Private International Law

(Conflict of Laws)

I. In General
A. Define Conflict of Laws.
Conflict of laws or private International law is that part of municipal
law of a state which directs its courts and administrative agencies,
when confronted with a legal problem involving a foreign element,
whether they should apply a foreign law.

B. Distinguish Conflict of Laws from Public International Law.

Public international law, or the law of nations, is that which regulates
the political intercourse of nations with each other or concerns
questions of rights between nations,
Whereas private international law, or conflict of laws, is that which
regulates the comity of states, it is concerned with 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
consistently with its own interests."

II. Jurisdiction and Choice of Law

A. What is jurisdiction over the subject matter?
Determined by the allegations in the petition or complaint read
together with the proper jurisdictional law, that will confer jurisdiction
on the court
It is given only by law and in the manner prescribed by law.
The authority of a court to hear and decide cases of the general class
to which the proceeding in question belong

B. What is jurisdiction over the person?

Jurisdiction over the person is acquired by the voluntary appearance
of a party in court and his submission to its authority, or it is
 acquired by the coercive power(summon) of legal process exerted over
the person.

C. What is jurisdiction over the res?

Jurisdiction over a particular subject matter in controversy,
regardless of the persons who may be interested thereon.

D. What is the principle of forum non conveniens? Explain why the

court may refuse to exercise jurisdiction over a case based on
forum non conveniens.
Refers to 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
Inconveniences:
● The evidence and the witness may not be readily available
● Court dockets of the forum may already be clogged
● The evils of forum-shopping
● The forum has no particular interest in the case
● Other courts are open

Application of the Principle

● Neither the plaintiff nor the defendant, nor the cause of action
is related to the forum, the action will not be heard
● The litigation can be more appropriately be conducted in a
foreign tribunal

E. After the court has acquired jurisdiction, what are the three
instances when the forum has to apply the internal or domestic
law in deciding a case in conflicts of law?
1) When the law of the forum expressly so provides in its conflicts
rules
2) When the proper foreign law has not been properly pleaded and
proved
3) When the case involves any of the exception to the application of
the proper foreign law(comity)

F. Give examples of cases which require the application of

Philippine or internal law (lex fori).
In case of succession of a filipino national
 When the foreign national has property in the philippine

G. How is the foreign law proved in our Rules of Court? Why can’t a
foreign law be applied if it is not properly pleaded and proved?
It is well-settled that foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take judicial notice of
them. Like any other fact, they must be alleged and proved.
Written Law may be proved by:
a) official publication
b) a copy attested by the officer having the legal custody of the record,
or by his deputy, and accompanied with a certificate that such officer
has custody
Unwritten Law may be proved by:
a) oral testimony of expert witnesses
b) printed and publish books of reports of decision of the country
involved, if proved to be commonly admitted in such court

H. Define processual presumption.

If the foreign law involved is not properly pleaded and proved,
our courts will presume that the foreign law is the same as our local
or domestic or internal law

I. What are the exceptions in the application of foreign law?

● When the foreign law, judgement or contract is contrary to a
sound and established public policy of the forum
(public policy - manifest will of a state on account of its own
fundamental principles of justice, morals and common-weal.)
● When the foreign law, judgement or contract is contrary to
almost universally conceded principles of morality
● Involves procedural matters
(there is no vested rights in the rules of procedure)
● When the case involves penal laws, contracts, judgments
(The purpose of penal laws is to remedy an act of injustice
against the general public. If it is against a particular individual
it is not penal)
● When the case involves purely fiscal or administrative matters
 (revenue producing, we should not be burdened with the task of
implementing the financing activities of other countries.)
● Works undeniable injustice to the citizens or residents of the
forum
● When the application of such may work against the vital
interests and national security of the state of the forum
● -When the case involves real or personal property situated in
the forum
(governed by lex situs)

III. Theories on the Application of Foreign Laws

A. Explain each:
1. Theory of Comity
Comity has been defined as the recognition which one state allows
within its territory to the legislative, executive, or judicial acts of
another state, having due regard both to international duty and
convenience and to the rights of its own citizens or of other persons
who are under the protection of its laws.
Under this doctrine we apply the foreign law because of its
convenience and because we want to give protection to our citizens,
residents and transients in our land

2. Vested-Right Theory
The function of the vested rights theory is to give effect to rights
acquired under the proper foreign law, and not to enforce foreign
law itself

3. Theory of Local Law

We apply foreign law not because it is foreign, but because our own
laws, by applying similar rules, require us to do so, hence as if
foreign law has become part and parcel of our own local law.

4. Theory of Harmony of Laws

 We have to apply the foreign laws so that wherever a case is
decided, that is, irrespective of the forum, the solution should be
approximately the same. Thus identical or similar problems must
have identical or similar solutions anywhere.
5. Theory of Justice
The purpose of all laws is the dispensing of justice, if this can be
attained in many cases by applying the proper foreign law, we
must do so.

IV. Characterization in Conflicts Rules

A. What is characterization?
Process of determining under what category a certain set of facts or
rules fall.
The process of deciding whether or not the facts relate to the kind of
question specified in the conflict rule.
Purpose is to select the proper law.
Steps:
1) The determination of the facts involve
2) The characterization of the factual situation
3) The determination of the conflict rule which is to be applied
4) The characterization of the point of contact or the connecting
factor
5) The characterization of the problem as procedural or
substantive
6) The pleading and proving of the proper foreign law
7) The application of the proper foreign law to the problem

V. Personal Law
A. Define the following theories on how the personal law of an
individual is determined:
1. Nationality Theory
The theory by virtue of which the status and capacity of an
individual are generally governed by the law of his nationality.
2. Domiciliary Theory
 The Domiciliary Theory in conflict of laws is the theory that in
general the status, condition, rights and obligations and capacity of
a person should be governed by the law of his domicile.
3. Situs or Eclectic Theory
Generally states that the capacity, legal condition, or status of an
individual should be governed not necessarily by the law of his
domicile but by the law of the place where an important element of
the problem occurs or is situated.

B. What theory does the Philippines follow?

Nationality Theory

VI. Nationality Theory

A. Who are the citizens of the Philippines under the 1987
Constitution?

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;
4. Those who are naturalized in accordance with law

B. Distinguish jus soli and jus sanguinis in the law on citizenship.

● Jus soli - A person is a citizen of a country where he is born
● Jus sanguinis - One follows the citizenship of his parents; this
is citizenship by blood

C. What is the citizenship of a Filipino woman who marries a

foreigner under the 1987 Constitution?
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 renounce it. (Art. IV, Sec 4, 1987 Constitution)
VII. Domiciliary Theory
A. Define domicile and distinguish it from residence.
Domicile is that place where a person has certain settled, fixed, legal
relations because
a)it is assigned to him by law at the moment of birth,
b)or after birth on account of legal disability caused for instance by
minority, insanity, or marriage in the case of a woman
c)or because he has a home there, that to which whenever he is
absent, he intends to return.
Residence is used to indicate a place of abode, whether permanent or
temporary; domicile denotes a fixed permanent residence to which
when absent, one has the intention of returning. A man may have a
residence in one place and a domicile in another. Residence is not
domicile, but domicile is residence coupled with the intention to
remain for an unlimited time. A man can have but one domicile for
one and the same purpose at any time, but he may have numerous
places of residence. His place of residence generally is his place of
domicile, but is not by any means, necessarily so since no length of
residence without intention of remaining will constitute domicile.

B. What are the different kinds of domicile? Define each.

Domicile of Origin
- acquired or assigned at birth
Constructive Domicile or Domicile by Operation of Law
- Assigned or given after birth on account of legal disability
caused for instance by minority, insanity, or marriage in the
case of a woman.
Domicile by Choice
- a permanent or temporary home that to which whenever he is
absent, he intends to return, result of voluntary will and action
of a person concerned.

C. State the rules in determining the domicile of origin legitimate,

illegitimate, legitimated, and adopted child and a foundling.

a) legitimate child - domicile of choice the father at the moment of

the birth of the child.
 b) illegitimate child - domicile of choice of the mother at the
moment of the birth of the child.
c) legitimated child - domicile of choice the father at the moment of
the birth of the child(the effects of legitimation shall retroact to
the time of the child’s birth)
d) adopted child - domicile of the real parent or parent by
consanguinity(adoption takes place some time after the birth of
the child)
e) foundling - domicile is the country where it is found

D. State the rules in determining the domicile of choice of a

legitimate, illegitimate, adopted child and married women.
(choice)

—---->CONSTRUCTIVE DOMICILE
a) legitimate - Domicile of choice of either the father or
mother
b) Illegitimate - Domicile of choice of the mother
c) Adopted - Domicile of choice of the adopter
d) Married Woman - Where 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. The death of the husband operates to revert her
domicile to her domicile of origin, except when, by her
overt acts she has chosen the domicile of her husband as
her domicile of choice.

VIII. Situs or Eclectic Theory

A. What is meant by the situs of eclectic theory?
Generally states that the capacity, legal condition, or status of an
individual should be governed not necessarily by the law of his
domicile but by the law of the place where an important element of the
problem occurs or is situated.
 B. What theory is applied if what is involved are real or personal
properties?
Situs or Eclectic Theory

IX. Renvoi Doctrine

A. What does renvoi mean?
B. When does it arise? How is it resolved?
C. What is double renvoi?
D. Distinguish transmission theory from renvoi.
E. In the absence of a law, how should the Philippines resolve the
problem of renvoi?
X. Status and Capacity Conflicts Rules
A. Explain Article 40 and 41 of the New Civil Code.
B. What law determines the beginning of human personality?
XI. Marriage Conflicts Rules
A. What is the Philippine internal law on the formal validity of
marriage?
B. What does Article 26 of the Family Code state?
C. What are the conflict rules on mixed marriages?
D. What courts have jurisdiction over annulment or declaration of
nullity of marriage?
E. What are the rules on the validity of foreign divorces obtained
abroad by foreigners? By Filipinos?
XII. Legitimacy and Illegitimacy
A. Who are legitimate and illegitimate children under Philippine
internal law?
B. What are the conflict rules in determining the legitimacy of
children?
C. What is the Philippine internal law on legitimation of children?
D. Does the change in personal law of the parents affect the
legitimation of children? Explain.
E. What is the doctrine of immutability of status?
F. What law governs the relationship created in an adoption?
G. What law determines the legal effects of adoption?
XIII. Succession
A. What is applicable law in the successional rights of a deceased?
B. What does intrinsic validity of a will refer to? Extrinsic?
C. State the Philippine conflict rules on
1. extrinsic validity of wills;
2. intrinsic validity;
3. joint wills;
4. person who dies intestate;
 5. revocation of wills;
6. interpretation of wills and
7. probate of wills.
XIV. Property
A. What are the conflict rules on real and personal property?
B. What are the exceptions to the rule of the lex situs or lex rei sitae
with respect to real properties?
XV. Contracts
A. What conflicts rule determine the extrinsic validity of contracts?
B. What conflict rule determine the capacity of parties to contract?
C. What are the conflict rules on the intrinsic validity of contracts?
D. What is the cognovit clause?

XVI. Torts
A. What is the meaning of tort?
B. What law governs the liability for torts? Why?
C. What is “the state of the most significant relationship rule”?
XVII. Crimes
A. Distinguish tort from crime.
B. Explain the following theories that determine whether a state has
jurisdiction to take cognizance of a criminal case.
1. Territorial Theory
2. Nationality of Personal Theory
3. Protective Theory
4. Real or Eclectic Theory
5. Universality Theory
6. Passive Personality Theory
C. Which of the above theories does the Philippines follow? Why?
D. Distinguish English Rule from French Rule.

XVIII. Recognition and Enforcement of Foreign Judgments

A. Distinguish enforcement from recognition of foreign judgements.
B. What are the requirements before a Philippine court can enforce
or recognize foreign judgments?

-----------------------------------------------------END-------------------------------------------------