Professional Documents
Culture Documents
HELD: No law has any effect, of its own force, Distinguished from Public International Law and
beyond the limits of the sovereignty form other disciplines:
which its authority is derived. The extent to
which the law of one nation, as put in force
within its territory xxx shall be allowed to
Public International Private
operate within the dominion of another nation, Law International Law
depends upon xxx “the comity of nations.”
Principally governs Principally governs
Comity of nations is the recognition which states in their individuals in their
one nation allows within its territory to the relationships amongst private transactions
legislative, executive or judicial acts of another themselves which involves a
foreign element
1
Atty. Dela Cruz is an MCLE lecturer and a Bar As to sources of law:
Reviewer at the Jurist Bar Review Center and the Codified in Art. 38 of Generally derived from
Cosmopolitan Review Center. He teaches law at UST,
FEU and the Bulacan State University. He obtained his the Statute of the internal law of each
Master of Laws (with Distinction) from the London International Court of state and not from any
Metropolitan University, and a Postgraduate Diploma Justice “international” law
in International Trade Law from the University College extraneous to
London (UCL), U.K., both as a Chevening scholar of municipal law
the British government. He completed a Postgraduate
Fellowship on Leadership and International Relations
As to persons involved:
from the John F. Kennedy School of Government, Governs only states Governs individuals or
Harvard University, USA. He also holds a Masters in and internationally- corporations
Public Management degree from the Ateneo School of recognized
Government. He obtained his Bachelor of Laws organizations
degree (with honors) and an AB Legal Management
degree (cum laude) from the University of Santo Tomas
As to transactions:
as a Rector’s Scholar. He is on his 3 rd term as an Involves state-to-state Relates to private
elected Councilor of Baliuag, Bulacan and the current or government-to- transactions between
Vice-President (Luzon) of the Philippine Councilors government matters individuals
League. He is also a Partner at the Ponce Enrile As to remedies:
Reyes & Manalastas (PECABAR) Law Office in Makati
City. In case of violation, a All the remedies are
state may resort to provided by municipal
1
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Conflict of law rules aim to promote stability and Statute is classified into:
uniformity of solutions provided by the laws and a. real – applied to immovable
courts of each state called upon to decide property within the state
conflicts cases. b. personal – followed the person
even outside the domicile and
Scope: covers the entire range of laws as it cuts governed questions on personal
across the subjects of JD of local courts or status, capacity and movables
tribunals, the law on evidence or proof of foreign c. mixed – contracts, if entered into
law, the personal law of individuals and juridical by the different nationals
entities, naturalization law, laws on domicile and
residence, family relations, contracts, torts, 16th century, France
crimes, corporation law and property law.
Charles Dumoulin – advocated a method to
determine what law would govern contracts
3 Issues in Conflict of Laws: between different nationals
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
provided that it will not prejudice its - law of the State applies to persons and
subjects. things within the State, therefore, no
foreign law is applied.
Comitas Gentium was readily accepted - Branch: only rights vested or acquired
because of increasing international under foreign law are recognized in the
transactions. forum but not foreign law itself
1969
Ius Commune, applied by Italian and French - 2nd Restatement of Conflict of Laws,
jurists, was a supranational law based on adopted by American Law Institute
Roman law and which became the under Prof. William Reese, proposed
continental European common law. that in the absence of statutory law, law
to be applied in Conflict case, is the law
Nations codified their national laws which of the most significant relationship.
included conflict of laws provisions.
Conflict of Laws in the Philippines
Ex. French Civil Code of 1804
- became the pattern for Civil Codes Spanish Civil Code enforced in the Philippines
of Spain, Belgium and Romania until 1950 contained the principles adopted from
- nationality law principle (contained the French Civil Code (Code of Napoleon)
in Art. 15 of our CC) was provided particularly the nationality law principle. Art 16,
in Art. 3 of the French Code par. 1, which applies lex situs rule was adopted
from Art. 10 of Spanish CC while par. 2
19th Century represents the system of universal succession.
Art. 17, par. 1 follows lex loci contractus. But
Justice Joseph Story – relied on the there was no significant jurisprudence on the
European continental theorists’ concept of subject.
territorial sovereignty and founded conflict of
laws on the principle of comity of nations. Conflict of Laws was included in law curriculum
by UP College of Law in 1911 (no less!). Until
Frederich Carl Von Savigny 1950s, law teachers predominantly used foreign
- founder of modern private IL law books and decisions by American courts.
-application of foreign law was not
due to comity but the resultant In the Bar, it used to be a separate subject along
benefits for everyone concerned with PIL but when it was revised, PIL was
- advocated situs theory (seat of included in Pol Law while PRIL was merged with
legal relationship): every element Civil Law. But, this does not mean that PRIL is a
of transaction be governed by the part of civil law as this mindview tends to limit
law of the place with which said the perspective and scope of analysis required for
element has the most substantive conflicts problems.
connection
Now, more problems in Conflict have arisen esp.
Pascuale Mancini with Filipinos engaging in foreign business
- advanced nationality theory in matters transactions, and in international air transport
concerning status, capacity and private and foreign tort claims and labor contracts for
interests of the individual OFWs.
B. Modern Developments
III. Sources of Conflict of Laws
Neo-Statutists
- followed Italian theory: when 2 or more A. Codes and Statutes
independent laws are applicable to a
Conflict problem, the method so devised Conflict of Laws (CL) originated in continental
determines what law shall prevail Europe was most laws were codified.
Internationalists
- there should be a single body of rules Primary sources of law are found in the civil
that can solve problems involving a codes of different countries:
foreign element
Territorialists 1. Roman code codified principles of ius
gentium.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
2. Code of Napoleon contained specific rule The Philippines has entered into a number of
on personal law of individual, this was treaties and international conventions which deal
followed by several codes (Netherlands, with private international law since it became a
Romania, Italy, Portugal, Spain) Republic.
3. The German civil Code contained many
provisions on Conflict of Laws. Some of these treaties/conventions are:
4. Switzerland also enacted Laws on cases
involving foreign elements. 1. Convention on Intl Civil Aviation,
5. Greece enacted a Civil Code with CL rules 2. Warsaw Convention,
which became a model in other countries 3. Convention on Offenses Committed on Board
6. The Code of Bustamante (in South Aircraft
America) was patterned after the Code of 4. Convention on the Suppression of Unlawful
Napoleon 5. Acts against Civil Aviation
6. UN Convention COGSA
7. Convention on Consent to Marriage, etc
Conflict Laws of the Philippines 8. Convention on Traffic of Persons
9. Convention on Elimination of Discrimination
Spanish Civil Code was enforced in the against Women
Philippines on December 7, 1889 until the 10. Convention on Political Rights of Women
Philippine Civil Code’s effectivity on August 30, 11. IC on the Suppression of Traffic of Women
1950 which contained the provisions on conflict and Children
of laws of the earlier code. 12. Convention on World Intellectual Property
Organization
Spain’s Code of Commerce, having some 13. Berne Convention on Protection of Literary
provisions on foreign transactions, were also and Artistic Works
enforced in the Philippines on Dec 1, 1888. 14. Paris Convention on Protection of Industrial
Property.
One basic source of law is the 1987 Constitution
which contains principles on nationality and Although many Hague Conventions on Private
comity. International Law were concluded since 1951,
which dealt with issues on:
Special statutes were also enacted to govern Personal status
cases with foreign elements, to wit: Patrimonial family status
Patrimonial status such as
1. Corporation Code agency and trusts
2. General Banking Act The Philippines is a signatory to the Convention
3. Foreign Currency System Act on Recognition of Foreign Judgment on Civil and
4. Phil Foreign Law Guarantee Corp Commercial Matters and has ratified the 1993
5. Retail Business Regulation Act Convention in Respect of Inter-Country Adoption
6. Anti-Dummy Law only.
7. Nationalization of Rice and Corn Industry Act
8. Insurance Code
9. IP Code C. Treatises, Commentaries and
10. Patent Law Studies of Learned Societies
11. Trademark Law
12. COGSA In interpreting statutes and codes involving CL,
13. Salvage Law courts resort to works of distinguished jurists and
14. Public Service Act studies of learned societies.
15. Civil Aeronautics Act
16. Phil Overseas Shipping Act Distinguished writers in continental Europe
17. Investment Incentives Act include Huber Manreas, Savigny (whose work
18. Export Incentives Act was translated into English by Guthrie), and
19. RA 7722 Weiss.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
summons addressed to him upon Helen, it In these 2 proceedings, all that due process
appearing from the answer that she is the requires is that the defendant be given adequate
representative and attorney-in-fact of her notice and opportunity to be heard (which are
husband in the civil case. both met by service of summons by publication).
Quasi in rem JD: affects only the interests of HELD: The SC of Washington has JD over
particular persons in that thing (ex. Quieting of International Shoe. Due process requires only
title). (actions against a person in respect of the that in order to subject a defendant to a
res) judgment in personam, if he be not present
within the territory of the forum, he should
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
have certain minimum contacts with it, such present in Delaware, are considered to be there
that the maintenance of the suit does not in view of it being the place of incorporation.
offend “traditional notions of fair play and
substantial justice”. (Minimum contacts so HELD: The Delaware court cannot exercise JD
that the suit will not offend traditional just because the stocks are statutorily present
notions of fair play and substantial justice.) in Delaware. The property (stocks) is not the
subject matter of the litigation nor is the
The demands of due process regarding the underlying cause of action related to the
corporation’s “presence” may be met by such property. Also, the facts in CAB does not
contacts of the corporation with the state of the demonstrate that defendants have
forum as to make it reasonable xxx to require the purposefully availed themselves of the
corporation with defend the particular suit which is privilege of conducting activities within the
brought there. forum state in a way that would justify
bringing them before a Delaware court.
Its “presence” can be manifested only by such
activities carried on in its behalf by those who In Shaffer, the minimum contacts and
are authorized to act for it. fundamental fairness test should be satisfied
regardless of whether the proceedings are in
rem, quasi in rem or in personam.
Mullane vs. Central Hanover Bank & Trust
Co.
(1950) Traditional basis for the exercise of judicial JD is
FACTS: In an action for judicial settlement of the state’s physical power over persons and
property within its territory; this is why in in rem
accounts of Central Hanover Bank as trustee of
proceedings, it can exercise JD over property
a common trust fund, some of the beneficiaries
situated in the state regardless of whether it
who are non-residents of NY were notified
could otherwise exercise JD over the persons
only by publication in a local newspaper. whose interest would be affected by the decision.
HELD: When notice is a person’s due, process In the US, there is a shifting trend from theory of
which is a mere gesture is NOT due process. territorial power to considerations of minimum
The means employed must be such as one contacts and fundamental fairness. This approach
desirous of actually informing the absentee demands that there be forum-transaction
might reasonably adopt to accomplish it. contacts that will make it fundamentally fair to
Within the limits of practicability, notice must require the defendant to defend a suit in the
be such as is reasonably calculated to reach forum regardless of his non-resident status.
interested parties.
Distinction, Shaffer and International Shoe: while
In Mullane, the manner notice was given should International Shoe requires minimum contacts
reasonably result in informing the affected between the defendant and the forum, Shaffer
partner; when conditions do not allow such demands that minimum contacts exist among the
notice, the form chosen should not substantially forum, defendant and the cause of action.
be “less likely to bring home notice than other of
the feasible and customary substitutes.” The change in the conceptual foundation of JD
from territorial power to fairness does not
significantly affect proceedings in rem, which are
suits where the property itself is the object of the
controversy. The physical presence of the
property within the state establishes the state’s
Shaffer vs. Heitner paramount interest in adjudicating a claim over it
(1977) and provides the necessary minimum contacts.
FACTS: Heitner, a non-resident of Delaware
with 1 share of stock in the Delaware Long-Arm Statutes
corporation Greyhound, sued Greyhound and
Long-arm statutes specify the kinds of contacts
its officers for allegedly violating its duties.
upon which JD will be asserted. Some long-arm
Pursuant to the case, Heitner filed a motion for
statutes broadly authorize courts to assert JD in
sequestration of the defendants’ stocks in any case not inconsistent with the Constitution,
Greyhound. The stocks, while not physically
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
secure evidence and attendance of behalf of the victims. Union carbide moved to
witnesses) dismiss on the ground of forum non conveniens.
4) avoid global forum shopping HELD: Indian courts have JD, not US courts.
Even if UCC has domicile in the US, this loses
English and Scottish courts have applied FNC significance because it gave its consent to
when there was “another available and more Indian JD. Moreover, the findings of the court
appropriate forum, in which the ends of justice show that the proof bearing on the issues to be
would be better served in view of the interests of
tried is almost entirely located in India
all parties, by eliminating the vexatious or
(principal witnesses and documents, detailed
oppressive character of the pending proceedings
designs, implementation of plans, safety
and by removing any unfairness to either party
which would result from trial in the forum seized precautions, etc.).
of the case.”
Wing On Company vs. Syyap
Heine vs. New York Insurance Co. (1967)
(1940) FACTS: Syyap failed pay Wing On, a NY-
FACTS: An action for recovery on life based partnership, its obligation for a contract
insurance policies made and issued in of purchase of clothing material. Wing On
Germany was filed by German citizens in filed an action in the Philippines against
Oregon against a NY corporation. Syyap, but Syyap contends that the trial court
should have declined JD on the ground of
HELD: The Oregon court may refuse to forum non conveniens.
exercise JD. The courts of Germany and New
York are open and functioning and competent HELD: Forum non conveniens is inapplicable.
to take JD of the controversies, and service can Unless the balance is strongly in favor of the
be made upon the defendants in either of such defendant, the plaintiff’s choice of forum
JDs. To require the defendants to defend the should be rarely disturbed, and furthermore,
actions in Oregon would impose upon them the consideration of inadequacy to enforce the
great and unnecessary inconvenience and judgment, which is one of the important
expense. The courts of this country are factors to be considered in the application of
established and maintained primarily to said principle, would precisely constitute a
determine controversies between its citizens problem to the plaintiff if the local courts
and those having business there, and decline to assume JD on the basis of said
manifestly the court may protect itself against principle, considering that defendant is a
a flood of litigation over contracts made and to resident of the Philippines.
be performed in a foreign country, where the
parties and witnesses are nonresidents of the There is no existing catalogue of circumstances
forum, and no reason exists why the liability, if that will justify sustaining a plea of forum non
any, cannot be enforced in the courts of the conveniens but, in general, both public and
country where the cause of action arose, or in private interests should be weighed.
the state where the defendant was organized
and has its principal offices. When the forum is the only state where JD can
be obtained over the defendant and, in
addition, some relation with the parties exists
or when the forum provides procedural
In re: Union Carbide remedies not available in another state, the
(1986) forum court may not resist imposition upon its
FACTS: An industrial disaster in a chemical JD.
plant of Union Carbide in Bhopal, India
caused deaths and injuries to a number of
residents. India enacted the Bhopal Gas Leak Bank of America vs. CA
Disaster Act, which authorized the (2003)
government (Union of India) to represent the FACTS: The spouses Litonjua are engaged in
victims. The UOI filed a complaint in NY in the shipping business; they executed a contract
where Bank of America was made the trustee
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
The SC also held in Philsec. Investment vs. CA Under the Rules of Court, the
that the doctrine of FNC should not be used as foreign law may be proved by:
a ground for a motion to dismiss because Sec. a) official publication
1 Rule 16 of ROC does not include said b) certification form the officer with
doctrine as a ground. official custody, under seal, and the
Phil. Embassy must certify that such
officer has official custody, etc.:
Forum non conveniens: that it is the law in force at the time
1) prevent abuse of court processes etc., etc.
2) burdensome on the court/taxpayers
3) prevent global forum shopping
Fleumer vs. Hix
FNC is not something that automatically (1930)
applies; its application rests in the FACTS: Fleumer, the special administrator of
sound discretion of the court the estate of Hix, appealed the denial of the
probate of Hix’s will, alleging that since the
in Wing On vs. Syyap. Prof. will was executed in West Virginia by a
Pangalangan does not agree with the resident therein, West Virginia law should
holding that “unless the balance is govern.
strongly in favor of the defendant, the
plaintiff’s choice of forum should HELD: The courts of the Philippines are not
rarely be disturbed”, because in the authorized to take judicial notice of the laws of
first place, it was the plaintiff who the various States of the American Union. Such
chose that forum. laws must be proved as facts. Here the
_______________ requirements of law were not met. There was
no showing that the book from which an
extract was taken was printed or published
2. Assume Jurisdiction
under the authority of the state of West Va. as
When the court assumes JD, it may apply forum provided in the Code of Civil Procedure; nor
law or foreign law, although forum law should be was the extract from the law attested by the
applied whenever there is good reason to do so certificate of the officer having charge of the
because the forum law is the basic law. original.
Factors which justify the application of internal Philippine Trust Co. vs. Bohanan
law: (1960)
FACTS: The will of Bohanan was admitted to
1) A specific law of the forum decrees probate; in the probate he was declared to be a
that internal law should apply citizen of Nevada. In the hearing for the
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
proposed project of partition, Nevada law was factors used to determine choice of
not introduced. Bohanan’s widow questioned law
the validity of the will under Philippine law;
however, if Nevada law was to be applied, the 2) if the forum applies its internal law
will would be valid. because it has a real interest, the
outcome of the case will be
HELD: The law of Nevada, being a foreign foreordained by the forum
law, can only be proved in our courts in the - plaintiff will choose forum who has real
interest in applying its internal law
form and manner provided for by our Rules.
However, it has been found that during the
3) generally, forum will apply its
hearing for the motion of the widow Bohanan
internal law so plaintiff will bring
for withdrawal of her share, the foreign law suit where internal law is favorable
was introduced in evidence by her counsel. In to him
addition, the other heirs do not dispute the
provisions of the Nevada law. Under these BUT these are 2 diff. concepts. A court may
circumstances, the pertinent laws of Nevada exercise jurisdiction but apply foreign law or not
can be taken judicial notice of by the court, exercise jurisdiction but the state’s internal law
without proof of such law having been offered will be applied.
at the hearing of the project of partition.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
loci, lex loci governs in torts in respect to the conflicting state policies and afford fair
legal effect and incidents of the act. treatment to the parties.
- Caver’s principles have a territorialist
bias; it looks to the place where the
The status as spouses is determined by New significant events occurred or where the
Hampshire law but the incidents of that status legal relationship is centered.
is governed by the law of the place of the - Court should:
transaction (Maine). 1) scrutinize the event/ transaction
giving rise to the issue
2) compare carefully the proffered rule
Alabama Great Southern Railroad vs. Carroll of law & the result of its application
(1892) with the rule of the forum & its
FACTS: Carroll is an employee of Alabama effect
RR. Both are residents of Alabama. C was 3) appraise these results from the
injured in the course of work bec. of standpoint of justice between the
negligence of co-EE in Mississippi. Mississippi litigants or of considerations of
bars recovery. Alabama makes employer social policy
liable. Suit is filed in Alabama.
2. Modern Approaches
HELD: There can be no recovery in one sate a. Place of the Most Significant
for injuries to the person sustained in another Relationship
unless the infliction of the injuries is actionable
under the law of the state in which the injuries -identifies a plurality of factors:
were received. i. needs of the interstate and intl
Although it is claimed that the negligent system
conduct was done in Alabama, the injury ii. relevant policies of the
concerned states
sustained creates the cause of action and not
iii. relevant policies of other
the negligence. (law of the place of injury)
interested states
iv. protection of justified
Criticisms to the Approach: failure to resolve expectations of the parties
conflicts cases with considerations of policy and v. basic policies underlying the
fairness.
particular field of law
vi. certainty, predictability and
uniformity of result
b. Cook’s Local Law Theory vii. ease in the determination and
application of law to be applied
- treat conflicts cases as a purely
domestic case that does not involve a
foreign element Examples of application:
- power of a state to regulate within its
i. torts – place of injury, place of
territory has no limitation except as
tortious conduct, domicile,
imposed by its own positive law
residence or nationality of
- criticism: appeals to narrow-mined who
parties, place where
favors an exaggerated local policy bec a
relationship is entered
sovereign can do as they please,
ii. contracts – choice of law of the
depreciating the practical and equitable
parties, place of contracting,
considerations that should control the
place of performance, domicile,
case.
residence, nationailty, place of
incorporation and place of
business
c. Caver’s Principles of
Preference
Auten vs. Auten
- choice-of-law decisions should be made
(1954)
with reference to principles of
preference which are conceived to FACTS: Spouses were married and lived in
provide a fair accommodation of England. H left and went to NY. Spouses
executed support agreement in NY. H failed to
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
b. Interest Analysis
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
public order, public policy and good customs shall Though the court was silent on the matter of
not be rendered ineffective by laws or judgments characterization, it had the task of categorizing
promulgated, or by determinations or the issue as one involving:
conventions agreed upon in a foreign country. b) property to be governed by lex
situs, or
The rules specify geographical location in c) succession to be governed by
accordance with traditional approach. The decedent’s national law (California)
problem with this: inherent rigidity, unjust
decisions. Characterization problems are considered a
threat to traditional choice-of-law theories whose
Solution: Characterization, Renvoi, Escape aims are uniformity & predictability of results.
devices
Problems:
Characterization: the process by which a court
assigns a disputed question to an area in A) C, is adopted in the Philippines by a former
substantive law. It is a part of legal analysis and Filipino citizen and moves to the US with her
a pervasive problem since at least 2 jurisdictions adoptive mother, M. By M’s laws, C will not be an
with divergent laws are involved. heir. Will C be entitled to an intestate share in
M’s estate?
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Thus, a suit can still be maintained in another JD Different aspects of a case involving a foreign
w/c has a longer SL. However, certain SL’s have element may be governed by different systems of
been classified as substantive for conflicts laws.
purposes if providing a shorter period for certain
claim types falling w/in wider class covered by Von Mehren & Trautman: A man dies intestate
the general SL. domiciled in state A & w/ movable properties in
State B.
Specificity test: to determine whether an SL is
substantive or procedural. How will the man’s estate be divided?
State A conflict rules refer to laws of domicile.
An SL of a foreign country is treated as Intestate law of State B gives the widow a
“substantive” when limitation was directed to definite share in the estate of deceased. But the
newly created liability so specifically as to determination of WON the woman claiming the
warrant saying that it qualified the right share is a “wife” is referred to family law, not
laws on succession.
Merits of Depecage:
Cadalin vs. POEA Administrator This technique allows other relevant interests of
(1994) parties to be addressed. Thus, it permits courts
FACTS: Cadalin et al. instituted a class suit to arrive at a functionally sound result w/out
with the POEA for money claims arising from rejecting the methodology of the traditional
their recruitment by AIBC and BRII for approach. This nuanced single-aspect method
pretermination of employment contracts. employs depecage by choice.
Under Bahrain law where some of the
complainants were deployed, the prescriptive
Haumschild vs. Continental Casualty
period for claims arising out of a contract of
(1959)
employment is one year.
FACTS: Haumschild and Gleason were
married in Wisconsin, their domicile.
HELD: Even though a law on prescription may
Haumschild was injured in California while
be considered as substantial or procedural, its
riding a motor truck driven by Gleason. Their
characterization as either becomes irrelevant
marriage was later annulled. An action for
when the country of the forum has a
recovery of damages was filed by Haumschild
“borrowing statute.” Said statute has the
in Wisconsin. Continental alleges that under
practical effect of treating the foreign statute of
California law, a spouse is immune from suit
limitation as one of substance. Under the ROC
by the other spouse.
of the Philippines, it is provided that “if by the
laws of the state or country where the cause of
HELD: The law of the domicile ought to be
action arose, the action is barred, it is also
applied in any issue of incapacity to sue based
barred in the Philippines.” The Bahrain law on
upon family relationship. The policy reason
prescription should apply. However, it cannot
for denying the capacity to sue (preventing
be enforced as it would contravene the public
family discord) more properly lies within the
policy on the protection to labor. Philippine
sphere of family law, where domicile usually
law will then be applied.
controls the law to be applied, than it does tort
law, where the place of the injury generally
B. Depecage determines the substantive law which will
govern.
From depecer, which means “to dissect.”
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Edward was a US citizen; hence the abandon her English domicile even if she had
successional rights and intrinsic validity of the not complied with the formalities required
will should be governed by California. under French law to become a French
domicile.
HELD: Philippine law should apply. Art. 16 of
the Phil. Civil Code provide that the national According to French municipal law, the law
law of the decedent governs the validity of his applicable in the case of a foreigner not legally
testamentary dispositions. Such national law domiciled in France is the law of that person’s
means the law on conflict of laws of the nationality, which is British. But British law
California code, which authorizes the refers the question back to French law, the law
reference or return of the question to the law of the domicile. And according to French law,
of the testator’s domicile. The conflict of laws the French courts, in administering the
rule in California precisely refers back the case, movable property of a deceased foreigner
when a decedent is not domiciled in who, according to the law of his country is
California, to the law of his domicile (the domiciled in France, and whose property
Philippines in the CAB). The Phil. court must must, according to that law, be applied in
apply its own law as directed in the conflict of accordance with the law of the country in
laws rule of the state of the decedent. which he was domiciled, will apply French
municipal law, even if he had not complied
with the French requirements for acquisition
3) by desistance or mutual disclaimer of JD of domicile.
– the same result as the acceptance of
the renvoi doctrine but the process used
by the forum court is to desist applying
the foreign law. Options which the forum court may do:
a) accept the renvoi (apply forum law)
4) “foreign court” theory – the forum court b) reject the renvoi (apply the internal law
would assume the same position the of the foreign state)
foreign court would take were it litigated c) desistance/mutual disclaimer
in the foreign state d) “foreign court” theory
- the difficulty with the foreign court
Disadvantage to renvoi: if both courts follow the theory is that the forum court will have
same theory, there would be no end to the case to anticipate or guess how the foreign
since the courts would be referring it back to court will act.
each other. It gives rise to situations that have Renvoi is optional, based on the
been invariably described as resembling discretion of the court and the facts of
“revolving doors,” a “game of lawn tennis,” a the case.
“logical cabinet of mirrors” or a “circulus _______________
inextricabilis.”
C. Usefulness of Renvoi
Annesley, Davidson vs. Annesley
(1926) Renvoi has been used to avoid unjust results.
FACTS: The testatrix, a British subject, was a
domiciliary of France according to British law,
but not according to French law. She made a University of Chicago vs. Dater
will in English form. In the will she disposed (1936)
of all her property in favor of her daughter, FACTS: Mr. and Mrs. Price executed a trust
and stipulated that she had no intention of deed and promissory notes in favor of
abandoning her domicile in England. If she University of Chicago, for a loan secured by
was a domiciliary of France, she could only Mr. Price and Mr. Dater. They were residents
dispose of 1/3 of her personal property. of Michigan; the mortgage and the notes were
also signed there and sent by mail to Chicago.
HELD: The domicile of the testatrix at the time In a suit filed by the University in Michigan
of her death was French. Applying English against the spouses Dater and Mrs. Price (Mr.
law, the fact of her residence in France coupled Price having died earlier), the court ruled that
with animus manendi showed her intention to there was no cause of action against Mrs. Price,
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Effects of Failure to Plead and Prove Foreign Law pleading or proof of the law of France where
the transaction occurred.
Forum court may:
1. dismiss the case for inability to establish HELD: L can recover despite failure to prove
cause of action French law. Altho the court recognizes the fact
that France adopts civil law rather than
2. apply law of the forum (courts conclude that common law principles, the cause of action of
by failing to adduce proof, parties acquiesce L may still be pursued, as there are 3
to the application of the forum law since it is
presumptions that the court may apply in the
the basic law)
CAB. These are:
1, French law is the same as law of the
3. assume foreign law is the same as law of the
forum (processual presumption) forum
2. French law, like all civilized countries,
recognizes certain fundamental
First approach: Dismiss the case principles (taking of a loan creates
obligation to repay)
3. By failing to prove French law, parties
Walton vs. Arabian Oil Co. acquiesce to apply forum law
(1956) The third presumption does not present any
FACTS: Walton, US citizen, was injured in difficulties for it to be universally applied
Saudi Arabia. His complaint did not allege the regardless of the nature of the controversy.
Saudi Arabia law nor did he proved the same This is more favored by the authorities and has
during the trial. TC ruled in favor of defendant been followed in Sturm v. Sturm.
as he did not take judicial notice of S. Arabian In CAB, Rights of the parties are to be
law. determined by New Jersey laws which permit
recovery on the facts proven.
HELD: Because of failure to prove the foreign
law, plaintiff loses.
Plaintiff has the burden of proving the law of Zalamea vs. CA
Saudi Arabia from which he shall base his (1993)
claim because under NewYork law, where FACTS: Zalamea filed action for damages
action was instituted, lex loci delicti is the against TWA. RTC awarded actual and moral
substantive la applied in tort cases. damages. CA denied award of moral damages
A court abuses its discretion under the New York because there was no fining of bad faith and
Civil Practice Act if it takes judicial notice of the because overbooking was an allowed practice
foreign law when it is not pleaded esp. when the in US airlines.
party who had the burden to prove the same has
not assisted the court in judicially learning it. HELD: CA was wrong. The US law or
The applicable tort principles necessary to regulation authorizing overbooking was not
establish plaintiff’s claim are not proved in accordance with our laws.
rudimentary. In countries where common TWA relied solely on the statement of its
law does not prevail, these principles may agent that the Code of Fed. Regulations of
not exist or maybe vastly different. Civil Aeronautics Board allows
overbooking.
No official publication of the said code
Second approach: apply forum law, conclude that was presented as evidence.
parties acquiesce to its application.
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1) The foreign law is contrary to an to the subject matter of the case. The ER-EE
important public policy of the forum relationship is much affected with public
2) The foreign law is procedural in nature interest, such that otherwise applicable Phil
3) Issues are related to property (lex situs) laws and regulations cannot be rendered
4) The issue involved in the enforcement of illusory by the parties agreeing upon some
foreign claim is fiscal or administrative other law to govern their relationship.
5) Foreign law or judgment is contrary to Also, PIA did not undertake to plead and
Good Morals prove the contents of the Pakistan law on the
6) The application of Foreign law will work
matter; it must therefore be presumed to be the
Undeniable Injustice to the Citizens of
same as applicable provisions of Phil law.
the Forum
7) The Foreign law is Penal in Character
8) The application of the Foreign law might Criticisms: courts using public policy exception
endanger the Vital Interests of the State can disregard the applicable law reached and
replace it with forum law to arrive at its desired
These exceptions fall under 3 main categories: result without having to provide the rigorous
legal analysis required to explain the shift. Courts
1: when local law expressly so provides engage in “intolerable affectation of superior
2: when there is failure to plead and prove virtue”.
the foreign law or judgment
3: when the case falls under the exceptions
to the rule of comity 2. The foreign law is procedural
in nature
1. The foreign law is contrary to Procedural or remedial laws are purely internal
an important public policy of matters peculiar only to the State. It would be
the forum impractical for the court to adopt the procedural
machinery of another state such as rules on
“public policy”: no subject or citizen can lawfully venue, forms and pleadings. Any individual who
commit any act which has a tendency to be submits himself to the jurisdiction of the law of
injurious to the public or against the public good. the forum must follow the forum’s rules of
procedure.
“public policy technique”: court declines to give
due course to a claim existing under a foreign Problem: courts are tasked to characterize the
law because it considers the nature of the claim problem as to whether it is substantive or
unconscionable or its enforcement will violate a procedural law which can be difficult at times, ex.
fundamental principle of justice, good morals or If issue involves statute of limitations or statute
some deep-rooted tradition. of frauds
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Penal statutes are all statutes which command or 2) an individual’s nationality is easily
prohibit certain acts, and establish penalties for verifiable from documents.
their violation and even those which, without
expressly prohibiting certain acts, impose a
penalty upon their commission. Revenue laws are Demerits:
not classed as penal laws although there are 1) Problems arise with regard to:
authorities to the contrary. a. stateless persons
b. persons with multiple nationalities
This exception is partly remedied under the c. states w/ diverse legal systems
international law of extradition on the basis of having no single national law
jurisdictional cooperation and assistance.
2) a person’s ties to his nation may be so
attenuated if he has lived in another
country.
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- unreasonable for his national law to 3) Those born before January 17, 1973,
govern him if he has no shared sense of of Filipino mothers, who elect Philippine
identity. citizenship upon reaching the age of
majority; and
Most civil law countries follow the national law 1. Natural-born Citizens
theory.
Two principles w/c may be followed:
Phil SC: Nationality law theory is a conflict of
laws theory by virtue of which JD over the jus soli: looks to the law of the place of one’s
particular subject matter affecting a person, such birth to determine one’s nationality (followed in
as status of a natural born person, is determined many common law countries).
by the latter’s nationality.
jus sanguinis: rule of descent or blood. Followed
Art 15 CC expresses the nationality principle. in the Philippines, articulated in the Constitution.
Art 15: “Laws relating to family rights & duties,
or to status, condition & capacity of persons are Natural born citizens: citizens of the Philippines
binding upon citizens of the Philippines even from birth w/out having to perform any act to
though living abroad.” acquire or perfect citizenship.
This notion that a person’s private rights should Concept broadened by the Constitution to include
be determined by his political allegiance & not by “those born before January 17, 1973, of Filipino
his physical location, owes its origin to the mothers, who elect Philippine citizenship upon
awareness of national identity born in the French reaching the age of majority”.
revolution,
Talaroc vs. Uy
B. Determination of Nationality (1952)
FACTS: Uy was elected mayor of Manticao,
Each state has prerogative to determine who are but one of the defeated candidates filed a
its nationals or citizens by its own municipal law. petition for quo warranto, alleging that Uy
was a Chinese citizen and therefore ineligible
The Hague Convention on Conflict of National for the office.
laws: “It is for each state to determine who are
its nationals. This shall be recognized insofar as
HELD: Uy is a Filipino citizen, following the
consistent w/ int’l. convention, int’l. customs, &
citizenship of his mother, who reacquired her
the principles of law generally recognized w/
Filipino citizenship upon the death of her
regard to nationality”.
Spanish husband. A wife reverts to her former
Art 2. Hague Convention: Question on possession status upon dissolution of the marriage by the
of nationality of a particular state “shall be death of her husband, and where the widowed
determined in accordance w/ the law of that mother herself thus reacquired her former
state. nationality, her children (she being their
natural guardian) should follow her
Who are Filipino citizens? ( Philippine Constitution, nationality with the proviso that they may
Art IV) elect for themselves upon reaching majority.
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protests, claiming that Ong Jr. was not a b) applicant has established a new
natural-born citizen. industry or introduced a useful
invention in the Phil
HELD: Ong Jr. is a natural-born Filipino. He c) Married to a Filipino woman
could not have been expected to have formally d) Engaged as teacher in a public or
or in writing elected citizenship upon reaching recognized private school not for
majority, because he was already a citizen. His exclusive instruction of children of
mother was a natural-born citizen, and his persons w/ particular nationality in
father was naturalized when Ong Jr. was only any of the branches of education
for a period of 2 years
9 years old. The filing of a sworn statement or
e) Born in the Philippines
formal declaration is a requirement for those
who still have to elect citizenship. For those 3) Must be of good moral character,
already Filipinos when the time to elect came & believe in the principles underlying the
up, there are acts of deliberate choice which Phil Constitution &
cannot be less binding. Election is both a
formal and an informal process, and it has must have conducted himself in a proper &
been held that participation in election irreproachable manner during entire period
exercises constitute a positive act of election of of residence here in his relations w/ the
Philippine citizenship. constituted government as well as w/ the
community in w/c he is living
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But a Filipino citizen who marries an alien shall Nationalist China issued the permission for a
retain Philippine citizenship, unless by his or her valid renunciation of Chinese citizenship. Oh
act or omission, he is deemed under the law, to Hek How argues that such permission is not
have renounced it by taking an oath of allegiance among the requirements under our law for the
to the spouse’s country or by express naturalization of an alien.
renunciation.
HELD: The permission of the Minister of the
3) Another instance of dual or multiple Interior of China is required before a certificate
nationality is the case of an individual
of naturalization can be issued in favor of Oh
who is naturalized citizen of another
Hek How. The question of how a Chinese
state but has not effectively renounced
citizen may strip himself of that status is
his former nationality.
necessarily governed by the laws of China, not
In determining rights of an individual who may that of the Philippines. As a consequence, a
claim multiple nationality in a third state, the ICJ Chinese national cannot be naturalized as a
applied principle of “effective nationality.” citizen of the Philippines, unless he has
complied with the laws of China requiring
Nottebohm Case previous permission of its Minister of the
(1955) Interior for renunciation of nationality.
FACTS: Liechtenstein brought a case against
Guatemala in the ICJ for breach of its 2. Statelessness
obligations under international law and asking
for reparations in behalf of Nottebohm. It is Understood in two senses:
the position of Liechtenstein that Nottebohm
acquired Liechtenstein citizenship which a) De jure stateless person: refers to an
individual who has been stripped of his
would entitle him to its diplomatic protection.
nationality by his own former
government w/out having opportunity to
HELD: Liechtenstein is not entitled to extend
acquire another.
protection to Nottebohm, because when N
applied for naturalization, there is nothing to Problem of statelessness began during
indicate that such application was motivated WW II & worsened under Nazi regime in
by any desire to dissociate himself from the Germany & in USSR.
Government of his country, Germany. He had
been settled in Guatemala for 34 years, and it b) De facto stateless person: individual
was the main seat of his interests and business possessed of a nationality but whose
activities. country does not give them protection
outside their own territory.
In contrast, his actual connections with
Liechtenstein were extremely tenuous. No - commonly called “refugees”.
settled abode and no prolonged residence at
the time of application; the application shows Vietnam War: Masses of people escaped from
that he was a mere visitor and his visit is of a Vietnam, Cambodia, and Laos without any travel
transient character. There is an absence of any documents, identity papers or any form of
identification normally granted by government.
bond of attachment between N and L and, on
the other hand, the existence of a long-
standing and close connection between him
Conventions to Alleviate Problems of Stateless
and G, a link which his naturalization in no Persons:
way weakened.
1) 1951 Geneva Convention on Status
Oh Hek How vs. Republic Refugees
(1969)
FACTS: Oh Hek How, a Chinese citizen, -provided some basic rights of stateless persons
applied for naturalization in the Philippines
which was granted. A certificate of 2) 1954 UN Conference on the Elimination or
naturalization was issue in his favor but the Reduction of Future Statelessness
Government appealed, claiming that it was
issued before the Minister of the Interior of
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abode in such place. The fact of compulsion is where the husband has given cause for
reduced to just one of the factors in determining divorce; or where there is a separation of the
whether intent, in fact, exists. parties by agreement, or a permanent
separation due to desertion of the wife by the
Married Women: based on the concept of unity husband or attributable to cruel treatment on
of identity of spouses, the wife was presumed to the part of the husband; or where there is a
take the domicile of the husband. forfeiture by the wife of the benefit of the
husband’s domicile.
Go Chen and Go Lek vs. Collector of
Customs Modern view (married women): dispenses with
(1932) the presumption that the wife’s domicile is the
FACTS: Tan Bon, a Chinese citizen, entered the same as her husband’s. Each party establishes
Philippines as the wife of a Chinese merchant. his or her own domicile completely independent
She asked her minor children from a previous of each other. As a result, the wife need not
marriage to join her here, but they were not show that her husband has given cause for
allowed entry. divorce or legal separation to have a separate
domicile.
HELD: The minor children cannot enter the
Philippines. A Chinaman’s Chinese wife and
her minor children do not enter the Philippine
Islands through their own right, but by virtue XI. Principles on Personal Status and
of the right of the husband and father. Since Capacity
Tan Bon did not enter the Philippines by her
own right but by virtue of her husband, she is
A. Definition
not entitled to bring in her minor children by
another Chinaman who never had legal
Personal capacity
residence in the Archipelago. The mere fact of
their being children of Tan Bon confers on Includes both condition and capacity
them no right of entry, inasmuch as she herself Embraces matters as the beginning and
did not enter of her own right, and they cannot end of personality, capacity to have
base their right on hers. rights, capacity to engage in legal
transactions, protection of personal
interests, family relations, also
De La Vina vs. Villareal and Geopano transactions of family law such as
(1920) marriage, divorce, separation, adoption,
FACTS: Geopano filed a complaint in CFI legitimation and emancipation, and
Iloilo against de la Vina, her husband, for succession.
divorce on the ground of infidelity. De la Vina
opposed, saying that CFI Iloilo has no JD over Juridical capacity: fitness of a man to be the
the case considering that he resides in Negros, subject of legal relations
such that Geopano must also be considered a
Negros resident, because the domicile of the Capacity to Act: power to do acts with legal
wife follows that of the husband. effects
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However, for specific purposes, our laws require The general rule on capacity is subject to several
that a declaration of death be issued before exceptions. These include liability in tort, which is
certain legal effects of death arise ex. Contracting subject to the law of the place of the tort and the
a subsequent marriage but the periods are restrictions on the contracting capacity of a
reduced to 2 years. married woman.
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HELD: Illinois law should apply. Matters 4) a permanent union unless one party
bearing upon the execution, interpretation and dies, or marriage is annulled or declared
validity of a contract are determined by the void in special circumstances
law of the place where the contract is made. 5) cannot be abrogated, amended or
terminated by one or both parties at will
6) nature & consequences as well as
This case should have been resolved as a incidents are governed by law & not
capacity case instead of as a contract case subject to stipulation by parties unlike
(characterization). ordinary contracts
7) violation of marital obligations may give
rise to penal or civil sanctions while
PART FOUR: CHOICE OF LAW PROBLEMS breach of conditions of ordinary contract
can be ground for an action for
damages
XII. Choice of Law in Family Relations
1. Philippine Policy on
Man & woman may decide to marry in a country Marriage and the Family
other than that of their nationality & come home.
Issue of validity of marriage & legal Art XV. Sec. 2: Marriage as an inviolable social
consequences may be raised (Legal institution, is the foundation of the family & shall
consequences such as personal & property be protected by the state.
relations, status & rights of children, use of
surname & right to inherit). Presumption of validity: The Philippines
establishes a presumption of validity to give
Family law is an area of substantive law which stability to marriage especially in Conflicts of Law
reflects strong policies of state often based on problems.
values highly held by society. Family relations
give rise to grave individual & societal concerns. Art 220. CC. In case of doubt, all presumptions
favor the solidarity of the family. Thus every
intendment of law or facts lean toward the
A. Marriage validity of marriage, the indissolubility of
marriage bonds, legitimacy of children, the
Family Code Definition: community of property during marriage…
Art 1. “Marriage is a special contract of
permanent union b/w man & woman entered into Goal: Guide courts, strengthen family, &
in accordance w/ law for the establishment of emphasize state interest in its preservation
conjugal & family life.
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People vs. Mora Dumpo HELD: The marriage is valid. The English law
(1935) on marriage is locus regis actum. If a marriage is
FACTS: Dumpo married Hassan, and then good by the laws of the country where it is
married Sabdapal without having her previous effected, it is good all the world over, no
marriage annulled. As a defense to an matter whether the proceeding or ceremony
allegation of bigamy, Dumpo claimed that her which constituted marriage according to the
2nd marriage was void because her father did law of the place would or would not constitute
not consent thereto. marriage in the country of domicile of one or
other of the spouses. Since the marriage was
HELD: Dumpo is not guilty of bigamy. The 2 nd performed in Buenos Aires and in accordance
marriage was null and void because the with its laws, and since proxy marriage is only
consent of her father was not obtained. It is an a form of the ceremony and not an essential
essential element of bigamy that the alleged 2 nd requisite, the marriage should be upheld.
marriage, having all the essential requisites,
would be valid were it not for the existence of
the first. Exceptions to Lex Loci celebrationis: The Civil
Code (Art 71) enumerates bigamous, polygamous
or incestuous marriages as exceptions to the lex
loci celebrationis rule.
Wong Woo Yu vs. Vivo The Family Code (Art 26) widens these
exceptions.
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Philippine Law sets the following substantive or 1) one of spouses was already married
essential requisites: (unless marriage has subsequently
become valid by virtue of dissolution or
1) Legal capacity: must be 18 years of age annulment of previous marriage)
& not barred by any impediment to
marry each other
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shall be considered valid as long as it is not “The fact of marriage by an alien to a citizen
prohibited by the state of celebration does not withdraw her from operation of
immigration laws governing admission &
Philippine law: Marriage of Filipino nationals shall exclusion of aliens. Marriage of an alien woman
be officiated by Philippine consul general, consul to Filipino citizen does not ipso facto make her a
or vice consul (in w/c case the formal & extrinsic Filipino citizen & does not excuse her from her
requirements of a valid marriage license & due failure to depart from the country upon
publication & registration under Philippine law expiration of her extended stay here as alien”.
have to be complied with).
Restatement 2nd: The wife who lives w/ her
This is said to apply to marriage b/w Filipino husband has the same domicile as his unless
national & an alien provided the alien complies special circumstances of wife make such result
with marriage requisites under his/her national unreasonable.
law. But, in Ch VIII on Domicile, some legal
authorities consider the assignment of
Additional requirements for: constructive domicile to the wife as invidious
discrimination on basis of gender.
1) aliens - submission of a certificate of
legal capacity to contract marriage Property Relations of Spouses
issued by diplomatic/consular office
Hague Conventions on law Applicable to
2) stateless persons or refugees- Matrimonial Property: The internal law
submission of affidavit stating designated by spouses before marriage or in
circumstances showing legal capacity to absence thereof the internal law of state in w/c
contract marriage both spouses fix their habitual residence is the
governing law on matrimonial property regimes.
What is the governing law? National law of 1) If both spouses are aliens
parties
2) With respect to the extrinsic validity of
If spouses are of different nationalities, generally, contracts affecting property not situated
the husband’s national law may prevail as long as in the Philippines & executed in the
it is not contrary to law, customs, & good morals country where the property is located
of the forum.
3) With respect to the extrinsic validity of
Art 69 Family Code: Husband & wife have the contracts entered into in the Phil but
right to fix family domicile. affecting property situated in a foreign
Court, for compelling reasons, may exempt country whose laws require different
spouse from living with the other. formalities for its extrinsic validity
Djumantan vs. Domingo: Filipino marries Art 80 generally follows lex rei sitae.
Indonesian. They go to Philippines w/ intention
of staying here permanently. Subject of petition: What law will govern the property relations of
Effect of marriage on wife’s right to stay in the spouses where one is a Filipino citizen 7 the
Philippines. other a foreigner? It would still be governed by
Philippine law.
There is no law guaranteeing aliens married to
Filipino citizens the right to be admitted, much Change of nationality after Marriage
less to be given permanent residency, in the If one or both spouses change nationality
Philippines. subsequent to marriage, property regime remains
unchanged because of principle of immutability.
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extrinsic validity: refers to formal requisites, Hague Convention Relating to Divorce &
apply lex loci celebrationis Separation: The granting of divorce or separation
must comply w/ the national law of spouses &
intrinsic validity: refers to essential requisites, the law of the place where the application for
apply personal law of the parties divorce is made.
In Adong and Wong Woo Yu, the Court Some laws in PRiL have made
did not apply the Philippine policy of
presumption of validity of marriage. 1) the right to separation or divorce
Question: is a proxy marriage between depend on the national law of the
Filipinos in a state allowing such spouses &
marriages valid? Pangalangan: Yes,
because it is merely a formal requisite 2) grounds for divorce subject to law of
(lex loci celebrationis apply) forum
________________ provided the parties were domiciled there.
Effects:
Local law governs legal consequences of divorce 1. alien is capacitated to remarry
of spouses, nationals of same country, who 2. Filipino spouse shall likewise have the
marry, are domiciled & divorce. capacity to remarry under Philippine law
If any of above factors connected to another Effect of Provision (Art 26): partial recognition in
state… conflicts problem arises. the Phil of absolute divorce.
o note: Divorce should be obtained only
Divorce jurisdiction: by alien spouse. Otherwise, Art 26 is
inapplicable.
Basis of JD of some countries: Domicile of one of
the parties or matrimonial domicile o Provision is to remedy the uneven status
of Filipino nationals whose alien spouses
Ratio: Divorce, being a matter of state concern, obtained divorce abroad & remarried
should be controlled by “law of place w/ w/c while the Filipino spouse remained
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married to them in eyes of Philippine adultery which was dismissed; it was refiled
law. by the fiscal.
HELD: The divorce decree is valid and Tenchavez: 2 Filipinos, divorced abroad
binding upon Upton. Even if divorce is not – not recognized in the Philippines (Art.
valid in the Philippines for being contrary to 15 CC, nationality principle)
public policy, only Philippine nationals are Van Dorn: 1 Filipino, 1 foreigner,
covered by the policy against absolute divorced abroad – recognized (Art. 15
divorces. Aliens may obtain divorces abroad, CC, estoppel)
which may be recognized in the Philippines Pilapil: 1 Filipino, 1 foreigner –
provided valid according to their national law. recognized (nationality principle)
________________
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Effect of Divorce Rendered by a Foreign Country: Which states can claim adequate jurisdictional
not covered by Full faith & credit clause basis to hear a conflicts annulment or nullity
o but would be recognized under the case?
same circumstance that a sister state’s a) state where marriage was celebrated
divorce decree is given recognition. b) place of marital domicile
paramount consideration: jurisdiction of foreign Wheaton vs. Wheaton: Even a court which
court based on parties’ domicile. acquires personal JD over parties can grant an
annulment case (US case).
Philippine Law on Recognition of Foreign Divorce
Decree: No provision on recognition of divorce
decree b/w non-Filipinos; Sample conflicts Annulment Case
o but such will be recognized under
o M&F, domiciliaries of STATE A, both 18 years
international comity, provided it does old
not violate a strongly held policy of the
Philippines o marry in STATE B w/out knowledge of their
parents
o suit for annulment was brought in STATE C
(place of M’s residence)
C. Annulment and Declaration of
Nullity State C can exercise JD over the case but what is the
governing law?
Effect: Affects status & domestic relations of
parties. Traditional choice-of-Law rules: will find sufficient
ground for the challenge
Distinction from Divorce If the lex loci celebrationis
(STATE B) requires parental consent for a
valid marriage
Divorce Annulment and
Nullity Most Significant Relationship Approach: will not
yield a ground for annulment.
The ground occurs Based on defects State C can conclude that since law of STATE
after marriage present at time of A (state of marital domicile) gives people
their age full capacity to marry, no ground for
celebration celebration
annulment
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
What law determines legitimacy of a child? 2) action a parent may file against another
Personal law of parents - either domicile or for child custody
nationality.
3) requirements for parental consent of
Most countries: father’s personal law child’s marriage
German law: law of head of family
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
2) Other requirements: What law governs rights of adopted child & other
a) certification of legal capacity effects of legal adption? (law that governed the
b) certification that the State law creation of adoption)
would allow entry of the
adoptee as an adopted child of 2 different legal orders depending on which law
the adopter. governed the creation of adoption:
These other requirements may be waived if the 1) If Personal law of adopter applied—
adoptee is related by consanguinity or affinity to same law governs effects of adoption.
the
o adopter, or 2) If personal law of child applied—such
o his/ her spouse as specified by law. law will cease to regulate the resulting
parent-child relations; it will yield to the
RA 8043: personal law of adopting parents.
Before this, adoption of Filipino children by
foreigners was done pursuant to Rules & Philippine courts:
Regulations on Foreign Adoption & bilateral o Adoption relates to a civil rights of
agreements. adopted child
o Does not effect changes in political
RA 8043 regulate the adoption of Filipino children rights, including eligibility to acquire
by adopter’s citizenship
o aliens, or
o Filipino citizens permanently In the Philippines, principles of enforcement &
residing abroad. recognition of a foreign judgment governs,
because the decree granting an adoption is in the
RA 8043 was passed in compliance with our form of a foreign judgment.
treaty obligation as a signatory to the Hague
Convention on Protection of Children &
Cooperation In Respect of Intercountry Adoption. Uggi Lindamand Therkelsen vs. Republic
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
(1964)
FACTS: Therkelsen (a German) and his wife The connecting factor is the immovable itself and
Erlinda (a Filipino), filed a petition to adopt not the parties concerned.
Erlinda’s natural child. The application was
denied on the ground that an alien cannot Movables: not necessarily governed by the lex
adopt a Filipino unless the adoption would situs; its transfer may be controlled by the a) lex
make the Filipino minor a citizen of the alien’s domicilii, b) lex situs, or c) lex loci actus (the
country. proper law of transfer).
Why?
XIII. Choice of Law in Property 1) Property physically a part of the
particular state, and that state can
exercise JD over it (traditional approach)
A. The Controlling Law 2) There is need for reliable records (to
protect the sanctity of records)
The first issue to resolve in conflicts cases ________________
involving property is whether it is a movable or
an immovable, because upon this determination
will depend the controlling legal system. B. Capacity to Transfer or Acquire
Property
Immovables: regulated by lex situs; underlying
this is the characterization of immovable property This is governed by the law of the place where
as an isolated object of rights so that the the property is located.
interests of various persons are determined by
the law of the place where the land is situated.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Aliens are not completely excluded by the 1) where the transaction does not affect
Constitution from use of lands for residential transfer of title to or ownership of the
purposes. Since their residence in the land (proper law: lex intentionis or lex
Philippines is temporary, they may be granted voluntatis)
temporary rights, such as a lease contract
which is not forbidden in the Constitution. The
only instance where a lease contract may be Liljedahl vs. Glassgow
considered invalid is where there are (1921)
circumstances attendant to its execution which FACTS: Bailey secured a debt payable in Iowa
are used as a scheme to circumvent the to Liljedahl; as security, he mortgaged his land
constitutional prohibition. in Colorado. Bailey sold this land to Glassgow,
with the provision in the deed of sale that the
grantee agrees to pay the mortgagee.
Cheesman vs. IAC Glassgow sold the land to a third party. Under
(1991) Iowa law, Glassgow became bound to pay the
FACTS: Thomas Cheesman (an American) was mortgage, but not under Colorado law.
married to a Filipina, Criselda. The spouses
later separated; but Thomas brought this HELD: Iowa law should apply, and Glassgow
action to annul the sale of real property made should pay Liljedahl. Instruments of
by Criselda in favor of Padilla. He alleged that conveyance, as they relate primarily to title,
the sale is void for lack of his consent. The are to be construed according to the law of the
property sold was bought by Criselda using situs. But personal covenants or agreements in
her personal funds, and was registered in her instruments of conveyance will be given effect
name only. according to the law of the place where the
same is executed and to be performed.
HELD: The sale was valid. He has no capacity
to question the sale of the property by his wife
2) in contracts where real property is
on the theory that in doing so he is merely
offered by way of a security for the
exercising the prerogative of a husband in
performance of an obligation such as
respect of conjugal property. This would
loan, where the security is merely an
permit indirect controversion of the accessory contract (the principal
constitutional prohibition. If the property were contract is governed by the rules on
to be declared conjugal, this would accord to ordinary contract, while the accessory
the alien husband an interest and right over contract on the land is governed by the
the land, which is not granted to him under rule of lex situs)
the Constitution.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
HELD: CSE not liable for income tax on the defeated by subsequent appropriation by
capital gains. The government cannot impose another corporation in the same field.
income taxes on capital gains where the sale
took place outside its territorial JD. Foreign
corporations may be levied income taxes only Emerald Garment Mfg. vs. CA
on income derived from sources within the (1995)
Philippines. With respect to capital gains, the FACTS: H. D. Lee Co., a foreign corporation,
place of the sale (which in CAB is California) is filed a petition for cancellation of registration
also the place or source of the capital gain. of the trademark “Stylistic Mr. Lee” used on
items of clothing by Emerald Garments,
alleging that it so closely resembled H. D.
Lee’s trademark as to cause confusion, mistake
and deception on the public as to the origin of
F. Patents, Trademarks, Trade Name, the goods.
and Copyright
HELD: A foreign corporation may have the
The Philippines is a party to the Union capacity to sue for infringement irrespective of
Convention for the Protection of Industrial
lack of business activity in the Philippines on
Property; said convention states in Art. 8 that a
account of Section 21-A of the Trademark Law
“trade name shall be protected in all the
but the question of whether they have an
countries of the Union without the obligation of
filing of registration, whether or not it forms part exclusive right over their symbol as to justify
of the trade name.” issuance of the xxx writ will depend on actual
use of their trademarks in the Philippines.
Western Equipment and Supply Co. vs. Reyes;
although Western equipment has not done
business in the Philippines, it has the right to XIV. Choice of Law in Contracts
protect its reputation. The right to the use of the
company’s corporate and trade name is a Contract: meeting of the minds between 2
property right which may be asserted against the persons whereby one binds himself, with respect
whole world. to the other, to give something or render some
service. Parties are bound not only to those
RA 8293 (Intellectual Property Code): applicant expressly stipulated but also to all the
cannot register marks “well known internationally consequences which according to their nature,
and in the Philippines, whether or not it is may be in keeping with good faith, usage and
registered here, xxx and is used for identical or law.
similar goods or services.” As a gen. rule, unless provided by law
or in the agreement, a contract is obligatory in
Under Sec. 3 of the IPC, any foreign corporation whatever form it may have been entered into
which is a national or domiciliary of a country provided that all the essential requisites for
which is a party to a convention, treaty or validity are present.
agreement relating to intellectual property rights
to which the Philippines is also a party or extends Principal purposes of contract:
reciprocal rights to our nationals by law “shall be 1. protect the reasonable expectations of the
entitled to benefits to the extent necessary to parties to the contract
give effect to any provision of such convention…” 2. secure stability in commercial transactions
54
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Interpretations of contracts are applied only binding agreement into being so far as the acts
when the lex loci intentionis cannot be of the parties are concerned.
ascertained.
Advantages:
Unlike family law, contract law does not reflect a) relative ease in establishing
strong state policies or values. place of contracting
b) in applying it consistently,
certainty and stability are
achieved.
There are 3 possible laws that will govern In case of conflict in determining validity,
intrinsic validity of contracts: nature and obligation and effect of contract,
1. law of the place of the making lex loci solutionis prevails over lex loci
2. law of the place of performance contractus.
3. law intended by the parties
The laws of Canada, which is the place of
performance, should apply. The failure of the
1. Lex Loci Contractus Import Control Comm. to act on the
application of import license cannot constitute
This refers to the law of the place where the a legal excuse for his failure to perform his
contract is made. This is the place where the last
obligations under the contract.
act is done which is necessary to bring the
55
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
It is a general rule that plaintiff has the option to King Mau vs. Sycip
choose the venue where the suit is to be filed in (1954)
action in personam. However, a case arising from FACTS: King Mau entered into an agency
the contract will be litigated only in the forum agreement with the Sycip in New York. King
56
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
mau was able to sell 1,000 tons of coconut oil. FACTS: Puromines and Philip Bros. entered
KM brought an action to collect commission into a contract of sale with an arbitration
from the sale. Sycip claimed that the Phil court clause. Puromines filed for complaint in RTC,
has no jurisdiction as the contract was entered Manila. Philip Bros. filed a MTD on the basis
in New York. of an arbitration clause.
HELD: Phil court has jurisdiction. A non- HELD: Arbitration clause is valid. Puromines
resident may sue a resident in the courts of derives its right from the bill of lading together
this country where the defendant may be with the sales contract & it is bound by the
summoned and his property leviable upon provisions and terms of the bill of lading and
execution in case of a favorable, if final and of the arbitration clause incorporated in the
executory judgment. sales contract.
It is a personal action for the collection of a The courts will look with favor upon such
sum of money which the CFIs have amicable settlements (arbitration) and will
jurisdiction to try and decide. only interfere with great reluctance to
anticipate or nullify the action of the arbitrator.
The Bremen vs. Zapata
(1972)
HSBC vs. Sherman FACTS: Zapata, a Houston company, entered
(1980) into a contract of towage with Unterweser, a
FACTS: HSBC granted Eastern Book Supply German corp. Contract contained a forum
an overdraft secured by the directors of the selection clause which provides that any
latter. Eastern failed to pay. HSBC filed suit in dispute arising must be treated before London
RTC. The defense of the directors is that Phil courts.
courts have no jurisdiction because in the
Guarantee Agreement, it was provided that Zapata filed a suit in admiralty against
Singapore shall have jurisdiction over all Unterweser for breach of contract and
disputes arising therein. damages in Florida District Court. Unterweser
filed motion to dismiss for lack of jurisdiction
HELD: Phil courts have jurisdiction. The citing the forum-selection clause.
parties did not stipulate that only the courts of
Singapore, to the exclusion of all the rest, has HELD: Florida court has no jurisdiction. As a
jurisdiction. Neither did the clause in question rule, a forum clause should control absent a
operate to divest Phil. courts of jurisdiction. strong showing that it should be set aside.
Court should enforce the forum clause
Jurisdiction is defined as the right of a State to specifically unless Zapata could clearly show
exercise authority over persons and things that
within its boundaries subject to certain
exceptions. This authority is exclusive within a. enforcement would be unreasonable and
and throughout the domain of the State. unjust or
b. that the clause was invalid for such
reasons as fraud or overreaching or
Pangalangan: HSBC case is disappointing—why c. if enforcement would contravene a strong
did the courts not recognize the choice of forum public policy of the forum in which suit is
clause? Courts are “turf-conscious”; for PRIL to brought, whether declared by a statute or
progress, there is a need for each country to give by judicial decision or
up some of its exercise of sovereignty. d. if the chosen forum is seriously
_______________ inconvenient for the trial of the action. But
if the parties contemplated the claimed
inconvenience, it should not be heard to
2. Contracts with Arbitration render the forum clause unenforceable.
Clause
The CAB involves a freely negotiated
international commercial contract between the
Puromines vs CA
parties. As noted, selection of a London forum
((1993)
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
was clearly a reasonable effort to bring vital enumeration of the instances when a carrier
certainty to this int’l transaction and to shall be liable for breach of contract or as an
provide a neutral forum experienced and absolute limit of the extent of liability nor does
capable in the resolution of admiralty it preclude the operation of the Civil Code or
litigation. other pertinent laws.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
In sales or barter of goods, the law of the place Liabilities of the Carrier:
where the property is located will govern (lex
situs). a. in case of death or wounding- carrier’s
liability is not more than $75,000.
A simple loan granted by financial institutions is b. The limits do not apply when the damage is
governed by the law of the permanent place of caused by the act or omission of the carrier,
business. But if granted by a private individual, it his servants or agents, done with the intent
is governed by the law of the place where the to cause damage or recklessly and with
loan was obtained. knowledge that damage would probably
result, provided that the agent was acting
In contracts of pledge, chattel mortgage and within the scope of his employment.
antichresis, the extrinsic and intrinsic validity of c. In case of loss or damage to baggage -
the contracts are governed by lex situs. $20/kilo for checked baggage and
$400/passenger for unchecked luggage
unless a higher valuation is agreed upon by
Carriage of Goods by Sea the parties
d. Prescription. Action must be brought within 2
years from date of arrival at the destination,
American President Lines vs. Klepper or from date which the aircraft ought to
(1960) have arrived or from the date on which the
FACTS: K shipped on board APL’s vessel transportation stopped.
personal effects. Because of damage to the e. Venue. Any action for damages may be
effects, K sued APL. CA affirmed CFI’s finding brought either in the court of the
of liability but awarded damages on the basis 1. domicile of the carrier
of the COGSA. 2. principal place of business
3. place of business where the contract
HELD: COGSA does not apply but the Civil was made
Code. Article 1753 of the Civil Code provides 4. place of destination
that the law of the country to which the goods 5. Successive Carriers. Each of the
are to be transported shall govern the liability successive carriers is bound by the rules
of the common carrier in case of loss, on the Convention and shall be deemed
destruction or deterioration. Under Article to be one of the contracting parties
insofar as the part of the transportation
1766, "In all matters not regulated by this
which is performed under his
Code, the rights and obligations of common
supervision. But for goods or baggage,
carriers shall be governed by the Code of
the passenger or consignor has a right
Commerce and by special laws," and in the of action against the first carrier and the
Civil Code there are provisions that govern consignee who is entitled to receive the
said rights and obligations. Although Section 4 same, against the last carrier. They
(5) of the Carriage of Goods by Sea Act states must take action against the carrier who
that the carrier shall not be liable in an amount performed the transportation during
exceeding $500.00 per package unless the which the loss, damage or delay took
value of the goods had been declared by the place.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Art. 1, Sec. 3 WC: transportation to be considered in determining the state with which
performed by several successive carriers shall contract has its most significant relationship
be deemed to be one undivided transportation,
if it has been regarded by the parties as a 1. place of contracting
single operation, whether it has been agreed 2. place of negotiating of the contract
upon under the form of a single contract or of 3. place of performance
a series of contracts. 4. situs of the subject matter of the contract
5. domicile, residence, nationality, place of
incorporation and place of business
Art. 15 IATA: carriage to be performed by
6. place under whose local law the contract will
several successive carriers under one ticket, or
be most effective
under a ticket and any conjunction ticket
issued therewith, is regarded as a single Courts should localize the contract by examining
operation. the contacts it has with a state relative to the
Pal acted as carrying agent of CAL, thus, CAL cogency to the issue. Example: For contracts
cannot evade liability. involving liability for destruction of goods in
transit, the state of the most significant
relationship is the state of destination.
Santos III vs. Northwest Airlines
(1992) In the absence of an effective choice of law,
FACTS: Santos bought a roundtrip (SF-Manila- courts applying a policy-centered approach will
SF) ticket from NW airlines office in SF. apply its own law when there are significant
Despite previous confirmations, he was contacts with the transaction. Once these exist,
informed that he had no reservation on his the forum has a real interest in applying its own
trip. He sued NW for damages in RTC Makati. law and such would not be fundamentally unfair
NW filed MTD for lack of jurisdiction. to the parties. The court should also consider the
legitimate expectations of the parties.
HELD: Phil court has no jurisdiction to hear
the case under Art. 28 of the Warsaw
G. Limitations to Choice of Law
Convention. This article enumerates the places
where action must be filed, to wit:
1) if the law selected has no connection at
1. Domicile – Minnesota, USA (domicile
all with the transaction or the parties
must be understood in the English sense –
place of incorporation) 2) if it ousts the jurisdiction which the
2. principal place of business – Minnesota court has already acquired over the
3. place of business where contract is made – parties and the subject matter
San Francisco
4. place of destination – San Francisco (not 3) if it affects a public policy or the matter
Manila because it was merely an agreed is heavily impressed with public interest
stopping place, SF is still the ultimate
place of destination 4) in case of confession-of-judgment
clauses (waives the debtors right to
receive notice or authorizes entry of
Distinction between KLM and China Air: in KLM, judgment)
KLM was the only company the passenger dealt
with; in Chiok, it was alleged that Chiok himself
(passenger) requested for the PAL booking. It
can then be argued that CAL should not be held XV. Choice of Law in Wills, Succession and
liable. Administration of Estates
________________
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Conflicts of Law Perspective: Aliens making wills outside the Philippines are,
Will: an involuntary transfer of property, because under Art 816 & 817, permitted to follow:
it comes into effect only upon death of owner. o lex nationalii
Death is involuntary, thus making a will is an o lex domicilii
involuntary transfer of property. o lex loci celebrationis
Wills are governed by the “proper law” Article 816. The will of an alien who is abroad
o common law- law of domicile of testator produces effect in the Philippines if made with
o civil law- national law of testator the formalities prescribed by the law of the place
in which he resides, or according to the
formalities observed in his country, or in
A. Extrinsic Validity of Wills conformity with those which this Code prescribes.
(n)
Filipino national making a will abroad may comply
with: Article 817. A will made in the Philippines by a
o lex nationalii (no express provision) or citizen or subject of another country, which is
o lex loci celebrationis (Art 17, 815) executed in accordance with the law of the
country of which he is a citizen or subject, and
Pertinent Conflict-of-law rules: which might be proved and allowed by the law of
(referring to law of place where will was his own country, shall have the same effect as if
executed as law governing forms & solemnities of executed according to the laws of the Philippines.
will) (n)
Art 17: The forms and solemnities of contracts,
wills, and other public instruments shall be It cannot be assumed that the Code places a
governed by the laws of the country in which Filipino citizen in a worse position than an alien in
they are executed. relation to our law.
When the acts referred to are executed before The Code should have expressly stated this
the diplomatic or consular officials of the Republic considering general provision in Art 17.
of the Philippines in a foreign country, the
solemnities established by Philippine laws shall be
observed in their execution. In re Estate of Johnson
(1918)
Prohibitive laws concerning persons, their acts or FACTS: Ebba Ingeborg sought to annul the
property, and those which have for their object probate of the will of his father Emil Johnson,
public order, public policy and good customs shall because the resulting intestacy would be
not be rendered ineffective by laws or judgments favorable to her as a sole heir. She stresses that
promulgated, or by determinations or Section 636 of the Code Of Civil Procedure
conventions agreed upon in a foreign country. should not govern the will executed by her
father in the US, because the word “state” in
Art 815: When a Filipino is in a foreign country,
the body of the section is not capitalized (thus
he is authorized to make a will in any of the
not referring to a State in the US).
forms established by the law of the country in
which he may be. Such will may be probated in HELD: This interpretation is erroneous
the Philippines. (n) because the full phrase “another state or
country”, means that the section refers to
either a State in the US or another country. The
What is the proper law for wills written abroad admission of the will to probate by the CFI of
by Filipinos? Manila under Section 636 was therefore
(There is no express provision that it is lex
correct. Although the CFI Of Manila most
nationalii)
likely erred in taking judicial notice of Illinois
Tolentino:
law when it promulgated that the will was
Art 815 follows general rule of lex loci executed in conformity with the laws of
celebrationis. Illinois, Ebba is now precluded to raise this
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
issue because the petition to annul the probate Art 816 & 817 are also applicable to holographic
did not allege the difference between wills
Philippine Law and Illinois law.
Merits:
o simple
Extrinsic Validity of Joint Wills o convenient
o does not require notarization
Art 818. Two or more persons cannot make a will
o guarantees absolute secrecy
jointly or in the same instrument, either for their
reciprocal benefit or for the benefit of a third
person. Demerits:
o peculiarly dangerous
Joint wills are prohibited on grounds of public o an invitation to forgery
policy, because: o short statements can confuse
handwriting experts
1) a will is a purely personal & unilateral
act & this is defeated if 2 or more
persons make their will in the same Babcock Templeton vs. Rider Babcock
instrument (1928)
FACTS: The will of Jennie Rider Babcock was
2) the revocable character of a will is executed in California. Babcock Templeton,
defeated, because if one of testators being the mother of the three beneficiaries of
revoke the will, the other testators will the will, stressed that the laws of California
have no instrument left should govern the probate since Jennie Rider
Babcock acquired domicile in California.
3) it exposes a testator to undue influence William Rider Babcock opposes this by
& may even tempt one of testators to stressing that her sister never acquired
kill the other domicile in California as her latest domicile
was New York.
4) when a will is made jointly or in same
instrument, the more aggressive spouse
HELD: Her domicile was California, because
is liable to dictate the terms of the will
for his/her own benefit even though she later left California for New
- where will is also reciprocal, either of York, she never intended to be a New York
the spouses who may be wicked may domiciliary. The trial court was also correct in
be tempted to kill the other. admitting the will for probate under Section
636 of the Code Of Civil Procedure, because
the length of time of her residence in and
Joint wills executed by Filipinos in a foreign eventual death in the Philippines did not
country allowing joint wills are expressly result into a loss of her US citizenship. She
invalidated by law. never intended to become a Philippine
domiciliary, thus making Section 618
Joint wills executed in the Philippines by aliens inapplicable to the will she executed abroad.
(whose laws do not prohibit it): the law is silent
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
consideration, whatever may be the nature of the raised in issue that the allowance of the will to
property and regardless of the country wherein probate divested him of his legitime, because
said property may be found. (10a) the will preterited him.
HELD: Since the governing law with respect to
Miciano vs. Brimo: Miciano, as the administrator the amount of successional rights is the
of the estate of Joseph Brimo, filed a petition for national law of the decedent, the governing
the partition of the estate. Andre Brimo opposed law of Adoracion’s will is Pennsylvania law.
the partition because the will itself was not And since Pennsylvania law does not have a
executed in accordance with the laws of Turkey,
system of legitimes, Hermogenes is therefore
in violation of Article 10 of the Civil Code.
not preterited. Although the Philippines adopt
a system of legitimes as a matter of public
The Court decided that although Andre Brimo
opposed his brother’s intention to have Philippine policy, such policy does not extend to the
laws apply he was not deemed to have contested successional rights of foreigners.
the legacy, because the choice of law clause in
the will was contrary to law. Our laws apply the
lex nationalii of decedent to determine intrinsic General Rule: the probate court can only rule on:
validity of a will and this law was purposefully 1) extrinsic validity
disregarded by decedent. The Court considered 2) due execution
this clause as not imposed and “shall I no
3) testamentary capacity
manner prejudice the heir even if the testator
4) compliance with requisites/solemnities
should otherwise provide.
prescribed by law
__________________
Criticisms on the Miciano vs. Brimo decision:
Using the most significant relationship approach, When there are ambiguous provisions: intention
Philippine law would govern because Joseph of party may be inferred by referring to context
Brimo is a Philippine resident, the properties are of the will & the testator’s acts.
in here, and he made the will here… the only
contact with Turkey is the fact of his nationality. Article 1371. In order to judge the intention of
the contracting parties, their contemporaneous
Under the escape device of “disingenuous and subsequent acts shall be principally
characterization”, the same result could have considered. (1282)
resulted without flouting testator’s will. The court
could have characterized the main issue as one Article 1375. Words which may have different
of property and not of succession, thus making significations shall be understood in that which is
Philippine law the governing law as the lex rei most in keeping with the nature and object of the
sitae. contract. (1286)
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Article 830. No will shall be revoked except in the But the forum will still have to look at the foreign
following cases: law concerning compliance with extrinsic validity.
1) By implication of law; or
2) By some will, codicil, or other writing Rule 76 Section 9 Grounds for disallowing will.:
executed as provided in case of wills; or The will shall be disallowed in any of the
following cases;
3) By burning, tearing, canceling, or
obliterating the will with the intention of (a) If not executed and attested as required by
revoking it, by the testator himself, or law;
by some other person in his presence,
and by his express direction. If burned, (b) If the testator was insane, or otherwise
torn, cancelled, or obliterated by some mentally incapable to make a will, at the time of
other person, without the express its execution;
direction of the testator, the will may
still be established, and the estate (c) If it was executed under duress, or the
distributed in accordance therewith, if influence of fear, or threats;
its contents, and due execution, and the
fact of its unauthorized destruction, (d) If it was procured by undue and improper
cancellation, or obliteration are pressure and influence, on the part of the
established according to the Rules of beneficiary, or of some other person for his
Court. (n) benefit;
Problem: Testator revokes his will in then (e) If the signature of the testator was procured
domicile State A and dies in his new domicile by fraud or trick, and he did not intend that the
State B. If his revocation under the laws of State instrument should be his will at the time of fixing
A is invalid under State B laws, what law will his signature thereto.
apply?
Rule 77
Common law practice: law of the domicile at the Section 1. Will proved outside Philippines may be
time of death. allowed here. Wills proved and allowed in a
foreign country, according to the laws of such
Philippine law: law of the place of revocation. country, may be allowed, filed, and recorded by
the proper Court of First Instance in the
Philippines.
Notice that there is a difference in the applicable Testamentary capacity is the capacity to
law governing revocation of wills by a person comprehend the nature of the transaction in
which the testator is engaged at the time, to
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recollect the property to be disposed of and the subject. Because of this, rules on notice must
persons who would naturally be supposed to be followed. Since Silvino did not cause the
have claims upon the testator, and to notification of the other heirs, this petition
comprehend the manner in which the instrument must fall.
will distribute his property among the objects of
his bounty. (Bugnao vs. Ubag, 014 SCRA 163)
Vda. De Perez vs. Tolete
Rule 77 Section 1 + testamentary capacity - will (1994)
made in a foreign country allowed here in the FACTS: Each of the Cunanan spouses (Jose
Philippines !!! (see Article 816) and Evelyn) executed a will in New York
containing similar provisions on the
A will allowed in a foreign country in accordance
presumption of survivorship. When the entire
with the law of that country may be allowed in
family perished in a fire that gutted their home
the Philippines… no need to prove testamentary
capacity and due execution (see Article 817). in New York, Rafael as the named trustee in
the will of Jose filed separate proceedings in
Common Law conflicts rules… New York for the probate of the wills of his
1) If the will is valid under the laws of the brother and sister-in-law. Later, Salud Perez
last domicile, the will is valid everywhere (mother of Evelyn) filed a petition for
with respect to movable property reprobate in Bulacan. Rafael opposed by
arguing that Salud was not an heir as per New
2) but the probate in the last domicile does York law which must be the law that should
not affect real property, as these will be govern the wills as they were executed in New
governed by lex rei sitae York. In deciding the matter, the necessary
evidence that should be submitted are:
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In view of these, the policy behind tort law will Lex loci delicti commissi: the law of the place
most likely be a strongly held policy of the state where the alleged tort was committed. It
and as result, that state will not easily displace its determines the tort liability in matters affecting
own law with the law of another state. conduct and safety.
In determining the applicable law, consider the Difficulty has been encountered in determining
policies of: a) upholding the justified expectation the locus delicti where the liability producing
of parties, and b) minimizing the adverse conduct happens in one state but the injuries are
consequences that might follow from subjecting a sustained in another.
party to the law of more than one state.
Common law concept of place of wrong: place
Conflicts torts cases arise: where the last event necessary to make an actor
liable for an alleged tort occurs. It adheres to the
1) when the tortious conduct and place of vested rights theory, so that if harm does not
resulting injury are different and one take place then the tort is not completed.
state imposes higher standards than the Negligence or omission is not in itself actionable
other state unless it results in injury to another.
2) when there are different product liability Civil law concept of place of wrong: place where
laws and varying judicial interpretations the tortious conduct was committed. This is
of the extent of liability premised on the principle that the legality or
illegality of a person’s act should be determined
by the law of the state where he is at the time he
does such act.
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The determination of whether the law where the Conflicts torts cases arise due to significant
tort was committed or the law of the domicile of differences in the laws of states on the basis and
the parties is the controlling law is considered extent of liability for defectively manufactured
one of the major contributions of American products.
jurisprudence to international conflicts thought.
Law of the tort: deemed as the proper law in Asahi Metal Industry vs. Superior Court of
questions involving regulation of conduct. California
Law of the domicile of the parties: governs in (1987)
matters that relate to loss-distribution or financial FACTS: Asahi Metal manufactures tire valve
protection.
assemblies in Japan and exports them,
including to a Taiwanese company which, in
turn, incorporates them into finished tires sold
In modern approaches, there is a distinction
between true or false conflict. in the US. The driver of a motorcycle, who had
an accident resulting in injuries to him and
True conflict: both states have an death to his passenger, sued the Taiwanese
interest in having their law applied company. The Taiwanese company filed a
“maybe true” conflict cross-complaint against Asahi.
false conflict: no choice necessary – the
court should apply the law of the only HELD: The California court has no JD over
interested state Asahi Metal. The constitutional
_______________ touchstone/test of due process is whether the
defendant purposefully established
“minimum contacts” in the forum state. And
D. Foreign Tort Claims “minimum contacts” must have a basis in
some act by which the defendant purposefully
Tortious liability is transitory – the liability avails itself of the privilege of conducting
resulting from the tort is deemed personal to the activities within the forum state, thus invoking
perpetrator of the wrong, which follows him the benefits and protections of its laws.
wherever he goes. Compensations may be
exacted from him in any proper tribunal; the
In the CAB, no purposeful availment of the
right to sue is not confined to the place where
the cause of action arises.
California market on the part of Asahi. It does
not do business in California; has no office,
agents, employees, or property in Cal.; does
not advertise or otherwise solicit business
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there; and did not create, control, or employ and to ensure that the states, through their
the distribution system that brought its valves courts, do not reach out beyond the limits
to California. imposed on them by their status as coequal
sovereigns in a federal system.
Societe Nationale Industrille Aerospatiale vs. Lee In CAB, there us a total absence of those
Kui Jak: An Aerospatiale helicopter crashed in affiliating circumstances that are a necessary
Brunei, killing a passenger who was a Brunei predicate to any exercise of state-court JD (no
resident. The administrator of the estate brought activity whatsoever on Oklahoma; no sales
the action in Texas, where Aerospatiale does closed nor services performed there; no
business. Held: Brunei (where the deceased lived availment of the privileges and benefits of
and the helicopter crashed) was the natural
Oklahoma law; no solicitation of business
forum for the trial for an action for damages
there).
against the manufacturer of the helicopter, and it
would be oppressive for the plaintiffs to continue
with the Texas proceedings as Aerospatiale
would not be able to pursue legal proceedings
against the Malaysian company which operates In Asahi, even if there were minimum contacts, it
and services the helicopter. failed the reasonableness test.
Bier vs. Mines de Potasse: A Dutch market Criticism of Asahi: “additional acts” requirement
gardener filed an action for damages in a Dutch is a reinvention of the stream of commerce law.
court against a French mining company. The The fear is that the court might go back to pre-
Dutch court held that it had no JD, but the International Shoe standards n JD (requirement
French court held that the plaintiff could elect of actual presence).
where to sue (place of damage or place of
injurious conduct). In Worldwide Volkswagen, the only requirements
for the exercise of JD were minimum contacts
Sovereignty as Basis of Jurisdiction and the reasonableness test; Asahi did not follow
this, and include an additional requirement
The sovereignty model has been accepted both (purposeful availment).
to: ________________
a) justify any exercise of jurisdiction over a
defendant present within the territory,
however short (“tag jurisdiction”) iii. The Alien Tort Act
b) deny enforcement of a foreign court The Alien Tort Statute granted US district courts
judgment over a defendant who was not original JD over any civil action by an alien for a
present within that court’s jurisdiction tort committed in violation of the law of nations
or a treaty of the US.
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inappropriately exercised even though the compliance with customary international law.
actions xxx occurred outside the US. That is why in order for the Alien Tort Act to
apply, there is a need to establish that the
tortious conduct violated an internationally
Filartiga vs. Pena-Irala protected human right.
(1980)
FACTS: Plaintiffs brought an action in the US
against Pena-Irala for wrongfully causing the iv. Philippine Rule on Foreign
death of Dr. Filartiga’s son in Paraguay. Torts
*The concept of accountability, if considered Two conditions for a case based on a foreign tort
the core of the Alien Torts Act (as espoused by to be filed in the Philippines (English Rule):
the US Justice Department in Trajano vs
Marcos), would be a significant setback to the 1) the wrong must be of such a character
advancement of international law. that it would have been actionable if
committed in the Philippines
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significant links between the forum and the since it determines the specific law by which the
parties. criminal is to be penalized, and designates the
state that has the JD to punish him.
In ordinary foreign tort, the court acquiring JD 3 Exceptions to the Territorial rule:
must be either the place of tortious conduct or
place of injury. In Alien tort Statute, US courts 1) First Exception: crimes committed by
may acquire JD even if it is neither the place of state officials, diplomatic representatives
tortious conduct nor place of injury. and officials of recognized international
organizations (based on doctrine of
“law of nations” (Filartiga): “mutual” concern – state immunity)
nations consider the act to be detrimental to all
nations; it is a violation of a law of all countries.
Wylie vs. Rarang
Guinto: violation of law of nations test— (1992)
1) the violation affects relationship FACTS: Wylie and Williams are officers of the
between states, or an individual and a US Navy stationed in the Subic Naval base,
foreign state and are in charge of the publication “Plan of
2) used by the states for their common the Day.” Rarang filed an action for damages
good and/or dealings inter se
against them for libelous statements published
_______________
in the POD.
E. Distinguishing between Torts and HELD: Wylie and Williams are not immune
Crimes from the suit. They are sought to be held
answerable for personal torts in which the US
is not involved; if found liable, they alone
Tort Crime must satisfy the judgment. The Bases Treaty
provision on immunity could not possibly
Transitory in character; Local in character; the apply in this case, as it is presumed that the
hence liability is perpetrator of the laws of the US do not allow the commission of
deemed personal to wrong can be sued crimes in the name of official duty. The general
the tortfeasor and only in the state rule is that public officials can be held
make him amenable to wherein he commits personally accountable for acts claimed to
suit in whatever JD he the crime have been performed in connection with
is found official duties where they have acted ultra vires
or where there is showing of bad faith.
An injury to an An injury to the state
individual who may be where it is committed
situated in any place This immunity for sovereign acts is impliedly
waived when the foreign state and its officials
Liability is attached to Promulgated to punish perform private, commercial or proprietary acts.
the perpetrator to and reform the
indemnify the victim perpetrators and deter
for injuries he them and others from In Rarang, although the publication was part of
sustained violating the law the duty of Wylie and Williams, the goal of the
publication of the complaint would have been
F. Lex loci delicti achieved without identifying Rarang by name.
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Foreign corporation – formed under the laws of a HELD: Bank can exercise its powers in
state other than the Phils; such laws allowing Alabama and the contracts are therefore valid.
Filipino citizens and corporations to do business It is well-settled that by the law of the comity
there. It shall have a right to do business here of nations, a corp. created by 1 sovereignty is
only after obtaining a license and a certificate of permitted to make contracts in another and
authority from the appropriate government sue in its courts and that the same law of
agency. comity prevails in several States of US
including Alabama. Alabama courts have held
1. Personal Law of a that a foreign corp may sue in its courts based
Corporation
on the comity of nations.
The personal law of the corporation is the law of
the state where it is incorporated. If the law Four Basic (Important) Theories from the case:
creating it does not authorize it to enter into
certain contracts, such contracts which can be 1) a corporation, being a creature of law,
made in other states shall be void despite the has no legal status beyond the bounds
express permission given by the other state. of the sovereignty within which it was
created
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The dictum that a corporation has force only in Acquisition of a license by a foreign corporation is
the incorporating state and no existence outside an essential prerequisite for filing of suit before
that state has been abandoned. The prevailing our courts.
rule is, with the consent of a state, a foreign
corp. shall be recognized and will be allowed to Art. 133, Corp Code states that these
transact business in any state, which gives its corporations may be sued or proceeded against
consent. before Phil courts or administrative tribunals on
any valid cause of action recognized under Phil
Requirements for License: Secs. 125-128, Corpo law.
Code)
a. sworn application
b. copy of articles of incorporation Home Insurance Co. vs. Eastern Shipping
c. designation of an agent Lines
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c. Agreements Fully
Transacted Outside the Phil. Columbia Enterprises vs. Lantin
Philippines (1971)
FACTS: Katoh & Co. filed a complaint against
A foreign corporation is allowed to maintain an Phil Columbian. Phil Columbian challenged its
action on a transaction wholly celebrated and capacity to sue. TC deferred the determination
consummated abroad so as not to impair the of this issue until trial on the merits. PC
policy of stabilizing commercial transactions. opposed claiming that if it files a counterclaim,
it will be waiving its right to assail the capacity
to sue of Katoh.
Universal Shipping Lines vs IAC
HELD: The private respondent may sue in the HELD: A counterclaim is a complaint against
Phils upon the marine insurance policies to the plaintiff. It would not be the foreign corp
cover international-bound cargoes shipped by who will be maintaining a suit. Therefore, Sec.
the carrier. It is not the lack of the license but 69 of the Corp Law will not apply.
doing business without such license which
bars a foreign corporation from access to our
courts. 7. Definition and Scope of
Transacting Business
Hang Lung Bank vs. Saulog A foreign corporation may do business, state
(1991) consent being presumed, except:
FACTS: Hang Lung Bank, not doing business 1. where it is prohibited by express statutory
in the Phils, entered into continuing guarantee authority or constitutional enactment
agreements with Cordova Chin San in 2. where it is seeking to perform acts which are
HongKong for the debts of Wolder contrary to public policy
Enterprises. Wolder defaulted so Hang Lung 3. where it is seeking to exercise extraordinary
sued Wolder and Chin San. No payment was and special franchises
made so it sued Chin San in RTC, Makati for 4. where it is seeking to perform acts which are
not authorized by the law of the state of its
enforcement of its money claim. Chin San
incorporation
moved to dismiss for incapacity to sue.
“Doing Business” (Foreign Investments Act)
HELD: A foreign bank not doing business in - soliciting orders,
the Phils, such as Hang Lung, may sue a - service contracts,
resident for contracts entered and - opening offices whether called “liaison”
consummated outside the Phils. offices,
Reasons for rule: if not adopted, - appointing representatives if the latter stays
a. it will hamper the growth of business for at least 180 days,
between Filipinos and foreigners - participating in the management, supervision
b. it will be used as protection by or control of any domestic business
unscrupulous Filipinos who have - and any other act that imply a continuity of
businesses abroad commercial dealings
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- and contemplate in the performance of acts E to use such trademark and to advertise the
or works same.
- the progressive prosecution of commercial
gain or of the purpose/object of the business Thus, it cannot be said that the case involved
organization an isolated or single transaction. The
transaction is not merely incidental or casual
What is not doing business: but is of such nature as to indicate a purpose
1. mere investment as a shareholder to do other business in the State.
2. exercising of rights as investor
3. having a nominee director or officer to
represent interests
CIR vs. JAL
4. appointing a representative or distributor in
the Phils which transacts business in its own
(1991)
name and for its own accounts FACTS: JAL was assessed deficiency income
tax by CIR for the sales of its ticketing agent
Doing business serves as the basis for jurisdiction (PAL) in the Phils. JAL opposed and claimed
over corps on the theory that they are present in that as a non-resident foreign corp. it can only
the state or have consented to suit by making be taxed on income from Phil sources.
that state a major place of business.
HELD: JAL is a resident foreign corporation
under the Tax Code. For a foreign corporation
Avon Insurance vs. CA to be regarded as doing business, there must
(1997) be a continuity of conduct and intention to
HELD: A reinsurance company is not doing establish a continuous business (i.e.
business in a certain state merely because the appointment of a local agent) and not a
property or lives which are insured by the temporary one. JAL constituted PAL as a local
original insurer company are located in that agent to sell tickets which is the lifeblood of
state since the reinsurance contract is usually a airline tickets, the generation of sales being its
separate and distinct arrangement from the paramount objective.
original contract of insurance, whose
contracted risk is insured in the reinsurance
agreement. Merrill Lynch Futures vs CA
(1992)
The term “doing business in the Phils” implies FACTS: Lara spouses entered into a Futures
a continuity of commercial dealings and Customer Agreement with Merrill Lynch
arrangements and contemplates, to that extent, Futures Inc. They become indebted to it after a
the performance of acts or works or the loss in the business. Laras refused to pay and
exercise of functions normally incident to and claimed that the transactions were void
in the progressive prosecution of the purpose because MLFI had no license to operate as a
and object of its organization. commodity or financial futures broker.
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1) Comity
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HELD: it is not a bar. In England, foreign It considers the plaintiff’s cause of action as
judgement are enforced based on the principle merged in the judgment. Thus, he may not
that where a court of competent jurisdiction relitigate that exact same claim.
has adjudicated a sum of money to be due
from one person to another, a legal obligation 3. Bar
arises to pay the sum, on which an action of
debt to enforce the judgement may be This is where a successful defendant interposes
maintained and not merely out of politeness the judgment in his favor to avert a second
action by plaintiff on the same claim. By direct
and courtesy to other tribunals of other
estoppel, the relitigation of all matters decided
countries. Anything that negates the existence
are precluded
of a legal obligation or excuses the defendant
from performance is a good defense to the In addition, DOCTRINE OF COLLATERAL
action (ex. Evidence that court exceeded its ESTOPPEL renders conclusive all “essential issues
jurisdiction or the judgement was obtained of fact actually litigated in the suit decided on by
thru fraud) the foreign court”.
Many courts recognize & enforce foreign COLLATERAL ESTOPPEL- concerned with
judgments on ground of res judicata, under preclusion by barring relitigation of an issue
which principle: already litigated on in a prior proceeding
a. those who contested an issue shall
be bound by the result & D. Requisites for Recognition or
b. matters once tried & decided w/ Enforcement
finality in one jurisdiction shall be
considered as settled b/w the 1) The foreign judgment was rendered by
parties a judicial or a quasi-judicial tribunal
which had jurisdiction over the parties &
Thus, parties are prevented from litigating issues the case in the proper judicial
already determined by a local judgment. proceeding.
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recognized natural daughter, had 2 sets of HELD: Foreign judgements are presumptive
children from 2 marriages, who claim to be evidence of the rights between parties and
heirs of Bischoff. rejection may be justified, among others, by
first married to Von Kaufmann and had 3 want of jurisdiction of the issuing authority,
children but Von Kaufmann obtained among others. But in CAB, such rejection was
divorce on France not justified. What Borthwick seeks in this
Castro was remarried to Dr. Mory and appeal is a 3rd chance to contest the jurisdiction
they had 2 children of the foreign court. In order to do that, he
must show that the declaration of default was
HELD: as to the Mory children – NO, the incorrect. But Borthwick did not do this.
second marriage is void. The right to inherit Borthwick was given an opportunity to file his
pertains only to legitimate, legitimated and answer in the Hawaii court, he was also given
acknowledged natural children. The French a chance in the CFI, Makati, but he failed to do
decree of divorce is not valid in the the same.
Philippines. French court had no jurisdiction
to entertain actions for dissolution of
marriages of performed in the Phils over 2. The judgment must be valid under the laws of
persons domiciled here. The RULE is that the court that rendered it
when a court, where neither of the spouses are
domiciled, and to which one or both, may In Pemberto vs. Hughes although there was
resort merely to obtain decree of divorce, error in procedure, since the Florida court was
issues such decree, the divorce is not entitled competent & no substantial injustice was
committed, the English court did not consider the
to recognition elsewhere.
error as to significantly alter an otherwise valid
decree.
As long as the foreign court acquired jurisdiction,
its decisions will not be disturbed whether it was
3. The judgment must be final & executory to
reached through an adversary proceeding or by
constitute res judicata in another action
default.
If judgment is interlocutory or provisional in
character w/c ‘contemplates that a fuller
Somportex vs. Philadelphia Chewing Gum Corp..
investigation leading to final decision may later
Court rejected Philadelphia’s contention that a
be held, it creates no obligation on the forum
default judgment by the English courts should
court to recognize it.
not be extended hospitality by American courts.
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and finally settles controversy. It must e appropriately wielded by the other branches
shown that in the court by which it was of government.
pronounced it conclusively and finally settles
forever the existence of debt of which it is Trautman and Von Mehren point out the
sought to be made conclusive. difficulties with the reciprocity requirement.
a. its normal tendency is to lower
rather than raise the standards
Querubin vs. Querubin of practice
b. the private litigants burdened
(1950)
may not be closely attached to
FACTS: Following their divorce because of
the legal order sought to be
Margaret’s infidelity, rendered in New
changed
Mexico, their daughter Querubina was kept in c. the administration of
a neutral home. Silvestre then obtained an reciprocity clauses can be
interlocutory decree granting him custody. complicated esp. where case
Margaret had the decree modified since the law systems are affected since
she was remarried and had a stable home for finding the exact foreign law
Querubina. When Silvestre fled to the that grants reciprocity is still
Philippines with Querubina, Margaret filed for nebulous. It is unclear whether
habeas corpus. She asserts that the reciprocity is proved by general
interlocutory order should be complied with recognition of such or requires
pursuant to Article 48 Rule 39. a specific recognition for a case
identical or analogous to the
HELD: Her contention is erroneous. A foreign one before the court.
interlocutory order in favor of Margaret did
not establish a vested right with respect to
rightful custody over Queribina. The decree is Cowans, et al. vs. Teconderoga Pulp and
not yet final but subject to change with the Paper Co.
circumstances. Generally, divorce decree (1927)
awarding custody of child to one spouse is FACTS: Cowans obtained a Quebec judgment
respected by other states but such decree has in their favor for a sum of money. TPP asserts
no effect in another state as to facts and in defense that this judgment is not conclusive
conditions occurring subsequently to date of upon, but merely a prima facie evidence before
decree. Court of another state may award the US courts, pursuant to Quebec law. TPP
custody otherwise upon proof of subsequent alleges that since Quebec law does not
matters justifying such decree to the child’s reciprocate as to judgements of NY courts, NY
interest. should also not recognize the Quebec
judgment as adjudications of the issues.
4. The state where the foreign judgment was HELD: This claim of TPP pursuant to the
obtained allows recognition or enforcement of Hilton vs. Guyot doctrine should not be
Philippine judgment followed. Persuasiveness of a foreign
judgment is not dependent upon comity nor
In Hilton vs. Guyot, a French judgment was not reciprocity. Even without these principles, a
recognized by a US court because it found out judgment has its own strength. Following the
that French laws allowed review of American Hilton vs. Guyot ruling would deprive a party
judgments on the merits. This ruling is widely of the private rights he has acquired by reason
criticized because: of a foreign judgement because the country in
Instead of being a mutual exchange of whose courts the judgement was rendered has
privileges, comity was used as a means of a different rule of evidence than what the
retaliation. recognizing court has and does not give the
The court in Hilton discriminated against the same effect as the latter gives to a foreign
litigants on account of the policies of their judgment.
governments which they were in no position
to shape and alter. 5. The judgment must be for a fixed sum of
It can be argued that the task of formulating money
policies through reciprocity is a power
misplaced in the judiciary and should be
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there was no need to ascertain the rights and courts consider jurisdiction of foreign court as
obligations of the parties based on foreign appropriate when there are significant contacts
laws or contracts; the parties needed only to between forum states & individuals.
perform their obligations under the
Compromise Agreement they had entered The service of summons as the traditional basis
into. None of the reasons for invoking forum for exercise of jurisdiction has been eroded.
non conveniens barred the RTC from exercising
its jurisdiction (forum shopping, overcrowded The ground that “foreign court was seriously
inconvenient” employs doctrine of forum non
dockets, harassment of defendants, etc.) In
conveniens to restrain use of “presence” as
CAB, there was no more need for material
cornerstone of jurisdiction.
witnesses, no forum shopping or harassment
of Puyat, no inadequacy in the local machinery Art 23 Hague Convention on Jurisdiction,
to enforce the foreign judgment and no Applicable Law, Recognition, Enforcement &
question raised as to the application of any Cooperation in re of Parental Responsibility &
foreign law. Measures for Protection of Children:
(a) A foreign judgment is not conclusive if- Violation of ordre public & nonobservance of due
1. The judgment was rendered under a process are included as grounds for non-
system which does not provide impartial recognition in many Hague Conventions.
tribunals or procedures compatible with the
requirements of due process of law
2. The foreign court did not have personal F. Modern Developments in
jurisdiction over the defendant Enforcement of Foreign Judgment
3. The foreign court did not have jurisdiction
over the subject matter 1. The Hague Conference on Private IL
Convention on Recognition & Enforcement of
(b) A foreign judgment need not be Foreign Judgments in Civil & Commercial Matters
recognized if- established conditions & requisites for contracting
1) The defendant in the proceedings in states to recognize & enforce each other’s
foreign court did not receive notice of judgment.
the proceedings in sufficient time to
enable him to defend Contributions:
2) The judgment was obtained by fraud a) provisions on applicability of Convention
3) The cause of action or claim for relief on irrespective of nationality
which judgment is based is b) non-refusal for sole reason that court of
repugnant to public policy of the state. state of origin has applied a law other
4) The foreign judgment conflicts with than that which would have been
another final & conclusive judgment. applicable according to the rules of
5) The proceeding in the foreign country Private IL of the state addressed
was contrary to an agreement between c) it addresses the question of whether a
the parties under which the dispute in default judgment is subject to
question settled otherwise than the enforcement
proceeding in that court d) establishes recognition & enforcement
6) In the case of jurisdiction based only on procedures
personal service, the foreign court was a
seriously inconvenient forum for the trial The seventh session looked into possibility of a
of the action general convention on recognition & enforcement
of judgments whose chief benefit will be the
Grounds 1-3 under letter b are mandatory & the relatively uniform procedure among contracting
last 3 are discretionary. states.
The ground on non-recognition for lack of
jurisdiction in personam is most debatable. Most 2. The EEC Convention of 1968
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
89
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
90