/ lex loci
intentonis (proper law of
the contract)

other theories:
1) NATIONAL LAW OF THE
CREDITOR OR DEBTOR
2) DOMICILE OF THE
DEBTOR OR THE
c) taxaton of debts CREDITOR
d) administraton of 3) LEX LOCI CELEBRATIONIS
debts 4) LEX LOCI SOLUTIONIS

c) domicile of the creditor d)

lex situs of assets of the
debtor (for these assets
e) negotability or non- can be held liable for the
negotability of an payment of the debts)
instrument
f) validity of transfer, e) the right embodied in the
delivery or instrument
negotaton of the
instrument f) in general, situs of the
instrument at the tme of
g) effect on a transfer, delivery or
corporaton of the negotaton
sale corporate g) law of the place of
shares incorporation

h) effect between the

partes of the sale of h) lex loci voluntats/lex loci
corporate shares intentonis

i) taxaton on the

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 dividends of i) law of the place of
corporate shares incorporation

j) taxaton on the
income of the sale j) law of the place where
corporate shares the sale was
consummated
k) franchises

l) goodwill of a k) law of the place that

business and granted them
taxaton thereon l) law of the place where
the business is carried on
m)patents, copyrights,
trademarks, trade m)in the absence of a
names treaty, they are protected
only by the state that
granted them.

Note: foreigners may sue for

infringement of trademarks and
tradenames in the RP only if
Filipinos are granted reciprocal
concessions in the state of the
foreigners.

Chose
- a thing, an artcle of personal property
- a chattel personal, and is either IN ACTION OR IN
POSSESSION

Chose in Acton (Intangible Personal Property)

- a thing in acton
- the right of bringing an acton or
- right to recover a debt or money

Chose in acton means any of the following:

1) Right of proceeding in a court of law to procure payment of

sum of money, or right to recover a personal chattel or a
sum of money by action;
2) A personal right not reduced into possession, but
recoverable by a suit at law;

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 3) A right to personal things of which the owner has the
possession, but merely a right of action for their
possession;
4) Includes personal chattels which are not in
possession, and all property in action which depends
entirely on contracts express or implied;
5) A right to receive or recover a debt, demand, or damages
on a cause of action ex-contractu or for a tort or omission
of a duty.

Chose in Possession (Tangible Personal Property)

- Personal thing of which one has possession

Goodwill
- the PATRONAGE of any established trade or business
- the BENEFIT acquired by an establishment BEYOND the mere
value of the capital stocks, funds, or property employed
therein IN CONSEQUENCE OF THE GENERAL PUBLIC’S PATRONAGE
AND ENCOURAGEMENT which it receives from its customers.

Trademark
- the name or symbol of goods made or manufactured.

Trade name
- the name or symbol of a store or business place

Service Mark
- the name or symbol of services rendered.

Copyright
- the right of literary property as recognized and sanctoned by
positve law.

Will
- an act whereby a person is permitted, with the formalites
prescribed by law, to control to a certain degree the
dispositon of his estate, to take effect after his death.

Succession
- a mode of acquisition by virtue of which the property, rights
and obligatons, to the extent of the value of the inheritance,
of a person are transmitted through his death to another or
others either by his will or by operaton of law.
Theories on the Proper Law for the Transmission of Successional
Rights

1) Unitary or Single System- one law governs the

transmission of both real and personal property
2) Split or Scission System- one law governs real property
while another determines successional rights to personal
property.

WILLS, SUCCESSION, AND ADMINISTRATION

FACTUAL SITUATION POINT OF CONTACT

1) Extrinsic Validity of Wills

a) made by an alien abroad a) lex natonalii/ lex

domicilii/ RP law/ lex
loci celebratonis
b) made by a Filipino abroad c) b) lex natonalii/ lex
loci celebratonis c)
made by an alien in the lex natonalii/ lex loci
RP celebratonis
2) Extrinsic validity of JOINT
WILLS (made in the same
instrument)

a) made by Filipinos a) lex natonalii (void

abroad
b) made by aliens
abroad
c) made by aliens in
the Philippines
3) Intrinsic Validity of wills
(including order of
succession, amount of
successional rights, and
intrinsic validity of the
provisions of the will)
4) Capacity to succeed
5) Revocation of wills
a) if done in RP
if done outside RP
even if valid where
made)
b) valid if accdg. Lex
nationalii/ lex
domicilii/ lex loci
celebratonis
c) lex loci celebrationis
therefore VOID
Lex natonalii of the deceased-
regardless of the locaton and
nature of the property
Lex natonalii of the deceased
a) lex loci actus (of the
revocation)
b)
 - by a non-domiciliary - lex loci celebratonis
of the WILL/ lex loci
- by a domiciliary domicilii
- lex domicilii/ lex loci
actus of REVOCATION
6) probate of wills made
abroad a) lex fori
a) if not yet probated b) lex fori (must also be
b) if already probated probated in the RP;
abroad but enforcement of
the foreign judgment
on
probate is enough)
7) Executors and
administrators
a) if domiciled- where
a) where appointed domiciled at death

if not domiciled- where

the assets are found
b) co-extensive with the
qualifying or the
b) powers appointng court

note: these rules also apply to

principal, domiciliary or ancilliary
administrators and receivers
even in non- succession cases.

Holographic Wills
- a will which is entrely written, dated and signed by the
hand of the testator himself.
- Subject to no other form and need not be witnessed.
- The disposition of the testator written below his signature
must be dated and signed by him in order to make them
valid as testamentary dispositions.

Decedent and Testator

- decedent is the general term applied to the person whose
property is transmitted through succession, whether or not he
lef a will, if he lef a will, he is also called a testator.

Testamentary Capacity
 - the capacity to comprehend the nature of transacton in
which the testator is engaged at the time,
- to recollect the property to be disposed of and the persons
who would naturally be supposed to have claims upon the
testator, and
- to comprehend the manner in which the instrument will
distribute his property among the objects of his bounty.

Attestation Clause
- the clause wherein the witnesses certfy that the
instrument has been executed before them, and the
manner of the executon of the same.

Estate
- the interest which a person has in lands, or any other
subject of property

Obligaton
- a juridical necessity to, to do or not to do.
- A juridical relation whereby a person (creditor) may demand
from another (debtor) the observance of a determined
conduct and in case of breach, may demand satsfacton
from the assets of the latter.

Contract
- a meetng of the minds between 2 persons whereby one
binds himself, with respect to the other, to give something or
to render some service.
- An agreement which creates an obligation
- Agreement upon sufficient consideration, to do or not to do
a partcular thing.
- May be express or implied.

Express Contract
- the agreement is formal and stated verbally or in writng
- the terms of the agreement are declared by the partes in
writng or verbally at the tme it is entered into

Implied Contract
- the agreement in fact is presumed or inferred from the
acts of the partes
- may also arise from mere consent
- where one party rendered services to another, and these
services were accepted by the latter, in the absence of
proof that the services were rendered gratuitously, an
obligation results to pay the reasonable worth of the
 services rendered upon the implied contract of hiring, under
the principle of facio ut des, i.e., I do that you may give.

Tort
- a legal wrong committed upon another’s person or
property, independent of a contract

Crime
- an act or omission punishable by law

Felony
- transgression against the Revised Penal Code

Offense
- transgression against a special law

Infracton
- transgression against a local or municipal or local
ordinance

Corporaton
- an artficial being created by operaton of law, having the
right of succession and the powers, attributes, and
propertes expressly authorized by law or incident to its
existence.

Natural Moral Law

- rule of human conduct implanted by God in our nature and
in our conscience, urging us to do whatever is right and
avoid whatever is evil.

Special Laws
- regulate, for instance, the treatment of foreign insurance
companies, the reciprocal privileges in the matters of
patents, the requisites before an alien may obtain a
copyright, the conditons under which alien retail trade may
stll contnue, and the grant of incentves to foreign
investors.

LEX SITUS
- law of the place where the property is situated
- governs almost everything that concerns real property:
formalites for their alienation, the capacity to encumber or
otherwise dispose of them, and so forth.
 - In the Philippines, this rule applies to both real and
personal property.

LEX LOCI CELEBRATIONIS

- law of the place of the celebraton or executon
- governs generally all transactons insofar as
FORMALITIES OR SOLEMNITIES are concerned.
- One important exception to this rule is whenever
property is involved, in which a case it is the lex situs
that should control.

Criminal Law Principle of Territoriality

- the place or territory where a crime has been committed
has jurisdicton to try the offense that has been committed.

Criminal Law Principle of Generality

- criminal laws of a country bind both the citzens and the
aliens who are in the said country or territory.
- “Penal laws and those of public security and safety shall
be obligatory upon all who live or sojourn in Philippine
territory, subject to the principles of public internatonal law
and to treaty stipulatons.”
- Aliens come under our territorial jurisdicton because while
they are in our country, they owe some sort of allegiance,
even if it be temporary.

JURISDICTION
- from the Latn “jus dicere”, i.e., the right to speak.
- The authority of a tribunal to hear and decide a case and
also the power to enforce any judgment it may render
thereon in foreign states, subject to the rights of said
states.

JURISDICTION OVER THE SUBJECT MATTER

- Conferred by law; the consent or the submission of the
partes on this point is of no consequence; only the law
confers it and only the law may change it.
- the authority of a court to hear and decide cases of the
general class to which the proceedings in queston belong
- the allegatons in the petton or complaint, read together
with the proper jurisdictonal law, will confer jurisdicton on the
court

JURISDICTION OVER THE PERSON

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 - the power of the court to render a judgment that will be
binding on the parties involved: the plaintff and the
defendant
- jurisdicton over the person of the plaintff is acquired from
the moment he insttutes the acton by the proper
pleading
- jurisdicton over the person of the defendant is acquired
through the following means:
1. voluntary appearance
2. personal substituted service of summons

JURISDICTION OVER THE RES

- jurisdicton over the partcular subject matter in
controversy, REGARDLESS of persons who may be
interested therein.

FORUM-SHOPPING
- the practce of looking over the courts of the world for
possible advantages ought to be curbed

PUBLIC POLICY
- the manifest will of the state
- that which it desires on account of its own fundamental
principles of justce, its own percepton of morals, and its
deep-rooted traditons for the common weal.

COMITY BASED ON RECIPROCITY

- if the laws and judgments of the forum are recognized in a
foreign state, the forum in turn will recognize the laws and
judgments emanatng from said foreign state.

RECOGNITION OF A FOREIGN JUDGMENT

- our courts will allow said FOREIGN JUDGMENT TO BE PRESENTED
AS A DEFENSE TO A LOCAL LITIGATION
- involves merely the sense of justce
- does not require either acton or a special proceeding
- may exist without enforcement

ENFORCEMENT OF FOREIGN JUDGMENTS

- a plaintff wants the courts to POSITIVELY CARRY OUT AND
MAKE EFFECTIVE IN THE PHILIPPINES A FOREIGN JUDGMENT
- virtually implies a direct act of sovereignty
- necessitates a separate acton or proceeding brought
precisely to make the foreign judgment effectve
- necessarily carries with it recogniton

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Extrinsic Fraud
- fraud based on facts not controverted or resolved in the
case where the judgment was rendered.

Intrinsic Fraud
- fraud which goes to the very existence of the cause of
acton.

PURELY INTERNAL RULE

- Governs a purely domestc problem, one without any
foreign element
- Directly answers a given problem

CONFLICTS RULE
- applies when the factual situation involves a foreign
element
- merely indirectly responds by indicatng whether internal
or foreign law is to be applied.

FACTUAL SITUATION
- set of facts presentng a conflicts problem
- defines its object –certain operatves facts
- raises a legal question

POINT OF CONTACT OR THE CONNECTING FACTOR

- the law of the country with which the factual situation is
most intmately connected.

CAPACITY TO SUCCEED
- The factual situation indicatng that a person is dead, and
someone alleges a right or capacity to inherit from the
former.

TOTALITY APPROACH
- getng the law intended by the partes to govern the
contract then applying the intended law in its totality
including its periods of prescripton and its statute of
frauds.

LEX FORI THEORY

- the forum considers its own concepts its own
characterizaton, otherwise there will be a virtual surrender
of sovereignty right in the forum’s own home.

LEX CAUSAE THEORY

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 - the exact opposite of the lex situs theory
- the law identfied in the choice-of-law stage of the conflict
process as the one to be applied to determine the case
- the characterizaton of the foreign state, which is the
principal point of contact, is supposed to be followed.

UNIVERSAL ANALYTICAL THEORY/ COMPARATIVE APPROACH THEORY

- common factors both in the LEX FORI and the LEX CAUSAE
are taken into consideraton in order to avoid unjust
results
- Characterizaton comes only after a general
comparative analytical study of the jurisprudence of all the
states involved.

DUAL THEORY OF LEX FORI AND LEX CAUSAE

- Similar to the Comparatve Approach Theory, except that
instead of considering worldwide conceptons, ONLY TWO
CONCEPTS ENTER INTO THE PICTURE: THE CHARACTERIZATION OF THE
LEX FORI AND THAT OF THE LEX CAUSAE.

AUTONOMOUS THEORY (may be related to TRANSMISSION)

- The forum should consider the characterizaton of the
country referred to in the conflicts rule of the lex causae
- Hence, if the characterizaton in the forum State A points
to State B as the lex causae, and the conflicts rule in State B
refers to State C as the proper point of contact, it is the
characterizaton in State C which must be used by State A.

NATURAL-BORN CITIZENS
- those who are citzens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine
citzenship.

NATURALIZED CITIZENS
- citzens who are not natural-born citzens and those who
become citzens through judicial proceedings

CITIZENS BY ELECTION
- Citzens who, by virtue of certain legal provisions, become such
by choosing or electng Philippine citzenship at the age of 21
or within a reasonable tme hereafter.

EFFECTIVE NATIONALITY THEORY

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 - if the deceased is not a citzen of the forum, we must get
the law of the nation of which he was both a natonal and a
domiciliary

DOMICILE
- the place where a person has certain settled, fixed, legal
relatons because it is assigned to him by the law at the
moment of birth (DOMICILE OF ORIGIN)
- the place assigned to him by law after birth on account of a
legal disability caused for instance by minority, insanity, or
marriage in the case of a woman or because he has home
there (CONSTRUCTIVE DOMICILE/DOMICILE BY OPERATION OF LAW)
- that to which, whenever he is absent, he intends to return
(DOMICILE OF CHOICE)

DOMICILE OF ORIGIN (DOMICILIUM ORIGINS)

- acquired at birth
- applies only to infants
- never changes for a person is born only once.

CONSTRUCTIVE DOMICILE (DOMICILIUM NECESSARIUM)

- given after birth
- all those who lack capacity to choose their own domicile
(infants, married women, idiots and insane)
- Legal disabilites prevent their making a choice
- May change from tme to tme, depending upon
circumstances

DOMICILE OF CHOICE
- a result of the voluntary will and acton of the person
concerned

PRINCIPLE OF ONLY ONE DOMICILE

- No natural person can have more than one domicile at a
tme while a person may have more than one residence,
the Civil Code recognizes only one domicile: the place of
habitual residence.

RESIDENCE
- a more or less temporary place of abode which may be
located in several places

FOREIGN COURT THEORY

- Internatonal PINGPONG/ Internatonal Football/ Revolving
Doors/ inextricable circle

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 - The RP court, in deciding the case, will put itself in the positon
of the foreign court and whatever the foreign court will do
respectng the case, the RP court will likewise do.

THEORY OF DESISTMENT
- the RP court desists or refrains from applying a foreign law
because of its inadequacy being founded on a different basis.
Hence, the RP court applies its internal law.

Ordinary Children
- with an intra-uterine life of at least 7 months.
- Mere birth is sufficient

Extraordinary Children
- if the intra-uterine life be less than 7 months
- the child must have lived for at least 24 hrs. after its
complete delivery from the maternal womb

NCC Artcle 40. Birth determines personality; but the conceived child
shall be considered born for all purposes that are favorable to it,
provided it be born later with the conditons specified in
the following artcle.

NCC Artcle 41. For civil purposes, the fetus is considered born if its is
alive at the tme it is completely delivered from the mother’s womb.
However, if the fetus had an intra-uterine life of less than 7 months,
it is not deemed born if it dies within 24 hrs. after its complete
delivery from the maternal womb.

Presumptve Personality
- Personality does not begin at birth, it begins at concepton.
It is essental that birth should occur later, otherwise the
fetus will be considered as never having possessed legal
personality.

Emancipaton
- takes place by the attainment of majority. Unless otherwise
provided, majority commences at the age of 18 yrs.

Absence
- the legal status of a person who disappears from his
domicile, his whereabouts being unknown
- Artcle 384 of the Civil Code:

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 2 years having elapsed without any news about the
absentee or since the receipt of the last news, and 5 years in
case the absentee has lef a person in charge of the
administraton of his property, his ABSENCE may be declared.

- Artcle 386 of the Civil Code:

The judicial declaraton of absence shall not take effect

untl six months after its publication in a newspaper of general
circulaton.

PRESUMPTION OF DEATH

Artcle 390. [ORDINARY ABSENCE] After the absence of 7 years, it

being unknown whether or not the absentee stll lives, he shall be
presumed dead for all purposes, except those of succession.

The absentee shall not be presumed DEAD for the purpose of

opening his succession tll after an absence of 10 years.

If he disappeared after the age of 75 years, an absence of 5

years shall be sufficient in order that his succession may be
opened.

In ordinary absence- death is presumed to have occurred on the

last day of the period

In extraordinary / qualified absence- death is presumed to have

occurred at the beginning of the period.

SURVIVORSHIP

The rules on survivorship are found in Artcle 43 of the Civil

Code and in Rule 131 of the Rules of Court:

Artcle 43 CC. If there is doubt, as between 2 or more persons who

are called to succeed each other, as to which of them died frst,
whoever alleges the death of one prior to the other, shall prove
the same;

IN THE ABSENCE OF PROOF, it is presumed that THEY DIED AT THE SAME

TIME AND THERE SHALL BE NO TRANSMISSION OF RIGHTS FROM ONE TO THE
OTHER.

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Rule 131, Sec. 3 (jj) Rules of Court:

When 2 or more persons perish in the same calamity, such as

wreck, battle, or conflagraton, and it is not shown who died first,
and there are no partcular circumstances from which it can be
inferred, the survivorship is presumed from the probabilites
resultng from the STRENGTH AND AGE OF THE SEXES, according to
the following rules:

1. if both were under the age of 15, the older is presumed to

have survived;
2. if both were above the age of 60, the younger is presumed
to have survived;
3. if one is under 15 and the other above 60, the former is
presumed to have survived;
4. if both be over 15 and under 60, and the sexes be
different, the male is presumed to have survived; if the
sexes be the same, then the older;
5. if one be under 15 or over 60, and the other between
those ages, the latter is presumed to have survived.

MARRIAGE AS A CONTRACT
FACTUAL SITUATION
1. ) if celebrated abroad
* between Filipinos
* between foreigners
POINT OF CONTACT
1.)
LEX LOCI CELEBRATIONIS
(without prejudice to the
exceptions under bigamous,
polygamous, and incestuous
marriages and consular
marriages
LEX LOCI CELEBRATIONIS
except if the marriage is:

a) Highly immoral (like

bigamous and
polygamous
marriages)
b) Universally
considered
incestuous, ie., bet.
Brothers and sisters
* mixed and bet. Ascendants
and descendants.

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If celebrated in the Philippines
between foreigners
mixed
Marriage by proxy (celebrated
where the proxy appears)
MARRIAGE AS A STATUS
FACTUAL SITUATION
1) Personal Rights and
Obligatons between the
Husband and the Wife
28 | P a g e
LEX LOCI CELEBRATIONIS
except if the marriage is:
c) Highly immoral (like
bigamous and
polygamous
marriages)
d) Universally
considered
incestuous, ie., bet.
Brothers and sisters
and bet. Ascendants
and descendants.
- TO UPHOLD THE VALIDITY OF THE
MARRIAGE.
NATIONAL LAW provided the
marriage is not highly immoral or
universally considered
incestuous
NATIONAL LAW of the Filipino
(otherwise public policy may be
militated against)
LEX LOCI CELEBRATIONIS (with
prejudice to the foregoing
rules)
POINT OF CONTACT
NATIONAL LAW OF THE
HUSBAND
Note: Effect of subsequent
change of natonality
a) if both will have a new
common natonality, THE
NEW ONE;
b) if only one will change,
THE LAST COMMON
NATIONALITY
c) if there was never any

2) Property Relatons between
the Husband and the Wife
29 | P a g e
common natonality, THE
NATIONAL LAW OF THE
HUSBAND AT THE TIME OF
THE WEDDING
NATIONAL LAW OF THE
HUSBAND, w/o prejudice to Art.
80 of the FC, to wit:
In the absence of a contrary
stipulaton in a marriage
settlement, the property
relatons of the spouses shall
be governed by RP laws,
regardless of the place of the
celebraton of the marriage
and their residence.
This rule shall not apply:
1) Where both spouses are
aliens;
2) With respect to the
extrinsic validity of
contracts affectng
property not situated in
the RP and executed in
the country where the
property is located.
3) With respect to the
extrinsic validity of
contracts entered into in
the RP but affectng
property situated in a
foreign country whose
laws require different
formalites for its extrinsic
validity.
Effect of Change of Natonality- No
EFFECT accdg. To the Doctrine of
immutability in the matrimonial
property regime.
Artcle 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:

1. A person on board a vessel lost during a sea voyage, or on

an airplane which is missing, who has not been heard for 4
years since the loss of the vessel or airplane;
2. a person in the armed forces who has taken part in war,
and has been missing for 4 years.
3. a person who has been in danger of death under other
circumstances and his existence has not been known, for
4 years.

Juridical Jurisdicton
- authority to hear and determine a legal controversy.
- The jurisdicton of our tribunals of justce is governed by our
own law on the matter.

Legislatve Jurisdicton
- the authority to enact laws
- the competence of a person’s natonal law to govern his
status

Compulsory Rule
- it is IMPERATIVE for the partes to follow the formalites of the
PLACE OF CELEBRATION

Optonal Rule
- the partes may follow EITHER THE LEX LOCI
CELEBRATIONIS OR THEIR NATIONAL LAW

Ecclesiastcal Rule
- the formalites of BOTH THE LEX LOCI CELEBRATIONIS AND THE
NATIONAL LAW of the partes must be complied with

Common-Law Marriage
- the living-in together or the celebraton of a man and a
woman as husband and wife without getng married

Marriage by Proxy
- One where one of the partes is merely represented at the
ceremony by a friend or delegate

Absolute Community Regime

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 - Almost all the propertes of the marriage are owned in
common by the husband and the wife

Relatve Community Regime/Community Partnership of Gains or the

Ganancial System
- everything earned during the marriage belong to the
conjugal partnership

Complete Separation of Property Regimes

- each owns his/her earnings

Dotal or Dowry System

- the wife, before the marriage, delivers a dowry or property to
the husband to help out in the marriage obligatons, but
later, when the marriage is dissolved, the property of its value
must be returned.

Complete Absorption or Administraton by the husband

- the husband owns all the propertes of the marriage, but
he is liable for all the debts

Marital Administraton System

- each spouse stll owns his/her property, but the husband
administers all the propertes.

Immutability of Matrimonial Property Regime Doctrine

- REGARDLESS OF CHANGE OF NATIONALITY on the part of the
husband or the wife or both, THE ORIGINAL PROPERTY REGIME AT
THE START OF THE MARRIAGE REMAINS.

Mutability of Law
- when the law of the original natonality itself changes, the
marital regime, the property relatonship, has to change
accordingly.
- This cannot be helped for law is essentally a dynamic
thing;
- However, vested rights must be duly protected.

Socially grotesque situaton

- a situaton where a Filipino woman is stll married to a man
who is no longer her husband

Abandonment
- Synonymous to CRIMINAL DESERTION

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 - A husband’s or wife’s willful failure without just cause to
provide for the care, protecton or support of a spouse who is
stll in ill health or necessitous circumstances
- Includes both the intenton to abandon and the external
act by which the intenton is carried into effect.

BIGAMY
- committed by any person who shall contract a second or
subsequent marriage before the former marriage has been
legally dissolved, or
- who shall contract a second or subsequent marriage before
the absent spouse has been declared presumptvely dead
by means of a judgment rendered in the proper
proceedings.

Sexual Infidelity
- Unfaithfulness in marriage
- Adultery and concubinage are encompassed in the term

Sexual perversion
- an abnormality by a person in matters of sex

Pre-marital Sex
- indulging by an unmarried couple in sexual intercourse
prior to getng married.

Adultery
- voluntary sexual intercourse of a married person other
than the offender’s husband or wife
- committed by a married woman who shall have sexual
intercourse with a man not her husband; and by a man
who has carnal knowledge of her, knowing her to be
married, even if the marriage be subsequently declared
void.

OPEN AND NOTORIOUS ADULTERY

- The partes must reside together publicly in the face of
society as if conjugal relatons existed between them, and
their so living and the fact that they are not husband and
wife must be known in the community

Concubinage
- committed by any husband who (1)shall keep a mistress in the
conjugal dwelling or (2)have sexual intercourse under
scandalous circumstances with a woman not his wife,
(3)cohabit with her in any other place.

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ILLICIT COHABITATION
- the living together as man and wife of two persons who are
not lawfully married with the implicaton that they habitually
practce fornicaton (unlawful sexual intercourse between two
unmarried persons).

ATTEMPT BY ONE SPOUSE AGAINST THE LIFE OF THE OTHER

- the attempt must not be justfied as in the case of lawful
self-defense; nor must it be one where the attempt was
made because the other was caught in flagrante delicto
with a lover. The attempt must be one of attempted or
frustrated parricide, not one caused by negligence for in
the latter case, it cannot be said that there was an
attempt.

Note:

Art. 59. FC: No legal separation may be decreed unless the Court
has taken steps toward the reconciliaton of the spouses and is
fully satsfied, despite such efforts, that reconciliaton is highly
improbable.

Defenses in Legal Separaton:

a) Condonation- forgiveness, express or implied. Must be
free, voluntary, and not induced by duress or fraud
b) Consent- may be express or implied. Must be unclouded by
fraud, duress, or sometmes even mistake
c) Connivance
d) Recrimination or mutual guilt- a charge made by an
accused person against the accuser; in partcular, a
countercharge of adultery or concubinage made by one
charged with the same offense in a suit for legal
separaton, against the person who has charged him or
her.

e) Collusion- Art. 60 of FC: No decree of legal separaton shall be

promulgated upon stpulation of facts or a confession of
judgment. This is an agreement whereby one party will
pretend to have committed the ground relied upon.

f) Prescription- Art. 57, FC: An action for legal separation shall

be filed within 5 years from the tme of the occurrence of
the cause. Need not be alleged.

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Note:

Art. 58 FC: An acton for legal separation shall in no case be tried

before 6 months shall have elapsed since the filing of the pettion.

The “cooling-off period” (6 months) is the period of tme in

which no action may be taken by either sides.

Purpose: to enable the partes to cool-off.

Art. 61 FC: After the filing of the petton for legal separaton,
the spouses shall be enttled to live separately from each other.

The court, in the absence of a written agreement between the

spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have the
same powers and dutes as those of a guardian under the Rules
of Court.

Note: The spouses, while may be enttled to live separately from

each other after the filing of the petton, are not required to do so.

Effects of legal separation:

1) Spouses may live separately

2) Marriage bonds not severed
3) The absolute community or the conjugal partnership
shall be dissolved and liquidated
4) The offending spouse shall have no right to any
share of the net profits earned by the absolute
community or the conjugal partnership, which shall be
forfeited (in accordance with the provisions of Art.
43)
5) The custody of the minor children shall be awarded
to the innocent spouse, subject to Art. 213 of FC
6) The offending spouse shall be disqualified from
inheriting from the innocent spouse by
intestate succession.
7) The provisions in favor of the ofending spouse
made in the will of the innocent one shall be revoked
by operaton of law. (the provisions of the will being
referred to here are provisions made

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 PRIOR TO and NOT AFTER the decree of legal separaton;
otherwise it cannot be said that the decree revokes any
provision, for the will had not yet been made.)

TWO THINGS THAT MAY BE REVOKED BY THE INNOCENT SPOUSE:

1) Donatons made in favor of the offending spouse (must be

brought within 5 years from the time the decree of legal
separaton has become final); and
2) Designation of the offending spouse as beneficiary in the
insurance contracts of the innocent spouse.

Condonaton
- forgiveness, express or implied
- to consttute valid defense, it must be free, voluntary, and
not induced by duress or fraud.

RECRIMINATION OR MUTUAL GUILT

- a charge made by an accused person against the accuser
- a counter charge of an adultery or concubinage made by
one charged with the same offense in a suit for legal
separaton, against the person who has charged him or her.

COLLUSION
- an agreement whereby one party will pretend to have
committed the ground relied upon.

RECONCILIATION
- a bilateral act, requiring common consent, whether
express or implied.
- In law of domestc relations, reconciliaton is a voluntary
resumpton of marital relatons in the fullest sense.
- Shall have the ff. consequences:
a. The legal proceedings, if still pending, shall
thereby be terminated in whatever stage;
b. The final decree of legal separation shall be set
aside, but the separation of property and any for
forfeiture of the share of the guilty spouse already
efected shall subsist, unless the spouses agree to
revive their property regime.

CONSANGUINITY

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 - kinship
- blood relationship
- the connecton or relaton of persons descended from the
same stock or common ancestor.

AFFINITY
- connecton existng in consequence of a marriage, between
each of the married persons and the kindred of the other.

Lineal Consangunity
- subsists between persons of whom one is descended in a
direct line from the other and so upwards in the direct
ascending line and so downwards in the direct descending
line.

COLLATERAL CONSANGUINITY
- Subsists between persons who have the same ancestors,
but who do not descend or ascend one from the other

DIRECT AFFINITY
- subsists between the husband’s and his wife’s relatons by
blood, or between the wife and the husband’s relatons by
blood.

SECONDARY AFFINITY
- subsists between the husband’s and his wife’s relatons by
marriage

COLLATERAL AFFINITY
- Subsists between the husband and the relatons of his
wife’s relatons

ENUMERATION

Elements of Private Internatonal Law:

1. Conflict of laws is that part of the municipal law of the

State

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 2. The directon to Courts and Administratve agencies
3. A legal problem involving a foreign element
4. The applicaton or non-applicaton of foreign law/foreign laws

Importance of Conflict of Laws

1. To adjust conflictng rights in internatonal mercantle and

corporate transactons
2. To solve personal, family, property and successional
contractual problems, possessed of facts or elements
operatng in two or more states.

Scope of Functons of Conflict of Laws

1. To prescribe the conditions under which the court is

competent to entertain such a suit
2. To determine for each cases the particular territorial
system of law by reference to which the rights of the
partes must be ascertained
3. To specify the circumstances in which a foreign judgment
can be recognized as a decisive of the queston in dispute

In other words,

1. The determinaton of which country has jurisdicton

2. The applicability to a partcular case of either the local or the
foreign law
3. The determinaton of the force, validity and effectveness
of a foreign judgment

Why conflict of law is observed?

1. States must of necessity observe the subject because it is

part of their municipal law. Surely, a government, anywhere
and anytime, is duty bound to enforce and respect its own
municipal legislaton
2. individuals observe it because of fear of municipal
sanctions

SOURCES OF CONFLICT OF LAWS

1. Indirect
- Natural Moral Law
- Work of Writers

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 2. Direct
- Consttutons
- Codificatons
- Special Laws
- Treates and Conventons
- Judicial Decisions
- Internatonal Customs

Kinds of Jurisdicton

1. Jurisdicton over the subject matter

2. Jurisdicton over the person
3. Jurisdicton over the res

Reasons for Refusal to Assume Jurisdicton: Forum Non

Conveniens
1. the evidence and the witnesses may not be readily
available
2. the court dockets of the forum may already be clogged; to
permit additional cases would inevitably hamper the speedy
administration of justice
3. the evils of forum shopping

Applicaton of the Internal or Domestc Law

1. when the law of the forum expressly so provides in its
conflicts rules
2. when the proper foreign law has not been properly
pleaded and proved
3. when the case involves any of the exceptions to the
application of the proper foreign law

Exceptons To The Applicaton Of Foreign Law

1) When the foreign law, judgment or contract is:

- Contrary to almost universally conceded principles of
morality (contra bonos mores)
- Contrary to a sound and established public policy
of the forum
- Involves procedural matters

2) When the case involves:

- Penal laws, contracts and judgments
- Purely fiscal or administrative matters
- Real or personal property situated in the forum

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 3) When the applicaton of the foreign law, judgment, or
contract:
- May work undeniable injustice to the citzens or
residents of the forum
- May work against the vital interests and national
security of the state of the forum

Proving of a Written Foreign Law

1. By an OFFICIAL PUBLICATION thereof;
2. By a COPY ATTESTED BY THE OFFICER HAVING THE LEGAL CUSTODY OF THE
RECORD, or by his deputy, and accompanied with a CERTIFICATE
THAT SUCH OFFICER
HAS CUSTODY

Proving of an Unwritten Law

1. By the ORAL TESTIMONY of expert witnesses
2. By PRINTED AND PUBLISHED BOOKS OF REPORTS OF DECISIONS of
the country involved, if proved to be commonly admitted in
such courts

Theories on Why the Foreign Law may in Some Cases Be Given

Effect
1. Theory of Comity
2. Theory of Vested Rights
3. Theory of Local Law
4. Theory of Harmony of Laws
5. Theory of Justce

Kinds of Comity
1. Based on Reciprocity
2. Based on the persuasiveness of foreign judgment

Reasons why not all foreign judgments can be recognized or

enforced in our country

1. The requisite proof thereof may not be adequate

2. They may contravene our established public policy
3. They may contradict one another: one cannot be
guided by contradictons
4. The administration of justice may be shockingly
corrupt in some countries

Conditons and Requisites Before Foreign Judgments may be

Recognized and Enforced in the Philippines

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 1. Proof of Foreign Judgment (For recogniton, there is no
necessity for a separate acton or proceeding
2. the judgment must be on civil or commercial matter
3. No lack of jurisdiction, No want of notice, No collusion,
No fraud, No clear mistake of law or fact
4. The judgment must not contravene a sound and
established public policy of the forum

The Requisites for Res Judicata

1. The judgment must be final
2. The court rendering the judgment must have jurisdiction
over the subject matter and the partes
3. The judgment must be on the merits
4. There must be identty of partes, of subject matter, and of
cause of action

Kinds of Conflicts Rule

1. One-Sided Rule/ Unilateral Rule
2. All-sided Rule/ Multlateral Rule

Factors Which Give Rise to the Problem of Characterizaton

1. Different legal systems attach to the same legal term with
different meanings;
2. Different legal systems may contain ideas or conceptons
completely unknown to one another
3. Different legal systems apply diferent principles for the
soluton of problems which, in general terms, are of common
nature

Steps in Characterizaton (According to Dean Falconbridge)

1. Characterizaton of the questons
2. Selecton of the proper law
3. Applicaton of the proper law

Steps in Characterizaton (According to Edgardo Paras)

1. Determinaton of the facts involved
2. Characterization of the factual situaton
3. Determinaton of the conflicts rule which is to be applied
4. Characterizaton of the point of contact or the
connecting factor
5. Characterizaton of the problem as procedural or
substantive
6. pleading and proving of the proper foreign law
7. application of the proper foreign law to the problem

Theories in Characterizaton (DUAL LT)

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 1. LEX FORI
2. LEX CAUSAE
3. UNIVERSAL ANALYTICAL
4. DUAL THEORY OF LEX FORI AND LEX CAUSAE
5. AUTONOMOUS THEORY
6. TOTALITY THEORY

Two kinds of capacity:

1. capacity to act
2. juridical capacity

Characteristcs of Status: (CCUPS)

1. conferred principally by the State
2. a matter of public or social interest
3. a concept of social order
4. cannot be easily terminated at the mere will or desire of
the partes concerned
5. generally supposed to have a universal character

THEORIES ON PERSONAL LAW OR THE LAW THAT SHOULD GOVERN

STATUS AND CAPACITY IN GENERAL

1. Natonality Theory- Personal Theory

2. Domiciliary Theory- Territorial Theory
3. Situs Theory- Eclectic Theory

3 Kinds of Citzens of the Philippines

1. Natural-born
2. Naturalized
3. Citzen by electon

2 Theories on Whether Place or Ancestry Determines Citzenship

1. Jus Soli
2. Jus Sanguinis

Citzens of the Philippines Under the 1987 Consttuton

1. Those who are citzens of the Philippines at the tme of the

adopton of the 1987 Consttuton
2. Those whose fathers or mothers are citzens of the
Philippines

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 3. Those born before 17 January 1973, of Filipino mothers, who
elect Philippine citzenship upon reaching the age of majority
4. those who are naturalized in accordance with law.

Qualificatons for Naturalizaton

1. AGE. The pettioner must not be less than 21 years old on the
date of the hearing of the pettion
2. RESIDENCE. he must have resided in the Philippines for a
contnuous period of not less than 10 years.
3. MORAL. He must be of good moral character and
4. CONSTI. He must believe in the principles underlying the
Philippine Consttuton
5. CONDUCT. he must have conducted himself in a proper and
irreproachable manner during the entre period of his
residence in the Philippines in his relaton with the
consttuted government as well as with the community in
which he is living.
6. PROPERTY. he must have a real estate in the Philippines
worth not less than PHP5,000.00 OR must have some
lucratve trade, profession, or lawful occupaton.
7. LANGUAGE. he must be able to speak an write English or
Spanish and any one of the principal Philippine languages
8. MINORS. he must have enrolled his minor children of school
age in any of the public schools/private schools recognized
by the Bureau of Private Schools where RP history,
government, and civics are taught or prescribed
as part of the school curriculum during the entre period of
the residence required of him, prior to the hearing of the
pettion.

3 Kinds of Domicile

1. domicile of origin
2. constructve domicile
3. domicile of choice

Proposed Soluton to the Renvoi

1. Reject the Renvoi

2. Accept the Renvoi
3. Follow the Theory of Desistment/ mutual disclaimer of
jurisdicton theory, to wit:

THEORY OF DESISTMENT

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 - the RP court desists or refrains from applying a foreign law
because of its inadequacy being founded on a different basis.
Hence, the RP court applies its internal law.

4. make use of the foreign court theory, to wit:

FOREIGN COURT THEORY

- Internatonal PINGPONG/ Internatonal Football/ Revolving
Doors/ inextricable circle
- The RP court, in deciding the case, will put itself in the positon
of the foreign court and whatever the foreign court will do
respectng the case, the RP court will likewise do.

Emancipaton takes place by:

1. Marriage of the minor

2. attainment of the age of majority
3. parental concession
4. judicial concession

ASPECTS OF MARRIAGE

1. As a contract
2. As a union, a status, a legal relation

Substantal or Essental Requisites of Marriage of Filipinos

1. legal capacity of the contractng partes

2. consent of the contractng partes freely given
3. marriage license, except in marriage of exceptonal
cases
4. authority of the person solemnizing the marriage
5. marriage ceremony

Personal Rights and Obligatons between the husband and the

wife

1. Mutual fidelity, cohabitation, and respect

2. Mutual assistance and support
3. Right of the wife to use the husband’s name

STATELESSNESS

1. DEPRIVATION of citzenship for any cause.

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 2. RENUNCIATION of nationality by certain acts, express or
implied
3. VOLUNTARY RELEASE from his original state
4. BORN in a country which recognizes only the principle of jus
sanguinis but whose law of the parents recognizes only the
principle of jus soli.

Personal Law of stateless individuals

The Hague Conference of 1928 on Internatonal Private Law

suggested that the personal law of stateless individuals shall be:

1. the law of the domicile (habitual residence)

2. secondarily the law of the place of temporary
residence

RULES ON STATUS IN GENERAL

FACTUAL SITUATION POINT OF CONTACT

1. Beginning of personality National law of the child
2. Ways and effects of National law
emancipaton
3. Age of majority National law
4. Use of names and National law
surnames
5. Use of ttles and nobility National law
6. Absence National law
7. Presumptons of death Lex fori
and survivorship

ANNULMENT OF VOIDABLE MARRIAGE AND DECLARATION OF NULLITY OF A

VOID MARRIAGE

FACTUAL SITUATION POINT OF CONTACT

1) Grounds for annulment (if
the marriage is voidable
merely)
2) Grounds for declaraton of
nullity (if marriage is void
ab inito)
The law alleged to have been
violated: in other words, it is the
law of the place of celebraton
(lex loci celebratonis) subject to
certain exceptons that furnish
the grounds)

ARTICLE 26. All marriages solemnized outside the RP is

accordance with the laws in force in the country where they

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were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Artcles 35 (1), (4), (5) and
(6), Artcles 36, 37, and 38.

Artcle 35:

The ff. marriages shall be void from the beginning:

*those contracted by any party below 18 years of age even
with the consent of parents or guardians
*those bigamous or polygamous marriages not falling under
Art. 41
* those subsequent marriages that are void under Art. 53

Artcle 36:

A marriage contracted by any party, who at the time of the

celebraton, was psychologically incapacitated to comply with the
essental marital obligations of marriage, shall likewise be void even
of such incapacity becomes manifest only after its solemnizaton.

Artcle 37:

Marriages between the ff. are incestuous and void from the
beginning whether the relatonship between the partes be
legitmate or illegitmate:

1. between ascendants and descendants of any

degree
2. between brothers and sisters of the full or half
blood

Artcle 38:

The ff. marriages shall be void from the beginning for reasons of
public policy:

1. between collateral blood relatives, whether legitmate or

illegitmate, up to the 4th civil degree
2. between step-parents and step-children
3. between parents-in-law and children-in-law
4. between the adopting parent and adopted child
5. between the surviving spouse of the adopted child and
the adopter
6. between an adopted child and a legitimate child of the
adopter

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 7. between adopted children of the same adopter
8. between partes where one, with the intenton to marry
the other, killed that person’s spouse, or his or her
own spouse.

REQUIREMENTS TO PROVE A FOREIGN MARRIAGE:

1. the existence of the pertnent provision of the foreign

marriage law
2. the celebration or performance of the marriage in
accordance with said law

Where a marriage between a Filipino citzen and a foreigner is

validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitatng him or her to remarry, the
Filipino spouse shall likewise have the capacity to remarry under
the RP law.

SIMPLY PUT: If valid where celebrated, it is also valid here.

NOTES:
Insofar as the grounds for annulment or nullity
are concerned, it is not the Natonal law that governs,
it is the LEX LOCI CELEBRATIONIS, subject to certain
exceptons.
The grounds for LEGAL SEPARATION are those
indicated in the natonal law of the partes concerned,
and not those of the place of celebraton of marriage.
Art. 15 will apply because a suit or legal separaton
necessarily admits the validity of the marriage.
Two Filipinos are married by the Philippine
Ambassador to the US inside the RP Consulate in
Washington D.C. In US, let’s say, an Ambassador is
authorized to perform marriages, will such marriage be
given cognizance in the RP? Ans: NO. Having been
celebrated in the RP consulate in Washington, the
marriage is considered to have been performed in
the Philippines. Under our law, the ambassador cannot
perform a marriage; ONLY CONSULs- GENERAL, and VICE-
CONSULS can under the Family Code.
Since we follow the NATIONALITY THEORY, our courts
have jurisdicton to take cognizance of

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 annulment and nullity suits where the litigants are
Filipinos, or where they are domiciliaries of the
Philippines.
Church annulments of marriages and
declaratons of their nullity are only for religious
purposes, and are not binding on our civil laws and
courts of our country, unless amendments to our
family Code are made.
Art. 36 OF FC: A marriage contracted by any party,
who at the tme of the celebraton, was psychologically
incapacitated to comply with the essental marital
obligations of marriage, shall likewise be void if such
incapacity becomes manifest only after its
solemnizaton.
Under Church laws, examples of
PHYCHOLOGICAL INCAPACITY will include inter alia:

1. A wrong concept of marital vows and

marital infidelity
2. Alcoholism
3. Gambling
4. Womanizing
5. Adamant refusal to give support to a
degree incompatble with a mature
understanding of responsible married life

This degree is of course subject to determination by

the courts, partcularly the SC. And even if these causes
should manifest themselves long after the wedding,
said causes are considered to be potentally existng
already at the tme of the celebraton of the marriage.

ABSOLUTE DIVORCE

FACTUAL SITUATION POINT OF CONTACT

1) if sought in the RP (whether 1) lex fori (therefore, will not
by Filipinos or by foreigners) be granted)
2) if obtained abroad:

a) bet. Filipinos a) nat onal

law (therefore, not
valid here even if valid
abroad; and this is true
regardless of the divorce)
b) bet. Foreigners b) Natonal law (if valid in the State
grantng it and valid according to
the national law of the partes,
will also be valid here)
c) mixed c) apply (a) and (b)
respectvely.

ABSOLUTE DIVORCE Distnguished from ANNULMENT

ABSOLUTE DIVORCE ANNULMENT

Presupposes a VALIDLY Ends a marriage which though
EXISTING MARRIAGE considered valid in the interim,
nonetheless, is DEFECTIVE
Granted for causes Granted for causes AT THE
SUBSEQUENT to the marriage VERY TIME THE MARRIAGE IS
ceremony ENTERED INTO

KINDS OF DIVORCE:

1) ABSOLUTE DIVORCE (Divorce a vinculo matrimoniee)

– marital tes are dissolved.
2) RELATIVE DIVORCE (divorce a mensa et thoro)- separaton
from bed and board or legal separaton, where partes
remain married, although this tme, they are allowed
to live separately from each other.

PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP, AND FUNERALS

FACTUAL SITUATION POINT OF CONTACT

- Paternity and filiation
- Including Parental
Authority and
- Reciprocal support
- Legitmacy
- Legitmaton
- Recogniton
- Presumptons of
legitmacy
- Rights and obligatons of
parents and children
- Including parental
authority and reciprocal
support
If legitmate, NATIONAL LAW
OF THE FATHER
If illegitmate, NATIONAL LAW OF
THE MOTHER.
If illegitmate but recognized
by the father, the NATIONAL
LAW OF THE FATHER.
Determinaton of whether
legitmate or illegitmate,
NATIONAL LAW OF THE FATHER,
in general.

- Adopton- creaton of the
status of adopton; rights
and obligatons of adopter
and adopted.
- Guardianship
Doctrine of Immutability of
Status- change of parents’
nationality does not affect the
status of the child.
In general, NATIONAL LAW OF
THE ADOPTER.
In the Philippines, adoption by a
Filipino does not confer Filipino
citzenship on an adopted alien
child.

a) Over the person

- appointng court
- powers of guardian
- court of the domicile of
the ward
- coextensive with those of
the appointng court (law
of the appointng state)

b) Over the property

- appointng court - court where the property
if found (lex rei sitae)
- powers of guardian - coextensive with those of
the appointng court

c) over the person and over

the property (general
guardian)
- appointng court
- powers of guardian
- court where the property
and the ward are found
- coextensive with those of
the appointng court

- Funerals- incidents thereof Where the body is buried.

FUNERALS

- the incidents of funerals are governed by the law of the

country where the body is to be buried.
- The duty and the right to make arrangements for the
funeral of a relatve devolve on the persons obliged to
support the deceased while stll alive.
- Every funeral shall be in keeping with the social standing
of the deceased. The higher the social standing of the
 deceased in life, the more dignified and expensive his funeral
be, as a general rue. Prohibited is pompous and elaborate
funeral of a criminal on whom the death penalty has been
inflicted.

The "center of gravity" approach, first adopted by the Court of

Appeals of New York, might be characterized as a simplified version of
the "most significant relationship" test of the Second Restatement.
This approach authorizes courts to look at all the existng contacts
between the various partes to a suit and various jurisdictons.
Ultmately, the court should choose the law of whatever jurisdicton
is most closely ted to the case.

HOW FOREIGN LAW IS GIVEN APPLICATION IN THE PHILIPPINES:

1. By statutory directves (consent of the State)

2. By agreement of the partes
3. By treaty or conventon
4. By conflict of laws rule

In their absence --

A. Principles governing Conflict of Law Cases

1. Substance vs. Procedural Principles

All matters of procedure are governed by the law of the forum where the case is
filed, while matters of substance are governed by the law of the country where the
cause of acton arose.

PROBLEM: Some laws may be treated by one country as procedural and by

another country as substantve (e.g. statute of limitatons)

SOLUTIONS:

Government Interest Analysis - the law of the country whose interest is

most impaired by failure to apply its statute should be applied
Borrowing Statute - the law of the country has a statute “borrowing” the
prescriptve period provided in the foreign statute; EXCEPTION: when contrary
to public policy or prohibitve laws

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2. Center of Gravity Doctrine (Grouping of Contacts Principle or State of the
Most Significant Relationship Theory)

Law of the state which has the most significant relatonship with the occurrence
and with the partes determines their rights and liabilites in tort or in contract

3. Renvoi Doctrine (Table Tennis Theory)

The conflict of law rule of the forum resorts to the foreign law, which in turn
refers back to the law of the forum.

RENVOI DOCTRINE APPLIED

Aznar vs. Garcia, G.R. No. L-16749, Jan. 3, 1963

FACTS:

Edward Christensen, who at his death was a US citzen but domiciled in the
Philippines, lef a will, devising unto Maria Helen a certain amount of money and
giving the rest of his estate to Maria Lucy. Helen opposed the partton on the ground
that she is deprived of her legitime. Her contenton is that the law of California
directs that the law of the domicile (Philippines) should govern the will.

ISSUE: Whether or not the national law or the domiciliary law should apply

HELD:

The intrinsic validity of wills is governed by the natonal law of the decedent. In the
present case, the natonal law of Edward is the laws of California. However, there
were two conflicting California laws regarding succession. One is enunciated in In Re
Kaufman (which does not provide for legitmes) and another is Art. 946 of the
California Civil Code (which provides that the law of the domicile applies). SC held that
the natonal law is Art. 946, which is the conflict of laws rule of California. The
reason is that In Re Kaufman applies only to residents while Art. 946 is specific to non-
residents. Thus, since Art. 946 contains a refer-back to Philippine laws (the law of the
domicile), then Maria Helen is enttled to her legitime.

4. Lex Fori

The law of the forum governs all matters pertaining to procedural or remedial rights.

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B. Applicability of Foreign Laws and its Exceptions

WHEN FOREIGN LAW, EVEN THOUGH APPLICABLE, MAY NOT BE GIVEN

APPLICATION:

1. Foreign law contravenes prohibitve law or public policy of the forum

2. Relatonship of the partes affects public interest
3. Real property is involved (apply lex rei sitae)
4. Foreign law, judgment or contract is contrary to a sound and established
public policy of the forum
5. Foreign law is procedural in nature (lex fori governs procedural matters)
6. Foreign law is penal in nature

EXCEPTION: CONTRARY TO SOUND PUBLIC POLICY

Bank of America, NT vs. American Realty Corporaton, .G.R No. 133876, Dec. 29,
1999

FACTS:

Bank of America, duly licensed to do business in the Philippines and existng under the
laws of California, USA, granted US Dollar loans to certain foreign corporate
borrowers. These loans were secured by two real estate mortgages by American
Realty, a domestc corporaton. When the borrowers defaulted, Bank of America sued
them before English courts. While these cases were pending, Bank of America likewise
judicially foreclosed the real estate mortgages in the Philippines. Thus, American
Realty sued for damages against Bank of America.

ISSUE: Whether or not Bank of America can judicially foreclose the real estate
mortgages despite pendency of the civil suits before English courts

HELD:

English law purportedly allows the filing of judicial foreclosure of mortgage despite
pendency of civil suit for collecton. But English law was never properly impleaded
and proven. Thus, the doctrine of processual presumpton applies.

SC further held that even assuming arguendo that English laws were proven, said
foreign law would stll no find applicability. When the foreign law, judgment or
contract is contrary to a sound and established public policy of the forum, the
said foreign law, judgment or order shall not be applied.

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Additonally, prohibitve laws concerning persons, their acts or property, and those
which have for their object public order, public policy and good customs shall not be
rendered ineffectve b laws or judgments promulgated, or by determinatons or

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conventons agreed upon in a foreign country. The public policy sought to be
protected in the instant case is the principle imbedded in our jurisdicton proscribing
the splitng of a single cause of acton.

Moreover, the foreign law should not be applied when its applicaton would
work undeniable injustce to the citzens or residents of the forum.

C. Authentication, Electronic Evidence and Judicial Cognizance of Foreign

Judgments

**To be recognized by Philippine courts, foreign laws and judgments must be alleged
and proved.

HOW FOREIGN PUBLIC DOCUMENTS ARE PROVED:

1. Official publication
2. Certfied true copy or one attested by the officer having the legal custody of
the record, or by his deputy, and accompanied with a certficate that such
officer has custody

The certficate must be made by a secretary of the embassy or legaton, consul

general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines statoned in the foreign country in which the record
is kept
Authentcated by his seal of office

**If the foreign law or judgment does not comply with the above requirements, it
will not be recognized and the Doctrine of Processual Presumpton will apply
(Philippine courts will assume the foreign law is the same as Philippine laws).

GENERAL RULE: Philippine courts are not authorized to take judicial notce of
foreign laws.

EXCEPTIONS:

Where there are exceptonal circumstances when the foreign laws are
already within the actual knowledge of the court (generally known or
actually ruled upon in a prior case)
Where the courts are familiar with the specific foreign laws (e.g. Spanish civil
law)
Where the adverse party did not dispute the applicaton of foreign law
Where the tribunal is a quasi-judicial body which is not bound by strict rules of
technicality

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