Conflict of Laws – Atty.
Gatdula Comprehensive Reviewer of Agpalo book
CHAPTER I
INTRODUCTION
Reasons why conflict of laws evolved
 Growing interdependence of many states in
business or commercial activities, such as in
commercial transactions among nationals of
different countries and the employment of citizens
of one country in another state, and a host of
many occurrences take place affecting persons,
personal status, and properties, in two or more
countries.
 “The world is composed of territorial states, having
separate and differing systems of law. Events and
transactions occur, and issues arise, that may have
a significant relationship to more than one state,
making necessary a special body of rules and
methods for their ordering and resolution.”
Conflict of laws defined.
 Black’s definition: Inconsistency or difference
between the laws of different states countries,
arising in the case of persons who have acquired
rights, incurred obligations, injuries or damages, or
made contracts, within the territory of two or more
jurisdictions.
 American jurisprudence: Conflict of laws is in
reality a part of the subject of international law.
Private International Law, or Conflict of Laws, is
that which regulates the comity of states in giving
effect in one to the municipal laws of another
relating to private persons, or concerns the rights
of persons within the territory and dominion of one
state or nations, by reason of acts, private or
public, done within the dominion of another, and
which is based on the broad general principle that
one country will respect and give effect to the laws
of another so far as can be done consistent with its
own interests.
Public International Private International
Law Law
Public International Law, Private International Law,
or the law of nations, is or Conflict of Laws, is that
that which regulates the which regulates the
political intercourse of comity of states in giving
nations with each other or effect in one to the
concerns questions of municipal laws of another
rights between nations relating to private persons
Note: Philippine courts have not fashioned a definition of
conflict of laws or private international law.
Other terms defined
Foreign element
A factual situation that cuts across territorial lines and
is thus affected by the diverse laws of two or more
states is said to contain a “foreign element.”
Comity
The recognition which one state allows within its
territory to the legislative, executive, or judicial acts of
another state. Comity is however neither a matter of
absolute right nor a mere courtesy.
Lesley Claudio (A 2012)
Lex situs
The applicable law regarding the acquisition, transfer,
and devolution of the title to property is the law where
the property is located.
Lex fori
The law of the forum, where the case is filed.
Lex loci actus
The law of the place where the act was done.
Lex loci celebrationis
The law of the place where a contract is entered into.
Lex loci contractus
The proper law applicable in deciding upon the rights
and liabilities of the contracting parties. The test to
determine the proper law of the contract would appear
to be the system of law with which the transaction has
the closest and most real connection.
Lex Loci delictus
The law of the place where the offense or wrong took
place.
Lex loci dimicillii
The law of the place of domicile of a person
Lex loci rei sitae/ lex situs
The law of the place where a thing is situated.
Kilberg doctrine
It is a rule to the effect that the forum is not bound by
the law of the place of injury or death as to the
limitation on damages for wrongful act because such
rule is procedural and hence the law of the forum
governs on this issue.
“Center of gravity doctrine”
The application of the law of the jurisdiction which has
the most significant relationship to or contact with
event and parties to litigation and the issue therein.
Term is used synonymously with the most significant
relationship theory. It is also known as “grouping of
contacts”
Conflict of laws essentially involves two remedies
The application of conflict of laws in the Philippines basically
involves either of two remedies:
1. The enforcement of rights that accrued completely
or partly in a foreign country in the form of action
filed in Philippine courts by a citizen or an
aggrieved person
 The general rule is that rights acquired
under a foreign statute may be enforced
elsewhere, i.e., in the Philippines, in
comity, if not against public policy
2. The recognition and enforcement of a foreign
judgment, in the form of a petition or complaint to
enforce such foreign judgment filed in Philippine
courts by the prevailing party.
 Also based on comity, subject to Sec. 48,
Rule 39 of Rules of Court
 Involves the extraterritorial application of
foreign laws, to which the country may
consent expressly or impliedly, except
where the country’s prohibitive laws or
public policies provide otherwise.
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 Enforcement of a foreign judgment is filed
before Philippine courts either because the
losing party is a citizen or national of, or is
domiciled in, our country or the latter has
property in the Philippines against which
the foreign judgment may be executed.
 By filing a petition for enforcement of
foreign judgment, the prevailing party
voluntarily submits itself to the jurisdiction
of the Philippine courts
 Sec. 48, Rule 39 of Rules of Court
authorizes the Philippine courts to review
foreign judgments, which explains why
Philippine courts cannot generally take
foreign judgments as conclusive rights of
the parties therein
Note: Conflict of laws presupposes two or more conflicting
laws.
Sources of conflict of laws
1. Constitution
2. Statutes
3. Rules and regulations
4. Jurisprudence
5. Treaties
6. International conventions
Note: Philippine courts apply Philippine laws or
jurisprudence. They do not automatically apply foreign laws
and if they do, it is because Philippine laws, treaty
obligations, and comity prescribe their application, when
they are not contrary to prohibitive laws or public policies
and when such foreign laws are properly pleaded and
proved. Foreign laws are not superior than Philippine laws
and they cannot be forced upon Philippine courts except by
consent, express or implied.
Conflict of laws presupposes conflict
 Conflict of laws assumes that there is a conflict
between a local law and a foreign law involving a
foreign element or elements, which requires a
determination of which law should apply.
 Where there is no conflict or where the conflict is
merely apparent than real or where the case
involves no foreign element, then there is no
conflict of laws situation, even if there is a foreign
element involved. The court will decide the case by
applying local or municipal laws.
 Conflict laws is thus fundamentally a problem of
choice of law, between foreign law and local or
municipal law, by the forum court, with local or
municipal law as its starting point.
Where the case involves no foreign element and the
local laws applicable on the matter are conflicting,
courts resolve them:
1. Firstly, by reconciling the two or more laws, if
at all possible or
2. Secondly, if they cannot be reconciled, by
considering one law as having been impliedly
repealed by the later statute or
3. Thirdly, by excepting one law from the
operation of the other, and on the basis
thereof, decide the case.
In conflict of laws cases involving foreign element:
1. The courts will also reconcile the conflict between
the local law and the foreign law by applying one in
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
favor of the other or by considering one as an
exception of the other.
2. If reconciliation is not possible, the court will NOT
consider the law as unconstitutional. The court will
resolve the conflict either by making exceptions
from the operation of the foreign law or by not
applying the foreign law at all for being contrary to
law, and decide the case on the basis of its own
laws.
Note: Conflict of laws or private international law is in
reality a municipal or national law of the country where the
case is filed, for the forum court decides the case on the
basis of its law, or, if foreign law is applied, it is only
because the local or municipal law so requires.
Foreign element in conflict of laws situation
 The presence of a foreign element in a case
determines the existence of a conflict of laws
situation. Where there is no foreign element, no
conflict of laws exists.
From the standpoint of the Philippines, in cases filed in
the country, the foreign element may consist of:
1. A Philippine citizen or resident of the country, in
relation to a foreign national or entity or to acts
done or events that occurred in a foreign country
or property situated therein
2. Property located in the Philippines or acts done or
events that took place in the Philippines involving a
foreign national or entity and a citizen of this
country
 In short, a foreign element includes a
citizen or resident of the Philippines,
whether natural or juridical
Three ways of dealing with conflict of laws cases
1. The court might refuse to hear the case and
dismiss it
 There may be very minimum contact with
respect to the transactions or the parties,
such that it may be more convenient to
have the case tried in another forum
 Principle of forum non conveniens
2. The court might decide the case by its own local
law
 Decide the case by its own local law, as if
the case is any other domestic or local
case
 The Philippines usually adheres to the
second way
3. Special rules might be devised to deal with the
case in a manner designed to promote the smooth
function of the international and interstate systems
and to do justice to the parties
 The court seizes the occasion as the
opportunity to formulate or refine rules of
conflict of laws
Illustrative case: rights of a foreigner against that of
citizen
 Where the question involves the rights of a citizen
and a foreigner which the latter has violated, in a
case where the applicable law favors the foreigner,
Philippine courts will defer to the rights of the
citizen
 The law of the forum, in case of doubt, should tilt
the balance in favor of its citizens or its interests as
a nation
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Salvacion v. Central Bank (1997)
Facts: A 12-year old Filipino girl was raped by
American tourist Greg Bartelli ten times.
Issue: Whether the dollar bank deposit in a Philippine
bank of a foreign tourist can be attached to satisfy the
moral damages in favor of the latter’s 12 year old
victim.
Held: Yes. The bank should comply with the writ of
execution and release the dollar deposit in favor of the
victim. Sec. 8 of RA 6426 provides that “foreign
currency deposits shall be exempt from attachment,
garnishes, and any other order or process of any
court…” This questioned law, therefore, makes it futile
the favorable judgment and award of damages that the
victim and her parents fully deserve. The law failed to
anticipate the iniquitous effects producing outright
injustice and inequality such as the case before us.
CHAPTER II
CHOICE OF LAW
Generally.
As a rule, the choice is between a substantive foreign law
and the substantive local law of the country where the case
is filed, as it is settled that the procedural steps and
requirements of the law of the latter, relative to the filing
and enforcement of the cause of action are followed.
Foreign law has no extraterritorial effect; exceptions.
GR: It is an admitted principle of international law that a
nation possesses and exercises within its own country an
absolute and exclusive jurisdiction, and that any exception
to this right must be traced to the consent of the nation. A
foreign law may have no extraterritorial effect in the
Philippines.
EX: When there has been consent, express or implied,
thereto by the Philippines:
1. Consent to the extraterritorial application of a
foreign law in our country may be expressly given,
such as in the form of local law adopting a foreign
law, or pointing to a foreign law as the applicable
law.
2. The consent may also be by the Philippines’
entering into a treaty or adhering to an
international convention
3. The consent may also be implied, as in the
observance of the principles of comity.
Characterization and points of contacts or connecting
factors
Characterization or the doctrine of qualification
Before a choice of law can be made, it is necessary to
determine under what category a certain set of facts or
rules fall. It is the process of deciding whether or not
the facts relate to the kind of question specified in a
conflicts rule. The purpose of characterization is to
enable the court of the forum to select the proper law.
1. The court initially must, whether consciously
or not, go through the process of determining
the nature of the problem, because otherwise
it will not know which choice of law rule to
apply to the case.
2. The court may be faced with the further
question as to whether the characterization
should be made by the law of the forum or the
law of the other state with which the problem
to be resolved is connected.
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
 The starting point of analysis is a
factual situation.
 An essential element of conflicts rules
is the indication of a “test” or
“connecting favor” or “point of
contact”
 Choice of law rules invariably consist
of a factual relationship (property
right, contract claim) and a
connecting factor or point of contract,
such as the situs of the res, the place
of celebration, the place of
performance, or the place of
wrongdoing.
“Test factors” or “Points of contact” or
“Connecting factor” could be any of the following:
1. The nationality of a person, his domicile, his
residence, his place of sojourn, or his origin
2. The seat of a legal or juridical person, such as
a corporation
3. The situs of a thing. Lex situs is decisive when
real rights are involved.
4. The place where an act has been done. Lex
loci actus is particularly important in contracts
and torts
5. The place where an act is intended to come
into effect, e.g., the place of performance of
contractual duties
6. The intention of the contract parties as to the
law that should govern their agreement, the
lex loci intentionis
7. The place where judicial or administrative
proceedings are instituted or done. The lex fori
– law of the forum.
8. The flag of the ship, which in many cases is
decisive of practically all legal relationships of
the ship and of the master or owner of such.
Choice of applicable law, generally.
The choice of applicable law seeks to answer to important
questions:
1. What legal system should control a given situation
where of the significant facts occurred in two or
more states and
2. To what extent should the chosen legal system
regulate the situation
Choice of law principles (US Restatement of the
Law)
1. A court, subject to constitutional restrictions,
will follow a statutory directive of its own state
on choice of law.
2. When there is no such directive, the factors
relevant to the choice of the applicable rule of
law include:
(a) the needs of the interstate and
international systems
(b) the relevant policies of the forum
(c) the relevant policies of other
interested states and the relative
interests of those states in the
determination of the particular issue
(d) the protection of justified
expectations
(e) the basic policies underlying the
particular field of law
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(f) certainty, predictability, and
uniformity of result and
(g) ease in the determination and
application of the law to be applied.
Note: This can be divided into five groups. One
group is concerned with the fact that in multi-state
cases it is essential that the rules of decision
promote mutually harmonious and beneficial
relationships in the interdependent community,
federal or international. The second group focuses
upon the purpose, policies, aims, and objectives of
each competing local law rules. The third group
involves the needs of the parties, namely the
protection of their justified expectations and
certainty and predictability of result. The fourth
group is directed to implementation of the basic
policies underlying the particular field of law. The
fifth group is concerned with the needs of judicial
administration, namely with ease in the
determination and application of the law to be
applied.
The parties may stipulate as to what law should govern
in case of dispute arising from their contract:
Law of the State Chosen by the Parties (US
Restatement of Law)
1. The law of the state chosen by the parties to
govern their contractual rights and duties will
be applied if the particular issue is one which
the parties could have resolved by an explicit
provision in their agreement directed to that
issue
2. The law of the state chosen by the parties to
govern their contractual rights and duties will
be applied, even if the particular issue is one
which the parties could not have resolved by
an explicit provision in their agreement
directed to that issue, unless either:
(a) The chosen state has no substantial
relationship to the parties or the
transaction and there is no other
reasonable basis for the parties’
choice or
(b) Application of the law of the chosen
state would be contrary to a
fundamental policy of a state which
has materially greater interest than
the chosen state in the determination
of particular issue and which, would
be the state of the applicable law in
the absence of an effective choice of
law by the parties
3. In the absence of a contrary indication of
intention, the reference is to the local law of
the state of the chosen law.
Note: where the local law directs the choice of
applicable law, the court should follow that directive.
There are a few local laws which direct what foreign law
the court should apply in a given case:
1. Article 15 of the CC: laws relating to family
right and duties, or to the status, condition,
and legal capacity of persona re binding upon
citizens of the Philippines, even though living
abroad.
 The provision adopts nationality or
citizenship as the basis for
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
determining the personal laws of an
individual
 Articles 37 to 46 of CC on civil
personality
 In Anglo-American countries, the law
of domicile governs family rights and
duties, status, condition, and legal
capacity, except as it may be qualified
by lex rei sitae or the law of the
country where the property is located.
2. Article 16 of the CC: (1st par). Real property
as well as personal property is subject to the
law of the country where it is situated. (2nd
par). However intestate and testamentary
succession, both with respect to the order of
succession and to the amount of successional
rights and to intrinsic validity of testamentary
provisions, shall be regulated by the national
law of the person whose succession is under
consideration, whatever may be the nature of
the property and regardless of the country
wherein said property may be found.
 The first par. makes no distinction
between mobility and immobility of
property.
 2nd par. can be invoked only when the
deceased was vested with a
descendible interest in property in the
Philippines
 Article 37 and 38 of CC
 The second par. Of Art. 15 and Art.
1039 of the CC should be read
together. Both render applicable the
national law of the decedent, in
intestate and testamentary
successions with regard to four items:
1. Order of succession
2. Amount of successional rights
3. Intrinsic validity of the
provisions of the will
4. Capacity to succeed
3. Art. 17 of the CC: (1st par). The forms and
solemnities of contracts, wills, and other public
instruments shall be governed by the law of
the country in which they are executed. (2nd
par). When the acts referred to are executed
before the diplomatic or consular officials of
the Republic of the Philippines in a foreign
country, the solemnities established by
Philippine laws shall be observed in their
execution.
 First par. embodies the rule of lex
contractus, or the law pf the place of
execution of contract
4. Sec. 129 of the Corporation Code of the
Philippines: provides that the creation,
formation, organization, or dissolution of
foreign corporations or those which fix the
liabilities, responsibilities, or duties of
stockholders, members, or officers of foreign
corporations to each other or to the
corporation shall be governed by the laws of
the country of their creation or where they are
incorporated.
5. Where the Philippine law is silent on any
given case, Philippine courts are not justified
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to extend the force and effect of foreign law to
our jurisdiction. To do so would be to
incorporate into our statutes the foreign law by
judicial ruling which is beyond the authority of
the courts to do. Thus, no foreign law should
interfere with the operation and application of
Philippine laws. EXCEPTIONS are:
1. The Philippine legislature by law has
given consent to the extension of a
specific foreign law to the Philippines
2. When Congress enacts a law adopting
or copying a specific foreign statute.
3. Borrowing statute – A statute which
directs the court of the forum to apply
the foreign statute to the pending
claims based on a foreign law.
 Example: The Code of Civil
Procedure which provides that if
by the law of the state or
country where the cause of
action arose, the action is
barred, it is also barred in the
Philippines.
Agreement of parties; it cannot cover jurisdiction
 The parties may stipulate in their agreement as to
the applicable law and venue of action, in the event
of dispute and litigation arising therefrom
 As a rule, what the parties have stipulated are
binding and preclude them from applying another
law or instituting the action in a place other than
as stipulated
 The choice of law, however, must bear some
relationship to the parties or their transaction,
otherwise the agreement as to the law chosen is
invalid or it will not be respected in the forum court
 If there are some minimum contacts with the law
of the chosen forum, Philippine courts where the
action is filed may refuse to assume jurisdiction
and dismiss the action without prejudice to the
filing the same n the chosen forum
Hongkong and Shanghai Banking Corp v. Sheman
(1989)
Facts: A Singaporean company obtained a loan from a
branch of Hongkong and Shanghai Banking Corporation
in Singapore, which was secured by a joint and several
guarantee of directors of said company, some of whom
were residents of the Philippines. The agreement
provided that Singapore law should apply and that any
case that might arise should be filed in Singapore. A
case was filed in Philippine courts.
Issue: Whether the Philippine courts have jurisdiction
over the suit.
Held: The case was properly filed in the Philippine
courts. A state does not have jurisdiction in the
absence of some reasonable basis for exercising it. To
be reasonable, the jurisdiction must be based on some
minimum contacts that will not offend traditional
notions of fair play and substantial justice. The parties
did not thereby stipulate that only the courts of
Singapore, to the exclusion of all the rest, has
jurisdiction. In international law, jurisdiction is often
defined as the right of a state to exercise authority over
persons and things within its boundaries subject to
certain exceptions. A state is competent to take hold of
any judicial matter it sees fit by making its courts and
agencies assume jurisdiction over all kinds of cases
brought before them. In a conflict problem, a court will
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
simply refuse to entertain a case if it is not authorized
by law to exercise jurisdiction. And even if its so
authorized, it may still refuse to entertain the case by
applying the principle of forum non conveniens.
 The Court in Hongkong and Shanghai Banking
equated the choice of forum provision to that
of a stipulation specifying the venue where the
action is filed.
 The Court held that the word “jurisdiction” was
loosely used and the same was meant “venue”
 Jurisdiction cannot be fixed nor changed by
the parties, but the venue can be changed or
transferred by the parties to another place
 The ruling in Hongkong is that the parties
cannot stipulate as to jurisdiction over the
subject matter because it is fixed by law or the
Constitution and they cannot, by their
agreement, change it or invest it on a foreign
court.
 The Court upheld the court in the Philippines
as the proper venue because there was no
clear agreement (forum-selection clause) that
Singapore Court was to the exclusion of other
venues.
Where there is no agreement as to applicable law
Law Governing in Absence of Effective Choice by
the Parties (US Restatement of Law)
1. The rights and duties of the parties with
respect to an issue in contract are determined
by the local law of the state which, with
respect to that issue, has the most significant
relationship to the transaction and parties
2. The contacts to be taken into account to
determine the law applicable to an issue
include:
(a) The place of contracting
(b) The place of negotiation of the
contract
(c) The place of performance
(d) The location of the subject matter of
the contract, and
(e) The domicile, residence, nationality,
place of incorporation, and place of
business of the parties
 These contacts are to be evaluated
according to their relative importance with
respect to the particular issue
3. If the place of negotiating the contract and the
place of performance are in the same state,
the local law of this state will usually be
applied
Applicable foreign law determined by rules of conflict
of laws
The principles often applied in determining what law should
govern the resolution by the court of a conflict of law case
filed in the forum include:
1. Substance versus procedural distinction
2. Center of gravity*
3. Renvoi
4. Lex fori
5. Grouping of contacts*
6. Place of the most significant relations*
*Used synonymously
Substance versus procedural principle
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 The substance versus procedural distinction is a
problem of characterization
 GR: All matters of procedure are governed by
the law of the forum, where the case is filed,
while matters of substance are governed by the
law of the country where the cause of action
arose.
 However, the problem arises when one country
considers procedural matters as substantive,
and the other country considers them as
procedural
 One of the tests applied is the “governmental
interest” analysis
Governmental interest analysis
The prescriptive period of the country whose
interest will be impaired most by the failure to
apply its statute should apply in the case
 The rule on characterization does NOT apply
where the country in which the case is filed has
a borrowing law
Center of gravity
 The choice of law problems in conflict of law are
resolved by the application of the law of the
jurisdiction which has the most significant
relationship to or contact with event and parties
to litigation and the issues therein
 Term is used synonymously with the most
significant relationship theory
 Also known as “grouping of contacts” principle
Renvoi
 A doctrine under which court in resorting to
foreign law adopts rules of foreign country as to
conflict of law, which rule may in turn refer back
to the law of the forum
 Sometimes called “table tennis” theory as the
law is being referred back and forth from the
forum law to the law of domicile of the foreign
party which includes a conflict of laws rule,
pointing back to the forum law as applicable law
Illustration of renvoi doctrine
Lex fori
 The law of the forum
 The lex loci, or the law of jurisdiction in which
relief is sought controls as to all maters
pertaining to remedial (procedural)
 Theories in the choice of law:
1. German rule of elective concurrence
2. The State-interest analysis
3. Caver’s principle of preference
German rule of elective concurrence
The place of tort is whenever an essential part of the
tort has been committed (both the place where the
actor engages in his conduct and the place where
effects of such conduct may occur)
 The injured person may choose to sue in
either of the place, which to him is most
advantageous to his claim
The State-interest analysis
The court takes into account the interest of the state
in issue. The choice of law will depend as to whether
assuming jurisdiction will advance the interest of the
state
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
Caver’s principle
Where there is no conflict of law rules in the forum,
the court applies general principles to arrive at just
solutions to arrive at just solutions by
accommodating conflicting policies and affording fair
treatment of the parties caught in conflict between
state policies
 The absence of conflict of laws rule in the
forum does not justify the court from
declining to render judgment.
 The court faced with a conflict of laws case
has to decide the same by applying:
1. The written laws
2. The customs of the place
3. Judicial decisions
4. General principles of law
5. Principles of justice, reason, and
equity
Grouping of contacts
 Generally applied when the acts or contacts
occur in more than two countries, not one of
which is of sufficient significance to determine
the law applicable or the place where the action
is filed, so that there is need to group them
together and from which determination is done
 In applying the principle, the following contacts
are to be taken into account:
1. The place where the injury occurred
2. The place where the conduct causing
the injury occurred
3. Domicile, residence, nationality, place
of incorporation, and place of
business of the parties and
4. The place where the relationship, if
any, between the parties is centered.
Place of the most significant relations
Under the most significant relationship rule, the law of
the state which has the most significant relationship
with the occurrence and with the parties determines
their rights and liabilities in tort or in contract
Aznar v. Garcia
Facts: This case involves the validity of the will of
decedent Christensen, a citizen of California, but domiciled
in the Philippines, at the time of his death. His will
deprived his acknowledged natural child of his legitime.
Issue: Whether the law of California, which authorized the
testator to dispose of his property in any way he desires,
or that of the Philippine laws, which entitles the
acknowledged natural child to a share in the inheritance,
should apply to resolve the issue
Held: Philippine law should govern.
 The renvoi doctrine is usually pertinent where
the decedent is a national of one country and
a domicile of another.
 Art. 16 of the CC provides that intestate and
testamentary succession shall be regulated by
the national law of the person. There is no
single American law governing the validity of
testamentary provisions in the United States.
The “national law” indicated in Article 16
refers to the private law of the state which
the decedent is a citizen, in the case at bar,
the private law of the State of California.
 The California Probate Code (In Re Kaufman)
provides that a testator may dispose of his
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property by will in the form and manner as he
desires. However, Art. 946 of the CC of
California provides that “if there is no law to
the contrary, in the place where personal
property is situated, it is deemed to follow the
person of its owner, and is governed by the
law of his domicile.”
 The theory of the doctrine of renvoi is that
the court of the forum, in determining the
question before it, must take into account the
whole law of the other jurisdiction, but also its
rules as to conflict of laws, and then apply the
law to the actual question which the rules of
the other jurisdiction prescribe.
 The recognition of the renvoi theory implies
that the rules of the conflict of laws are to be
understood as incorporating not only the
ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as
well.
 The law of California has prescribed two sets
of laws for its citizens, one for residents
therein and another for those domiciled in
other jurisdictions. We note that Art. 946 of
the California CC as its conflicts of laws rule,
while the rule applied in In Re Kaufman its
internal law. The principle cited in In Re
Kaufman should apply to citizens living in the
State, but Article 946 should apply to such of
its citizens as are not domiciled in California
but in other jurisdictions.
 The national law mentioned in Article 16 of
our CC is the law on conflict of laws in the
California CC, i.e., Art. 946 which authorizes
the reference or return of the question to the
law of the testator’s domicile. The conflict of
law rule in California, Art. 946 of the CC,
precisely refers back the case to the law of his
domicile, the Philippines in the case at bar.
 The court of the domicile cannot and should
not refer the case back to California; such
action would leave the issue incapable of
determination because the case will then be
like a football, tossed back and forth between
the two states. The Philippines must apply its
own law as directed in the conflict of law rule
of the state of the decedent.
Illustration of borrowing statute
Cadalin v. POEA Administrator
Facts: Filipino workers were recruited in Bahrain, under
an employment contract which prescribed the benefits
due such laborers. Claiming that they were not paid
what was due them, the laborers, upon their
repatriation in the Philippines, filed complaints for
damages against their employer. Article 156 of the
Amiri Decree No. 23 of 1976 provides that “a claim
arising out of a contract of employment shall not be
actionable after the lapse of one year from the date of
the expiry of the contract.” However, Article 1144 of
the CC provides actions upon a written contract must
be brought within 10 years from the time the right of
action accrues. It is also contended that Article 1144 of
the CC is not to be applied but rather Article 291 of the
Labor Code, which provides that money claims arising
from employer-employee relations must be filed within
three years from the time the cause of action accrued,
should govern.
Issue: What prescriptive period should apply?
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
Held: The 3-year prescriptive period in the Labor Code
should apply.
 As a general rule, a foreign procedural law will
not be applied in the forum. This is true even if
the action is based upon a foreign substantive
law.
 A law on prescription of action is sui generis in
Conflict of Laws in the sense that it may be
viewed either as procedural or substantive,
depending on the characterization given such
a law.
 However, the characterization of a statute into
procedural or substantive law becomes
irrelevant when the country of the forum has a
“borrowing statute.” Said statute has the
practical effect of treating the foreign statute
of limitations as one of substance.
 A borrowing statute directs the state of the
forum to apply the foreign statute of
limitations to pending claims based on a
foreign law.
 Sec. 48 of the Code of Civil Procedure is a
borrowing statute, which provides that “if by
the laws of the state or country where the
cause of action arose, the action is barred, it is
also barred in the Philippine Islands.”
 However, Sec. 48 cannot be enforced insofar
as Sec. 156 of the Amiri Decree No. 23 of
1976 is concerned. The courts of the forum will
not enforce any foreign claim obnoxious to the
forum’s public policy.
 To enforce the one-year prescriptive period of
the Amiri Decree No. 23 of 1976 as regards
the claims in question would contravene the
public policy on the protection to labor.
 The claim in the cases at bench all arose from
the employer-employee relations, thus the
three-year prescriptive period in the Labor
Code should apply rather than the 10-year
period in the CC.
Conflict between foreign law and local law; the latter
prevails.
 Where there is conflict between a foreign law and
Philippine law, the latter prevails.
Bank of America v. American Reality Corp.
Facts: ARC obtained a loan from Bank of America
secured by a real estate mortgage. When the loan
matured with ARC failing to pay the same, the Bank
filed four collection cases in foreign courts, and at the
same time it foreclosed the real estate mortgage.
Issue: Whether the Bank’s act of filing a collection suit
against the principal debtors for the recovery of the
loan before foreign courts constitute a waiver of the
remedy of foreclosure
Held: Yes. The mere act of filing of an ordinary action
for collection operates as a waiver of the mortgage-
creditor’s remedy to foreclose the mortgage.
 The Philippine law shall apply notwithstanding
the evidence presented by the bank to prove
the English law on the matter. Thus, when a
foreign law, judgment, or contract is contrary
to a sound and established public policy of the
forum, the said foreign law, judgment, or
order shall not be applied.
 The public policy sought to be protected in the
instant case is the principle embedded in our
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jurisdiction proscribing the splitting up of a
single cause of action.
 By filing the four civil actions and by
eventually foreclosing extrajudicially the
mortgages, the bank in effect transgressed the
rules against splitting a cause of action.
Exceptions to application of foreign law.
GR: A foreign law or one duly enacted in another
country may be given territorial effect and application
filed in the country because:
1. Local law directs that it be applied
2. The parties have stipulated that a specific
foreign law be applied
3. A treaty or convention requires that a foreign
law be applied
4. The rules of conflict of laws point to the
application of a foreign law
Note: The fact that the resolution of a case requires
the application of foreign law does not, however,
automatically authorize the courts to apply the
foreign law.
EX: Foreign law will not be applied in the following
cases:
1. A foreign law will not be applied if it
contravenes prohibitive law or public policy of
the forum
2. The agreement stipulating the specific law as
applicable law may not be enforced:
(1) When the relationship of the
contracting parties affects public
interest in the country of one of the
parties, or
(2) The substantial contacts arising
therefrom point to the law of another
country as applicable law, or
(3) Such agreement contravenes the
prohibitive law or the public policy of
the forum
(4) Where the local law or the
international convention specifies the
applicable law, an agreement
stipulating a different law is invalid
3. In view of Article 16 of the CC which provides
that “real property as well as personal
property is subject to the law of the country
where it is situated, any foreign law sought to
be applied may not be enforced
4. When there is a conflict between a foreign law
and Philippine law, the former must yield to
the latter
5. Even when a foreign law is the applicable law
in a given conflict of laws case, its application
is limited only to substantive law which is the
basis of the cause of action, and does not
extend to procedural law. The parties cannot
by entering into an agreement, change the
procedure prescribed by the law of the forum.
6. Foreign penal laws have no extraterritorial
application in the Philippines
 EX: When the local law adopts the
penal law of other countries as part
thereof
Proof and authentication of foreign laws; of
documents.
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
 Foreign laws do not prove themselves in the
country, nor can the courts take judicial notice of
them. Like any other fact, they must be alleged and
proved.
 Failure to allege and prove the same may give rise
to the presumption that the foreign law is similar to
Philippine law on the matter.
Processual presumption
In the absence of allegation and proof, the laws of a
foreign country will be presumed to be the same as
Philippine laws.
 The general rule is that foreign documents, before
they can be admitted in evidence in our courts, must
be duly authenticated.
 Public documents are generally irremovable from
where they are officially kept. For this reason, public
documents used as evidence may be evidenced by
any of the following (Sec. 24, Rule 132 of the Rules
of Court):
1. By an official publication thereof or
2. By a certified true copy or one attested by
the officer having the legal custody of the
record, or by his deputy, and
accompanied, if the record is not kept in
the Philippines, with a certificate that such
officer has custody
3. If the office in which the record is kept is
in a foreign country, a copy of the
document should have a certificate made
by a secretary or embassy or legation,
consul general, consul, vice consul, or
consular agent, or by any officer in the
foreign service of the Philippines stationed
in the foreign country in which the record
is kept, and authenticated by the seal of
his office.
 Absent these requirements, the foreign
public documents cannot be admitted in
evidence in Philippine courts
 This requirement is not a mere technicality
but is intended to justify the giving of full faith
and credit to the genuineness of a document in
a foreign country.
 Parol evidence is not sufficient to prove
written foreign laws
Manufacturers Hanover Trust Co. v. Guerrero
The Court ruled that a foreign law may be proved by the
testimony in open court of an active law practitioner
familiar with the foreign law and quoting the specific law
involved, as an exception to Section 24 of Rule 132 of
the Rules of Court
Foreign written law Foreign unwritten law
Must be alleged and Oral testimony of expert
proved in accordance with witnesses is admissible, as
Sec. 24, Rule 132 of the are printed and public
Rules of Court books of reports of
decisions of the courts of
the country concerned if
proved to be commonly
admitted in such court
 A mere Xerox copy of the foreign law, or a foreign
document, even if duly identified by a
knowledgeable person from the foreign country, is
not sufficient to prove the foreign law.
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 The rules of authentication as provided for in Sec. 24
of Rule 132 do not apply to administrative
proceedings before administrative tribunals, where
technical rules of procedure are not applicable
Rules on electronic evidence
In cases of conflict of laws filed in courts in the country,
which may require the presentation of electronic document
or electronic data message, the Rules on Electronic
Evidence may be availed of.
Exceptions to non-judicial cognizance of foreign laws.
GR: Philippine courts are not authorized to take judicial
notice of foreign laws
EX:
1. When foreign laws are already within the
actual knowledge of the court, as when they
are generally known or they have been ruled
upon in other cases before it and none of the
of parties concerned claimed otherwise
2. When the courts are familiar with the specific
foreign laws such as the Spanish civil law,
common law doctrines, and the rules from
which Philippine laws are derived
3. Where a foreign law was proved in accordance
with Sections 24 and 25 of Rule 132 of the
Rules of Court and introduced as evidence,
such circumstances justified the Court to take
judicial notice of said foreign law in another
case
4. Specialized quasi-judicial agencies may take
judicial notice of foreign law, even if the
foreign law has not been alleged and proved
because the general rule applies only to cases
filed in courts and not to cases before
administrative or quasi-judicial bodies
Norse Management Co. v. National Seamen
Board
Facts: Petitioner claimed that the Singapore law
granting more benefits to seamen who suffered
injuries or died in the course of employment should
not apply to the claim for death compensation of
the wife whose husband, who was a second
engineer of a vessel registered in Singapore, died
in the course of his employment, because the
Singapore law was not alleged nor proved.
Held: The National Seamen Board can take judicial
notice of the Singapore law. Administrative and
quasi-judicial bodies are not bound by technical
rules.
CHAPTER III
CITIZENSHIP AND DOMICILE
A
CITIZENSHIP
Importance of nationality and domicile.
 A person may be a citizen of one country, but he
may be domiciled in another state or country
Personal law
Nationality principle Domiciliary principle
The status or condition of The status or condition of
a person and the relation a person and the relation
in which he stands to in which he stands to
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
other persons are fixed by other persons are fixed by
the law of his nationality the law of domicile
Example: Art. 15 of the Example: 2nd par., Art. 16,
CC CC
 Importance: one of the circumstances taken into
account in determining the applicable law in a
conflict of laws situation is the citizenship or
nationality of a party litigant or his domicile
Citizenship, generally.
Citizenship
The status of being a citizen of a state who owes
allegiance to the state and is entitled to its protection
and to the enjoyment of civil and political rights
therein.
o Citizenship is synonymous with nationality
 GR: A state has no authority to determine who are
citizens of other countries. Each state, by its
constitution or laws determines who are its citizens
and who have lost their citizenship.
 EX: The court of the forum where a case is filed
whose resolution requires determination of the
citizenship of the party in a case may determine
such citizenship
Who are citizens of the Philippines.
 The Constitution uses the word “citizen” in two
concepts:
1. A natural person who under the
Constitution is a Filipino citizen
2. A juridical person at least 60% of
whose capital is owned by Filipino
natural persons
Art. 4 of the 1987 Constitution on citizenship
Sec. 1. The following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the
time of the adoption of this Constitution
2. Those whose fathers or mothers are citizens of
the Philippines
3. Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority,
and
4. Those who are naturalized in accordance with
law.
Sec. 2. Natural-born citizens are those who are citizens
of the Philippines from birth without having to perform
any act to acquire or perfect their Philippine citizenship.
Those who elect Philippine citizenship in accordance
with paragraph (3), Section 1 hereof shall be deemed
natural-born citizens.
Sec. 3. Philippine citizenship may be lost or reacquired
in the manner provided by law.
Sec. 4. Citizens of the Philippines who marry aliens
shall retain their citizenship, unless by their act or
omission they are deemed, under the law, to have
renounced it.
Sec. 5. Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law.
The Constitution recognizes two modes of
acquiring Philippine citizenship:
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1. Jus sanguinis – the acquisition of citizenship
on the basis of blood relationship
2. Naturalization – The acquisition of Philippine
citizenship in accordance with the
nationalization law of the country or by an act
of Congress adopting an alien and clothing him
with the privileges of a citizen.
Election of citizenship.
The passage of time has eliminated election of Filipino
citizenship, recognized under the 1935 and 1973
Constitutions, as a mode of acquiring ownership, for there
would then be no more persons under such class under the
1987 Constitution.
Two kinds of citizens.
Way of By birth (jus By naturalization
acquiring sanguinis)
citizenship
Kind of Natural-born Naturalized
citizenship
Two kinds of citizens
1. Natural-born
2. Naturalized
 The children of a Filipino woman and her common-
law husband who is an alien are Filipino citizens, as
they follow the citizenship of their mother, not
being lawfully married. The recognition given by
the father that the children are his illegitimate
children does not make them lose their Filipino
citizenship, not being one of the grounds which
operates to lose such citizenship.
Dual citizenship.
The status of a person who is a citizen of two or more
countries at the same time.
 Dual citizenship arises when, as a result of the
concurrent application of the different laws of two
or more states, a person is simultaneously
considered a national by the said states.
It is possible for the following classes of citizens of the
Philippines to possess dual citizenship:
1. Those born of Filipino fathers and/or mothers
in foreign countries which follow the principle
of jus soli
2. Those born in the Philippines of Filipino
mothers and alien fathers if by the laws of
their fathers’ country such children are citizens
of that country
3. Those who marry aliens if by the laws of the
latter’s country the former are considered
citizens, unless by their act or omission they
are deemed to have renounced Philippine
citizenship
 RA 9225 – Citizenship Retention and
Reacquisition Act of 2003
o Sec. 3: Retention of Philippine
citizenship – Any provision of law to the
contrary notwithstanding, natural born
citizens by reason of their naturalization
as citizens of a foreign country are hereby
deemed to have re-acquired Philippine
citizenship upon taking the following oath
of allegiance to the Republic… Natural
born citizens of the Philippines who, after
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
the effectivity of this Act, become citizens
of a foreign country shall retain their
Philippine citizenship upon taking the
aforesaid oath.
o Sec. 4: Derivative Citizenship – The
unmarried child, whether legitimate,
illegitimate or adopted, below 18 years of
age, of those who reacquire Philippine
citizenship upon effectivity of this Act shall
be deemed citizens of the Philippines.
o RA 9225 covers only natural-born Filipino
citizens and not naturalized citizens
o The dual citizenship is retained under RA
9225, except when he a citizen files a
certificate of candidacy for an elective
position, which requires that he renounce
under oath his allegiance to any foreign
country; or when he accepts an appointive
position which requires renunciation of
allegiance to any foreign country before
he takes his oath of office.
 Naturalized citizens cannot have dual citizenship 
inimical to national interest
 It is one thing for Congress to legally enact any law
and another thing for that law to be recognized,
applied, or construed by courts of another country.
 The foreign court of the country, where the
natural-born citizen was naturalized as a citizen of
that country, may consider taking an oath
prescribed in RA 9225 as a renunciation of his
being a naturalized citizen of such country, thereby
losing his citizenship as a naturalized citizen.
Dual citizenship v. Dual allegiance.
Dual citizenship Dual allegiance
The status of a person Refers to the situation in
who is a citizen of two or which a person
more countries at the simultaneously owes, by
same time some positive act, loyalty
to two or more states.
Involuntary Result of an individual’s
volition
Not inimical to national Sec. 5, Art. 4 of the
interest Constitution considers
dual allegiance of citizens
as inimical to the national
interest
 Constitution is concerned not with dual citizenship
per se but with naturalized citizens who maintain
their allegiance to their countries of origin even
after their naturalization
Loss of citizenship.
Pursuant to Com. Act 63, a Filipino citizen may lose his
citizenship in any of the following acts:
1. By naturalization in a foreign country
2. By express renunciation of citizenship
3. By subscribing an oath of allegiance to support the
constitution or laws of a foreign country upon
attaining twenty-one years of age or more
4. By accepting commission in the military, naval, or
air service of a foreign country
5. By cancellation of the certificate of naturalization
6. By having been declared by competent authority, a
deserter of the Philippine armed forces in time of
war, unless subsequently a plenary pardon or
amnesty has been granted; and
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7. In case of a woman, upon her marriage to a
foreigner, if, by virtue of the laws in force in her
husband’s country, she acquires his nationality
o This provision defers to the foreign law
the determination of her citizenship. Sec.
4, Article IV of the 1987 Constitution
changed the rule and ordained that a
citizen, whether female or male, who
marries an alien retains his/her
citizenship, entirely leaving up to him/her
whether he/she desires to lose his/her
citizenship by his/her act or omission
he/she is deemed to have renounced it.
 The fact that a Philippine citizen with dual
citizenship holds a foreign passport and having
himself listed as a foreigner in the Bureau of
Immigration does not amount to a renunciation of
his Philippine citizenship nor result in the loss of his
citizenship, for possessing such passport or having
himself listed as a foreigner is merely an assertion
of his other citizenship and not a renunciation of
his Filipino citizenship. What Com. Act. No. 63
requires to lose one’s citizenship in favor of the
other is express renunciation.
Yu v. Defensor-Santiago
The Court held that a Portuguese national, whose
application for naturalization as a Filipino citizen was
granted and who, after taking his oath as a naturalized
Filipino, applied for renewal of his Portuguese passport
and declared in commercial documents executed
abroad that he was a Portuguese national, had
renounced and lost his Filipino citizenship by
naturalization. For Philippine citizenship can never be
treated like a commodity that can be claimed when
needed and suppressed when convenient.
Reacquisition of Filipino citizenship.
A citizen who lost his citizenship may reacquire his
citizenship by:
1. Naturalization
 Mode for both acquisition and
reacquisition of Philippine citizenship
2. Repatriation
 Results in the recovery of the original
nationality
 May be had by those who lost their
citizenship due to:
(1) Desertion of the armed forces
(2) Services in the armed forces of the
allied forces in WW II
(3) Service in the Armed Forces of the
US at any other time
(4) Marriage of a Filipino woman to an
alien
(5) Political economic necessity
 Consists simply of taking an oath of
allegiance to the Republic of the
Philippines and registering said oath in the
Local Civil Registry of the place where the
person concerned resides or last resided
3. Direct act of congress
Bengzon v. HERT
Facts: Teodoro Cruz was a natural born citizen. He
enlisted in the US Marine Corp, and without the consent
of the Philippines, took his oath of allegiance to the US
and as a consequence lost his Filipino citizenship.
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
Thereafter, Cruz reacquired his Philippine citizenship
thru repatriation and thereafter ran for Congress and
won.
Issue: Whether Teodoro Cruz was a natural born
citizen to make him qualified to be elected as
Congressman
Held: Yes. Cruz reacquired his natural born Filipino
status upon his repatriation.
 Having taken the required oath of allegiance to
the Republic and having registered the same in
the Civil Registry of Mangatarem, Pangasinan,
respondent Cruz is deemed to have recovered
his original status as a natural born citizen.
 The act of repatriation allows him to recover
his original status before he lost his Philippine
citizenship
 Two requisites must concur for a person to be
considered natural born citizen:
1. A person must be a Filipino citizen
and
2. He does not have to perform any act
to obtain or perfect his Philippine
citizenship
 Only naturalized Filipinos are considered not
natural-born citizens
 As respondent Cruz was not required by law to
go through naturalization proceeding in order
to reacquire his citizenship, he is perforce a
natural-born Filipino
There are laws which provide for repatriation of
Filipinos who lost their Filipino citizenship:
1. RA 8171
 Provides for repatriation of Filipino
women who have lost their Philippine
citizenship by marriage to aliens and
of natural born citizens who have lost
their Philippine citizenship on account
of political or economic necessity
 Petition for repatriation should be
filed with the Special Committee on
Naturalization, not with the RTC
2. RA 9225
3. RA 2639
 Provides for the reacquisition of
Philippine citizenship by persons who
lost such citizenship by rendering
service to, or accepting commission
in, the armed forces of the US
 All that is required is to take an oath
of allegiance to the Republic of the
Philippines and to register that fact
with the civil registry in the place of
his last residence or where he had
last resided in the Philippines
 The procedures under the law refer to
repatriation by natural born Filipino citizens. The
remedies therein may not be availed of by
naturalized Filipino citizens who thereafter lost
their citizenship.
Citizenship by naturalization.
Three ways by which an alien may become a
citizen by naturalization:
1. Administrative naturalization
 RA 9139  The Administrative
Naturalization Law of 2000
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 Simplified procedure of acquiring
Philippine citizenship by aliens who
are born and residing in the
Philippines
 Judicial naturalization
2. Legislative naturalization
3. Com. Act No. 473
 Law enacted by Congress bestowing
Philippine citizenship to an alien
Note: Aliens who are not born in the Philippines
cannot therefore be naturalized by administrative
procedure. However, they may apply for judicial
naturalization or secure from Congress a law
conferring upon them Filipino citizenship
RA 9139 – The Administrative Naturalization Law
of 2000
Qualifications
1. The applicant must be born in the
Philippines and residing therein since birth
2. The applicant must not be less than 18
years of age, at the time of filing of
his/her petition
3. The applicant must be of good moral
character and believes in the underlying
principles of the Constitution and must
have conducted himself/herself in a
proper and irreproachable manner during
his/her entire period of residence in the
Philippines in relation with the duly
constituted government as well as with
the community in which he/she is living
4. The applicant must have received his/her
primary and secondary education in any
public school or private education
institution duly recognized by the DECS,
where Philippine history, government, and
civics are taught and prescribed as part of
the school curriculum and where
enrollment is not limited to any race or
nationality: Provided, that should he/she
have minor children of school age, he/she
must have enrolled them in similar
schools.
5. The applicant must have a known trade,
business, profession, or lawful occupation,
from which he/she derives income
sufficient for his/her support and if he/she
is married and/or has dependents, also
that of his/her family: Provided, however,
that this shall not apply to applicants who
are college degree holders but are unable
to practice their profession because they
are disqualified to do so by reason of their
citizenship
6. The applicant must be able to read, write,
and speak Filipino or any of the dialects of
the Philippines, and
7. The applicant must have mingled with the
Filipinos and evinced a sincere desire to
learn and embrace the customs,
traditions, and ideals of the Filipino people
Disqualifications
1. Those opposed to organized government
or affiliated with any association of group
of person who uphold and teach doctrines
opposing all organized governments
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
2. Those defending or teaching the necessity
of or propriety of violence, personal
assault or assassination for the success or
predominance of their ideas
3. Polygamists or believers in the practice of
polygamy
4. Those convicted of crimes involving moral
turpitude
5. Those suffering from mental alienation or
incurable contagious diseases
6. Those who, during the period of their
residence in the Philippines, have not
mingled socially with Filipinos, or who
have not evinced a sincere desire to learn
and embrace the customs, traditions, and
ideals of the Filipinos
7. Citizens or subjects with whom the
Philippines is at war, during the period of
such war, and
8. Citizens or subjects of a foreign country,
whose laws do not grant Filipinos the right
to be naturalized citizens or subjects
thereof
Status of Alien Wife and Minor Children
After the approval of the petition for administrative
naturalization in cancellation of applicant’s alien
certificate of registration, applicant’s alien lawful
wife and minor children may file a petition for
cancellation of their alien certificates of registration
with the Committee subject to the payment of the
filing fee of P20,000 and naturalization fee of
P40,000, payable as follows: P20,000 upon the
approval of the petition and P20,000 upon the
taking of the oath of allegiance to the Republic of
the Philippines
Status of Husband and Minor Children
If the applicant is a married woman, the approval
of her petition for administrative naturalization will
not benefit her alien husband but her minor
children may file a petition for cancellation of their
alien certificates of registration with the Bureau of
Immigration subject to the requirements of
existing laws.
Note: The petition for administrative naturalization
is filed with the Special Committee on
Naturalization, which may approve or disapprove
the petition. Once approved, the naturalization
benefits the alien wife and minor children. If the
applicant is a married woman, the naturalization
will benefit the minor children but not the husband.
 The marriage of an alien woman to a
Filipino does NOT ipso fact make her
a Filipino citizen. She still has to
show, by affidavits and supporting
documents, that she has none of the
disqualifications under the Revised
Naturalization Law.
B
Domicile
Domicile, defined.
 Black: The permanent residence of a person or the
place to which he intends to return even though he
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may actually reside elsewhere. A person may have
more than one residence but only one domicile.
 US Restatement of the Law:
(1) Domicile is a place, usually a person’s home,
to which the rules of Conflict of Laws
sometimes accord determinative significance
because of the person’s identification with that
place.
(2) Every person has a domicile at all times and,
at least for the same purpose, no purpose has
more than one domicile at a time.
 The law of the forum governs domicile. The Philippine
court, where a conflict of laws case is filed
determines, on the basis of its law, the domicile of
one or both parties, when their domicile is in issue.
 Domicile is one of the test factors in determining the
applicable law in actions involving conflict of laws
 While the Philippines follows the nationality rule with
respect to its citizen’s status, family rights and duties,
order of succession, and amount of successional
rights, there are certain matters in which our courts
apply the lex domicilii rule.
Domicile includes the twin elements of:
1. The fact of residing or physical presence in a fixed
place
2. Animus manendi – the intention of returning there
permanently
Note: Article 50 of the CC  For the exercise of civil
rights and the fulfillment of civil obligations, the domicile
of natural persons is the place of their habitual residence.
Philippine definition of domicile
In the Philippines, domicile has been defined as the fixed,
permanent residence to which, when absent, one has the
intention of returning.
Kinds of domicile.
1. Domicile of origin or by birth
 The domicile of a person’s parents at the
time of his birth, which is not easily lost
and continues, until upon reaching
majority age, he abandons it and acquires
a new domicile
2. Domicile of choice
 New domicile whereby a person abandons
his domicile of origin and acquires a
domicile of choice
3. Domicile by operation of law
 That which the law attributes to a person
because of his disability to make a choice,
such as when he is a minor or suffers
from mental or physical disability, in
which case he follows, as rule, the
domicile of his father
Rules regarding domicile.
1. A man has a domicile somewhere
2. A domicile once established remains until a new
one is acquired
3. A man can have but only one domicile at a time
 A person has only one domicile at a time,
which may also be his residence
 But he may have another or more places
of residence for the time being for
different purposes
 A domicile of origin is not easily lost
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
Requisites to a acquire a new domicile by choice
1. Residence or bodily presence in the new
locality
2. An intention to remain there
3. An intention to abandon the old domicile
 There must basically be an animus manendi coupled
with animus non revertendi
Macalintal v. Comelec
RA 9189 or the Overseas Absentee Voting Act of 2003
specifically disqualifies an immigrant or permanent
resident who is recognized as such in the host country
because immigration or permanent residence in
another country implies renunciation of one’s residence
in his country of origin. However, the same section
allows an immigrant and permanent resident abroad to
register as voter for as long as he/she executes an
affidavit to show the he/she has not abandoned his
domicile. The qualified Filipino abroad who executed the
affidavit is deemed to have retained his domicile in the
Philippines. He is presumed not to have lost his
domicile by his physical absence from this country.
 Note: By executing the affidavit referred to
inRA 9189 and by actually resuming physical
residence in the country, the permanent
immigrant or green card holder may lose his
status as a permanent resident abroad for the
rule, as in the US, is that his failure to return
to the US after more than one year from the
time he left said country would, in the absence
of credible reasons, constitute abandonment of
his permanent resident status
Domicile of wife and minor children
1. Domicile of wife
 Art. 69, Family Code: The husband and
wife shall fix the family domicile. In case
of disagreement, the court shall decide.
 If the wife is a foreigner who desires to
maintain her domicile in her country of
birth or origin, then she should enter into
an agreement that she should retain her
domicile, without which agreement she
may have to follow the domicile of her
Filipino husband. Same rule applies to a
Filipino wife who desires to maintain her
domicile in the Philippines
 When there is no agreement as to a
common domicile between husband and
wife, the rule is that the wife follows that
of the husband during the existence of the
marriage or until the death of the husband
2. Domicile of minor children
 Whenever parental domicile is changed,
that of the child necessarily follows it. A
child cannot acquire a domicile of its own
 After reaching majority age or after
having been emancipated, the child may
change his domicile of origin to that of
domicile of choice, but he must comply
with its requirement
 Domicile of illegitimate children follows
that of the mother
 After the termination of marriage or after
the death of the husband, the general rule
is that the domicile of children follow that
of their mother
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Domicile and residence distinguished
Residence Domicile
Used to indicate a place of Denotes a fixed permanent
abode, whether permanent residence to which, when
or temporary absent one has the intention
of returning
Residence is not domicile but domicile is residence coupled
with the intention to remain for an unlimited time
Domicile and residence for political purposes
 For the exercise of political rights domicile and
residence mean the same thing
 Residence for the purpose of meeting the
qualification for an elective position, means
domicile or the individual’s permanent home to
which, whenever absent one intends to return
Domicile and venue
Venue corresponds to “residence” which is a person’s actual
residence or place of abode and does not refer to legal
residence or domicile
CHAPTER IV
NATIONALITY AND DOMICILE OF CORPORATIONS
Citizenship of juridical entity
 Corporation Code: A corporation is an artificial
being created by operation of law, having the right
of succession and the powers, attributes, and
properties expressly authorized by law or incident
to its existence.
 The nationality of a private corporation is
determined by the character or citizenship of its
controlling stockholders
Tests to determine Filipino corporation
1. Grandfather test
 Governs the strict application of the
ownership of a corporation, namely, at
least 60% thereof must be owned by
natural persons who are citizens of the
Philippines
 Applies only to business enumerated in
the Constitution:
(1) Exploration, development, and
utilization of natural resources
(2) Operation of public utilities
(3) Educational institutions, other
than those established by
religious groups and mission
boards
2. Control test
 Applied in business which the law defines
the extent of what a Filipino corporation
may undertake
 SEC Rule: Shares belonging to
corporations or partnerships at least 60%
of the capital stock of which is owned by
Filipino citizens shall be considered as
Filipino nationality, but if the percentage
of Filipino ownership is less than 60%,
only the number of shares corresponding
to such percentage shall be counted as of
Philippine nationality.
Clarifications made by the Investment Law
(1) A Filipino corporation is one where the Filipino
ownership of stock in said corporation must be
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
at least 60% of the capital stock outstanding
and entitled to vote and 60% of the members
of its board of directors is composed of Filipino
citizens
(2) Where the shares of stock of a SEC-registered
corporation are owned by another corporation
and its non-Filipino stockholders, the SEC-
registered corporation will be considered a
Philippine national if:
(a) at least 60% of the capital stock
outstanding and entitled to vote is
owned and held by citizens of the
Philippines and
(b) 60% of the members of the board of
directors of both corporations are
Filipino citizens
 This embodies the control test, with respect
not only as to the 60% ownership of voting
shares but also as to the 60% membership of
the board of directors
 The control test may be applicable only to
corporations engaged in businesses as
authorized by the foreign investment law
 The control test may not be applicable to
corporations authorized to engage in certain
business activities specified in the 1987
Constitution, as to which the grandfather rule
applies
Domicile of juridical persons
 Art. 51, CC: When the law creating or recognizing
them, or any other provision does not fix the
domicile of juridical persons, the same shall be
understood to be the place where their legal
representation is established or where they
exercise their principal functions
 The domicile of a corporation is the place where its
principal place of business or principal office is
established
 The principal place of business or office of a
corporation is its residence for purposes of venue
of suit or action
 The law governing the incorporation of a foreign
corporation is the law of the state or country of its
incorporation or registration
Domicile of foreign corporation
 The domicile of a foreign corporation is in the state
where it is incorporated
 A corporation formed in one state may, for certain
purposes, be regarded as a resident in another
state in which it has offices and transacts business
 Thus, while a foreign corporation is domiciled in
the state of its incorporation, it may also be
considered a resident in the Philippines where it
does business
 A foreign corporation duly licensed to transact
business in the Philippines is a resident of the
Philippines for all legal purposes
 A non-resident foreign corporation is not engaged
in trade or business in the Philippines and is not
licensed to do business sin the country
 Branches, subsidiaries, affiliates, extension offices
of any foreign country shall be considered as
residents of the Philippines
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CHAPTER V
CONTRACT
Law on contract; lex loci contractus
 Provisions of applicable laws are deemed written
into contracts
 Art. 17, CC: The forms and solemnities of
contracts, wills, and other public instruments shall
be governed by the laws of the country in which
they are executed.
When the acts referred to are executed before the
diplomatic or consular officials of the Republic of
the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in
their execution.
 Art. 17 is silent as to the intrinsic validity of
documents. However, Article 16 provides that eh
intrinsic validity of a will is governed by the
national law of the decedent.
Lex loci contractus
o GR: The law of the place where the contract is
made or entered into governs with respect to its
nature and validity, obligations and
interpretation
o EX: Contracts affecting land or title thereto,
where the test is the lex rei sitae, or the law of
the place where the property is located
 Where all stages of a contract take place in one
country, a conflict of laws problem may not arise.
 GR: The law of the place of performance of the
contract governs with respect to whether the
contract has been breached, rescinded, or
otherwise terminated
Changes in lex loci contractus to most significant
relationship
US Restatement of Law reflects changes which the
traditional doctrine of lex loci contractus has undergone, in
favor of the most significant relationship to the transaction
and the parties:
Law of the state chosen by the parties
1. The law of the state chosen by the parties to
govern their contractual rights and duties will be
applied if the particular issue is one which the
parties could have resolved by an explicit
provision in their agreement directed to that
issue
2. The law of the state chosen by the parties to
govern their contractual rights and duties will be
applied, even if the particular issue is one which
the parties could not have resolved by an
explicit provision in their agreement directed to
that issue, unless either:
(a) The chosen state has no substantial
relationship to the parties or the
transaction and there is no other
reasonable basis for the parties’
choice or
(b) Application of the law of the chosen
state would be contrary to a
fundamental policy of a state which
has materially greater interest than
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
the chosen state in the determination
of particular issue and which, would
be the state of the applicable law in
the absence of an effective choice of
law by the parties
3. In the absence of a contrary indication of
intention, the reference is to the local law of the
state of the chosen law.
Law Governing in Absence of Effective Choice by
the Parties
1. The rights and duties of the parties with respect
to an issue in contract are determined by the
local law of the state which, with respect to that
issue, has the most significant relationship to
the transaction and parties
2. The contacts to be taken into account to
determine the law applicable to an issue
include:
(a) The place of contracting
(b) The place of negotiation of the
contract
(c) The place of performance
(d) The location of the subject matter of
the contract, and
(e) The domicile, residence, nationality,
place of incorporation, and place of
business of the parties
 These contacts are to be evaluated
according to their relative importance with
respect to the particular issue
3. If the place of negotiating the contract and the
place of performance are in the same state, the
local law of this state will usually be applied
Choice of law by the parties in a contract
 The parties to a contract may select the law by
which it is to be governed
 Instead of adopting the entire mass of the foreign
law, the parties may just agree that specific
provisions of a foreign statute shall be deemed
incorporated into their contract. By such reference to
the provisions of the foreign law, the contract does
not become a foreign contract to be governed by the
foreign law The said law does not operate as a
statute but as a set of contractual terms deemed
written in the contract
Cadalin v. POEA Administrator
Facts: The Amiri Decree No. 23 of 1976 provides for
greater benefits than those stipulated in the overseas
employment contracts of the claimants. AIBC and BRII
claim that the NLRC acted capriciously when it refused to
enforce the overseas employment contracts.
Held: The parties to a contract may select the law by
which it is to be governed. The choice of law, however,
must bear some relationship to the parties or their
transaction. There is no question that the contracts
sought to be enforced by claimants have a direct
connection with the Bahrain law because the services
were rendered in that country.
Choice of law and forum clause
The parties may stipulate that any disputes or
differences arising from the agreement be governed by
the laws of a particular place and subject exclusively to
the jurisdiction of a particular country
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 Such clause may bar a party from filing a suit in
the country other than as stipulated in the
agreement
Norse Management Co. v. National Seamen Board
Facts: Napoleon Abordo was hired by petitioner as
second engineer of Cherry Earl, a vessel of a
Singaporean registry. Their employment agreement
provided that in the even of illness or injury to the
employee arising out of and in the course of his
employment and not due to his own misconduct,
compensation shall be paid to the employee in
accordance with the Workmen’s Compensation Act or the
Worker’s Insurance Act of registry of the vessel
whichever is greater. The employer claimed that
Philippine law should apply which provided for a lower
amount of liability of the employer than that provided
under Singaporean law.
Held: The Court applied the law chosen by the parties in
their contract as the applicable law and claimed that
Singaporean law should be applied which granted a
better compensation package.
Exceptions to law chosen by the parties
1. Where the foreign law chosen is contrary to
peremptory provisions dealing with matters
impressed with public interest, the chosen law
cannot be applied
2. Where the relationship of the contracting parties
affects public interest in the country of one of the
contracting parties, or the substantial contacts
arising therefrom point to the law of another
country as applicable law, such law will be applied,
notwithstanding the fact that the parties have
agreed that a specific foreign law be the applicable
law.
Pakistan International Airlines
Corporation v. Ople
Facts: PIA is a corporation licensed to do
business in the Philippines. It entered into
separate employment contracts with two
Philippine nationals as flight attendants. The
contracts provided that the duration of their
employment is for a period of three years,
subject to the right of PIA to terminate the
employment contract at any time by giving the
employee notice in writing in advance one
month before the intended termination or in
lieu thereof, by paying the employee wages
equivalent to one month’s salary. The
employment contract also provided that such
contract will be governed by the laws of
Pakistan. The services of the flight attendants
were terminated by PIA via letter pursuant to
the employment contract. MOLE ruled that PIA
was guilty of illegal dismissal
Held: PIA is guilty of illegal dismissal. The
governing principle is that parties may not
contract away applicable provisions of law
especially peremptory provisions dealing with
matters heavily impressed with public interest.
PIA cannot invoke the provision in the contract
providing that Pakistan law is the governing
law to prevent the application of Philippine
labor laws to the subject matter of the case –
employee-employer relationship between PIA
and private respondents. That relationship is
much affected with public interest and that the
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
otherwise applicable Philippine laws cannot be
rendered illusory to govern their relationship.
The contract was not only executed in the
Philippines, it was also performed here, at
least partially.
 Such ruling highlights the rule that any
agreement on the choice of foreign law and
venue of action must yield to the public policy
of the country
Where there is no agreement as to choice of law
 Where the parties have not stipulated in their contract
which law should be made applicable in case of breach
thereof, the courts of the forum apply different rules
determinative of the applicable law.
 One of such rules is the application of the law where
the contract was executed or the lex loci celebrationis
Bagong Filipinas Overseas Corporation v. NLRC
Facts: The shipboard employment contract was between
Golden Star Shipping, a Hongkong based firm, and
Guillermo Pacho. The contract was executed in the
Philippines. Pacho died and a claim for compensation was
filed against Golden Star.
Held: The shipboard employment contract executed in
the Philippines is controlling, not Hongkong law, in
determining the amount of death compensation since
there was no stipulation in the contract that foreign law
be applied if it afforded greater compensation.
 However, in cases involving claims of Filipino workers
on account of injury or death during employment or in
the course of services in a vessel owned by the
foreign employer, the law of registry of the vessel, if
favorable to the worker, is applied
Where there is neither agreement nor treaty
 The plaintiff makes the choice of the forum, or the
court where the action or complaint is filed
Saudi Arabian Airlines v. CA
Facts: Morada filed an action for damages under Articles
19-21 of the CC against petitioner corporation doing
business in the Philippines before the RTC. Petitioner
argues that Morada’s claim occurred in Saudi Arabia and
as such, the existence of a foreign element qualifies the
case for application of the law of Saudi Arabia by virtue of
the lex loci delicti commissi rule.
Held: Philippine law should govern. Petitioner cannot by
choice of an inconvenient forum, harass defendant. It is
best to hear the case in the Philippines. Had it refused to
hear the case in the Philippines, respondent would be
forced to seek remedial action in Saudi Arabia where she
no longer maintains substantial connections.
 The Court gave much consideration in upholding
plaintiff’s choice of the forum in that he is a Filipino citizen
and resident in the country, whose cause of action, while
consisting a series of acts that mostly took place abroad,
also constituted a valid cause of action under Philippine
laws against a foreigner corporation with branches in the
country.
Place where the contract is entered into or place of
performance
 The law of the country where the contract is to
be performed generally governs the liability for breach
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of contract by the obligor to perform his part of the
obligation
Triple Eight Integrated Services Inc. v. NLRC
Facts: The employment contract was perfected in the
Philippines but the place of performance was in Saudi
Arabia. While in Saudi Arabia, the employee got sick and
was dismissed on the ground of illness without the
employer securing a health certificate to support such
ground. The Labor Arbiter and NLRC awarded damages in
favor of the employee. The employer claims that Saudi
Arabia law should apply which required no medical
certificate before an employee could be dimissed on the
ground of illness, on the ground that Saudi Arabia is the
place of performance of the contract.
Held: Philippine law should apply pursuant to the lex loci
contractus rule. Established is the rule that lex loci
contractus or the law of the place where the contract is
made governs in this jurisdiction. There is no question that
the contract of employment in this case was perfected
here in the Philippines. Furthermore, settled is the rule
that the courts of the forum will not enforce any foreign
claim obnoxious to the forum’s public policy. The public
policy in this case is the security of tenure of employees
enshrined in the Constitution.
Air transportation under the Warsaw Convention
 Where there is a treaty or co0nvention to which
the Philippines is a signatory, the plaintiff must
follow the provisions thereof on the matter
Warsaw Convention
Art. 28 (1) – An action for damages must be brought
at the option of the plaintiff in the territory of one of
the High Contracting Parties, either before the court of
the domicile of the carrier or of his principal place of
business or where he has a place of business through
which the contract has been made, or before the court
at the place of destination.
Santos III v. Northwest Orient Airlines
The Warsaw Convention applies to all international
transportation of persons performed by aircraft for hire.
International transportation means any transportation
in which, according to the contract made by the parties,
the place of departure and the place of destination,
whether or not there be a break in the transportation or
transshipment are situated either within the territories
of two High Contracting Parties. Whether the
transportation is “international” is determined by the
contract of the parties, which in the case of passengers
is the ticket. Art. 28 (1) of the Warsaw Convention
refers to jurisdiction rather than venue, which as such,
cannot be left to the will of the parties regardless of the
time when the damage occurred
American Airlines v. CA
The third option of the plaintiff under Art. 28 (1) of the
Warsaw Convention, i.e., to sue in the place of business
of the carrier wherein the contract was made, is
therefore, Manila, and Philippine courts are clothed with
jurisdiction over this case.
When liability under Warsaw Convention does not
apply.
 The Warsaw Convention sets a limit of liability.
However, such limit of liabilities does not apply
where the airline is at fault.
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
Sabena Belgian World Airlines v. CA
Facts: Petitioner airline claims that pursuant to the
Warsaw Convention, its liability was limited to US $20
per kilo unless a higher value is declared in advance
and corresponding additional charges are paid.
Held: The Warsaw Convention denies to the carrier
availment of the provisions which exclude or limit his
liability if the damage is caused by his willful
misconduct or gross negligence.
 In the absence of willful misconduct, bad faith,
recklessness, or otherwise improper conduct on the
party of any official or employee of the carrier, the
carrier is not liable due to loss or destruction of the
cargo in excess of what the passenger has declared
in the tariff filed with airline authorities in
accordance with Article 22 (1) of the Warsaw
Convention
Art. 22 (1) of the Warsaw Convention
In the transportation of checked baggage and goods,
the liability of the carrier shall be limited to a sum of
250 francs per kilogram, unless the consignor has
made, at the time the package was handed over to the
carrier, a special declaration of the value at deliver and
has paid a supplementary sum if the case so requires.
In that case, the carrier will be liable to pay a sum not
exceeding the declared sum, unless he proves that the
sum is greater than the actual value to the consignor at
delivery.
 The airline may waive the above provision by failure
to raise the liability limit as a defense in the action filed
against the airline or, having raised it as a defense, by
failure to object to any evidence of the plaintiff of more
than what has been declared, in any of which case the
airline may be held liable for more than the amount so
declared
 An international airline is not liable for force
majeure, except when such force majeure is
accompanied by neglect or malfeasance by the
airline’s employees and even in the absence of
such neglect or malfeasance, the airline is still
liable for failure to extend courtesies to the
passengers or to provide them assistance when
stranded by the cancellation of the flights due to an
act of God
Japan Airlines v. CA
If the fortuitous event was accompanied by neglect and
malfeasance by carrier’s employees, an action for
damages against the carrier is permissible. JAL is not
completely absolved from liability. It reneged on its
obligation to look after the comfort and convenience of
its passengers when it declassified respondents from
transit passengers to new passengers as a result of
which respondents were obliged to make the necessary
arrangements for themselves.
United Airlines v. Uy
The Warsaw Convention does not preclude the
operation of the Civil Code and other pertinent laws.
Prescription of action under Warsaw Convention
The Warsaw Convention on the 2-year prescriptive period
reads:
 Art. 29 (1). The right to damages shall be
extinguished if an action is not brought within two
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years reckoned from the date of arrival at the
destination, or from the date on which the aircraft
ought to have arrived, or from the date on which
the transportation stopped.
(2) The method of calculating the period of
limitations shall be determined by the law of the
court to which the case is submitted.
United Airlines v. Uy
Issue: Whether the 2-year prescriptive period in the
Warsaw Convention within which an airline passenger
should file an action for damages for loss of his
baggage has been interrupted by any of the acts
recognized by Philippine laws.
Held: The Court ruled that while ordinarily the 2-year
prescriptive period bars the filing of actions for
damages under the Warsaw Convention, the plaintiff
was forestalled from immediately filing the action
because the airline gave him the run around which
rendered the 2-year prescriptive period inapplicable.
Art. 29 (2) was not intended to permit forums to
consider local limitation tolling provisions but only to let
local law determine whether an action had been
commenced within the 2-year period, since the method
of commencing a suit varies from country to country.
 It is to be noted that the Court held that while as a
rule the 2-year provision on prescription of the Warsaw
Convention prevails over our law on prescription as
provided for in the Civil Code, the exception thereto is
when failure to file within the period was due to the
fault of the airline or its delaying tactics.
Illustrations of liability under a contract
 An airline ticket is a contract of transportation.
Where the passenger is a resident and national of
the forum and the ticket is issued in said place, the
law of the place where the airline ticket was issued
governs.
 Philippine laws apply where the ticket was issued in
the Philippines to its citizens and residents in the
country
Zalamea v. CA
Overbooking that amounts to bad faith entitles
passengers to an award of moral damages.
Korean Airlines Co, Ltd. v. CA
Airline acted in bad faith in violating a passenger’s right
under a contract of carriage due to failure of the
passenger to board the plane because her seat had
already been given to another passenger despite the
fact that she had a confirmed ticket.
Zulueta v. Pan American Airways Inc.
Airline acted in bad faith and is liable to its passengers
when it switched planes from a bigger airplane to a
smaller airplane because there were only 138 economy
class passengers who could be accommodated in the
smaller plane, thereby sacrificing comfort of its first
class passengers for the sake of economy.
 The law of the forum may provide when
overbooking may render the airline in bad faith, as
to hold the airline liable for damages.
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
United Airlines v. CA
To exculpate airline from liability, the overbooking of
such airline must not exceed 10% of the seating
capacity of the aircraft. In this case, airline is not liable
because respondents were not able to prove that the
overbooking exceeded 10%.
CHAPTER VI
WILLS AND SUCCESSIONS
Generally.
 Will, defined: A will is a personal, solemn,
revocable, and free act by which a capacitated
person disposes of his property and rights and
declares or complies with duties to take effect after
his death.
Two kinds of wills
1. Notarial will – executed with the intervention
of the notary public and participation of
attesting witnesses
2. Holographic will – one that is entirely written,
dated, and signed by the hand of the testator
himself.
Extrinsic validity of wills
 Art. 17, CC: forms and solemnities of wills shall be
governed by the laws of the country in which they
are executed
 When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms
established by the law of the country in which he
may be, and such will may be probated in the
Philippines
 The will of an alien who is abroad produces effect
in the Philippines if made with the formalities
prescribed by the law of the place in which he
resides, or according to the formalities observed in
his country, or in conformity with those which the
Civil Code prescribes
 A will made in the Philippines by a citizen or
subject of another country, which is executed in
accordance with the law of the country of which he
is a citizen or subject, and which might be proved
and allowed by the law of his own country, shall
have the same effect as if executed according to
the laws of the Philippines
Probate of wills
 Probate, defined: The authentication of a will in a
probate proceeding in court concerning the
capacity of the testator and the compliance with
those requisites or solemnities which the law
prescribes for its validity.
 The probate of a will is mandatory.
 Once probated, the principle of res judicta applies,
with respect to its extrinsic validity, which means
that:
(1) the testator was of sound and disposing
mind at the time when he executed the
will
(2) testator not acting under duress or fraud
(3) the will was signed by him in the
presence of the required number of
witnesses,
(4) the will is genuine and not a forgery
 A will may be probated outside the Philippines.
Page 18 of 31
Conflict of Laws – Atty. Gatdula Comprehensive Reviewer of Agpalo book

 Rule 77, Sec. 1 of Rules of Court: Will proved
outside the Philippines may be allowed here – will
proved and allowed in a foreign country, according
to the laws of such country, may be allowed, filed,
and recorded by the proper RTC in the Philippines
 A foreign will which has been executed and
probated in a foreign country in accordance with its
law may be filed and reprobated in the Philippines
with respect to property of the decedent in the
country, although it does not accord with the
requirements for wills executed in the Philippines
US Restatement of Law – Where will may be
probated and representative appointed
The will of a decedent will customarily be admitted to
probate and an executor or administrator appointed in
a state:
(a) Where the decedent was domiciled at the
time of his death or
(b) Where there are assets of estate at the time
of the decedent’s death or at the time of the
appointment of the executor or administrator
 Where a decedent has properties in the Philippines
and abroad, the administration of his estate will
require the appointment of a domiciliary or
principal administrator and an ancillary
administrator with respect to properties abroad.
The reason is that an administrator in one state or
country has no power over property in another
state or country. The estate will have to be
separately settled in each state or country
domiciliary administrator refused to comply with the
court’s order, the court issued an order considering the
certificates lost and required the corporation to issue
new certificates in lieu thereof.
Held: The grant of administration does not ex proprio
viogre have any effect beyond the limits of the country
in which it is granted. Hence, an administrator
appointed in a foreign state has no authority in the
Philippines. The ancillary administration is proper,
whenever a person dies leaving in a country other than
that of his last domicile property to be administrated.
The actual situs of the shares of stock is in the
Philippines, the corporation being domiciled here. Since
there is a refusal, to deliver the shares of stock to the
ancillary administrator in the Philippines, there was
nothing unreasonable or arbitrary in considering them
as lost and requiring the domestic corporation to issue
new certificates in lieu thereof.
Law on successional rights; intrinsic validity
The national law of the person whose succession, testator or
intestate, is under consideration governs the following:
1. Order of succession
2. Amount of successional rights
3. Intrinsic validity of testamentary dispositions and
4. Capacity to succeed
Extrinsic validity of wills Intrinsic validity of wills
Formal validity of wills is Governed by the national
governed by the law of the law of the decedent
place where they are
executed

The evidence necessary for the reprobate or allowance

of will in the country which has been probated outside
the Philippines are:
1. The due execution of the will in accordance
with the foreign law
2. The testator has his domicile in the foreign
country and not in the Philippines
3. The will has been admitted to probate in such
country
4. The fact that the foreign tribunal is a probate
court
5. The law of a foreign country on probate and
allowance of wills

 In the absence of proof as to the probate law and

proceeding of the foreign country, it is presumed
that the same is similar to that of the Philippines,
in which case the validity of the foreign will may
have to be decided in accordance with Philippine
law

Situs of shares of stock; power domiciliary

administrator
 The actual situs of shares of stock of domestic
corporation is in the Philippines, even if the
certificates of stock evidencing said share are held
by a foreigner domiciled in another country

Tayag v. Benguet Consolidated Inc.

Facts: An American citizen died in New York, leaving
properties in the US and in the Philippines in the form
of shares of stock in a domestic corporation. The trial
court in the Philippines ordered the domiciliary
administrator (New York) to surrender the certificates
of stock covering the shares of the decedent in the
domestic corporation. When the non-resident

Lesley Claudio (A 2012) Page 19 of 31

Conflict of Laws – Atty. Gatdula
CHAPTER IX
MARRIAGE
Defined
Marriage is a special contract of permanent union between a
man and woman entered into in accordance with the law for
the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution
whose nature, consequences, and incidents are governed by
law and not subject to stipulation, except that marriage
settlements may fix the property relations during the
marriage within the limits provided by law.
Validity of marriage
Marriages in the Philippines must comply with all the formal
and substantive requirements of law. Under the Family
Code, no marriage shall be valid, unless these essential
requisites are present:
1. Legal capacity of the contracting parties who must
be male and female and
2. Consent freely given in the presence of the
solemnizing officer.
Art. 3 of the Family Code provides for the formal requisites:
1. Authority of the solemnizing officer
2. A valid marriage license
3. A marriage ceremony which takes place with the
appearance of the contracting parties before
solemnizing officer and their personal declaration
that they take each other as husband and wife in
the presence of not less than two witnesses of legal
age.
Art. 26, 1st par. Family Code: All marriages solemnized
outside the Philippines in accordance with the laws in force
in the country where they were solemnized and valid there
as such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37,
and 38.
 The first par. of Art. 26 embodies the rule of loci
celebrationis which means that marriages abroad
which are valid in the country where the marriage
is celebrated are valid in the Philippines, except in
the following marriages:
1. Those contracted by any party below 18
years of age even with the consent of
parents or guardians
2. Those bigamous or polygamous marriages
3. Those contracted through mistake of one
of the contracting parties as to the
identity of the other
4. Those subsequent marriages that are void
under Art. 53
5. A marriage contracted by any party who,
at the time of the celebration, was
psychologically incapacitated to comply
with the essential marital obligations of
marriage, even if such incapacity becomes
manifest only after its solemnization
6. Those which are incestuous, whether the
relationship between the parties be
legitimate or illegitimate, between
ascendants and descendants of any
degree, and between brothers and sisters,
whether of the full or half-blood
7. Those which are void from the beginning
for reasons of public policy
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
Marriages that are void from the beginning for reasons
of public policy are as follows:
1. Between collateral blood relatives, whether
legitimate or illegitimate, up to the 4th civil
degree
2. Between step-parents and step children
3. Between parents in law and children in law
4. Between the adopting parent and the adopted
child
5. Between the surviving spouse of the adopting
parent and the adopted child
6. Between the surviving spouse of the adopted
child and the adopter
7. Between the adopted child and a legitimate
child of the adopter
8. Between adopted children of the same adopter
9. Between parties where one, with the intention
to marry the other, killed that other person’s
spouse or his or her own spouse
 Under Art. 26, any marriage abroad not falling
within the exceptions will be considered valid in the
Philippines
 Art. 26 of the FC applies only to extrinsic or formal
requisites of marriage solemnized abroad between
Filipino citizens or between a Filipino citizen and a
foreigner, as to which the doctrine of lex loci
celebrationis governs
 If both contracting parties are foreigners, Philippine
courts consider the law of the place of celebration
of their marriage as the governing law applicable to
the validity or invalidity of their marriage, unless
the national or domiciliary law of the parties
provides otherwise
Validity of marriage (US Restatement of Law)
1. The validity of a marriage will be determined
by the local law of the state which, with
respect to the particular issue, has the most
significant relationship to the spouses and the
marriage
2. A marriage which satisfies the requirements of
the state where the marriage was contracted
will everywhere be recognized as valid unless
it violates the strong public policy of another
state which had the most significant
relationship to the spouses and the marriage
at the time of the marriage
Note: Commissioner of Immigration has also the
authority to determine the validity of marriages, in the
exercise of his jurisdiction to deport aliens, where such
marriage is claimed as ground for non-alienage or
citizenship.
Consequences of marriage
1. Rights and obligations between husband and wife
2. Property relations between husband and wife
3. Family
4. Paternity and filiation
5. Adoption
6. Support
7. Parental authority
8. Emancipation and age of majority
9. Summary judicial proceedings in Family Code
Page 20 of 31
Conflict of Laws – Atty. Gatdula
 Where the marriage is celebrated in the
Philippines, there is hardly no conflict of laws
problem that may arise as Philippine laws will
govern all incidents of marriage, except where the
parties are foreigners and the country where they
are citizens follows the domiciliary rule
 Conflict of laws problem may arise where the
marriage is celebrated abroad
Marriage settlement, law governing
The law authorizes future spouses to enter prior to their
marriage into a contract fixing their property relations
during the marriage which may be:
1. Absolute community
2. Conjugal partnership of gains
3. Complete separation of property
4. Any other regime
GR: Philippine laws govern as to marriage settlements of
property
EX:
1. Where both spouses are aliens
 National law of the aliens usually governs
their marriage settlement of property
2. With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines
and execute din the country where the property is
located and
 Art. 16, Family Code: real property as well
as personal property is subject to the law
of the country where it is situated
3. With respect to extrinsic validity of contracts
entered into in the Philippines but affecting
property situated in a foreign country whose laws
require different formalities for its extrinsic validity
 Art. 16
Foreign marriage has to be authenticated
To prove a foreign marriage, two things must be proved:
1. The existence of the foreign law on the marriage as
a question of fact
2. Alleged foreign marriage by convincing evidence
 Without proof, the foreign marriage cannot be
recognized in the country
 The foreign judgment or marriage certificate should
be duly authenticated. It should be certified by the
official of the foreign government concerned under its
seal, and thereafter, the document as so certified is
authenticated by the Philippine consular representative,
and the latter’s authentication makes it a public
document and becomes prima facie evidence of the
marriage
CHAPTER X
ADOPTION
Adoption defined
It is a juridical act, a proceeding in rem, which creates
between two persons a relationship similar to that which
results from legitimacy and filiation.
 The relationship established by adoption is limited
solely to the adopter and the adopted
 The act of adoption fixes a status
Local and foreign adoptions
 The courts apply local laws in determining whether
they will grant petitions for adoption
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
Jurisdiction to grant an adoption (US Restatement
of Law)
A state has power to exercise judicial jurisdiction to
grant an adoption if:
1. It is the state of domicile of either the adopted
child or the adoptive parent and
2. The adoptive parent and either the adopted
child or the parent having legal custody of the
child are subject to its personal jurisdiction
Foreign adoption is valid in our country.
 The Philippines recognizes the principle that a
foreign adoption which is valid in the country where
it is rendered, is valid in the country and will be
recognized, except where public policy or the
interests of its inhabitants forbid its enforcement and
demand the substitution of the lex fori.
Ramirez Mercida v. Aglubay
Facts: The issue is whether an adoption (Filipino child) in
Spain by a Spanish citizen can be registered with the
local civil registry. Under Spanish law, application for
adoption is filed with the CFI of Spain and once granted
the judgment becomes final. The Philippine civil registry
refused to register the adoption on the ground that only
a judicial adoption by a Philippine court can be
registered.
Held: The adoption in Spain can be registered by the
Philippine civil registry. Private internal law offers no
obstacle to the recognition of foreign adoption. This rests
on the principle that the status of adoption, created by
the law of the State having jurisdiction to create it, will
be given the same effect in another state as is given by
the latter state to the status of adoption when created by
its own law. It is to be understood, however, that the
effects of such adoption shall be governed by the laws of
this country.
Note: Where an alien has a right to reenter the
Philippines, under our immgration laws, and the alien has
validly adopted a person in his country, the adopted has
the right to enter the Philippines as the adopted son
Law that determines jurisdiction
In adoption cases, the statute in force at the time of the
commencement of the action determines the jurisdiction of
the court, and subsequent amendment of the law
prescribing additional requirements will not divest the court
of the authority to hear and decide the case for adoption
Nature of adoption proceedings
An adoption proceeding is in rem, hence constructive notice
by publication is sufficient notice to parents of the person to
be adopted where the parents are unknown
Ellis v. Republic
If the person adopting is an alien who is not domiciled
in the Philippines, he cannot adopt because he is a
non-resident foreign, over whose personal status the
court cannot acquire jurisdiction.
Laws on adoption, how construed
Law governing adoption (US Restatement of Law)
A court applies its own local law in determining whether
to grant an adoption
Page 21 of 31
Conflict of Laws – Atty. Gatdula
Incidents of foreign adoption (US Restatement of
Law)
An adoption rendered in a state having jurisdiction will
usually be given effect in another state as is given by
the other state to a decree of adoption rendered by its
own courts
 The main purpose of adoption is the promotion of
the welfare of children. Accordingly, the law should
be construed liberally, in a manner that will sustain
rather than defeat said purpose
 Liberal construction of adoption statutes, however,
cannot be sustained when to do so would violate
the proscription against judicial legislation
Effects or consequences of adoption
1. Parental authority
2. Legitimacy
3. Succession
ADOPTION
DOMESTIC ADOPTION
RA 8552
Who may adopt
1. Any Filipino citizen:
(1) Legal age
(2) Good moral character
(3) Not convicted of a crime involving moral turpitude
(4) Emotional and psychologically capable of caring for
children
(5) At least 16 years older than the adoptee
(6) In a position to support and care for his/her
children
 The requirement of 16-year difference may be
waived when the adopter is the biological parent of the
adoptee, or is the spouse of the adoptee’s parent
2. Any alien possessing the same qualifications as above
stated for Filipino nationals. Additional requirements:
(1) Their countries have diplomatic relations with our
country
(2) They have been living in the Philippines for at least
3 years prior to the filing of the petition for
adoption, and maintain such residence until the
adoption decree is entered
(3) The have been certified by their diplomatic or
consular offices or by any appropriate government
agency that they have the legal capacity to adopt
in their own countries and
(4) Their government allows the adopted child to enter
their own country as their adopted child
3. Special aliens who can adopt under RA 8552
(1) A former Filipino citizen who seeks to adopt a
relative within the 4th degree of consanguinity or
affinity
(2) One who seeks to adopt the legitimate son or
daughter of his or her Filipino spouse
(3) One who is married to a Filipino citizen and seeks
to adopt jointly with his or her spouse a relative
within the 4th degree of consanguinity or affinity of
the Filipino spouse
 These aliens need not comply with the residency in the
Philippines and they also need not submit a certification that
they have the capacity to adopt from the diplomatic or
consular office of their country in the Philippines or any other
government agency
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
Note: The adoption of the adoptee does NOT confer
upon him the citizenship of the adopter, the latter’s
citizenship between a political, not a civil matter.
Inter-country adoption, defined
Refers to the socio-legal process of adopting a Filipino child
by a foreigner or a Filipino citizen permanently residing
abroad where the petition is filed, the supervised trial
custody is undertaken, and the decree of adoption is issued
outside the Philippines
 Last resort of adoption
INTER-COUNTRY ADOPTION
RA 8043
Any alien or Filipino citizen permanently residing abroad may
file an application for inter-country adoption of a Filipino child
is he/she:
1. Is at least 27 years of age and at least 16 years older
than the child to be adopted, at the time of application
unless the parent or the spouse of such parent
2. If married, his/her spouse must jointly file for the
adoption
3. Has the capacity to act and assume all rights and
responsibilities of parental authority under his national
laws, and has undergone the appropriate counseling
from an accredited counselor in his/her country
4. Has not been convicted of a crime involving moral
turpitude
5. Is eligible to adopt under his/her national law
6. Is in a position to provide the proper care and support
and to give the necessary moral values and example
to all his children, including the child to be adopted
7. Agrees to uphold the basic rights of the child as
embodied in the Philippine laws, the UN Convention on
the Rights of the Child, and to abide by the rules and
regulations issued to implement the provisions of this
act
8. Comes from a country with whom the Philippines has
diplomatic relations and whose government maintains
a similarly authorized and accredited agency and that
adoption is allowed under his/her national laws
9. Possesses all the qualifications and none of the
disqualifications provided herein an in other applicable
Philippine laws
Page 22 of 31
Conflict of Laws – Atty. Gatdula Comprehensive Reviewer of Agpalo book

Note: An alien is no longer required to have his domicile in the

Philippines to enable him to adopt. All that is required is for
him to actually stay in the country for 3 continuous years
immediately prior to the filing of the petition for adoption and
maintains such stay until the adoption decree is entered.
Who may be adopted
1. Any person below 18 years of age who has been Only a legally free child may be the subject of inter-country
administratively or judicially declared available for adoption. In order that such child may be considered for
adoption placement, the following documents must be submitted:
2. The legitimate son/daughter of one spouse by the other 1. Child study
spouse 2. Birth certificate/foundling certificate
3. An illegitimate son/daughter by a qualified adopter to 3. Deed of voluntary commitment/decree of
improve his/her status to that of legitimacy abandonment/death certificate of parents
4. A person of legal age, if, prior to the adoption, said person 4. Medical evaluation history
has been consistently considered and treated by the 5. Psychological evaluation
adopter as his/her own child since minority 6. Recent photo of the child
5. A child whose adoption has been previously rescinded
6. A child whose biological or adoptive parents has died

CHAPTER XI country or in a country which grants divorce, who

DIVORCE, DECLARATION OF NULLITY OF MARRIAGE,
ANNULMENT OF VOIDABLE MARRIAGE, AND LEGAL
SEPARATION
A
DIVORCE
Divorce and annulment of marriage, distinguished
Divorce The legal dissolution of the
marriage bond by a
competent court for causes
defined by law which arose
after the marriage
 Presupposes that the
marriage is valid
Declaration of nullity of One in which the marriage
marriage did not legally exist, the
cause of which occurred
prior to the marriage
 Presupposes that
marriage is void from the
beginning
Annulment of voidable Presupposes that the
marriage marriage is valid and may
be ratified but can be
annulled for grounds
specified in FC
Legal separation Relative divorce which does
not severe but merely
suspends the relation of the
husband and wife
Divorce between Filipino spouses is not recognized
 A divorce between Filipino spouses is not valid and
is not recognized in the country
Tenchavez v. Escano
For the Philippine courts to recognize and give
recognition or effect to a foreign decree of absolute
divorce between Filipino citizens would be a patent
violation of the declared policy of the state.
Divorce legally obtained by foreign spouse recognized
 While divorce is not recognized in the Philippines,
the divorce validly obtained by a foreigner in his
is married to a Filipino citizen is recognized
Van Dorn v. Romillo
Facts: Richard Upton, a US citizen, married a Philippine
citizen and secured a divorce in the US against his wife.
He thereafter filed a complaint for accounting alleging
that his wife’s business was conjugal, hence he was
entitled to manage.
Held: The case is dismissed. Having secured a divorce,
Upton was no longer the husband of the wife hence he
had no legal personality to file an action against the
latter.
Pilapil v. Ibay-Somera
Facts: A Filipino and German were married. The
German husband secured a divorce in Germany.
Thereafter, he filed for complaints of adultery against
his former wife claiming that under Phil. law, they were
still married
Held: Having been divorced from his former wife,
German was not an offended party entitled to file the
complaints for adultery.
Divorce between foreign spouses is recognized
A divorce between foreign spouses validly obtained in the
country under whose law sanctions divorce is valid in the
Philippines, and its incidents may be recognized, except
when they contravene the law or public policy of the country
Partial divorce under Art. 26 of Family Code
 Art. 26, 2nd par: Where a marriage between a
Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall likewise have
capacity to remarry under Philippine law.
 Art. 26 of the Family Code does not recognize the
divorce between an alien spouse and a Filipino
spouse is the divorce is obtained by the latter. Nor
does it recognize a between Filipino spouses
 But the Filipino spouse may go around the
prohibition by first acquiring a foreign citizenship,
as by naturalization in a foreign country, and
having done so, he/she as a foreigner can then
obtain a divorce which will then be recognized
under Art. 26, if done in good faith
 The implication of Article 26 is that the Filipino
spouse is the erring spouse who committed the

Lesley Claudio (A 2012) Page 23 of 31

Conflict of Laws – Atty. Gatdula Comprehensive Reviewer of Agpalo book

grounds for divorce, and the foreign spouse, being (1) The contracting party whose parents
the innocent party, may then be entitled to secure or guardians did not give his or her
divorce in his/her country of domicile which consent within five years after
sanctions divorce attaining the age of 21
 Divorce decree awarding custody of the minor child (2) The sane spouse who had no
to the father may not be recognized in the knowledge of the other’s insanity
Philippines as against public policy except in (3) The injured party whose consent
instances when the mother is found to be unfit to was obtained by fraud
have custody of the child (4) The injured party whose consent
 As a general rule, divorce decrees obtained by was obtained by force, intimidation
foreigners in other countries are recognizable in (5) The injured party where the other
our jurisdiction, but the legal effects thereof, e.g., spouse is physically incapable of
custody and support of children, must still be consummating the marriage
determined by our courts (6) The injured party where the other
party was afflicted with a sexually
Law governing divorce transmitted disease
 In the US, the “local law of the domiciliary state in 2. Summons
which the action is brought will be applied to 3. Answer
determine the right to divorce.” In short, the 4. Investigation report of public prosecutor – whether
plaintiff or petitioner must have his domicile in the there is collusion
state or country where the complaint for divorce is 5. Pre-trial
filed by him/her 6. Trial
 Rationale: State of a person’s domicile has the 7. Decision
dominant interest in the person’s marital status  Decision shall be issued by the court only
and therefore has judicial jurisdiction to grant him after compliance with Articles 50 and 51
a divorce of Family Code – liquidation, partition, and
 So long as the alien spouse has acquired a domicile distribution of properties
in the country where he/she secured the divorce, 8. Appeal
the divorce obtained therein from his/her Filipino
spouse may be regarded as valid in our country Scope of rule, what are void and voidable marriages

B Void marriages Voidable marriages

Declaration of nullity of void marriage and annulment 1. Either or both parties 1. That the party in
of marriage did not have legal whose behalf if sought
capacity to get married to have the marriage
Nature of, and jurisdiction over, annulment of 2. The marriage is immoral annulled was 18 years
marriage for being bigamous or of age or over but
 An action for annulment of marriage is an action in polygamous below 21 and the
rem for it concerns the status of the parties and 3. Consent of one party is marriage was
status binds the whole world lacking, because of solemnized without the
 Jurisdiction over an action for annulment of mistake as to the consent of the parents
marriage depends upon the nationality or domicile identity of the other 2. That either party was
of the parties, not the place of celebration of 4. One of the parties was of unsound mind
marriage, or the locus celebrationis psychologically 3. That the consent of
incapacitated at the either party was
Jurisdiction time of the marriage to obtained by fraud
 Philippine courts can acquire judicial jurisdiction comply with the 4. That the consent of
essential marital either party was
over the case so long as the plaintiff or petitioner is
obligations obtained by force,
a Filipino citizen, whether or not the defendant is a
5. The marriage is intimidation, or undue
foreigner or non-resident
incestuous: influence
(1) Between 5. That either party was
Rayray v. Chae Kyung Lee
ascendants and physically incapable of
Facts: This case involves an action for annulment of
descendants of consummating the
marriage filed by Lazaro Rayray, a Filipino citizen and
any degree marriage
resident, against Chae Kyung Lee, a Korean whose
(2) Between brothers 6. That either party was
whereabouts are unknown. She was served with
and sisters, afflicted with a sexually
summons by publication. The ground for annulment
whether of full or transmitted disease
was bigamy committed by the wife.
half-blood found to be serious
Held: The court has jurisdiction, but the facts did not
and appears to be
warrant the relief prayed for.
6. The marriage is void by incurable
reason of public policy
New rule on annulment of marriage
(1) Between collateral
1. Petition
blood relatives,
 A petition for declaration of nullity of void
whether
marriage may be filed solely by the
legitimate or
husband or wife
illegitimate, up to
 A petition for annulment of voidable
the 4th civil degree
marriages may be filed by: (2) Between step-

Lesley Claudio (A 2012) Page 24 of 31

Conflict of Laws – Atty. Gatdula Comprehensive Reviewer of Agpalo book

parents and step

children Psychological incapacity as a ground for annulment,
(3) Between parents defined
in law and  Art. 36 does not define psychological incapacity
children in law Santos v. CA
(4) Between the Issue: Whether the wife’s failure to return home from
adopting parent the US and to communicate with the husband are
and the adopted circumstances which constitute psychological incapacity
child to warrant declaration of nullity of marriage
(5) Between the Facts: Psychological incapacity refers to no less than a
surviving spouse mental (not physical) incapacity that causes a party to
of the adopting be truly incognitive of the basic marital covenants that
parent and the concomitantly must be assumed and discharged by the
adopted child parties to the marriage
(6) Between the
surviving spouse Republic v. CA
of the adopted Facts: Wife claims that after their marriage, her
child and the husband showed immaturity and irresponsibility as he
adopter preferred to spend more time with his peers on whom
(7) Between the he squandered money. The husband also dependent on
adopted child and his parents for aid and assistance and he was never
a legitimate child honest with his wife.
of the adopter Held: The circumstances did not constitute
(8) Between adopted psychological incapacity. It is not enough to prove that
children of the the parties failed to meet their responsibilities and
same adopter duties as married persons, but that it is essential that
(9) Between parties they must show to be incapable of doing so, due to
where one, with some psychological, not physical, illness
the intention to
marry the other, Note: Senseless and protracted refusal is equivalent to
killed that other psychological incapacity. Thus, the prolonged refusal of
person’s spouse a spouse to have sexual intercourse with his or her
or his or her own spouse is considered a sign of psychological incapacity
spouse
Guidelines under Article 36 of Family Code
1. The burden of proof to show the nullity of the
Prior final judgment of nullity, required only for marriage belongs to the plaintiff
remarriage. 2. The root cause of the psychological incapacity must
 Where the absolute nullity of a previous marriage be:
is sought to be invoked for purposes of contracting (1) medically or clinically identified
a second marriage, the sole basis acceptable in law (2) alleged in the complaint
for said projected marriage to be free from legal (3) sufficiently proven by experts
infirmity is a final judgment declaring the previous (4) clearly explained in the decision
marriage void 3. The incapacity must be proven to be existing at the
 However, for other purposes, such as in an action time of the celebration of the marriage
for liquidation, as well as for the custody, the court 4. Such incapacity must also be shown to be
may pass upon the validity of marriage even after medically or clinically permanent or incurable
the death of the parties, and even in a suit not 5. Such illness must be grave enough to bring about
directly instituted to question the validity of the the disability of the party to assume the essential
marriage so long as it is essential to the obligations of the marriage
determination of the case. Evidence need not be 6. The essential marital obligations must be those
limited solely to an earlier final judgment of a court embraced in Articles 68-71 and 220, 221, and 225
declaring such previous marriage void of the Family Code
7. Interpretations given by the National Appellate
Prosecutor required to intervene in proceedings. Matrimonial Tribunal of the Catholic Church in the
 Art. 48, Family Code: In all cases of annulment Philippines, while not controlling or decisive, should
or declaration of absolute nullity of marriage, the be given great respect by our courts
Court shall order the prosecuting attorney or fiscal 8. The trial court must order the prosecuting attorney
assigned to it to appear on behalf of the State to or fiscal or the Solicitor General to appear as
take steps to prevent collusion between the parties counsel for the state
and to take care that the evidence is not fabricated  The foregoing guidelines do not require that a
or suppressed physician examine the person to be declared
 Strict application of Art. 48 may be relaxed where psychologically incapacitated
it appears that the defendant has not been
declared in default and participated in the Other relevant provisions in the Family Code.
proceedings at every stage of the proceeding. The  See Articles 41-44, 46-54
non-intervention of the prosecuting attorney to
assure lack of collusion is not fatal to the validity of
the proceedings

Lesley Claudio (A 2012) Page 25 of 31

Conflict of Laws – Atty. Gatdula Comprehensive Reviewer of Agpalo book

(5) Collusion between the parties to

obtain legal separation
(6) Prescription
8. Appeal
C
Legal Separation

New rule on legal separation

 The rule applies to an action for legal separation,
filed in the country, regardless of where the
marriage was celebrated

Procedure for legal separation

1. Petition
 A petition for legal separation may be filed
only the husband or the wife within five
years from the time of the occurrence of
any of the following causes:
(1) Repeated physical violence or
grossly abusive conduct against
the petitioner, a common child, or
a child of the petitioner
(2) Physical violence or moral pressure
to compel the petitioner to change
religious or political affiliation
(3) Attempt to corrupt or induce the
petitioner, a common child, or a
child of the petitioner, to engage in
prostitution, or connivance in such
corruption or inducement
(4) Final judgment sentencing the
respondent to imprisonment of
more than 6 years, even if
pardoned
(5) Drug addiction or habitual
alcoholism of the respondent
(6) Contracting by the respondent of a
subsequent bigamous marriage,
whether in the Philippines or
abroad
(7) Lesbianism or homosexuality of
the respondent
(8) Sexual infidelity or perversion
(9) Attempt by the respondent against
the life of the petitioner
(10)Abandonment of petitioner by
respondent without justifiable
cause for more than one year

2. Summons
3. Answer
4. Investigation report of public prosecutor
5. Pre-trial
6. Trial
7. Decision
 The court shall deny the petition on any of
the following grounds:
(1) Condonation of the offense or the
act complained of
(2) Consent of the aggrieved party to
the commission of the act or
offense complained of
(3) Connivance between the parties in
the commission of the offense or
act constituting the ground for
legal separation
(4) Where both parties have given
ground for legal separation

Lesley Claudio (A 2012) Page 26 of 31

Conflict of Laws – Atty. Gatdula
CHAPTER XIV
JUDICIAL JURISDICTION, FORUM NON CONVENIENS,
VENUE, AND SUMMONS
A
Judicial jurisdiction
Jurisdiction, generally
 Jurisdiction means the power or capacity conferred
by the Constitution or by law to a court or tribunal
to entertain, hear, and determine certain
controversies, and render judgment thereon
 What determines the nature of an action as well as
which court has jurisdiction over such action are
the allegations in the complaint and character of
the relief sought and not by the defenses raised by
the defendant in his answer
In order that a given case could validly be decided by a
Philippine court, it must have jurisdiction over:
1. The subject matter of litigation
2. The persons of the parties
3. In actions in rem or quasi in rem, over the
properties situated in the Philippines or over the
res, such as the civil status of a person
Jurisdiction over actions under Warsaw Convention
Pursuant to Article 28(1) of the Warsaw Convention,
complaint for damages may be filed, at the option of the
plaintiff, only in the territory of one of the contracting
parties, before any of the following:
1. The court of the domicile of the carrier
2. The court of its principal place of business
3. The court where it has a place of business through
which the contract had been made or
4. The court of the place of destination
 Art. 28(1) refers to jurisdiction and not to venue,
regardless of whether or not the plaintiff proceeds on the
theory of breach of contract or on tort
Note: In Santos III, the petitioner purchased from
Northwest Orient Airlines a round trip ticket in San
Francisco USA for his flight from San Francisco to Manila via
Tokyo and back to San Francisco. The Court ruled that he
could not file the complaint for damages against the airline
in Manila because it was not his place of destination. Manila
was not the airline’s domiciliary merely because it has a
branch office in Manila, for domiciliary is the place where it
is incorporated
Assumption of jurisdiction, generally.
 Jurisdiction over the subject matter is defined by
law or the Constitution
 Jurisdiction over the plaintiff is acquired by his
filing of the initiatory pleading or complaint
 Jurisdiction over the defendant is also acquired by
his voluntary appearance
 Jurisdiction over the property or status (res) may
be effected by publication or extraterritorial service
Bases of judicial jurisdiction over individuals (US
Restatement of Law)
1. A state has power to exercise judicial jurisdiction
over an individual on one or more of the following
basis
(1) Presence
(2) Domicile
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
(3) Residence
(4) Nationality or citizenship
(5) Consent
(6) Appearance in an action
(7) Doing business in the state
(8) An act done in the state
(9) Causing an effect in the state by an act
done elsewhere
(10)Ownership, use, or possession of a thing
in the state
(11)Other relationships to the state which
make the exercise of judicial jurisdiction
reasonable
Actions in rem and quasi in rem where defendant is
non-resident
GR: Unless a defendant can be properly served with
summons, or he voluntarily submits himself to the
jurisdiction of the court no judgment may be validly
rendered against him as the court may acquire jurisdiction
over the subject matter and the person of the defendant
EX:
1. When the action affects the personal status of the
plaintiff
 Article 15
2. When the action relates to, or the subject of which
is property within the Philippines, in which the
defendant has or claims a lien or interest, actual or
contingent
 Article 16
3. When the relief demanded in such action consists,
wholly or in part, in excluding the defendant from
any interest in the property located in the
Philippines and
 Article 16
4. When the defendant non-resident’s property has
been attached within the Philippines
 Article 16
B
Forum Non Conveniens
Forum non conveniens, defined
Discretionary power of court to decline jurisdiction when
convenience of parties and ends of justice would be better
served if action were brought and tried in another forum
 The principle of forum non conveniens is simply
that a court may not resist imposition upon its
jurisdiction even when jurisdiction is authorized by
the letter of a general venue statute
 Presupposes at least two forums which the
defendant is amendable to proceed and furnishes
criteria for choice between such forums
Two factors which may favor retention of the case:
1. Since it is for the plaintiff to choose the place
of action, his choice of forum should not be
disturbed except for weighty reasons
2. The action will not be dismissed unless a
suitable alternative forum is available to the
plaintiff
Discretion of trial court
 Where the exact relationship of the parties is still
to be easily established in a case, the court may
not be ready to rule on the invocation b one party
of the doctrine of forum non conveniens as a
defense
Page 27 of 31
Conflict of Laws – Atty. Gatdula
 Whether a suit should be entertained or dismissed
by the court of the country where the action on the
basis of the principle of forum non-conveniens
depends largely upon the facts of the particular
case and is addressed to the sound discretion of
the trial court.
Philsec Investment Corp. v. CA
Forum non conveniens is not a ground for a motion to
dismiss under Rule 16 of the Rules of Court
Communication Materials and Design Inc v. CA
The Philippine Court may refuse to assume jurisdiction
in spite of its having acquired jurisdiction. Conversely,
the court may assume jurisdiction over the case if it
chooses to do so, provided, that the following requisites
are met:
1. court is one to which the parties may
conveniently resort to
2. court is in a position to make an intelligent
decision as to the law and the facts, and
3. court has or is likely to have power to enforce
its decision
Illustrative case
Manila Hotel Corp. v. NLRC
Facts: Marcelo Santos, a Filipino, was working as printer of
Mazoon Printing Press in the Sultanate of Oman. Mr.
Gerhard Schmidt, general manager of Palace Hotel (China)
offered him the same position as printer with higher salary,
which Santos accepted. In the contract, Schmidt
represented Palace Hotel and Manila Hotel (MHICL) signed it
under the word “noted.” Thereafter, Palace Hotel terminated
the services of Santos. Santos filed a complaint for illegal
dismissal before the Labor Arbiter which granted his
petition. The NLRC affirmed. Palace Hotel and Schmidt
argue that the Philippines did not acquire jurisdiction.
Held: NLRC was a seriously inconvenient forum. We note
that the main aspects of the case transpired in two foreign
jurisdictions and the case involves purely foreign elements.
The only link that the Philippines has with the case is that
Santos is a Filipino citizen. The Palace Hotel and MHICL are
foreign corporations. Not all cases involving our citizens can
be tried here. The inconvenience is compounded by the fact
that Palace Hotel and MHICL are not nationals of the
Philippines. The employment contract was also not
perfected in the Philippines. The corporations were not
served with summons hence jurisdiction over their persons
was not acquired.
The case did not actually involve the doctrine of forum
non conveniens because this doctrine assumes that the
court has jurisdiction over the case, but has to dismiss it as
it would be more convenient to file the case in another court
which can have jurisdiction over the case. The court was not
able to acquire jurisdiction over the corporations.
C located in the Philippines, the action may be filed in
Venue
Libel suits
Jurisdiction Venue
Power of the court to decide Place where the action is
a case on the merits triable
 laying of venue is
procedural
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
Note: Where a law requires that an action be filed in a
named court in specific places, jurisdiction and venue may
mean the same thing
The venue in libel cases, both criminal and civil, may be
instituted at the election of the offended or suing party in
the province or city:
1. Where the libelous article is printed and first
published
2. If one of the offended parties is a private
individual, where said private individual actually
resides at the time of the commission of the
offense
3. If the offended party is a public official, where the
latter holds office at the time of the commission of
the offense
Objections to such venue may be waived
Time Inc v. Reyes
Issue: Whether CFI of Rizal had jurisdiction to take
cognizance of the civil suit for damages arising from
allegedly libelous publication, considering that the
action was instituted by public officers whose offices
were in the City of Manila at the time of publication and
that the publisher Time, Inc was a non-resident
corporation
Held: No. The assertion that a foreign corporation or
non-resident defendant is not inconvenienced by an out
of town suit is irrelevant and untenable, for venue and
jurisdiction are not dependent upon convenience or
inconvenience to a party.
Venue of action against non-residents
 The venue for personal actions where the plaintiff
or any of the plaintiff resides, or in the case of
non-resident defendant where he may be found, at
the election of the plaintiff
 The phrase “may be found” for venue purposes
against a non-resident defendant applies when the
defendant has no residence in the Philippines.
Where he has a residence, the phrase “may be
found” does not apply, and what is applicable is the
place where he resides.
 If any of the defendants does not reside in the
Philippines and is not found in the Philippines, and
the action affects the personal status of the
plaintiff, the action may be commenced and tried
in the court where the plaintiff resides. While the
court may not acquire jurisdiction over the person
of the defendant, it does not preclude the court
from rendering valid judgment over the issue
regarding personal status of the plaintiff in relation
to the defendant. The action is considered quasi in
rem
 If any of the defendants does not reside in the
Philippines and is not found in the Philippines, and
the action affects any property said defendant
the court where the property or a portion thereof is
situated or found. The action is considered quasi in
rem.
Choice of forum to file action
Plaintiff’s choice as to the forum may be guided by any of
the following considerations:
1. Where there is an agreement specifying where the
action arising from any dispute may be filed.
Ordinarily, the agreement prevails, except when
the law or public policy forbids it
Page 28 of 31
Conflict of Laws – Atty. Gatdula
2. Where there is a treat or international convention,
of which the Philippines is a signatory, giving the
plaintiff options where to file the action. As a
general rule, the plaintiff cannot file the action in
any forum other than as specified in the convention
3. Where there is no agreement nor treaty as to the
forum or place where the action may be filed or
where such agreement is invalid, in such a
situation, the Rules of Court on venue applies.
D summons has been effected, depriving the court of
Summons
Summons, defined
Writ by which a defendant is notified of the action against
him and service thereof upon him is the means by which the
court acquires jurisdiction over the person, in the absence
of voluntary appearance on his part
Service of summons required, due process
 Service of summons upon the defendant is not only
required to give the court jurisdiction over the
person but also to afford the latter an opportunity
to be heard on the claim against him
 Compliance with the rules regarding service of
summons is as much an issue of due process as of
jurisdiction
 Without valid service of summons or a valid waiver
thereof, the court acquires no jurisdiction over the
person of the defendant, all proceedings had in the
case are invalid, and the judgment therein is void
 Voluntary appearance is in lieu of or a waiver of
service of summons. Appearance means the
coming into the court as a party either as a plaintiff
or as a defendant and asking relief therefrom, and
enables the court to acquire jurisdiction over the
person of the party.
How service of summons effected
Actions in personam An action against a person
on the basis of his personal
liability
Actions in rem An action against the thing
itself instead of against the
person
Actions quasi in rem An action which:
1. Affects the personal
status of the plaintiff
2. Relates to property
within the Philippines
3. Seeks relief consisting
in excluding defendant
from any interest in
property located in the
Philippines
4. Attaches non-residents
property in the
Philippines
Three modes of services of summons in civil
actions
1. Personal service
2. Substituted service
3. Service by publication
Personal service of summons in personal actions
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
 In actions in personam, personal service of
summons or if this is not possible and he cannot be
personally served, substituted service is essential
for the acquisition by the court of jurisdiction over
the person of a defendant who does not voluntarily
submit himself to the authority of the court
 If the sheriff effected the service of summons upon
defendant by substituted service without first
attempting to personally serve the same upon him,
he violates the rule and no valid service of
jurisdiction over the person of the defendant and
rendering judgment against him null and void
 Where the defendant is a non-resident who is sued
in this country of an action in personam, and he
refuses to appear voluntarily, the court cannot
acquire jurisdiction over his person because he is
beyond the reach of judicial process. Neither
substituted service nor publication will enable the
court to acquire jurisdiction over his person
Substituted service
 It is only when the defendant cannot be served
personally within a reasonable time that
substituted service may be resorted to
 Substituted service may be effected:
(1) By leaving copies of the summons at the
defendant’s dwelling house or residence
with some person of suitable age and
discretion then residing therein
(2) By leaving the copies at the defendant’s
office or regular place of business with
some competent person in charge thereof
Service upon residents temporarily abroad
 Service may, by leave of court, be effected out of
the Philippines, by personal service, substituted
service, or by publication upon leave of court
 In all these cases, defendant must be a resident of
the Philippines, otherwise an action in personam
cannot be brought because jurisdiction over his
person is essential to make a binding decision.
 In personal actions, personal or substituted service
of summons upon a non-resident defendant cannot
subject him to the processes of the court
 Resort to service of summons by publication may
be effected only when the defendant, who
ordinarily resides within the Philippines but who is
temporarily out of it, cannot be served with
summons by means of substituted service
Service upon prisoners, minors, or incompetents
1. Prisoners – service shall be effected upon him by
the officer having the management of such jail
(special sheriff)
2. Minors, insane, incompetents – service shall be
made on him personally AND on his legal guardian,
if he has one, or if none, upon his guardian ad
litem whose appointment shall be applied for by
the plaintiff. In the case of a minor, service may
also be made on his father or mother
Service upon unknown defendant
Service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation and in such
places and for such time as the court may order
Page 29 of 31
Conflict of Laws – Atty. Gatdula
Extraterritorial service, when resorted to and how
effected
There are only 4 instances when extraterritorial service of
summons is proper
1. When the action affects the personal status of the
plaintiff
2. When the action relates to, or the subject of which
is property, within the Philippines, in which the
defendant claims a lien or interest, actual or
contingent
3. When the relief demanded in such action consists
wholly or in part in excluding the defendant from
any interest in property located in the Philippines
4. When the defendant’s non-resident’s property has
been attached within the Philippines
In extraterritorial service, service of summons may be
effected by:
1. Personal service out of the country, with leave of
court
2. Publication, with leave of court
3. Any other manner the court may deem sufficient
 The common requirement of extraterritorial service
of summons is that the defendant does not reside and
is not found in the Philippines
Note: Extraterritorial service of summons is improper
in personal actions. In actions in rem or quasi in rem,
jurisdiction over the person of the defendant is not
essential for giving the court jurisdiction so long as the
court acquires jurisdiction over the res.
Summons in action for annulment of marriage
 Same as in Rules of Court
Valmonte v. CA
Husband refused to receive summons for wife who was
a foreign resident because he was not authorized. The
Court ruled that summons was not duly served.
Where action in rem becomes in personam
Where the defendant is a non-resident in an action which
involves his property in the country and which has been
attached and he refuses to submit to the jurisdiction of the
court, the property itself may be subject of judicial power
and the court can grant relief which is limited to the res,
and cannot lawfully render a personal judgment against
him. HOWEVER, if the defendant voluntarily appears, the
cause becomes in personam, with the attached property
remaining liable to answer for any demand which may be
established against the defendant and by the final judgment
of the court
Service by leave of court
Leave of court for service of summons is necessary in the
following instances:
1. Service by publication in a newspaper of general
circulation upon defendant whose identity or
whereabouts are unknown
2. Personal service outside the Philippines or by
publication in a newspaper of general circulation
when defendant does not reside in the Philippines
and is not found in the Philippines, in cases
affecting plaintiff’s personal status or relating to his
property in the Philippines or any lien or interest
therein
3. Personal service outside the Philippines or by
publication in a newspaper of general circulation
Lesley Claudio (A 2012)
Comprehensive Reviewer of Agpalo book
when defendant in a case is ordinarily a resident of
the Philippines but who is temporarily out of it
4. In a suit against a foreign corporation in
connection with any transaction or contract in the
Philippines, service by publication may be allowed
Service upon non-juridical entity
When persons associated in an entity without juridical
personality are sued under the name by which they are
generally and commonly known, service may be effected
upon all the defendants by serving upon any one of them,
or upon the person in charge of the office or place of
business maintained in such name.
 Such service shall not bind individually any person
whose connection with the entity has, upon due
notice, been severed before the action was brought
Service upon domestic private entities or corporations
When the defendant is a corporation, partnership, or
association organized under the laws of the Philippines with
a juridical personality, service may be made on the
president, managing partner, general manager, corporate
secretary, treasurer, or in house counsel
Service upon persons other than any of those
enumerated invalid
EB Villarosa & Partner Co, Ltd. v. Benito
Service of summons on a duly registered partnership
thru its branch manager is to a valid service to enable
the court to acquire jurisdiction over the person of the
entity
Service upon foreign entities or corporations
generally
 When the defendant is a foreign private juridical
entity which has transacted business in the
Philippines, service may be made on its resident
agent designated in accordance with the law for
that purpose, or if there be no such agent, on the
government official designated by law to that
effect, or any of its officers or agents within the
Philippines
Foreign corporations who may be sued in the
Philippines
1. Those duly registered with SEC
2. Those not being so registered but doing
business in the country
3. Those unlicensed corporations having
transacted an isolated business in the country
which was not considered doing business
Foreign corporation licensed to do business
A foreign corporation doing business in the Philippines may
be served with summons on its resident agent designated in
accordance with law for that purpose, or if there be no
agent, on the government official designated by law to that
effect, or on any of its officers or agents within the
Philippines
Summons is procedural matter governed by law of
the forum
 Service of summons upon defendant is a
procedural matter and is governed by the law of
the forum where the action is filed
 Where there has been proper service of summons
is thus determined in accordance with procedural
law of the country where the action is filed
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Conflict of Laws – Atty. Gatdula Comprehensive Reviewer of Agpalo book

 Where the foreign judgment is sought to be

enforced in the country, the defendant may
challenge it on the ground that the foreign court
has not acquired jurisdiction over the person of the
defendant because he has not been properly
served with summons therein

Foreign corporation doing business without license

 A foreign corporation doing business in the country
without a license can be sued in Philippine courts
 Complaint must allege sufficient facts constituting
doing business in the Philippines

Agent upon whom service of summons may be made

A foreign corporation not doing business in the Philippines
may be served with summons upon any agent or
representative in the Philippines and if no agent can be
found in the Philippines, summons by publication may be
made

Foreign corporation not licensed and not doing

business
A foreign corporation not licensed and not doing business in
the country may be sued on an isolated transaction and
service of summons may be effected upon any agent or by
publication

Service upon public corporations

 When the defendant is the Republic of the
Philippines, service may be effected on the Solicitor
General (legal counsel of the Republic of the
Philippines)
 In case of a province, city, or municipality or like
pubic corporations such as GOCCS, service may be
effected on its executive head, or on such other
officer or officers as the law or the court may direct

Proof of service
1. In writing
2. Set forth the manner, place, and date of service
3. Specify any papers which have been served with
the process and the name of the person who
received the same
4. Shall be sworn to when made by a person other
than a sheriff or his deputy

Proof of service by publication

If the service has been made by publication, service may be
proved by the affidavit of the printer, his foreman, or
principal clerk, or of the editor, business or advertising
manager, to which affidavit a copy of the publication shall
be attached, and by an affidavit showing the deposit of a
copy of the summons and order for publication in the post
office, postage prepaid, directed to the defendant by
registered mail to his last known address

Voluntary appearance
 The defendant’s voluntary appearance in the action
shall be equivalent to service of summons
 If the pleading challenges the jurisdiction of the
court over the person of the defendant, the
inclusion of other grounds therein aside form lack
of jurisdiction over the person of the defendant
shall not be deemed a voluntary appearance

Lesley Claudio (A 2012) Page 31 of 31