CHOICE OF LAW PRINCIPLES Section 129, Corporation Code: “Section 129.
Law
 US Restatement Law (they are written by the
prestigious legal organization composed of noted
professors, judges and lawyers,)
 (General Rule) Follow the statutory directive
of its own state
If there is no such directive, consider the following:
- The needs of interstate and international
systems
- Policies of the forum
- Policies of other interested states, etc.
NOTE: If the is no such directive, to extend the force
and effect of foreign laws would amount to the
extra-territorial application of foreign laws.
Example where the Laws has an applicable
statutory directive:
GR: Follow the directive of our laws.
 Article 15, NCC in relation to the following
provisions on the Civil Personality 9Arts. 37-46)
Article 15, NCC: “Laws relating to family rights and
duties, or to the status, condition, and legal
capacity of persons are binding upon citizens of
the Philippines even though living abroad
.”
Article 16, NCC: “Art. 16. Real property as well as
personal property is subject to the law of the
country where it is stipulated.
However, intestate and testamentary
successions, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of
testamentary provisions, shall be regulated by
the national law of the person whose succession
is under consideration, whatever may be the
nature of the property and regardless of the
country wherein said property may be found”
applicable. - Any foreign corporation lawfully
doing business in the Philippines shall be bound
by all laws, rules and regulations applicable to
domestic corporations of the same class, except
such only as provide for the creation, formation,
organization or dissolution of corporations or
those which fix the relations, liabilities,
responsibilities, or duties of stockholders,
members, or officers of corporations to each
other or to the corporation.
4.) IN CONTRACTS: Parties may stipulate what law
should govern in case of conflict but such
agreement cannot cover jurisdiction.
5.) IN CONTRACTS: Where there is no agreement
as to applicable laws.
In the absence of an effective choice of law
by the contracting parties, the following principles
may be used to determine the applicable law:
- The place of contracting
- The place of negotiation of the contract
- The place of performance
- The location of the subject matter
- The domicile residence, nationality, place
of incorporation and place of business of
the parties.
6.) IN GENERAL: Applicable law is determined by
rule of CONFLICT OF LAWS (COL)
Apply the COL rules IFF:
1.) There is no LOCAL LAW directing the court
to apply a foreign law; OR
2.) No AGREEMENT between the parties as to
the applicable law.
A.) SUBSTANCE vs PROCEDURAL distinction
- It is a problem of characterization (in
some cases, it is hard to distinguish
substance from procedural)
GR: All matters of procedural are governed by the
law of the FORUM.
LEMSKIE NOTES
 - Problem arises because what might be  State-interest Analysis
substantive to 1 country might be
procedural to another (ex. Prescription,
appeal)

 Caver’s Principle in Preference (by Prof. David

B.) Center of Gravity OR The Most Significant
Cavers)
Relationship Theory OR The Grouping of
Contacts Principle
- Where there is no COL in the forum, the
- This is applied in contracts and tort.
forum applies general principles to arrive
(case: Saudi Arabia Airlines vs CA) at just solutions by accommodating
conflicting policies and affording fair
treatment of the parties caught in the
The following be taken into account: conflict between state policies.
- This is applies in Article 9, NCC: “No judge
1. The place where the injury occurred
or court shall decline to render
2. The place where the conduct causing the
judgment by reason of the silence,
injury occurred
obscurity or insufficiency of the laws.”
- In case the law is “silent, obscure or
insufficient,” how should the court or judge
C.) RENVOI
decide the case?
(case: 1.) Aznar vs Garcia; 2.) Bellis vs Bellis)

9.) THE BORROWING STATUTE

7.)..
* On Prescription:

- “If the COA in the country where the cause arose

8.) OTHER THEORIES IN THE CHOICE OF LAW has prescribed, it will also be considered as having
prescribed in our country, EVEN WHEN OUR LOCAL
A.) German Rule of Elective Concurrence
LAW HAS A LONGER PERIODOF PRESCIPTION”
B.) State-Interest Analysis
(Case: Cadalin vs POEA’s Administrator
C.) Caver’s Principle of Preference

10.)
 German Rule of Elective Concurrence
- “”tort” is committed in both the place
where the actor engages in his conduct 11.) EXCEPTION TO THE APPLICATION OF
AND the place where the EFFECTS of such FOREIGN LAW
conduct may occur.
* WHEN MAY FOREIGN LAWS GIVEN EXTRA-
- The place of tort is whenever an essential
TERRITORIAL EFFECT IN THE PHILIPPINES?
part of the tort has been committed
- The injured person may choose to sue in 1. Local law directs that the foreign law be applied
either of the 2 places
2. In contract, valid stipulation of parties

LEMSKIE NOTES
3. Treaty or convention (Doctrine of Incorporation)
4. When COL Rules point to a foreign law as being
applicable.
 WHEN MAY FOREIGN LAWS NOT GIVEN
EXTRA-TERRITORIAL EFFECT IN THE
PHILIPPINES?
1. The foreign law contravenes a prohibitive law
or public policy of the forum
a. Prohibitive law: Art. 17, par 3, NCC
2. The agreement of the parties in a contract,
stipulating the specific law as the applicable
law may not be enforced when
- The relationship of the parties affect public
interest in the country of one of the parties,
OR
- The substantial contacts arising therefrom
point to the law of another country
3. In view of Art. 16 (lex rei sitae), any foreign
law sought to be applied in the COL case in
the Philippines which is contrary to the
mandate of Art. 16, may not be enforced in
the country.
4. A foreign law or judgement or a contract may
not be given effect in the Philippines if it is
against public policy.
5. Only Substantive foreign laws may be given
effect in the Philippines.
6. Foreign penal laws have no extra-territorial
application EXCEPT when there is a treaty (i.e
extradition)
12.) PROOF AND AUTHENTICATION OF FOREIGN
LAWS
* The Doctrine of Processual Presumption
- failure to prove the existence of a foreign law it gives
rise to a presumption that such foreign law is the same
as the Philippine laws.
- foreign law must be alleged and proved as a fact.
- Rule 132, Section 24-25 provides for the
procedure for the authentication of public
document.
Our courts do not take judicial notice of foreign laws
(Case: Wildvalley Shipping Company vs CA)
RULE 132, Sec. 24 . Proof of official record. — The
record of public documents referred to in
paragraph (a) of Section 19, when admissible for
any purpose, may be evidenced by an official
publication thereof or by a copy attested by the
officer having the legal custody of the record, or
by his deputy, and accompanied, if the record is
not kept in the Philippines, with a certificate that
such officer has the custody. If the office in which
the record is kept is in foreign country, the
certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office.
Sec. 19 . Classes of Documents. — For the purpose
of their presentation evidence, documents are
either public or private.
Public documents are:
(a)The written official acts, or records of the
official acts of the sovereign authority, official
bodies and tribunals, and public officers, whether
of the Philippines, or of a foreign country;
(b)Documents acknowledge before a notary
public except last wills and testaments; and
(c)Public records, kept in the Philippines, of
private documents required by law to the entered
therein.
All other writings are private.
LEMSKIE NOTES

13.) EXCEPTION TO NON-JUDICIAL
COGNIZANCE OF FOREIGN LAWS
GR: No judicial notice of foreign laws
XPNS:
1. Where there are exceptional circumstances
when the foreign laws are already within the
ACTUAL knowledge of the court
2. Where the courts are familiar with the
specific laws such as the Spanish Civil Law,
Common law doctrines and the rules from
which the Philippine laws are derived.
3. Where the foreign law has been duly proved
in accordance with the Rules of Court in the
probate of a will AND again introduced as
evidence in the case for the partition of the
property of the decedent.
4. As a general rule, the court’s not taking
judicial notice of a foreign law is applicable
only in courts but NOT before Admin Bodies,
which by reason of their mandated functions
have become familiar with the applicable
foreign law.
CONTRACTS
Guide Questions:
 What is a contract?
 What is “autonomy to contract”?
 What are the 3 approaches to contractual conflict
of laws?
APPROACHED TO CONTRACTUAL CONFLICTS
OF LAW
1. Lex Loci Contractus – law of the place where the
contract in executed
2. Lex Loci Celebrationis – law of the place where
the contract is performed or celebrated
3. State of the most significant relationship rule
– law of the place with the most connection to
the dispute.
DEPACAGE
- Refers to the process whereby different
issues in a single case arising out of a single
set of facts may be decided according to
the laws of different states.
BAR Q….
1. INTRINSIC AND EXTRINSIC VALIDITY OF
CONTRACTS
A.) Intrinsic validity of contracts – follow the lex
loci contractus or the law of the place of
contracting (or perfection )
- Stages if contracts: negotiation, perfection,
consumption
- Follow the lex loci contractus even if the
place of performance is in a different place
(case: Government vs Frank)
B.) Extrinsic validity of contracts – follow Art.
17, NCC
 EXTRINSIC VALIDITY (forms and solemnities)
- Written or verbal
- Notarized or not
- Witnesses needed or none?
 INTRINSIC VALIDITY - legality if the provisions
of the contract
- Nature and Validity
- Obligation
- Interpretation
2. ) EXCEPTION TO THE LEX LOCI CONTRACTUS
RULE
 The intrinsic and intrinsic valifity of contracts
affecting land is governed by lex rae sitae under:
- Article 16, NCC: “ Real property as well as
personal property is subject to the law
of the country where it is stipulated.”
LEMSKIE NOTES
 Hence, lex rae sitae governs the following:
- Forms and solemnities of the contract
involving land
- Validity of the contract involving land
3. CHOICE OF LAW BY THE PARTIES IN A
CONTRACT
 They are free to stipulate as to what law governs
their agreement
 If there is no such agreement:
- Law of the forum shall apply the different
COL rules
- Lex Loci Celebrationis (Bagong Filipino
Overseas Corp vs. NLRC)
The rights and duties if the state which, with
respect to that issue has the most significant
relationship to the transaction and the parties such
as:
- The place of contracting
- The place of negotiation of the contract
- The place of performance
- The location of the subject matter
- The domicile residence, nationality, place
of incorporation and place of business of
the parties.
(consider them according to their relative
importance)
4. EXCEPTION: When the law chooses by the
parties will be applied
1. Where the foreign law chosen is contrary to
a peremptory provision impressed with
public interest
- The parties cannot stipulate that under the
foreign law, the labor of the forum will noy
apply when such foreign law violates our
own labor.
2. Where the relationship of the contracting
parties affects public interest in the country
of one of the parties, OR the substantial
contracts arising therefrom point to the law
of another country as applicable law, such
law shall be applied, notwithstanding the
facts that the parties have agreed that a
specific foreign law as the applicable law
(Pakistan international airlines Corp. Vs Ople)
5. …..
6. PLACE OF WHERE CONTRACT IS ENTERED
INTO OR PLACE OF PERFORMANCE
 Lex Loci Solutionis- generally governs the
liability for breach of contract by the obligor to
perform his part of the obligation.
7. AIR TRANSPORTATION UNDER THE
WARSAW CONVENTION
 The Warsaw Convention applies to all
international transportation of persons, baggage
or goods performed by an aircraft gratuitously or
for hire.
THIS PROVISION REFERES TO JURISDICTION AND
NOT VENUE
Article 28 (1): An action for damages must be
brought, at the option of the plaintiff, in the
territory of one of the High Contracting Parties,
either before the Court having jurisdiction where
the carrier is ordinarily resident, or has his
principal place of business, or has an establishment
by which the contract has been made or before the
Court having jurisdiction at the place of
destination.
8. WHEN LIABILITY UNDER THE WARSAW
CONVENTION DOES NOT APPLY
 The WC sets a limit of liability ($20/kg)
 It does not apply where:
- The airlines is guilty of willful misconduct
and gross negligence (Sabena Belgian
Airline vs CA). The CC provision on
damages will also apply in this case
- Itwill also not apply in case of airline is
executed by a fortuitous event such is
accompanied by neglect or malfeasance by
the airline’s employees;
LEMSKIE NOTES
 Even in the absence of neglect or malfeasance,
the airline is still liable for failure to extend
courtesies to the passengers or to provide them
assistance when stranded by the cancellation of
the flights due to an Act of God (Japan Airlines
vs CA)
9. PRESCRIPTION OF ACTION UNDER THE
WARSAW CONVENTION
- Conflict of Law involving prescriptive
period in WC and CC: Which one should
apply?
Article 29 (1): “The right to damages shall be
extinguished if an action is not brought within
two years, reckoned from the date of arrival at
the destination, or from the date on which the
aircraft ought to have arrived, or from the
date on which the carriage stopped.”
 when the plaintiff was given the run-around by
the airline, the 2-year prescriptive period was
rendered not applicable (United Airlines vs Uy)
 Article 1146 applies (4 years if based on tort)
10. …
11. DEFENSES IN JURISDICTION AND CHOICE OF
LAW
 Three phases in conflict of laws:
- Jurisdiction
- Choice of law
- Recognition or enforcement of foreign
judgement
 Three (3) are distinct
 Defense in one is not a defense in the others
TORTS AND DAMAGES
THE SCENARIO:
 Supposing a Filipino Citizen suffers damages in
a foreign country or is killed therein. May he or
his heirs recover damages in an action filed in the
Philippines against the wrongdoer, assuming
that the latter is found, or has property, in the
country?
SOURCES OF OBLIGATION
Article 1157: Obligation arise from:
1. Law;
2. Contract;
3. Quasi-contract;
4. Acts or Omission punished by law; and
5. Quasi-delict
TORT AS A SOURCE OF OBLIGATION
ART. 2176. Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties,
is called a quasi-delict and is governed by the
provisions of this Chapter.
1. LAW ON DAMAGES: CIVIL CODE AND RPC
 Article 100, RPC: “Civil liability of a person
guilty of felony – Every person criminally
liable for a felony is also civilly liable.
 Article 19, CC: “Every person must, in the
exercise of his rights and in the performance
of his duties, act with justice, give everyone
his due, and observe honesty and good faith.”
LEMSKIE NOTES
 Article 20, CC: “Every person who, contrary to
law, willfully or negligently causes damage to
another, shall indemnify the latter for the
same.”
 Article 21, CC: “Any person who willfully causes
loss or injury to another in manner that is contrary
to morals, good customs or public policy shall
compensate the latter for the damage.”
 Article 2176, CC: “Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of
this Chapter.”
2. LAW GOVERNING TORT
 TORT – a wrongful act or an infringement of a
right (other than under contract) leading to civil
legal liability.
CONFLICT OF LAWS IN TORTS
 FOREIGN ELEMENT IN TORT CASES
1. Lex Loci Delicti (Vested right doctrine) –
the law of the place of injury governs the
rights and liabilities of the parties.
2. Governmental interest analysis approach –
a 3-tiered approach that involves an
examination of whether there is a difference
in the law of the jurisdiction involved, whether
there is a true conflict of law, and if a true
conflict exists, the court will apply the law of
the state whose interest is more impaired.
3. Choice-influencing consideration
approach – this approach requires an
examination of several factors to determine
the applicable law.
The 5 factors are:
(a.) Predictability of result
(b.) Maintenance of the interstate and
international order
(c.) Simplification of the judicial task
(d.) Advancement of the forum’s
governmental interests.
(e.) Application of the better rule of law
4. Lex Fori – an approach where the rights and
liabilities of the parties are governed by the
law of the forum
5. Most significant relationship approach –
the law of the state which has the most
connection shall be applied in the resolution
of the conflict .
LEX LOCI DELICTI vs MOST SIGNIFICANT
RELATIONSHIP
1. The former is simple, easy to apply, stable and
predictable, it is disfavored because it is inflexible
(the advent of the internet has made it difficult
to pinpoint the place of injury)
2. The latter is favored because of its
responsiveness to modern times and litigation,
flexibility, fairness and judiciousness. It however
has the tendency to ignore stare decisis, making
judicial decisions unpredictable.
3. TRADITIONAL RULES ON DETERMINING
APPLICABLE LAW
- The lex loci delicti commissi
 Usually involves only 2 states
 Damages occurred in one country and the action
is filed in another
4. ….
5. STATE OF THE MOST SIGNIFICANT CONTACT
RULE
- Synonymous with “center of gravity” or the
“grouping of contacts” rule.
CONTACTS to be taken into account:
LEMSKIE NOTES
 Place where the tory occurred
 The place where the conduct causing the injury
9. LAW OF THE COUNTRY OF THE REGISTRY OF
occurred
THE VESSEL
 The domicile, residence, nationality, place of
incorporation and place of business of the parties  French Rule
 The place where the relationship , if any, between
the parties is centered.  English Rule

10. LIMITED LIABILITY CLAUSE IN CONTRACT OF

6. ….
CARRIAGE OR BILL OF LADING.

7. OVERSEAS EMPLOYMENT OF FILIPINO GR: the stipulation as to the amount of liability for
WORKERS INCLUDING SEAMEN damages to cargo is binding, unless the shipper
declares a greater amount in their agreement.
The lex loci delicti determines that
 Liability of the person responsible for the death or
injury to a person
 The liability of the employer

= The Kilberg Doctrine was formulated as a

reaction to the limitation of the damages that me
be recovered by applying the lex loci delicti rule.

The KILBERG DOCTRINE states:

“in conflicts of law, a rule to the effect that

the forum is not bound by the law of the place
of death as to the limitations on damages for
wrongful deaths because such rule is
procedural and hence the law of the forum
govern on this issue.”

LAW OF THE FLAG

 Governs the terms and conditions of the vessel’s

crew
 It usually supersedes the lex loci delicti test of
tort jurisdiction
 The traditional rule of COL, do not apply in case
there is a contrary law of the forum, where the
case is filed.

8..

LEMSKIE NOTES