CONFLICT OF LAWS

Course Outline
PART ONE: INTRODUCTION
I. SCOPE OF CONFLICT OF LAWS Embraces cases or situations where a foreign element is involved A factual situation that cuts across territorial lines and is affected by diverse laws of two or more States is said to contain a foreign element NATURE Municipal Law or private law of each state which regulates relations of individuals among themselves or with their state It is the law of the forum that furnishes the yardstick for the presence or absence of jurisdiction DEFINITION Is that part of the municipal law of the state which directs its courts and administrative agencies when confronted with a legal problem involving a foreign element whether or not they should apply a foreign law or foreign laws (Paras) IMPORTANCE !. to adjust conflicting rights in international mercantile and corporate transactions" and #. to solve personal family property and successional contractual problems possessed of facts or elements operating in two or more states OBJECT AND FUNCTION Is to provide rational and valid rules or guidelines in deciding cases not only by courts but also by administrative agencies and public officers who are called upon to act on a given situation where either or all the parties event or transaction are linked to more than one jurisdiction FUNCTIONS According to Paras !. the determination of which country has jurisdiction #. the applicability to a particular case of either the local or the foreign law $. the determination of the force validity and effectiveness of a foreign judgment According to Coquia !. to proscribe the conditions under which a court or agency is competent to entertain a suit or proceeding involving facts containing a foreign element" #. to determine the e%tent validity and enforceability of foreign judgment" $. to determine for each class of cases the particular system if law by reference to which the rights of the parties must be ascertained PRI ATE INTERNATIONAL LAW !CONFLICT OF LAW" Municipal in character &ealt by private individuals

BASIS !. As to nature #. As to persons involved $. As to transactions involved

PUBLIC INTERNATIONAL LAW International in character 'arties involved are sovereign states and other entities possessed of an international personality (ransactions are entered into which generally affect public interest" those which in general are of interest only to sovereign states *emedies may be peaceful or forcible

(ransactions are private one between private individuals

). As to remedies or sanctions

*esort to Municipal (ribunals

II# BRIEF $ISTOR% AND DE ELOPMENT OF CONFLICT OF LAWS !&'" In Ancient *ome it presented a fertile place for the development of + conflict rules, because two legal systems were in vogue- *oman citi.ens were governed by the civil law of *ome" all others were under the jurisdiction of their own provincial legislation // how easily therefore +conflict, theories could have arisen. 0ut the theories did not come for only one law prevailed whenever a *oman citi.en was involved namely *oman civil law. 1owever there were two incidental developments 2 the concept of domicile and the concept of le% situs 2 3 where the immovables were concerned. 4 In #!# A.&. the Edict of 5aracalla conferred *oman citi.enship on all the people living within the *oman Empire- conse6uently only one law remained 2 the civil law of *ome 2 for any and all acts events and transactions within the Empire. Law was thus placed on territorial without personal or racial discrimination. In the 7th century the *oman Empire was overthrown by the so/ called +barbarian tribe,- personal law replaced territorial law. (his simply means that every person regardless of residence was considered subject to the law of his original nation or tribe. If the parties to a contract came from different nations the law of the debtor prevailed 2 for it was then believed that his interest were paramount. III# SOURCES OF CONFLICT OF LAWS (# Indir)ct sourc)s 8atural moral law 9orks of writers &# Dir)ct sourc)s constitutions codifications special laws treatises and international conventions judicial decisions international customs such as lex situs, lex loci celebrationis, lex nationalii/domicilii, territoriality, generality

PART TWO: JURISDICTION

I # JURISDICTION !&" Authority of a tribunal to hear and decide a case and possible enforceability in foreign states subject to the rights of said states (Paras) In international law it is often defined as the right of a State to e%ercise authority over persons and things within its boundaries subject to certain e%ceptions JUDICIAL JURISDICTION ERSUS LE*ISLATI E JURISDICTION (Coquia) Judicial Jurisdiction is the power or authority of a court or administrative tribunal to try a case render judgment and e%ecute it in accordance with law while Legislative Jurisdiction which is the power of the state to promulgate laws and regulations and enforce them on all persons and property within its territory FOUR MAJOR +UESTIONS TO BE CONSIDERED IN CONFLICT OF LAWS PROBLEM , !. 1as the court jurisdiction over the person of the defendant or over his property #. 1as the court jurisdiction over the subject matter usually referred to as +competency, $. 1as the suit been brought in the proper venue in cases where a foreign element is involved and ). Is there a statute or doctrine under which a court otherwise 6ualified to try the case may or may not refuse to entertain it

A# BASIS OF E-ERCISE OF JURISDICTION . /INDS OF JURISDICTION !. :urisdiction over the person which is based on forum/defendant contacts" #. :urisdiction over the subject matter and $. :urisdiction over the res based on forum/property contacts

!. JURISDICTION O ER T$E PERSON is the power of the court to render judgment that will be binding on the parties involved- the plaintiff and defendant (Paras) Ac6uired through 'laintiff / institution of action by proper pleading &efendant / voluntary appearance or by the coercive power of legal process e%erted over the person (Paras) Jurisdiction over t e !erson o" t e !lainti"" is ac6uired from the moment he invokes the aid of the court and voluntarily submits himself by institution of the suit through proper pleadings Jurisdiction over t e !erson o" t e de"endant is ac6uired through voluntary appearance or personal or substituted service of summons (Coquia)

WILLIA# $E#PERLE %& 'ELEN SC'EN(ER 19 SCRA 4 (!an" #$, 19%& 'R (o" )*1+1%4) FACTS 0 'aul Schenker acting through his wife 1elen Schenker filed a complaint against petitioner for the enforcement of 'aul Schenker;s allegedly initial subscription to the shares of stock of the 'hil. Swiss (rading 5ompany and the e%ercise of his alleged preemptive rights to the unissued original capital stock of said corporation. 0elieving that the suit was only for the purpose of harassing and degrading his reputation he also filed a damage suit against the Schenkers. (he trial rendered in favor of <emperle thus 1elen Schenker appealed alleging that 'aul Schenker cannot be sued or joined as defendants because the trial court never ac6uired jurisdiction over his person because he was outside of the 'hil. thus he is beyond the jurisdiction of our court. ISSUE $ELD 0 9hether or not the court can ac6uire jurisdiction over the person of an alien defendant= 0 >es where a Swiss citi.en residing abroad was served with summons through his wife who was residing in the 'hil. and who was his representative and attorney/in/fact in a prior civil case which was filed at her behest in her aforementioned capacity the trial court ac6uired jurisdiction over his person by means of service of summons to his wife. As a the wife had authority to sue in his behalf so she was also empowered to represent him in suits filed against him particularly in a case which is a conse6uence of the action brought by her in his behalf.

SPS& DO#IN$O )ELEN vs& 'ON& PA)LO C'A%E* '"R" (o" 1& $$ , ,arc- #%, #..+ FACTS 0 *espondent Sps. Silvestre and 'atricia 'acleb filed an action before the *(5 of *osario 0atangas against petitioners Sps. 0elen for the enforcement of a foreign judgment rendered by :udge <reen of the superior court of the State of 5alifornia in a complaint for breach of contract against herein petitioners ordering them to pay private respondents monetary award. (he summons was served on petitioner;s address in San <regorio Alaminos Laguna received by a certain Marcelo 0elen as alleged in the complaint. Atty. Alcantara whose services were retained by the petitioner;s relatives entered his appearance for

the petitioners filed an answer stating among others that petitioners are actually residents of 5alifornia ?SA. Atty. Alcantara on a later date moved to dismiss the complaint due to the judgment of dismissal rendered by the same foreign court which was denied for failure to present a copy thereof. Subse6uently the *(5 ordered a judgment in favor of the respondents which judgment was not received by Atty. Alcantara due to his death but by a certain Leopoldo Avecilla. (hereafter Att. 5armelo 5ulvera petitioner;s new counsel assailed the judgment before the 5A for lack of jurisdiction over the petitioners in view of the improper service of summons. (he 5A affirmed the said decision. 1ence this petition. ISSUE $ELD 0 9hether or not the *(5 ac6uired jurisdiction over the person of the petitioner. 0 >es. Even if the service of summons was defective upon non/ resident defendants the appearance of Atty. Alcantara impliedly authori.ed by the defendants to appear on their behalf and his filing of numerous pleadings were sufficient to vest jurisdiction over the persons of the defendants.

#. JURISDICTION O ER T$E PROPERT% is the subject matter of litigation results either from the sei.ure of the property under a legal process or from the institution of legal proceedings wherein the court;s power over the property is recogni.ed and made effective this kind of jurisdiction is referred to as in re+ ,urisdiction. Another form of jurisdiction is -uasi in re+ ,urisdiction which affects only the interests of particular persons in the thing NOTE: Summons of publication is effective in the following cases 2 if the action is in rem 6uasi in rem involves personal status of plaintiff MINIMUM CONTACTS TEST AND FUNDAMENTAL FAIRNESS TEST &ue process re6uires only that in order to subject a defendant to a judgment in personam is he is not present within the territory of the forum he should have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice In both in rem and 6uasi/in rem actions all that due process re6uired is that defendant be given ade6uate notice and opportunity to be heard which are met by service of summons by publication LON*,ARM STATUTES statutes which specify the contacts which jurisdiction will be asserted over a defendant outside of state territory $. JURISDICTION O ER T$E SUBJECT MATTER is conferred by law and defined as the authority of a court to hear and decide cases of the general class to which the proceedings in 6uestion belong ac6uire through the allegations in the petition or complaint read together with the proper jurisdictional law that will confer jurisdiction on the court CLASSIFICATION OF ACTIONS !as to o12)ct" !. #. $. Action in !ersona+ 2 any judgment that the court will render in that case binds only the parties to the action and their privies or their successors/in/interest" Action in re+ / any judgment that the court will render in the case binds not only the parties to the case but the whole world .uasi in re+ action 2 6uasi in rem is actually in personam because it is directed only against a particular individual but the purpose of the proceeding is to subject his property to the obligation of lien burdening it. (he object of the case is the sale or other disposition of property of the defendant which one may have a right or lien over the property E/a+!le: an action to subject certain property of the defendant to payment of a claim. An action between parties where the direct object is to reach and dispose of property owned by them or of some interest therein

IDONA' PER(INS %& RO0AS !une 19, 1941 'R (o" 4& 1 FACTS 0 *espondent Eugene 'erkins filed a complaint against 0enguet 5onsolidated Mining 5ompany for the recovery of dividends but it was withheld by the corporation because of the demands made by the petitioner Idonah 'erkins and <eorge Englehard. *espondent then amended the complaint and included the herein petitioner. Summons by publication were then served upon the non/ resident defendants Idonah and Englehard. 'etitioners contended that the court cannot ac6uire jurisdiction over the subject matter because there was already a judgment of the Supreme 5ourt of 8ew >ork declaring that she was the legal owner of the 6uestioned shares and the trial court cannot amend annul modify or reverse the same because it was already res judicata. ISSUE $ELD 0 9hether or not 5@I can assume jurisdiction over the subject matter of the case. 0 >es because jurisdiction over the subject matter is the nature of the cause of action which is conferred by the sovereign authority which organi.es the court. In the case at bar the respondent;s action calls for the adjudication of title to certain shares of stock of the corporation and the granting of affirmative reliefs which fall within the general jurisdiction of the 5@I of Manila.

0. WA%S OF DEALIN* WIT$ A CONFLICTS PROBLEM . WA%S OF DISPOSIN* CONFLICTS CASES !. &ismiss the case for lack of jurisdiction #. &ismiss the case on the ground of @orum 8on/5onveniens $. Assume jurisdiction and apply the forum law (# DISMISS T$E CASE FOR LAC/ OF JURISDICTION Effect of absence or presence of :urisdiction (Paras) !. when a court is without jurisdiction it has no alternative e%cept to dismiss the case for being null and void due to lack of due process #. if a tribunal possesses jurisdiction it maya. refuse to assume jurisdiction on the ground of forum non convenience or b. assume jurisdiction in which case it may/ apply the internal law of the forum (lex 0ori) or / apply proper foreign (lex causae) &# DISMISS T$E CASE ON T$E *ROUND OF FORUM NON,CON ENIENS refusal of assume jurisdiction because it would prove inconvenient for the forum a forum may resist imposition upon its jurisdiction even when jurisdiction is authori.ed by law on the ground that the forum is inconvenient or the ends of justice would be best served by trial in another forum or the controversy may be more suitably tried elsewhere 1Doctrine o" 2oru+ Non3Conveniens4 ELEMENTS0 a. the forum state is one to which the parties may conveniently resort to" b. it is in a position to make an intelligent decision as to the law and the facts" and c. it has or is likely to have power to enforce its decision MANIFESTATIONS0 the witnesses and evidence may not be readily available the court dockets of the forum may already be clogged" to permit additional cases would inevitably hamper the speedy administration of justice the evils of forum/shopping ought to be curbed the forum has no particular interest in the case

other courts are open- certainly the case may be better tried in said courts

'EINE %& NEW 5OR( INSURANCE CO&6 4 1ed (#d) 4#% (194.) FACTS 0 'laintiffs were <erman nationals and residents of <ermany. &efendant on the other hand was a corporation or an entity organi.ed in 8ew >ork. 'laintiffs brought an action against the defendants for the recovery of insurance claims on insurance contracts issued by the defendant corporation. 0ut the action was brought not in 8ew >ork nor in <ermany but in Aregon ?SA. 'laintiffs contends that the court should take cogni.ance of the case because anyway it has ac6uired jurisdiction over the subject matter over the plaintiffs 3because plaintiffs filed a pleading in Aregon court4 and over the defendant 3by means of service of summons having been made on its residents or statutory agents in Aregon4. ISSUE $ELD 0 9hether or not the Aregon court can refuse to take cogni.ance of the case. 0 >es the Aregon court can refuse to take cogni.ance or to assume jurisdiction over the case on the ground of forum non/conveniens were both parties are not residents of the place where the court was located and e%ercising jurisdiction and especially the courts of <ermany and 8ew >ork are open and functioning. 0ut it may also take cogni.ance of the case in the e%ercise of its sound discretion. $. ASSUME JURISDICTION AND APPL% T$E FORUM LAW As a general rule no rule of 'rivate International Law would be violated if the courts should decide to dispose cases according to the internal law of the forum E0CEPT: where a foreign sovereign diplomatic official or public vessel or property of another state is involved or where a state has by treaty accepted limitations upon its jurisdiction over certain persons of things INSTANCES W$EN INTERNAL . DOMESTIC LAW S$OULD BE APPLIED0 !. when a specific law of the forum e%pressly provides or decrees in its conflict rules that internal law should apply E%amplesi. Article 78 o" t e Civil Code 2 real and personal property subject to the law of the country where they are situated and testamentary succession governed by le% nationalii ii. Article 9:; o" t e Civil Code 2 makes revocation done outside the 'hilippines valid according the law of the place where will was made or le% domicilii iii. Article 97; o" t e Civil Code / prohibits @ilipinos from making joint wills even if valid in foreign country #. when the proper foreign law has not been properly pleaded and proved 8A(E- as a general rule courts do not take judicial notice of foreign laws must be pleaded and proved (he following actions may be resorted in case of failure to prove and plead the proper foreign law i. &ismiss the case for inability to establish cause of action ii. Assume that the foreign law of the same as the law of the forum 3processual presumption4 iii. Apply the law of the forum

$.

when the case involves any of the e%ceptions to the application of the proper foreign law as when the foreign law is contrary to an important public policy of the forum penal in nature procedural in nature purely fiscal and administrative in nature

 application of the foreign law may work undeniable injustice to the citi.ens of the forum the case involves real or personal property situated in the forum contrary to good morals application might endanger the vital interest of the state 2oreign La< <as not !ro!erl= !leaded and !roved

2LEU#ER %& 'I06 >? P'IL 87@ ,arc- 1&, 19$. 'R (o" )*$#%$% FACTS 0 'etitioner was an administrator of the estate of Edward 1i%. 9hen the petitioner went to court to have the will of deceased Edward probated it was refused by the court. 'etitioner contends that the deceased was a resident of Birginia and the will he e%ecuted was within the formalities of Birginia law. In fact he presented the proof such law in a book found in a national library and thereafter he let it certified by the director of our national library. ISSUE $ELD 0 9hether or not proof of Birginia law was properly laid down. 0 8o because there was no showing that the book which he presented was an official publication of 9est Birginia nor there was an attestation by the officer having the custody of the original and there was no proof that the law he presented was still enforced at the time alleged will was e%ecuted. 'hil. court are not bound to take cogni.ance of a foreign law which must be proved as a fact and in the absence of such proof it is considered as the same as ours. @urthermore the due e%ecution of the will was not established because it was not acknowledged by the testator in the presence of two competent witnesses or that these witnesses subscribed to the will in the presence of the testator and of each other as the law of 9est Birginia seems to re6uire.

P'ILIPPINE TRUST CO& %& )O'ONAN 1.% P-il 99&, !anuary$., 19%. )*1#1. FACTS 0 &uring the probate of the will and testament of 5.A. 0ohonan it was not disputed that testator 0ohonan was a citi.en of 8evada and that his will shall be disposed in accordance with the law of 8evada. 'roof of such foreign law having been offered and taken by the probate court. After the probate becomes final Magdalena and her children filed with the court contending that they have deprived of the legitime so they asked the court to present again the 8evada law to determine on whether or not the deprivation was in accordance with 8evada laws and to determine also whether the 8evada law shall apply. ISSUES 0 !4 9hether or not the court shall again take judicial notice on 8evada law #4 9hether or not 8evada law shall apply in the disposition of the estate of a foreign individual $ELD 0 !4 8ot anymore because it has already been presented and admitted in court during the probate of the will and that appellant did not dispute the said law. In addition the other appellants children of the testator do not dispute the provision of the laws of the State of 8evada. (hus the court can taken judicial notice without proof of such law having been offered at the hearing of the project of partition. #4 8evada law shall apply. Art.!C of the 5ivil 5ode provides that the validity of testamentary disposition the amount of successional right the order of

succession the intrinsic validity of the will and capacity to succeed shall be the governed by the law of the person whose succession is under consideration regardless of the nature of the property and regardless of the place where the property is situated. NOTE0 there is no judicial notice of any foreign law. A foreign law must be properly pleaded and proved as a fact otherwise our courts will presume that the foreign law is the same as our internal law

RA5T'EON INTERNATIONAL INC&6 vs& STOC(TON ROU*IE6 JR&6 '"R" (o" 1%#+94, 1ebruary #%, #..+ FACTS 0 *espondent a resident of La ?nion instituted an action for damages arising from breach of contract against petitioner as well as 0rand Marine Services Inc. 30MSI4 and *ust Intl. Inc. 3*?S(4 alleging that 0MSI a foreign corp. organi.ed under the laws of the State of 5onnecticut entered into a contract with respondent where 0MSI hired respondent to negotiate the sale of services in government projects in which respondent was not paid his commissions from the 'inatubo dredging project which he secured in behalf of 0MSI. 'etitioner sought the dismissal of the complaint on grounds of failure to state a cause of action and forum non conveniens since the rights and obligations of the parties shall be governed by the laws of the State of 5onnecticut. ISSUE $ELD 0 9hether or not the complaint should be dismissed on grounds of forum non conveniens 0 8o. ?nder the doctrine of forum non conveniens a court in conflict of laws cases may refuse impositions on its jurisdiction where it is not the most convenient or available forum and the parties are not precluded from seeking remedies elsewhere. In the said case petitioner;s averments of the foreign elements in the instant case are not sufficient to oust the trial court of its jurisdiction. (he propriety in dismissing a case based on the principle of forum non conveniens re6uires a factual determination thus it is more properly considered a matter of defense.

# T$E PROBLEM OF C$ARACTERI3ATION !4" C$ARACTERI3ATION defined the process by which a court at the beginning of the choice/of/law process assigns a disputed 6uestion to an area in substantive law such as torts contracts family law of property (Coquia) the process of determining under what category a certain set of facts or rules fall the ultimate purpose of which is enable the forum to select the proper law (Paras) @actors which give rise to the problem of characteri.ation- &ifferent legal systems 2 attach to the same legal term with different meanings that is an identity of names covers a difference of nature or content of legal idea" may contain ideas or conceptions completely unknown to one another" apply difference principles for the solution of problems which in general terms are of common nature STEPS IN C$ARACTERI3ATION (# T5) d)t)r6ination o7 t5) 7acts in8o98)d determine whether or not foreign element is involved law of the forum must be guided by its own rules of pleading and proof &# T5) c5aract)ri:ation o7 t5) 7actua9 situation process of assigning facts into their particular category do the facts constitute a problem of 2 Suggested Solution 2 a. in the absence of an e%press conflicts rule on the matter it is suggested that the characteri.ation of the forum should be adhered to unless there would result a clear case of injustice b. apply 'hilippine e%press conflict rules

$I))S %& $O%AT& O2 T'E P'IL& ISLANDS 9 P-il #9$ (19$$) FACTS 0 'etitioner Allison <ibbs was the husband of the deceased Eva <ibbs. 0oth were citi.en and domiciliary of 5alifornia at the time of Eva <ibbs; death. &uring the e%istence of their marriage the spouses ac6uire parcel of lands located in the 'hil. 9hen Eva died Allison the petitioner then went to the *egister of &eeds and demanded the latter to issue to him a transfer certificate of title but the *egister of &eeds refused to issue and to register the transfer of title in favor of Allison. So he went to the court praying that the *egister of &eeds shall issue a corresponding title to him without re6uiring previous payment of any inheritance ta% because they are citi.ens and residents of 5alifornia therefore 5alifornian law will apply which provides that community property of spouses who are citi.ens of 5alifornia upon the death of the wife previous to that of the husband belongs absolutely to the husband without admission ISSUE 0 9hich law shall apply 35alifornia or 'hil4 $ELD 0 (he 'hil. law shall apply because the property in 6uestion was located in the 'hil. because real property as well as personal property shall be subject to the law of the country where it is situated irrespective of the domicile of the parties or of the place where the marriage was celebrated. 'hil. jurisprudence adopted the doctrine of le% rei sitae therefore 'hil. law shall apply.

;# T5) d)t)r6ination o7 t5) con79icts ru9) <5ic5 is to 1) a==9i)d what conflicts rule must be followed= our own conflicts rule should be followed for the following reasons 2 a. purpose of conflict rules b. we still have to identify or definitely ascertain the precise foreign country that has the nearest or the most intimate connection with the facts that have been brought out ># T5) c5aract)ri:ation o7 t5) =oint o7 contract or t5) conn)cting 7actor ? whose characteri.ation of the point of contact should be adhered to= in case of doubt the characteri.ation of the forum must certainly prevail E%ceptions 2 !. if problem deals with real or personal property if the 6uestion deals with the validity of their disposition or alienation or the capacity of the contracting parties 2 9)@ situs govern. If property is situated at the boundary of two states 9)@ situs of the portion of the land directly involved #. if the forum is merely an incidental place of trial the characteri.ation of the forum has to give way to any common characteri.ation that may e%ist in the foreign countries involved. If upon the other hand there is no common characteri.ation we are of the belief that we may avail ourselves of the characteri.ation that will uphold the efficacy of the contract. If this may be attained by making use of our own characteri.ation by all means we must do. '# T5) c5aract)ri:ation o7 t5) =ro19)6 as su1stanti8) or =roc)dura9 procedural matters are governed by the law of the forum (exce2tion to t-e a22lication o0 t-e 2ro2er 0oreign la3) a law on prescription of actions is sui generic in the sense that it may be viewed either as procedural or substantive depending on the characteri.ation given to such law characteri.ation as to substantive or procedural is irrelevant when the country of the forum has borrowing statute which has the effect of treating the foreign statute of limitation as one substance Solution-

consider prescriptive period or the statute of frauds that the parties had in mind at the time the transaction took place.

(otality approacha. first get the law intended by the parties to govern the contract" b. then proceed to apply that intended law in its totality including its periods of prescription and its statute of frauds e%cept if subject matter governs property located in the 'hilippines our own law on prescription and our own statute of frauds must apply Sec" 4+, Rules o0 Ci4il Procedure / i0 barred at t-e 2lace 3-ere t-e cause o0 action arose, it is also barred -ere STATUTE OF FRAUDS Substantive 2 if the words of the law relate to forbidding the obligation 'rocedural 2 if the law forbids the enforcement of the obligation STATUTE OF LIMITATIONS Substantive 2 when the limitation was directed to the newly created liability specifically to warrant a 6ualification of the right 'rocedural 2 if it operates to bar the legal remedy without impairing the substantive right involved BORROWIN* STATUTE directs the state of the forum to apply the foreign statute of limitations to the pending claims based on a foreign law 3treats the statute of limitations as a substantive law4 CADALIN %& POEA AD#INISTRATOR #$+ SCRA &#1 (1994) FACTS 0 'etitioners filed a class suit against A05 corporation and 0*II corporation a domestic licensed to recruit mobili.e and deploy @ilipino workers abroad on behalf of its foreign principals on the non/payment of the une%pired portion of the employment contracts which where terminated prematurely fringe benefits and refund of SSS. *espondent argued that the case has already prescribed in view of the Amari decree which 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 e%piry date of the contract., 0ut the ML*5 ruled that the actions has not yet prescribed because the prescriptive period for filing of the claims was three years and not one year as provided in the Amari decree. ISSUE $ELD 0 9hether or not the Amari decree shall apply 0 As a general rule a foreign procedure law 3service of summons period of actions etc.4 will not be applied in the forum which shall be governed by the laws of the forum. A law on prescription is sui generis in conflict of laws in the sense that it may be viewed either as procedural or substantive depending on the characteri.ation given such a law. 1owever the characteri.ation of a statute into a procedural or substantive law becomes irrelevant when the country of the forum has a +borrowing statute., A borrowing statute directs the state of the forum to apply the foreign statute of limitations to the pending claims based on a foreign law. +If by the laws of the state where the cause of action arose the action is barred it is also barred in the 'hil., A borrowing statute shall not be applied if it is prejudicial to labor and to the constitution or obno%ious to the forum;s public policy. (he courts of the forum will not enforce any foreign claim obno%ious to the forum;s public policy.

10

LW% CONS& CORP& vs& #ARCELO DUPO '"R" (o" 1&#$4#, !uly 1$, #..9 FACTS 0 *espondent filed a complaint for payment of service award against petitioner before 8L*5 invoking Saudi labor 9orkmen;s Law. 'etitioner offered payment and prescription as defenses that under Art. !$ of the Saudi Labor Law action to enforce payment of the service award must be filed within one year from the termination of a labor contract for a specific period. 1owever the one year prescriptive period lapsed. ISSUE $ELD 0 9hether or not the Saudi Labor Law on prescription of action will apply. 0 8o. Applicable law is Art. #D! of the 'hil. Labor 5ode which provides that +all money claims arising from employer/employee relations shall be filed within $ years from the time the cause of action accrued otherwise they shall be forever barred., It is not limited to money claims recoverable under the labor code but also applies to claims of overseas contract workers. As held in the 5adalin case =roc)dura9 6att)rs ar) go8)rn)d 1A t5) 9a<s o7 t5) 7oru6 )8)n i7 t5) action is 1as)d u=on a 7or)ign su1stanti8) 9a< . (hus respondent;s action has not prescribed.

4# T5) =9)ading and =ro8ing o7 t5) =ro=)r 7or)ign 9a< if a duly proved foreign law has already been given a judicial interpretation in the country of origin it must generally be given an identical interpretation in the 'hilippines unless we already have similar or identical internal law and said internal law has received a diametrically opposite construction before our own tribunals B# T5) a==9ication o7 t5) =ro=)r 7or)ign 9a< to t5) =ro19)6 II# T$E PROBLEM OF REN OI !((" A# REN OI definition procedure whereby a jural matter is presented which the conflict of laws rules of the forum refer to a foreign law the conflict of law of which in turn refers the matter back to the law of the forum 1re+ission4 or a third state 1trans+ission4 literally means referring back - problem arises when there is doubt as to whether a reference to a foreign law 2 a. is a reference to the internal law of said foreign law" or b. is a reference to the whole of the foreign including its conflicts rule B# ARIOUS WA%S OF DEALIN* WIT$ T$E PROBLEM OF REN OI SOLUTIONS TO T$E REN OI (# R)2)ct t5) r)n8oi meaning we do not want the problem to be sent back to us" that we do not want the matter to be referred back to us (Paras) if the conflicts rules of the forum refer the case to the law of another state it is deemed to mean only the internal law of the state. (hus the court will apply the foreign law (Coquia) &# Acc)=t t5) r)n8oi

11

apply or accept it by reference to the whole law including the conflicts rule of the foreign law (Paras) if the conflicts rules of the forum refer the case to the law of another state it is deemed to include the totality of the foreign law 3internal law and conflicts of laws rule4. (hus the court will recogni.e the referral back and apply local law.
(Coquia)

;# Fo99o< t5) DESISTMENT T$EOR% !a9so r)7)rr)d to as t5) MUTUAL, DISCLAIMER OF JURISDICTION T$EOR%" meaning we desist or refrain from applying the foreign law because it is inade6uate as it is founded on a different basis the reason for the desistance is that the forum court upon reference to another state;s law sees that such law is limited in application to its own national and has no provision for application to a non/national (Paras) the forum court upon reference to another state;s law sees that such law is limited in application to its own nationals domiciled in its territory and has no provision for application to nationals domiciled outside of the territory. 1ence the local court will apply local law. (his has the same result as the acceptance of the renvoi but the process used by the forum court is to desist applying the foreign law. (Coquia) ># Us) CFOREI*N COURT T$EOR%D meaning the local forum in deciding the case will put itself in the position of the foreign court and whatever it does respecting the case the 'hilippine court will likewise do. (Paras) foreign court assumes the same position that the foreign court would take if the case is litigated in the foreign state- 1ence 2 a. if the foreign court would accept the renvoi the local court shall apply the foreign law. b. if the foreign law would reject the renvoi the local court shall apply le% fori c. if the foreign court would apply the desistment theory the local court shall apply the foreign law d. if the foreign court would use the foreign court theory then international pingpong would ensue (Coquia) DOUBLE REN OI it is that which occurs when the local court in adopting the foreign court theory discovers that the foreign court accepts the renvoi TRANSMISSION the process of applying the law of a foreign state thru the law of a second foreign state DOUBLE REN OI 8)rsus TRANSMISSION double renvoi deals with # countries while transmission deals with three or more countries double renvoi deals with referring back while transmission with a transmitting SU**ESTED CONCLUSION the theory to be adopted must consider the circumstances of a given situation that will best result in fairness e6uity and justice

A*NAR % $ARCIA 11& P-il 1.%, & SCRA 9 (19%$) FACTS 0 Edward 5hristensen was a citi.en of 5alifornia. 1e came to the 'hl. where he became a domiciliary till the time of his death. 0efore he died he e%ecuted a will instituting his natural child Maria as his only heir to his estate but left a legacy '$CEE in favor of 1elen also his acknowledge natural child. 1elen claims that she was deprived of her legitime she claims that our 'hil. law that should be applied because Art. !C par.# of the 5ivil 5ode 5alifornia law should be applied that

12

under 5alifornia law the matter is referred back to the law of domicile that therefore 'hil. law is ultimately applicable that finally therefore her share shall be increased in view of the successional rights of illegitimate children under 'hil. law. Maria contends that it is clear that under Art.!C par.# of 5ivil 5ode the national of the ceased must apply our courts must apply the internal law of 5alifornia that there are no compulsory heirs and conse6uently a testator could dispose of any property possessed by him in absolute dominion and that illegitimate children not being entitled to anything under 5alifornia law.

ISSUE $ELD

0 9hich law shall apply= 0 'hil. law shall apply. (here are two rules in 5alifornia on the matter the internal law which will apply to 5alifornian citi.ens domiciled in 5alifornia and the conflicts rule which will apply to 5alifornian citi.ens domiciled n other states which states that +If there is no law to the contrary in the placed where personal property is situate it is deemed to follow the person of its owner and is governed by the law of his domicile. As the domicile of the deceased who was citi.en of 5alifornia was the 'hil. the validity of the provisions of his will depriving his acknowledged natural child of the latter;s legacy should be governed by the 'hil. law. (herefore 1elen;s legacy shall be increased.

5. ?sefulness of *envoi (to a4oid un5ust results)

BELLIS S BELLIS #. SCRA $ 9 (19%+) FACTS 0 &ecedent Amos 0ellis was a citi.en and a domiciliary of (e%as at the time of his death. 1e made two wills before he died which are e%ecuted in the 'hil. one disposing his properties in (e%as and the other his properties in the 'hil. Although respondents were given their shares in other properties they were however deprived in the residuary estate of the decedent. (hey filed an opposition on the ground that they were deprived of their legitimes to which they would be entitled if the 'hil. law were to apply. 0ut the e%ecutor contended that since the decedent is a (e%an citi.en the (e%as law shall be applied. (here are no compulsory heirs under (e%as law and therefore no legitimes. ISSUE $ELD 0 9hether or not respondents entitled to that residuary estate of the decedent. 9hether or not renvoi shall be applied. 0 8o because under Art.!C of the 855 that in case of intestate and testamentary succession both with respect to the order of success and to the amount of successional rights and to the intrinsic validity of testamentary provision and the capacity to succeed shall be governed by the national law of the person whose succession is under consideration whatever may b e the nature of the property and regardless of the place wherein said property may be found. (estamentary provisions that successional right to decedent;s estate would be governed by law other than the national law of the decedent is void. nvoi doctrine because the decedent is a resident and citi.en of (e%as at the time of his death. *envoi can be applied only if the decedent is a citi.en of one country but a resident in another at the time of his death. So that even if (e%as has a conflict rule regarding successional right the same would not result in a reference back to 'hil. law but would still refer to (e%as Law.

II# NOTICE OF PROOF OF FOREI*N LAW !RULE (;&E RULES OF COURTF RULE (;GE RULES OF COURT"

13

A# E@t)nt o7 Judicia9 Notic) Section 76 Rule 7:;6 Rules o" Court 6 Judicial Notice6 < en +andator= 2 A court shall take judicial notice without the introduction of evidence of the e%istence and territorial e%tent of states their political history forms of government and symbols of nationality the law of nations the admiralty and maritime courts of the world and their seals the political constitution and history of the 'hilippines the official acts of the legislative e%ecutive and judicial departments of the 'hilippines the laws of nature the measure of time and the geographical divisions Section :6 Rule 7:;6 Rules o" Court 6 Judicial Notice6 < en discretionar= 2 a court may take judicial notice of matters which are of public knowledge or are capable of un6uestionable demonstration or ought to be known to judges because of their judicial functions

B# Proo7 o7 For)ign La< !. 9ritten Law 35onstitution Statute4 Afficial publication thereof or 0y 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 #. ?nwritten Law 35onstitution Statute4 Aral testimony of e%pert witnesses or 0y printed and published books of reports of decisions of the country involved if proved to be commonly admitted in such courts" RECO*NITION AND ENFORCEMENT OF FOREI*N JUDMENTS a foreign judgment is recogni.ed when it is given the same effect that it has in the state where it was rendered with respect to the parties the subject matter of the action and the issued involved. 9here the foreign judgment is being presented as a defense to the claim of the plaintiff what is involved is the recognition of a foreign judgment a foreign judgment is enforced when in addition to being recogni.ed a party is given affirmative relief to which the judgment entitles him. 9hen a plaintiff asks the court of one state to carry out and make effective a judgment obtained by him in another state what is involved is the enforcement of a foreign judgment.

R)quisit)s0 !. foreign judgment was rendered by a judicial or a 6uasi/judicial tribunal which had competent jurisdiction over the parties and the case in the proper judicial proceedings in which the defendant shall have been given reasonable notice and the opportunity to be heard" #. it must be a judgment on civil and commercial matters" $. the judgment must be valid according to the court that delivered it" ). judgment must be final and e%ecutory to constitute res judicata in another action Ele+ents o" res ,udicata: a. @inal b. *endered by a competent court c. An the merits d. Involve the same parties subject matter and cause of action 7. foreign judgment must not be contrary to the public policy or the good morals of the state where it is to be enforced C. judgment must not have been obtained by fraud collusion mistake of fact or mistake of law F. the foreign judgment must not be barred by prescription under the law of the state in which it was promulgated or under the law of the state in which its recognitionGenforcement is sought DISTINCTION BETWEEN RECO*NITION AND ENFORCEMENT OF FOREI*N JUD*MENT RECO$NITION O2 2OREI$N JUD$#ENT 5ourts will allow the foreign judgment to be presented as a defense to a local litigation EN2ORCE#ENT O2 2OREI$N JUD$#ENT 'laintiff wants courts to positively carry out and make effective in the state a foreign judgment

14

Involves merely the sense of justice &oes not re6uire either an action of a special proceeding May e%ist without enforcement

Birtually implies a direct act of sovereignty 8ecessitates a separate action or proceeding brought precisely to make the foreign judgment effective 8ecessarily carries with it recognition

@or both recognition and enforcement proof of the foreign judgment has to be presented. Moreover the re6uisites or conditions for the recognition or enforcement of foreign judgments must be present.

EFFECTS OF FOREI*N JUD*MENTS ?nder the *ules of 5ourt in case of judgment against a specific thing the judgment is conclusive upon the title of the thing. In case of judgment against a person the judgment is presumptive evidence of a right as between the parties and their successors/in/ interest by a subse6uent title" but the judgment may be repelled by evidence of want of jurisdiction want of notice to the party collusion or clear mistake of law of fact

C# P5i9i==in) Courts not aut5ori:)d to taH) 2udicia9 notic) o7 7or)ign 9a<s

IN RE ESTATE OF JO$NSON $9 P-il 1 & FACTS 0 Emil :ohnson was a naturali.ed citi.en of ?SA but he died in the 'hil. 1e made a holographic will before he died but was witnessed only by two witnesses instead of three as re6uired by 'hil. law. A petition for probate was filed before the 5@I of Manila by his e%ecutor who contended that :ohnson was a citi.en of ?SA at the time of his death and that the will was duly e%ecuted in accordance with the laws of Illinois ?SA which pursuant to the provision of the 5ivil 'rocedure it can be probated here in the 'hil. 1e then presented the proof of said law before the court which was admitted by the same. 1owever Ebba the daughter of the late :ohnson moved to annul the decree of probate and prayed for the commencement of intestate administration of the estate on the ground that :ohnson was not a resident of the state of Illinois 3became a resident in Manila but offering only a general statement4 and that the probated will was not in accordance with the laws of that state. ISSUES 0 !. 9hether or not :ohnson is a citi.en of ?SA. #. 9hether or not the will was valid according to the national law of the decedent. $ELD 0 !. :ohnson remains a citi.en of ?SA. (he petition does not deny the citi.enship of :ohnson but only asserts that he became a resident of the 'hil. Mere residency in another country without any intention of renouncing his citi.enship does not necessary follow that he will immediately ac6uire citi.enship in the state of his new domicile. #. >es. (he will was in accordance with the laws of ?SA. (he trial judge was fully satisfied with the proof of such law presented by the e%ecutor of the deceased. Even presuming that the trial judge in taking judicial notice of the law of ?SA such error is not available to the petitioner daughter because she did not offer any evidence as what the true law of ?SA is which would appear that the law found by the court is different from the true law of Illinois ?SA. A.!. E%ceptions to the application of the proper foreign law 2 9hen the foreign law is/ contrary to an important public policy of the forum penal in nature

15

 procedural in nature purely fiscal and administrative in nature application of the foreign law may work undeniable injustice to the citi.ens of the forum the case involves real or personal property situated in the forum contrary to good morals

PARDO # REPUBLIC + P-il $#$ FACTS 0 'etitioner Bicente 'ardo was a Spanish citi.en born in Spain in !HD7. In !DE7 he went to the 'hil. and resides here wherein he married a @ilipino and employed in Manila. 'etitioner arrived in the 'hil. when he was only ten years old and has already lived here for )) years. 'etitioner filed a petition for naturali.ation but it was opposed by the herein respondent on the ground that he did not or the evidence that he presented on whether the laws of Spain grant @ilipinos the right to become naturali.ed citi.en of that country is not sufficient. 'etitioner only presented a certificate signed by the 5onsul <en. of Spain in the 'hil. stating that in accordance with Art.!F and #7 of the Spanish 5ode @ilipinos are eligible to Spanish citi.enship in Spain besides court should have take judicial notice on this law. ISSUE $ELD 0 9hether or not court shall take judicial notice. 0 >es because mot of our laws comes from Spain the court may take judicial notice. As the 5ivil 5ode has been and still the basic code in force in the 'hil. Art.!F of thereof may be regarded as matters known to judges of the 'hil. by reason of their judicial functions and may be judicially recogni.ed by them without the introduction of proof. A copy of a foreign law certified only by the local consul of the applicant;s country does not conform to the re6uirements concerning the certification and authentication of such law. 'roof of a foreign law on regarding the ac6uisition of citi.enship although not meeting the prescribed rule of practice under the *ules of court may be allowed and used as basis for a favorable action if in the light of all the circumstances the court is satisfied of the authenticity of the written proof offered.

P$IL# COMMERCIAL AND INDUSTRIAL BAN/ # ESCOLIN % SCRA #%% FACTS 0 Spouses 5harles and Linnie 1odges e%ecuted a mutual will wherein they mutually made a testamentary provisions in favor of each other. 0oth spouses resided in the 'hil. at the time of the death of Linnie 1odges. (he validity of certain testamentary provisions made by Linnie in favor of his husband arose a 6uestion as to what e%actly were the laws of (e%as on the matter at the time of death of Linnie. '5I0 contended that since 1odges spouses were both residents of the 'hil. at the time of the death of Linnie (e%an Law would result in the renvoi. (he other party contended that no renvoi was possible therefore (e%as Law shall be the applicable law. 0ut '5I0 previous admitted that under the laws of (e%as that there is such a legitime of I of said conjugal estate. ISSUES 0 !. 9hether or not there is a need to ascertain the laws of (e%as. #. 9hether or not by previous admitted on what the (e%as law is all about creates a estoppel=

16

$ELD

0 !. Elementary is the rule that foreign laws may not be taken judicial notice of and have to be proven like any other fact in dispute between the parties in any proceeding with the rare e%ception in instances when the said laws are already within the actual knowledge of the court such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties concerned claim otherwise. #. >es it creates estoppel. (he e%istence and effects of foreign laws being 6uestions of fact such previous admission thereof creates estoppels in any further proceedings.

P'ILIPPINE TRUST CO& %& )O'ONAN 1.% P-il 99&, !anuary$., 19%. )*1#1. FACTS 0 &uring the probate of the will and testament of 5.A. 0ohonan it was not disputed that testator 0ohonan was a citi.en of 8evada and that his will shall be disposed in accordance with the law of 8evada. 'roof of such foreign law having been offered and taken by the probate court. After the probate becomes final Magdalena and her children filed with the court contending that they have deprived of the legitime so they asked the court to present again the 8evada law to determine on whether or not the deprivation was in accordance with 8evada laws and to determine also whether the 8evada law shall apply. ISSUES 0 !4 9hether or not the court shall again take judicial notice on 8evada law #4 9hether or not 8evada law shall apply in the disposition of the estate of a foreign individual $ELD 0 !4 8ot anymore because it has already been presented and admitted in court during the probate of the will and that appellant did not dispute the said law. In addition the other appellants children of the testator do not dispute the provision of the laws of the State of 8evada. (hus the court can taken judicial notice without proof of such law having been offered at the hearing of the project of partition. #4 8evada law shall apply. Art.!C of the 5ivil 5ode provides that the validity of testamentary disposition the amount of successional right the order of succession the intrinsic validity of the will and capacity to succeed shall be the governed by the law of the person whose succession is under consideration regardless of the nature of the property and regardless of the place where the property is situated.

LIM # COLLECTOR OF CUSTOMS $% P-il 4&# FACTS 0 (wo children3minors4 born in 5hina from a 5hinese father and who were in the custody of their @ilipino mother were denied by the respondent to enter into the 'hil. on the ground that under 5hinese immigration laws a certificate shall be necessary in order to enter into the 'hil. 'etitioners contended that they are entitled to enter regardless of the provisions of the law since the are citi.ens of the 'hil. and that their mother who is entitled to their custody and charged with their maintenance and education is clearly entitled to take up her residence in the 'hil. and should not be re6uired to that end to abandon her minor children. 0ut petitioners failed to prove and present the 5hinese law. ISSUE $ELD 0 In the absence of any evidence of the 5hinese law what law shall apply. 0 Infant children of a @ilipino woman born in 5hina out of lawful wedlock whose father was a 5hinese person seeking entry into the 'hil. in the custody and

17

control of their mother for the purpose of taking up their residence here with her are not subject to e%clusion under the 5hinese Immigration laws. In the absence of anything to the contrary as to the character of a foreign law it will be presumed to be the same as the domestic law on the same subject. Since the court was not advised of any provision of 5hinese law which differentiates the status of infant children born out of lawful wedlock the court therefore assumes that 5hina law is the same in 'hil. law regarding the rights and status of infant children born out of wedlock.

BEAM # %ATCO +# P-il $. FACTS 0 A.9. 0eam and his wife Lydia 0eam were residents and citi.ens of 5alifornia at the time of Lydia 0eam;s death. 0ut sometime during their marriage they resided her and ac6uired properties in the 'hil. 9hen Lydia 0eam died half of her properties were inherited by the plaintiffs and conse6uently the defendant imposed an inheritance ta%. 'laintiffs refused to pay or paid under protest on the ground that A.9. 0eam was a ?tah citi.en that under the law of ?tah properties ac6uired by the spouses during the marriage belong to them separately however A.9. 0eam failed to prove his citi.enship. &efendant contends that since he failed to prove his ?tah citi.enship the law of the 'hil. shall govern. And that since the properties in 6uestions were ac6uired by them during their marriage it should be considered as part of the community property and upon the death of the wife the one belong to her passed by succession to her heirs in accordance with Art.!)E! of the 5ivil 5ode and therefore subject to the inheritance ta%. ISSUE $ELD 0 @ailure of A.9. 0eam to prove ?tah law what law shall apply= 0 9hen a foreign law is pleaded and no evidence has been presented as to said law it is presumed that ?tah law is the same as in the law of the forum.

#ICIANO %& )RI#O . P-il %& FACTS 0 A (urkish national made a will wherein he stated that his property shall be distributed in accordance with 'hil. laws and not that of his nation since the provisions of the will is void. 9hen the judicial administrator of the (urkish filed a scheme partition proceedings brothers of the deceased (urkish opposed on the ground that said provisions in the will is void being in violation of Art. !C of the 5ivil 5ode. 1owever the oppositor failed to prove that the said testamentary provisions are not in accordance with the (urkish Laws and failed to present any evidence showing what the (urkish laws are on the matter. ISSUE $ELD 0 9hether or not partition proceedings be refused. 9hat law shall be applied. 0 8o it shall not be refused because foreign laws shall be proved as a fact and in the absence of such proof they are presumed to be same as these of the 'hil. (hus partition proceedings may be continued. 1owever by failure to prove by the brother oppositor on what the (urkish law is all about the court indulged in a presumption that (urkish law was the same as ours. And his estate shall be distributed in accordance with the 'hil. laws but testamentary provision made by the testator shall be void for being contrary to the law.

18

COLLECTOR OF INTERNAL RE ENUE # FIS$ER 11. P-il %$% FACTS 0 Stevenson was born in the 'hil. of 0ritish parents and was married to 0eatrice also a 0ritish national. Stevenson died and instituted his wife as his sole heir to certain properties ac6uired by both spouses while residing here in the 'hil. when the wife filed a preliminary estate) and inheritance ta% return she claims for a deduction of ta%es on the ground that under the 'hil. civil law in the absence of

any ante/nuptial agreement the contracting parties are presumed to have adopted the system of conjugal partnership as to the properties ac6uired during the marriage hence the ta%able net estate shall be reduced. 0ut the petitioner contended that the property relation of the husband should not be governed by the 'hil. but by the English law which does not recogni.e legal partnership between spouses hence all properties ac6uired by the husband during the marriage shall belong e%clusively to the husband and therefore the ta%able net estate is the whole of the decedent;s estate. 0ut petitioner failed to prove said English law. ISSUE $ELD 0 9hether or not English law shall be applied. 0 8o. (he pertinent English law that allegedly vests in the decedent husband full ownership of the properties ac6uired during the marriage has not been proven by the petitioner e%cept for a mere allegation in his answer which is not sufficient. In the absence of such proof it is presumed that the law of England on the matter is the same as our law.

%AM /A LIM S# COLLECTOR OF CUSTOMS $. P-il 4% FACTS 0 >am Ja Lim of 5hinese descent arrived at the port of Manila from the port of 1ongkong and sought admission into the 'hilippine Islands claiming that he is the legitimate minor son of >am Long Sai a resident 5hinese merchant. (he board of special in6uiry 6uestioned his right to enter the 'hilippines and after e%amining the evidence submitted by the petitioner and from the testimonies of the witnesses refused to permit him to land upon the ground that they did not believe him to be the legitimate son of the said >am Long Sai. 8otice of the said decision was given to >am Long sai and to his representative 9illiam (racey 'age giving them # days to appeal to the Insular 5ollector of 5ustoms. Later a bond was given for the release of the plaintiff. 8o appeal was taken from the decision of the board of special in6uiry to the Insular 5ollector of 5ustoms. 9ithout having first decided whether the 5ollector of 5ustoms had abused his authority the lower court proceeded to hear evidence upon the 6uestion whether or not >am Ja Lim was the legitimate minor son of >am Long Sai. After hearing the evidence and taking into consideration the laws of 5hina without any proof as to what they were the lower court decided that the said >am Ja Lim was the legitimate son of the said >am Long Sai and ordered him to be released from the custody of the 5ollector of 5ustoms and that he be permitted to enter the 'hilippine Islands and that the said bond theretofore given be canceled. 1ence this appeal. ISSUE 0 9hether or nor the court erred in taking judicial notice of the laws of 5hina relative to marriage and child legitimacy which differ from those in force in the 'hilippine Islands. 0 >es the lower court committed an error in taking judicial notice of what the laws of marriage in 5hina are. (he statutes of other countries must be pleaded and proved the same as any other fact. In the absence of such pleading and proof the laws of a foreign state will be presumed to be the same as our own.

$ELD

19

(here was ample proof in the record to show or at least to convince the board of special in6uiry that said >am Ja Lim was not the legitimate minor son of the said >am Long Sai.

PART T'REE: PERSONAL LAW

III# NATIONALIT% refers to membership in a political community. (he 'hilippines adheres to the nationality law (heory 8ationality Law (heory is a conflict of law theory by virtue of which jurisdiction over the particular subject matter affecting a person such as status of a natural person is determined by the latter;s nationality (Coquia) it is national law of the individual that regulates his civil status capacity condition his family rights and duties laws on succession and capacity to succeed 8ationality vs. 5iti.enship while nationality is membership in an ethnic social racial and cultural group citi.enship is membership in a political society NATIONALIT5 CON2LICT RULE Artic9) ('# Laws relating to family rights and duties or to the status condition and legal capacity of persons are binding upon citi.ens of the 'hilippines even though living abroad. 3Da4

A# DETERMINATION OF NATIONALIT% Each State has the prerogative and authority to determine by its own municipal law who are its nationals or citi.ens (he 1ague 5onvention on 5onflict of 8ational Laws provides +it is for each state to determine who are its nationals. (his law shall be recogni.ed by other states insofar as it is consistent with international convention international customs and the principles of law generally recogni.ed with regard to nationality. NOTE: (ationality may be acquired by birt- or by naturali6ation (he three kinds of citi.ens of the 'hilippines are 2 !. #. $. !. 8atural 0orn 5iti.ens 8aturali.ed 5iti.ens or 5iti.ens by 8aturali.ation 5iti.ens by election NATURAL BORN CITI3ENS ? those who are citi.ens of the 'hilippines from birth without having to perform any act to ac6uire or perfect their 'hilippine citi.enship. (ati4e born citi6en is one born in t-e country o0 3-ic- -e is a citi6en, -ence, a c-ild born to a 1ili2ino mot-er in 'ermany is a natural born, but not nati4e born citi6en Article IB of the 'hilippine 5onstitution 3!DHF4 (he following are citi.ens of the 'hilippines 2 a. (hose who are citi.ens of the 'hilippines at the time of the adoption of the 5onstitution" b. (hose whose fathers and mothers are citi.ens of the 'hilippines" c. (hose born before :anuary !F. !DF$ of @ilipino mothers who elect 'hilppine citi.enship upon reaching the age of majority (3it-in t-ree years) d. (hose who are naturali.ed in accordance with law TWO T$EORIES on whether place or ancestry determines citi.enship

20

!. #.

JUS SOLI PRINCIPLE ? the law of the place of one;s birth determine one;s nationality JUS SAN*UINIS PRINCIPLE 2 one follows the citi.enship of his parents" this is citi.enship by blood

(he 'hilippine 5onstitution applies the :us Sanguinis principle which means the rule of descent or blood.

TALAROC # U%E I& P-il # (19 #) FACTS 0 *espondent >u was elected as Municipal Mayor. 1owever his election was 6uestioned by the defeated candidate (alaroc the herein petitioner on the ground that ?y was a 5hinese and therefore ineligible for the position. *espondent contended that his father is a 5hinese citi.en.while he was still a minor his father died and that his mother without e%pressly e%patriating herself ipso facto reac6uired her @ilipino citi.enship upon the death of her husband. 1e thus followed his mother;s citi.enship and is a citi.en of the 'hil. by the mere fact of his birth. ISSUE $ELD 0 9hether or not ?y is @ilipino citi.en. 0 @ilipino a @ilipino woman married to 5hinese ipso facto reac6uired her @ilipino citi.enship upon the death of her husband and that thereafter her minor children;s nationality automatically followed that of the mother;s. (he rule applies only to minor children not to persons who are already in age.

CO # ELECTORAL TRIBUNAL OF T$E $OUSE OF REP# 199 SCRA %9# FACTS 0 'rivate respondents Ang;s father was a 5hinese citi.en married to a natural born @ilipina in !D$#. (hey bore H children one of whom is private respondent who was born in !D)H. An !D77 private respondent;s father took his Aath of Allegiance and was declared a @ilipino citi.en. In !DH) and !DHC elections he registered himself as a voter of Laoang Samar. (he following year he ran in the elections for representative in the # nd district of 8orthern Samar in which he was proclaimed winner. 'etitioner then filed protests on the ground that Ang the private respondent was not a natural born citi.en of the 'hil. because he failed to file a statement or formal declaration when he reached the age of majority to elect 'hil. citi.enship which is re6uired under the law. ISSUE $ELD 0 9hether or not there is a need for Ang to file a sworn statement. 0 8ot anymore. 1e was already a citi.en. 8ot only because his mother was a natural born citi.en but also his father had been naturali.ed when the respondent was still a minor. 1e e%ercises his right of suffrage and established his life here in the 'hil. (he e%ercise of right of suffrage and the participation in election e%ercises constitute a positive act of 'hil. citi.enship.

21

(o re6uire the respondent to elect 'hil. citi.enship would not only have been superfluous but would also have resulted in absurdity considering that it was the law itself that had already elected 'hil. citi.enship for him. An attack on a person;s citi.enship may only be done through a direct action of its nullity not through a collateral approach.

CORDORA S# COMELEC '"R" (o" 1&%94&, 1ebruary 19, #..+ FACTS 0 <audencio M. 5ordora 35ordora4 filed a complaint against <ustavo S. (ambunting before the 5AMELE5 Law &epartment that the latter was not eligible to run for local public office because he lacked the re6uired citi.enship and residency re6uirements. 5ordora presented a certification from the 0ureau of Immigration which stated that (ambunting claimed that he is an American. According to 5ordora respondent ac6uired American citi.enship through naturali.ation in 1onolulu 1awaii. An the other hand (ambunting maintained that he did not make any misrepresentation in his certificates of candidacy. (o refute 5ordora;s claim that (ambunting is not a natural/born @ilipino (ambunting presented a copy of his birth certificate which showed that he was born of a @ilipino mother and an American father further denying that he was naturali.ed as an American citi.en and that he also took an oath of allegiance on !H 8ovember #EE$ pursuant to *epublic Act 8o. D##7. (he 5AMELE5 Law &epartment recommended the dismissal of 5ordora;s complaint against (ambunting because 5ordora failed to substantiate his charges against (ambunting. 5ordora;s reliance on the certification of the 0ureau of Immigration that (ambunting traveled on an American passport is not sufficient to prove that (ambunting is an American citi.en which was affirmed by the 5AMELE5 7n 8anc" 5ommissioner *ene B. Sarmiento wrote a separate opinion which concurred with the findings of the 7n 8anc *esolution pointed out that (ambunting could be considered a dual citi.en. Moreover (ambunting effectively renounced his American citi.enship when he filed his certificates of candidacy in #EE! and #EE) and ran for public office. 5ordora filed a motion for reconsideration but was dismissed for lack of merit. ISSUE $ELD 0 9hether or not (ambunting is a dual citi.en. 0 >es. 0ecause of the circumstances of his birth it was no longer necessary for (ambunting to undergo the naturali.ation process to ac6uire American citi.enship. 5learly (ambunting possessed dual citi.enship prior to the filing of his certificate of candidacy before the #EE! elections. (he fact that (ambunting had dual citi.enship did not dis6ualify him from running for public office. (he S5 reiterated a previous ruling in ,ercado 4" ,an6ano wherein dual citi.enship is not a ground for dis6ualification from running for any elective local position. &ual citi.enship 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 whose parents are citi.ens of a state which adheres to the principle of 5us sanguinis is born in a state which follows the doctrine of 5us soli. Such a person i2so 0acto and without any voluntary act on his part is concurrently considered a citi.en of both states. In Sections # and $ of *.A. 8o. D##7 the framers were not concerned with dual citi.enship 2er se but with the status of naturali.ed citi.ens who maintain their allegiance to their countries of origin even after their naturali.ation. Section 73$4 of *.A. 8o. D##7 states that naturali.ed citi.ens who reac6uire @ilipino citi.enship and desire to run for elective public office in the 'hilippines shall Kmeet the 6ualifications for holding such public office as re6uired by the 5onstitution and e%isting laws and at the

22

time of filing the certificate of candidacy make a personal and sworn renunciation of any and all foreign citi.enship before any public officer authori.ed to administer an oathK aside from the oath of allegiance prescribed in Section $ of *.A. 8o. D##7. In the present case (ambunting a natural/born @ilipino did not subse6uently become a naturali.ed citi.en of another country. 1ence the twin re6uirements in *.A. 8o. D##7 do not apply to him.

#.

NATURALI3ED CITI3ENS or CITI3ENS B% NATURALI3ATION ? those who are not natural/born citi.ens" those who become such through judicial proceedings

NATURALI3ATION is the process of ac6uiring citi.enship of another country" a. In the strict sense it is a judicial process where formalities of the law have to be complied with including a judicial hearing and approval of the petition b. In the loose and broad sense it may mean not only the judicial process but also the ac6uisition of another citi.enship by such acts as marriage to a citi.en and the e%ercise of the option to elect a particular citi.enship (Paras) NATURALI3ATION confers to an alien a nationality after birth by any means provided by the law. In the 'hilippines naturali.ation is by judicial method under 5ommonwealth Act 8o. )F$ as amended by republic Act 7$E. (Coquia) +UALIFICATIONS OF NATURALI3ATION a. (he petitioner must not be less than #! years of age on the date of the hearing of the petition" b. 1e must have as a rule resided in the 'hilippines for a continuous period of not less than !E years" 8ote(he minimum ten/year residence re6uirement is to enable the government to observe the applicant;s conduct and to ensure that he has imbibed the principles and spirit of our 5onstitution.

1owever this period may be reduced to five years in any of the following cases-

3!4 If the applicant has honourably held office under the <overnment of the 'hilippines or under any of the provinces cities municipalities or political subdivisions thereof" 3#4 If he has established a new industry or introduced a useful invention in the 'hilippines" 3$4 If he is married to a @ilipino woman; 3)4 If he had been engaged as a teacher in a public or recogni.ed private school not established for the e%clusive instruction of children of persons of a particular nationality or race in any of the branches of education or industry for a period of two years" 374 If he was born in the 'hilippines. c. 1e must be of good moral character and believe in the principles underlying the 'hilippine 5onstitution and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the

23

'hilippines in his relation with the constituted government as well as with the community in which he is living" d. 1e mush own real estate in the 'hilippines worth not less that 'hp 7 EEE.EE or must have some lucrative trade profession or lawful occupation" e. 1e must be able to speak and write English or Spanish and any one of the principal 'hilippine languages f. 1e must have enrolled his minor children of school age in any of the public schools or private schools where 'hilippine history government and civics are taught or prescribed as part of the school curriculum during the entire period of the residence re6uired of him prior to the hearing of his petition for naturali.ation as citi.en (Paras) %U /IAN C$LE # REPUBLIC 1$ SCRA #+# (19% ) FACTS 0 'etitioner a citi.en of 5hina filed a petition for naturali.ation before the 5@I of Manila. (he petition was granted thus the respondent appealed. &uring the pendency of the appeal petitioner filed a Motion to *eopen case to enable him to present Additional &ocumentary 'roof of his Income claiming that his income has risen from '$ EEE in !D7F to '7 !EE in !DCE and '! EEE in !DC!. (he respondent through the Sol. <en. moved for the reversal of the decision on the ground that the petitioner failed to prove that he has a lucrative income considering that the increase he received was due to the bonuses given by his employer. ISSUE$ELD9hether or not the applicant has a lucrative income. In considering whether an applicant for naturali.ation has a lucrative income allowance and bonuses which may or may not be given to him as where they spring from purely voluntary actuations of his employer conditioned to the circumstance that the employer was making profits should not be added to his basic salary.

$.

CITI3ENS B% ELECTION ? citi.ens by virtue of certain legal provisions become such by choosing 3or electing4 'hilippine citi.enship after attaining the age of majority or within a reasonable time (3it-in $ years)

0. 'rocedure for 8aturali.ation (he following are the steps for naturali.ation 2 !. A declaration of intention to become a @ilipino citi.en must first be filed with the Affice of the Solicitor <eneral unless the applicant is e%empted from this re6uirement" E%emptions to the filing of &eclaration of Intention 2 'ersons born in the 'hilippines and who have received their primary and secondary education in public schools or private schools recogni.ed by the government and not limited to any race or nationality (hose who have resided continuously in the 'hilippines for a period of thirty years or more before filing their application (he widow and minor children of an alien who declared his intention to become a citi.en of the 'hilippines and dies before he is actually naturali.ed #. (he petition for naturali.ation must then be filed $. After publication in the official ga.ette or newspaper of general publication the petition will be heard ). If the petition is approved there will be a rehearing two years after the promulgation of the judgment awarding naturali.ation 7. (aking of the oath of allegiance to support and defend the constitution and the laws of the 'hilippines (Coquia) 8A(E- (he law provides for e%emptions to the filing of declaration of intention. (hey are the following3!4 'ersons born in the 'hilippines and who have received their primary and secondary education in public schools or private schools recogni.ed by the <overnment and not limited to any race or nationality"

24

3#4 (hose who have resided continuously in the 'hilippines for a period of thirty years or more before filing their application" 3$4 (he widow and minor children of an alien who declared his intention to become a citi.en of the 'hilippines and dies before he is actually naturali.ed. E""ect o" NaturaliBation on Wi"e and C ildren I O # CLORIBEL # SCRA %1% FACTS 0 'rivate respondent 5hua 're Luan a 5hinese mother and her minor children cam here in the 'hil. and were admitted as temporary visitors with an initial authori.ed stay of three months. Meanwhile her husband and the father of these aliens had applied for naturali.ation. After the e%piration of their temporary stay respondents petitioned for an indefinite e%tension stay however these was opposed by the petitioner 5ommissioner of Immigration. 1owever they are given a two year e%tension. An the specified date of the e%piration of such e%tension respondent did not leave the country but instead filed for mandamus with injunction to implement the e%tension previously authori.ed by the Sec. of @oreign Affairs on the ground that the eventual conversion into naturali.ed @ilipino of her husband will also automatically make her a @ilipino citi.en. (he Immigration 5ommissioner in his answer alleged that even if her husband will become a @ilipino citi.en she would not automatically become a @ilipino citi.en as she has yet to show that she can be lawfully naturali.ed. ISSUE$ELD9hether or not the eventual conversion of respondent;s husband would also automatically make her a @ilipino citi.en= 8o an alien woman married to a naturali.ed @ilipino citi.en does not automatically make her a @ilipino citi.en since she must first prove that she possess all the 6ualifications and none of the dis6ualifications of naturali.ation. 0y having misrepresented before 'hil. consular and administrative authorities that she came to the country for only a temporary visit when in fact her intention was to stay permanently and for having intentionally delayed court processes prolong her stay respondent demonstrated her incapacity to satisfy the 6ualifications for naturali.ation that she must be of good moral character and must have conducted herself in a proper and irreproachable manner during her entire stay in the 'hil. As to foreign/born minor children they are e%tended citi.enship +if dwelling in the 'hil. at the time of the naturali.ation of their parent., &welling means +lawful residence., In the case at bar since their stay in the country was already e%pired it cannot be said that they lawfully dwells herein the 'hil. 1ence citi.enship cannot be e%tended to them.

MO% %A LIM %AO # COMMISSONER OF IM#E 41 SCRA #9# FACTS 0 'etitioner 5hinese citi.en came to the 'hil. and contracted a marriage with Edilberto Lim a @ilipino citi.en. 'etitioner was allowed only to enter and stay in the 'hil. until @eb. !$ !DC# a month after she got married to a @ilipino citi.en 3:an. #7 !DC#4. After the e%piration of her authority to stay in the '.I. the respondent ordered her to leave and causing her arrest and deportation upon her failure to do so on the ground that +mere marriage of a @ilipino citi.en to an alien woman does not automatically confer on the latter 'hil. citi.enship., (he alien wife must first posses all the 6ualifications re6uired by law to become a @ilipino citi.en by naturali.ation and none of the dis6ualifications. (hat is she must first present proof in the naturali.ation proceedings that she is not dis6ualified and that she possessed all the 6ualifications provided by law. ISSUE 0 9hether or not mere marriage of an alien woman to a @ilipino citi.en automatically confer to the alien woman a @ilipino citi.enship.

25

$ELD

0 An alien woman marrying a @ilipino native/born 3or naturali.ed4 becomes ipso facto a @ilipino provided she is not dis6ualified to be a citi.en of the 'hil. under Sec. ) Ipso facto means that it is no longer necessary for her to prove that she possessed the re6uisite 6ualifications in a naturali.ation proceedings. Likewise an alien woman married to an alien who is subse6uently naturali.ed her follows the 'hil. citi.enship of her naturali.ed husband provided she possesses none of the dis6ualifications provided by law.3Sec.)4 (hese decisions in effect ruled that it is not necessary for an alien citi.en to prove in a judicial proceeding that she posses all the 6ualifications set forth in Sec. # and none of the dis6ualifications under Sec.).

5. Loss of 5iti.enship @ilipino citi.en may lose his citi.enship in any of the following ways 3'ursuant to 5ommonwealth Act 8o. C$ as amended by *epublic Act 8o !EC4 by 2 !. 8aturali.ation in foreign countries #. E%press renunciation of citi.enship $. Subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining #! years old or more- 2ro4ided, -o3e4er, that a @ilipino may not divest himself of 'hilippine citi.enship in any manner while the *epublic of the 'hilippines is at war with any country" ). *endering service to or accepting commission in the armed forces of a foreign country7. 5ancellation of the 5ertificate of 8aturali.ation" C. 1aving been declared by competent authority a deserter of the 'hilippine armed forces in time of war unless subse6uently a plenary pardon of amnesty has been granted and" F. In the case of a woman upon her marriage to a foreigner if by virtue of the laws in force of her husband;s country she ac6uires his nationality

FRI ALDO # COMELEC 1&4 SCRA #4 FACTS 0 'etitioner @rivaldo was proclaimed as governor of the province of Sorsogon and subse6uently assumed office. 1owever his election was opposed by private respondent on the ground that @rivaldo was not a @ilipino citi.en having been naturali.ed in the ?S in !DH$ and that he failed to repatriate himself after his naturali.ation in the ?S. (hus being an alien he was dis6ualified to hold any public office in the 'hil. and his election did not cure the defect. 'etitioner admitted the allegation but pleaded a special defense that he has sough American citi.enship only to protect himself against 'res. Marcos that his naturali.ation was not impressed with voluntariness but was merely force as a means of survival against the unrelenting persecution by the Martial Law &ictator;s agents abroad and by actively participating in the election he automatically forfeits his American citi.enship. ISSUE 0 9hether or not by actively participating in the election petitioner can automatically forfeit his American citi.enship and automatically restore his 'hil. 5iti.enship. 0 8o. (here filing of certificate of candidacy does automatically restore his 'hil. citi.enship. And even if petitioner loss his naturali.ed American citi.enship it will not and could not have the effect of automatic restoration of his 'hil. citi.enship. *eparation re6uires an e%press and une6uivocal act. If he really wanted to disavow his American citi.enship and reac6uire 'hil. citi.enship the petitioner should have done so in accordance with the laws of our country. (hat is by!4 8aturali.ation #4 &irect act of 5ongress $4 *epatriation 'hil. citi.enship previously disowned is not that cheaply recovered.

$ELD

26

FRI ALDO # COMELEC # & SCRA &#& FACTS 0 @rivaldo obtained the highest number of votes in $ successive elections but was twice declared by the Supreme 5ourt to be dis6ualified to hold office due to his alien citi.enship. 1e now claims to have re/assumed his lost 'hil citi.enship thru repatriation. It was established that he took his oath of allegiance under the provisions of '& F#7 on :une $E !DD7 much later than the time he filed his 5ert. of 5andidacy. ISSUE $ELD 0 9hether or not @rivaldo reac6uired his 'hil citi.enship thru repatriation 0 >es. ?nder 'hil. law citi.enship may be reac6uired by direct act of 5ongress by naturali.ation or repatriation. (he law does not specify any particular date or time when the candidate must possess citi.enship unlike that for residence and age. (he S5 holds that the repatriation of @rivaldo retroacted to the date of the filing of his application on August !F !DD). 0eing a former @ilipino he deserves a liberal interpretation of 'hil. Laws and whatever defects there were in his nationality should be deemed mooted by his repatriation.

LABOE JR# # COMELEC 1&% SCRA 1 FACTS 0 'etitioner Labo :r. was elected as mayor of 0aguio. 1owever his election was opposed by respondent Lardi.abal on the ground that petitioner was not a citi.en of the 'hil. based on the administrative decisions rendered by the 5ommission of Immigration and &eportation stating that petitioner was not a citi.en of the 'hil. since it was contained in the official statement of Australian citi.en by reason of his naturali.ation. 'etitioner did not deny and admitted the allegations that he was indeed naturali.ed in Australia however he contended that since his Australian citi.enship has already been annulled he has been therefore automatically reac6uired and reinstated as a citi.en of the 'hil. ISSUE $ELD 0 9hether or not petitioner automatically reac6uired his 'hil. 5iti.enship on the ground that his Australian citi.enship has already been annulled= 0 8o the annulment of petitioner;s Australian citi.enship did not automatically restore his 'hil. citi.enship. Lost 'hil. citi.enship may be reac6uired only through!4 &irect act of congress #4 8aturali.ation or $4 *epatriation It does not appear however that petitioner has reac6uired his 'hil. citi.enship by any of these methods.

A3NAR # COMELEC 1+ SCRA &.$ FACTS 0 Lito AsmeLa filed his candidacy with the 5AMELE5 for the position of provincial governor of 5ebu however his candidacy was opposed by petitioner A.nar on the ground that his is allegedly not a @ilipino citi.en being a citi.en of ?SA considering that AsmeLa was issued alien certificate of registration and was given clearance and permit to re/enter the 'hil. by the 5ommission on Immigration and &eportation. 0ecause of these petitioner assumed that private

27

respondent is an American and being an American private respondent must have taken and sworn to the Aath of Allegiance re6uired by the ?S 8aturali.ation Laws. 'rivate respondent on the other hand maintains that he is a @ilipino citi.en alleging that he is the legitimate child of a @ilipino that he is a holder of a valid and subsisting 'hil. passport and that he had been continuously residing in the 'hil. since birth and has not gone out of the country for more than si% months and that he has been a registered voter in the 'hil. since !DC7. ISSUE 0 9hether or not by mere possessing Alien 5ertificate of *egistration automatically renders AsmeLa an American citi.enship and automatically renounces his @ilipino citi.enship. 0 8o considering the fact that admittedly AsmeLa was both a @ilipino and an American the mere fact that he has a 5ertificate stating he is an American does not mean that he is not still a @ilipino. 'rivate respondent remains a @ilipino and the loss of his 'hil. citi.enship cannot be presumed. 'etitioner must first present proof that AsmeLa had his @ilipino citi.enship by any of the modes provided for by law namely!4 0y naturali.ation in foreign country #4 0y e%press renunciation of citi.enship and $4 0y subscribing to an Aath of Allegiance to support the constitution or laws of a foreign country. 1ence the petitioner failed to present any of these direct proof AsmeLa remains a @ilipino citi.en.

$ELD

REPUBLIC # LI %AO #41 SCRA &4+ FACTS 0 *espondent Li>ao is a 5hinese national and was naturali.ed as a @ilipino citi.en in !D7# the Sol. <en. filed a petition to cancel Li >ao;s naturali.ation on the ground that prior to his naturali.ation he obtain unlawful acts which would dis6ualify for naturali.ation by maliciously evading the payment of his correct income ta%es for !D)C/!D7!. *espondent however alleged that he already settled his ta% liability under '&.7H which granted ta% amnesty and thereby rendered him free of any civil criminal or administrative liability. ISSUE $ELD 0 9hether or not ta% amnesty obliterates his lack of good moral character= 0 8o ta% amnesty does not have the effect of obliterating his lack of good moral character and irreproachable conduct which are grounds for denaturali.ation. 5oncealment of applicant;s income to evade payment of lawful ta%es shows that his moral character is not irreproachable

&. &ual allegiance and &ual 5iti.enship (hrough the application of the jus soli and jus sanguinis principles a child born of parents who are nationals of a country applying the principle of jus sanguinis in a country applying the jus soli principle has dual nationality. *E'?0LI5 A5( 8A. D#77 2 +Citi:)ns5i= R)t)ntion and R),acquisition Act o7 &GG;.K

28

S)ction &# Declaration o" Polic= * It is hereby declared the policy of the State that all 'hilippine citi.ens of another country shall be deemed not to have lost their 'hilippine citi.enship under the conditions of this Act. S)ction ;# Retention o" P ili!!ine CitiBens i! * Any provision of law to the contrary notwithstanding natural/born citi.enship by reason of their naturali.ation as citi.ens of a foreign country are hereby deemed to have re/ac6uired 'hilippine citi.enship upon taking the following oath of allegiance to the *epublic9: ;;;;;;;;;;;;;;;;;;;;;, solemny s3ear (or a00rim) t-at : 3ill su22ort and de0end t-e Constitution o0 t-e Re2ublic o0 t-e P-ili22ines and obey t-e la3s and legal orders 2romulgated by t-e duly constituted aut-orities o0 t-e P-ili22ines< and : -ereby declare t-at : recogni6e and acce2t t-e su2reme aut-ority o0 t-e P-ili22ines and 3ill maintain true 0ait- and allegiance t-ereto< and t-at : im2osed t-is obligation u2on mysel0 4oluntarily 3it-out mental reser4ation or 2ur2ose o0 e4asion"9 8atural born citi.ens of the 'hilippines who after the effectivity of this Act become citi.ens of a foreign country shall retain their 'hilippine citi.enship upon taking the aforesaid oath. S)ction ># Derivative CitiBens i! * (he unmarried child whether legitimate illegitimate or adopted below eighteen 3!H4 years of age of those who re/ac6uire 'hilippine citi.enship upon effectivity of this Act shall be deemed citi.enship of the 'hilippines. S)ction '# Civil and Political Rig ts and LiaCilities * (hose who retain or re/ac6uire 'hilippine citi.enship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under e%isting laws of the 'hilippines and the following conditions-

3!4 (hose intending to e%ercise their right of suffrage must Meet the re6uirements under Section ! Article B of the 5onstitution *epublic Act 8o. D!HD otherwise known as K(he Averseas Absentee Boting Act of #EE$K and other e%isting laws" 3#4 (hose seeking elective public in the 'hilippines shall meet the 6ualification for holding such public office as re6uired by the 5onstitution and e%isting laws and at the time of the filing of the certificate of candidacy make a personal and sworn renunciation of any and all foreign citi.enship before any public officer authori.ed to administer an oath" 3$4 (hose appointed to any public office shall subscribe and swear to an oath of allegiance to the *epublic of the 'hilippines and its duly constituted authorities prior to their assumption of office- Pro4ided (hat they renounce their oath of allegiance to the country where they took that oath" 3)4 (hose intending to practice their profession in the 'hilippines shall apply with the proper authority for a license or permit to engage in such practice" and 374 (hat right to vote or be elected or appointed to any public office in the 'hilippines cannot be e%ercised by or e%tended to those who3a4 are candidates for or are occupying any public office in the country of which they are naturali.ed citi.ens" andGor 3b4 are in active service as commissioned or non/commissioned officers in the armed forces of the country which they are naturali.ed citi.ens.

MERCADO 8s# MAN3ANO $.& SCRA %$. FACTS 0 Mercado and Man.ano were candidates for Bice Mayor of Makati 5ity. Man.ano won but his proclamation was suspended in view of a pending petition for dis6ualification filed by a certain Mamaril who allege that Ma.n.ano was not a @ilipino citi.en but an American citi.en. (he 5AMELE5 granted the petition and

29

ordered the cancellation of the certificate of candidacy of MAn.ano on the ground that he is a dual citi.en invoking Sec. )E of Local <ov;t. 5ode that person having dual citi.enship are dis6ualified from running for any elective position. ISSUE $ELD 0 9G8 private respondent is a dual citi.en= 0 8o. (he phrase +dual citi.enship, in *A F!CE Sec. )E refers to dual allegiance which differs persons with dual citi.enship hence does not fall under the dis6ualification. 0y filing a certificate of candidacy when he ran for his present post man.ano elected 'hil. 5iti.enship and in effect renounced his American citi.enship. (hus the filing of such certificate of candidacy sufficed to renounced his American citi.enship effectively removing the dis6ualification he might have as a dual citi.en.

E# PROBLEMS IN APPL%IN* T$E NATIONALIT% PRINCIPLE !. &ual or multiple citi.enship In matters of status he is usually considered by the forum as e%clusively his own national his additional foreign nationality is disregarded In case the litigation arises in a third country the law most consistently applied is at that of the country of which the person is not only a national but where he has his domicile or habitual residence or in the absence thereof his residence

In view of the rule set in the 1ague 5onvention on 5onflict of 8ational Laws each state determines who its own nationals are. Article 7 thereof provides Da t ird state s all6 o" t e nationalities < ic suc a !erson !ossesses6 recogniBed e/clusivel= in its territor= eit er t e nationalit= o" t e countr= o" < ic e is aCituall= and !rinci!all= resident6 or t e nationalit= o" t e count= <it < ic in t e circu+stances e a!!ears to Ce closel= connectedE " Any 6uestion as to whether or not a person possesses the nationality of a particular state shall be determined in accordance with the state;s internal law. 1ence it is possible that an individual can be claimed as a national of two or more states. Application of the jus soli and jus sanguinis 2 A child born of parents who are nationals of a country applying the principle of jus sanguinis in a country applying the jus soli has dual nationality. (hus- A @ilipino citi.en who marries an alien may ac6uire the citi.enship of his or her spouse if the spouse;s national law so allows. A @ilipino citi.en however who marries an alien shall retain 'hilippine citi.enship unless by his act or omission he is deemed under the law to have renounced it by taking an oath of allegiance to the spouse;s country or by e%press renunciation. Another instance of dual or multiple nationalities is the case of an individual who is naturali.ed citi.en of another state but has not effectively renounced his former nationality. In the determination of the rights of an individual who may claim multiple nationalities in the third state the International 5ourt of :ustice applied the principle of effective nationality.,

MULTIPLE CITI3ENS$IP ARISES DUE TO0 a. through a naturali.ed citi.en;s failure to comply with certain legal re6uirements in the country of origin b. from a combined application of jus soli and jus sanguinis principle c. by the legislative act of states d. by the voluntary act of individual concerned

O$ $E/ $OW # REPUBLIC #9 SCRA 94

30

FACTS 0 'etitioner a 5hinese national filed a petition for naturali.ation as a citi.en of the 'hils. 1e was allowed by the court to take oath of allegiance and subse6uently was issued a certificate for naturali.ation. 'ublic respondent opposed on the ground that petitioner has failed to secure from Minister of the Interior 8ationalist 5hina a permission re6uired by laws thereof for a valid renunciation of his 5hinese citi.enships. 'etitioner contends that said re6uirements is no longer necessary and that the naturali.ation of an alien as 'hil. 5iti.en is governed e%clusively by 'hil. Laws and not by any foreign law. ISSUE $ELD 0 9hether or not a permission from the petitioner;s country is necessary for a valid renunciation is re6uired for naturali.ation in the 'hil. 0 >es. Sec. !# of the 5A )F$ re6uires the petitioner to absolutely and forever renounce all allegiance to any foreign country particularly to the state of which he is a subject or a citi.en. (herefore an applicant cannot be naturali.ed as a citi.en of the 'hil. 9ithout first validly renouncing his former citi.enship. (he purpose is to divest him of his former nationality before ac6uiring 'hil. 5iti.enship because otherwise he would have two distinct sovereignties which our laws do not permit e%cept- a4 when a foreign country grants the same privilege to @ilipino citi.ens and bE such had been agredd upon by treaty between the 'hils. and that foreign state.

&# STATELESSNESS refers to an individual who has been stripped of his nationality by his own former government without having an opportunity to ac6uire another. Stateless persons are generally subject to the law of their domicile or habitual residence or in default thereof to the law of their temporary residence

STATELESSNESS ARISES DUE TO0 !. &eprivation of his citi.enship for any cause such as commission of a crime" #. *enunciation of one;s nationality by certain acts e%press or implied" $. Boluntary release from his original state" ). 1e may have been born in a country which recogni.es only the principle of jus sanguinis // or citi.enship by blood of parents whose law recogni.es only the principle of jus soli // citi.enship by birth in a certain place. (hus he is neither a citi.en of the country of his parents. 1owever the 1ague 5onference of !D#H on International 'rivate Law suggested that personal law of stateless individuals shall be the law of the domicile or the law of the place of temporary residence. 8A(E- (he 5onvention on the Adoption on the *eduction of Statelessness 3!DC!4 mandates that the jus sanguinis country grants its nationality to person born within its territory if he would be otherwise stateless and the jus soli country to e%tend its nationality to a person who would otherwise be considered stateless when any of his parents is a citi.en of the contracting state

/OO/OORITC$IN # SOLICITOR *ENERAL +1 P-il 4$ (194+) FACTS 0 'etitioner was born in *ussia and grew up as a citi.en of the defunct Empires of *ussia under the 5.ar government. After 99II he came to the 'hils. and resided here and married a @ilipina. 1e then petition for naturali.ation and the court granted his petition. (he Solicitor <eneral appealed contending that he is *ussian and not a stateless person because he failed to show that under the laws of *ussia he had lost his *ussian citi.enship. 'etitioner contends that he is a stateless person because the empire of *ussian had already ceased to e%ist since the 5.ar was overthrown by the 0olshevists and that he disclaims allegiance or connection with the Soviet <overnment.

31

ISSUE $ELD

0 9hether or not petitioner is a stateless person. 0 (he fact that the 5.ar;s government had been already overthrown and replaced by the 0olshevists to which he disclaims allegiance he is deemed to be a stateless person. Jnowing the history nature and character of the Soviet dictatorship which is presently the greatest menace to humanity and civili.ation it would be technically fastidious to re6uire further evidence of petitioners claims that he is a stateless person that his testimony that he owes no allegiance to the *ussian 5ommunist government and because he has been at war with it he fled from *ussia to permanently resided in the 'hils. after having established his life in the 'hil. marrying a @ilipina and joining the guerrillas during the :apanese *egime it would be fair that his petition for naturali.ation be granted.

-I# DOMICILE Municipal Law concept is stated in the 5ivil 5ode -

Article >@& @or the e%ercise of civil rights and the fulfillment of civil obligations the domicile of natural persons is the place of their habitual residence. 3)Ea4

@or juridical persons domicile is determined by the law creating or recogni.ing it.

A# DEFINITION Ane;s true fi%ed permanent home and principal establishment and to which whenever he is absent he has the intention of returning (o ac6uire a domicile there must be concurrence of intention to make it one;s domicile and physical presence while +residence, simply re6uires bodily presence of an inhabitant in a given place (Coquia) Distinctions 1)t<))n r)sid)nc) and do6ici9) !. *esidence is an act" while domicile is an act coupled with an intent" #. *esidence involves the intent to leave when the purpose for which he has taken up his abode ceases" while domicile has no such intent the abiding is animo manendi. Do6ici9iarA T5)orA Is the theory that in general the status condition rights obligations and capacity of a person should be governed by the law of his domicile (Paras) Do6ici9) 8s# Citi:)ns5i= or Nationa9itA &omicile speaks of one;s permanent place of abode in general- while citi.enship and nationality indicate ties of allegiance and loyalty. A person may be a citi.en or national of one state without being a domiciliary thereof" conversely one may possess his domicile in one state without necessarily being a citi.en or national thereof

CAASI %& COURT O2 APPEALS 191 SCRA ##9

32

FACTS 0 Merito Miguel 3respondent4 run for the position of municipal mayor in 0olinao 'angasinan to which he was elected. 1owever his election was opposed by the petitioners on the ground that he is a green card holder hence a permanent resident of the ?S not of 0olinao because on the back of the card it printed that +'erson identified by this card is entitled to reside permanently and work in the ?S. In his answer admitted that he hold a green card but he denied that he is a permanent resident of the ?S. 1e alleged that he obtained the green card only for convenience in order that he may freely enter the ?S for his periodic medical e%amination and to visit his children there. 1e alleged that he is a permanent resident of 0olinao that he voted in all elections including the plebiscite for the ratification of the !DHF 5onstitution. After hearing the 5AMELE5 ruled that the possession of a green card by Miguel does not sufficiently establish that he has abandoned his residence in the 'hil. because in spite of his green card respondent has sufficiently indicated his intention to continuously reside in 0olinao as shown by his having voted in all previous elections. It is also averred that the act of filing of certificate of candidacy constitutes a waiver of status as a permanent residentGimmigrant in the ?S. ISSUE 0 !. 9hether or not possession of Miguel of a green card constitutes an abandonment of his domicile and residence in the 'hil. #. 9hether or not mere filing of certificate of candidacy constitutes a waiver of status as a permanent resident in the ?S. 0 !. >es Miguel;s immigration to the ?S constitutes an abandonment of his domicile and residence in the 'hil. for he did not go to ?S merely to visit his children but with the intention to live there permanently as evidence by his application for an immigrant;s visa. 0ase on that application he was issued by the ?S govt. the re6uisite green card or authority to reside there permanently. #. 8o. 1is act of filing a 5A5 did not constitute a waiver of his status as a permanent resident or immigrant in the ?S. (he waiver of his green card should be manifested by some act or acts independent of and done prior to the filing of his candidacy and without such prior waiver he is dis6ualified to run for any elective office.

$ELD

$ARCIA 2ULE %& COURT O2 APPEALS '"R" )*4. .#, (o4ember #9, 19&% FACTS 0 'etitioner Birginia @ule filed with the 5@I of Laguna a petition for letters of administration alleging inter alia that Amado <arcia a property owner of 5alamba Laguna died intestate in Manila leaving real estate and personal properties in 5alamba Laguna. 'rivate respondent 'reciosa <arcia assailed the petition for failure to satisfy the jurisdictional re6uirement and improper laying of venue. She contended that the 6uoted statement avers no domicile or residence of the deceased Amado <arcia. An the contrary 'reciosa <arcia claims that as appearing in his death certificate presented by Birginia @ule herself before the 5alamba court and in other papers the last residence of Amado <arcia was at !! 5armel 5armel Subd. Mue.on 5ity. 'arentically in her amended petition Birginia @ule categorically alleged that Amado <. <arcia was residing in 5alamba Laguna at the time of his death and that he was a delegate to the !DF! 5onstitutional 5onvention for the first district of Laguna. ISSUE 0 !. 9hether or not the deceased;s last place of residence was at 5alamba Laguna. #. 9hat does the term +resides, mean= &oes it refer to the actual residence or domicile of the decedent at the time of his death= 0 !. 8o. (he S5 ruled that the last place of residence of the deceased Amado <. <arcia was at !! 5armel Avenue 5armel Subdivision Mue.on 5ity and not at 5alamba Laguna. A death certificate is admissible to prove the residence

$ELD

33

of the decedent at the time of his death. !# As it is the death certificate of Amado <. <arcia which was presented in evidence by Birginia <. @ule herself and also by 'reciosa 0. <arcia shows that his last place of residence was at !! 5armel Avenue 5armel Subdivision Mue.on 5ity. #. (his term Kresides K like the terms KresidingK and Kresidence K should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. Even where the statute uses the word KdomicileK still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms KresidenceK and KdomicileK but as generally used in statutes fi%ing venue the terms are synonymous and convey the same meaning as the term Kinhabitant.K In other words KresidesK should be viewed or understood in its popular sense meaning the personal actual or physical habitation of a person actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense the term means merely residence that is personal residence not legal residence or domicile. *esidence simply re6uires bodily presence as an in-abitant in a given place while domicile re6uires bodily presence in that place and also an intention to make it oneNs domicile. 8o particular length of time of residence is re6uired though" however the residence must be more than temporary.

SALUDO6 JR& %& A#ERICAN E0PRESS '"R" (o" 1 9 .&, A2ril 19, #..% FACTS 0 Aniceto <. Saludo :r. filed a complaint for damages against the American E%press International Inc. 3AMEO4 andGor its officers alleging inter alia that plaintiff Kis a @ilipino citi.en of legal age and a member of the 1ouse of *epresentatives and a resident of Ichon Macrohon Southern Leyte 'hilippines.K (he complaintNs cause of action stemmed from the alleged wrongful dishonor of petitioner SaludoNs AMEO credit card and the supplementary card issued to his daughter. *espondents raised the affirmative defenses that the complaint should be dismissed on the ground that venue was improperly laid because none of the parties was a resident of Leyte. Moreover notwithstanding the claim in his complaint petitioner Saludo was not allegedly a resident thereof as evidenced by the fact that his community ta% certificate which was presented when he e%ecuted the complaintNs verification and certification of non/forum shopping was issued at 'asay 5ity. (o buttress their contention respondents pointed out that petitioner SaludoNs complaint was prepared in 'asay 5ity and signed by a lawyer of the said city. *espondents prayed for the dismissal of the complaint a 6uo. Saludo asserted that such allegations was baseless and unfounded considering that he was the congressman of the lone district thereof at the time of the filing of his complaint. (he court a 6uo denied the affirmative defenses interposed by respondents stating in its order that the plaintiff at the time he filed the complaint was and still is the incumbent 5ongressman of the Lone &istrict of Southern Leyte with residence at Ichon Macrohon Southern Leyte is enough to dispell any and all doubts about his actual residence. As such his personal actual and physical habitation or his actual residence or place of abode can never be in some other place but in Ichon Macrohon Southern Leyte. *espondents sought the reconsideration thereof but the court a 6uo denied the same. (hey then filed with the appellate court a petition for certiorari and prohibition which the appellate court granted the said petition. 'etitioner Saludo sought the reconsideration of the said decision but the appellate court denied his motion for reconsideration. 1ence this petition for review. ISSUE $ELD 0 9hether petitioner Saludo was a resident of Southern Leyte at the time of filing of the complaint. 0 >es. Since petitioner Saludo as congressman or the lone representative of the district of Southern Leyte had his residence 3or domicile4 therein as the term is construed in relation to election laws necessarily he is also deemed to have had his residence therein for purposes of venue for filing personal actions. (his is

34

because Kresidence is not domicile but domicile is residence coupled with the intention to remain for an unlimited time. In the instant case since plaintiff has a house in Makati 5ity for the purpose of e%ercising his profession or doing business and also a house in Ichon Macrohon Southern Leyte for doing business andGor for election or political purposes where he also lives or stays physically personally and actually then he can have residences in these two places. 0ecause it would then be preposterous to acknowledge and recogni.e plaintiff Aniceto <. Saludo :r. as congressman of Southern Leyte without also recogni.ing him as actually personally and physically residing thereat when such residence is re6uired by law. (he fact then that petitioner SaludoNs community ta% certificate was issued at 'asay 5ity is of no moment because granting arguendo that he could be considered a resident therein the same does not preclude his having a residence in Southern Leyte for purposes of venue. A man can have but one domicile for one and the same purpose at any time but he may have numerous places of residence. It is likewise undeniable that the term domicile is not e%actly synonymous in legal contemplation with the term residence for it is an established principle in 5onflict of Laws that domicile refers to the relatively more permanent abode of a person while residence applies to a temporary stay of a person in a given place.

U5TEN$SU vs& REPU)LIC 9 P-il +9. (19 4) FACTS 0 'etitioner 9ilfred ?ytengsu was born in the 'hil. of 5hinese parents. 1e began his studies here from primary school to college. 1e filed an application for naturali.ation but after the filing he immediately left the 'hil. for the ?S not returning until several months after the first date set for the hearing of his application. Subse6uently the 5@I of 5ebu granted his application for naturali.ation.

(he republic appealed on the ground that petitioner failed to meet the residency re6uirements laid down by law for naturali.ation that he will reside continuously in the 'hil from the date of the filing of the petition up to the time of his admission to 'hil. citi.enship. 'etitioner contends that the word residence laid down by law is synonymous with domicile which one ac6uired is not lost by physical absence until another domicile is obtained and that he continued to be domiciled in and hence a resident of the 'hil. his purpose in staying in the ?S at the time was merely to study therein. ISSUE $ELD 0 9hether or not for purposes of that law residence is synonymous with domicile. 0 8o. for purposes of naturali.ation law residence re6uires physical presence in that place for a longer or shorter period of time. *esidence is used to indicate the place of abode whether permanent or temporary while domicile denotes a fi%ed permanent residence to which when absent on has the intention of returning. *esidence is not domicile by domicile is residence coupled with intention to remain for an unlimited time. 1ence absence during period intervening between the filing of application and hearing is an obstacle to petitioner;s naturali.ation.

B# MERITS AND DEMERITS OF DOMICILE MERITS ?

35

!. In cases where the individual who belongs to a country following the domiciliary theory is involved in a case before the 'hilippine courts his personal status capacity condition and family rights will be governed by the law of his domicile" #. In cases of stateless persons who may claim dual or multiple nationality in which case the court will have to refer to their domicile" $. 9hen an alien domiciled in the 'hilippines e%ecutes a will abroad DEMERITS ? !. Ane;s domicile is not ascertainable without first resorting to the courts to establish whether or not there is animo manendi #. (he notion of domicile differs widely with some states distinguishing between residence and domicile or attributing different meanings of domicile for different purposes" $. If the law of the domicile of origin is given utmost significance then it will give rise to the same problem as in nationality ). In cases where the individual who belongs to a country following the C# *ENERAL RULES ON DOMICILE !. 8o person shall be without a domicile" #. A person cannot have two simultaneous domicile since the very purpose for identifying one;s domicile is to establish a connection between the person and a definite legal system" $. &omicile establishes a connection between a person and a particular territorial unit. ). Ance ac6uired it remains the domicile unless a new one is obtaineda. by capacitated persons b. with freedom of choice c. with actual physical presence d. and provable intent that it should be one;s fi%ed and permanent place of abode there should be animus manendi 3intent to remain4 or animus nonrevertendi 3intent not to remain4 7. (he presumption is in favor of the continuance of domicile. (he burden of proving a change of domicile is upon whoever alleges that a change has been secured.

RO#UALDE*3#ARCOS %& CO#ELEC #4+ SCRA $.. FACTS 0 'etitioner Imelda Marcos filed her certificate of candidacy 35A54 for the position of *epresentative of the @irst &istrict of Leyte. She stated in the 5A5 that she is a resident of the place for seven months. 'rivate respondent Montejo subse6uently filed a 'etition for 5ancellation and &is6ualification on the ground that Imelda failed to meet the constitutional re6uirement of one/year residency. 5AMELE5 granted the 'etition for &is6ualification holding that Imelda is deemed to have abandoned (acloban 5ity as her place of domicile when she lived and even voted in Ilocos and Manila. ISSUE $ELD 0 9hether or not Imelda is deemed to have abandoned her domicile of origin 0 An individual does not lose his domicile even if he has lived and maintained residence in different places. *esidence implies a factual relationship to a given place for various purposes. (he absence from legal residence or domicile to pursue a profession to study or to do other things of a temporary or semi/ permanent nature does not constitute loss of residence. (hus the assertion that +she could not have been a resident of (acloban 5ity since childhood up to the time she filed her certificate of candidacy because she became a resident of many places, flies in the face of settled jurisprudence in which this 5ourt carefully made distinctions between 3actual4 residence and domicile for election purposes.

36

UJANO %& REPU)LIC 1& SCRA 14& FACTS 0 'etitioner ?jano was born of @ilipino parent in Ilocos Sur. 1e left the 'hil. for the ?S from which he ac6uired American citi.enship by naturali.ation and resided there for #E years. 1e returned to the 'hil. and was admitted for a temporary stay. 1e filed a petition to reac6uire his 'hil. citi.enship intending to renounce his allegiance to the ?S. 1owever his petition was denied by the court on the ground that he did not have the residence re6uired by law which is si% months before he filed his petition for reac6uisition of the 'hil. citi.enship. ISSUE $ELD 0 9hether or not petitioner;s domicile is re6uired to reac6uire his citi.enship. 0 >es. Ane of the 6ualifications for reac6uiring 'hil. citi.enship is that the applicant shall have resided in the 'hils. at least si% months before he applies for reac6uisition. *esidence here has already been interpreted to mean the actual or constructive permanent home otherwise known as domicile. A place in a country where he lives and stays permanently and to which he intends to return after temporary absence no matter how long. So an alien who has been admitted as a temporary visitor cannot be said to have established his domicile here because the period of his stay her is only temporary and must leave when the purpose of his coming is accomplished.

D# /INDS OF DOMICILE !. &omicile of origin refers to a person;s domicile at birth. #. &omicile of choice which is also called voluntary domicile is the place freely chosen by a person sui juris. $. 5onstructive domicile or domicile by operation of law / that which is assigned to a person after birth on account of legal disability caused for instance by minority insanity or marriage in the case of a woman

NOTE0 (he forum determines domicile according to his own standards

%ELILLA %& POSADAS %# P-il %#4 (19$ ) FACTS 0 Arthur Moody was on American citi.en who came here in the 'hil. and domiciled therein. Moody died in India but before his death he e%ecuted a will be6ueathing all his properties consisting mainly of bands and shares of stocks of corporations organi.ed under 'hil. law in favor of his only sister who was then a citi.en and resident of ?S. (he 0I* imposed an inheritance ta% over those properties inherited by Moody;s sister. 'etitioner as administrator was a non/resident of the 'hils. and the levy and imposition of inheritance ta% over the properties of Moody constitutes a deprivation of property without due process of law. ISSUE $ELD 0 9hether or not Moody was legally domiciled in the 'hil. at the time of his death. 0 >es. (here;s nothing on record which would appear that he adopted a new domicile while he was absent from Manila.

37

(o effect the abandonment of one;s domicile there must be a deliberate and provable choice of new domicile coupled with actual residence in the place chosen with a provable intent that it should be one;s fi%ed and permanent place of abode. CARA)ALLO %& REPU)LIC 4 SCRA 1. FACTS 0 *icardo 5araballo petitioner an American citi.en who lives in 5lark @ield 'ampanga by reason of his enlistment in the ?S air @orce together with his wife to adopt a minor @ilipino child. 1owever this was apposed by the respondent on the ground that the petitioner is a non/resident/alien because being enlisted as a staff seargent in the ?S Airforce his stay in the 'hils.is merely temporary. ISSUE $ELD 0 9hether or not petitioner is a non/resident alien. 0 >es petitioner is a non/resident alien thus dis6ualified to adopt. @or purpose of adoption person is deemed to be a resident of a place in a country where he has abode and lives there permanently. It is a place chosen by him freely and voluntarily although he may later on change his mind and live elsewhere. A place in a country or stat where he lives and stays permanently and to which he intends to return after a temporary absence no matter how long is his domicile.

$O C'EN AND $O LE( %& COLLECTOR O2 CUSTO#S % P-il . FACTS 0 'etitioners were minor children of <o (uan and (an 0on. After <o (uan;s death (an 0on married another 5hinese. Shortly thereafter she came to the 'hilippines with her second husband. She was admitted as the wife of a 5hinese merchant and has been residing in the 'hil. @or H years. 'etitioners remained in china until (an bon who is engaged in furniture business in 5ebu asked them to join her in the 'hil. (hereafter Lek and 5hen arrived in 5ebu and took up their abode with their stepmother and brother. ISSUE 0 9hether or not (an 0on is entitled to bring her minor children by her first marriage to the 'hil.

$ELD

0 8o. A man;s domicile is also a domicile of his wife and minor children and that he is duty bound to protect support and keep them in his company. A 5hinaman;s chinese wife and her minor children then do not enter the 'hil through their own right but by virtue of the right of the husband or father unless the 5hinese wife belongs to the privileged class. (an 0on who seeks to bring in her minor children did not enter the 'hils. by her own right but by virtue of her second husband;s right thus she is not entitled to bring in her minor children by another chinaman who never had a legal residence in the archipelago.

DE LA %INA %& %ILLAREAL AND $ALANO 41 P-il 1$ (19#.) FACTS 0 8arcisa <eopano filed a complaint in the 5ourt of @irst Instance of the 'rovince of Iloilo against &iego de la BiLa alleging (hat she was a resident of the municipality of Iloilo and that the defendant was a resident of 8egros Ariental" that she was the legitimate wife of the defendant having been married to him in 8egros oriental that defendant had been committing acts of adultery with one Ana 5alog sustaining illicit relations with her and having her as his concubine

38

and that the defendant ejected the plaintiff from the conjugal home for which reason she was obliged to live in the city of Iloilo where she had since established her habitual residence. ?pon the said allegations she prayed for a decree of divorce partition of the conjugal property and alimony. &ela Bina filed a petition for certiorari on the ground that 5@I Iloilo had no jurisdiction to take cogni.ance of the said action for divorce because the defendant was a resident of 8egros oriental and the plaintiff as his wife must also be considered a resident of the same province because under the law the domicile of the husband is also the domicile of the wife. &e la Bina asserted that the plaintiff <eopano could not ac6uire a residence in Iloilo before their marriage was legally dissolved. ISSUE 0 9hether or not <eopano cannot ac6uire a residence in Iloilo before their marriage was legally dissolved. 0 8o. It is true that the domicile of the wife follows that of her husband. 1owever there are e%ceptions namely!. (he wife may ac6uire another and separate domicile from that of her husband where the theoretical duty of the husband and wife is dissolved" or #. 9here the husband has given due course for divorce" or $. 9here there is a separation of the parties by agreement or a permanent separation due to desertion of the wife by the husband or attributable to cruel treatment on the part of the husband" or ). 9here there has been forfeiture by the wife of the benefit of the husband;s domicile. In the case at bar defendant;s case comes under one of the e%ceptions. (herefore 8arcisa may ac6uire a residence or domicile separate to that of her husband during the e%istence of the marriage where her husband de La Bina has given course for divorce.

$ELD

-#

PRINCIPLES ON PERSONAL STATUS AND CAPACIT% A# DEFINITION STATUS Status is the place of an individual in a society and consists of personal 6ualities and relationships more or less permanent with which the state and the community are concerned 'ersonal status is the general term that includes both condition and capacity and more specifically embraces such matters as the beginning and end of human personality capacity to have rights in general capacity to engage in legal transactions protection of personal interests family relations particularly the relations between husband and wife parent and child guardian and ward also transactions of family law especially marriage divorce separation adoption legitimation and emancipation and finally succession both testate and intestate.

39

C$ARACTERISTICS OF STATUS !. Status is conferred principally by the state not by the individual" #. Status is a matter or public or social interest $. Status being a concept of social order cannot easily be terminated at the mere will of desire of the parties concerned" ). Status is generally supposed to have a universal character when a certain status is created by law of one country it is generally judicially recogni.ed all over the world CAPACIT% 5apacity more often referred as :uridical capacity is the fitness of a man to be the subject of legal relations while capacity to act is the power to do acts with juridical effects.

RECTO %& 'ARDEN 1.. P-il 4#& FACTS 0 Appelant Esperan.a 1arden engaged the professional service of Appealee *ecto in an action against her husband @red 1arden for divorce whereby it was agreed that Mrs. 1arden shall pay *ecto #EP of the vale of her share in the conjugal partnership after li6uidation. 'ending litigation several instruments were e%ecuted by Mr. 1arden and Mrs. 1arden mutually releasing and forever discharging each other from all actions debts and claims to the conjugal partnership. Subse6uently *ecto filed a manifestation in court that the purpose of said instrument was to defeat his claim of Attorney;s fees and praying that he be payed of Attorney;s fess. 5ounsel fro both spouses moved for the dismissal of the case on the ground that the agreement between *ecto and Mrs. 1arden could not bind the conjugal partnership because it was made without her husband;s consent and that the said contract has for its purpose to secure a decree of divorce in violation of the Art. !$E7 !$7# !)ED of the 5ivil 5ode. ISSUES 0 !. 9hether or not the agreement between *ecto and Mrs. 1arden binds the conjugal partnership. #. 9hether or not the said contract which is allegedly void shall be governed by Art. !$E7 !$7# !)ED of the 5ivil 5ode= $ELD 0 !. 8o. (he wife merely bound herself and assumed the persona obligation. (he contract neither gives any right to her lawyer whatsoever personal or real in and to her aforesaid #. 8o. Inasmuch as both spouses were citi.ens of ?SA their status and the dissolution thereof shall be governed by Art. !7 of the 5ivil 5ode that is by their nat;l law by the laws of ?SA which sanction divorce. In short the contract between *ecto and Mrs. 1arden are not contrary to law morals good customs public order or public policy.

0. Legislative jurisdiction v. judicial jurisdiction Judicial Jurisdiction is the power or authority of a court or administrative tribunal to try a case render judgment and e%ecute it in accordance with law while Legislative Jurisdiction which is the power of the state to promulgate laws and regulations and enforce them on all persons and property within its territory (Coquia)

)ARNUE%O %& 2USTER #9 P-il %.% FACTS 0 <abriel @uster and 5onstan.a >aLe. were joined in a 5atholic or canonical marriage in the city of Malaga Spain.An April !HDD they made an agreement in a public document by which they Kresolved to separate and live apart. (hen 5onstan.a commenced divorce proceedings against her husband alleging his adultery. She prayed that she be granted a divorce that the conjugal society be li6uidated that her share be adjudicated to her and payment of support be

40

ordered. (he court then decreed the suspension of life in common between plaintiff and defendant ordered payment of support and directed plaintiff and defendant that the communal property be divided. 0oth parties appealed in which both appeals have one common issue relating to the alleged dowry brought into the marriage by the wife in the amount of $E EEE spanish dollars in which 5onstan.a as paraphernal. ISSUE $ELD 0 9G8 'hil courts may take cogni.ance of the case to decree the divorce on appeal. 0 >es. In the present action for divorce the 5ourt of @irst Instance Manila did not lack jurisdiction over the persons of the litigants for although Spanish 5atholic subjects they were residents of this city and had their domicile herein. @oreign 5atholics domiciled in Spain subject to the ecclesiastical courts in actions for divorce according to the said article HE of the 5ivil 5ode could not allege lack of jurisdiction by invoking as the law of their personal statute a law of their nation which gives jurisdiction in such a case to territorial courts or to a certain court within or without the territory of their nation. (he 5ourts of @irst Instance of the 'hilippine Islands have the power and jurisdiction to try actions for divorce and have the authority to decide on 6uestions concerning foreigners; status by applying their national law.

2ACTUAL SITUATION 0eginning of personality of natural persons 9ays and effect of emancipation Age of majority ?se of names and surnames ?se of titles of nobility Absence 'resumptions of death and survivorship

POINT O2 CONTACT 8ational Law of the 5hild 3Art. !7 of the 5ivil 5ode4 8ational Law 3Art. !7 of the 554 8ational Law 3Art. !7 8ational Law 3Art. !7 8ational Law 3Art. !7 8ational Law 3Art. !7 Le% fori 3Arts. )$ $DE $D! 55" *ule !$! Sec. 7 3jj4 *ules of 5ourt

C# BE*INNIN* AND END OF PERSONALIT% (he determination of the e%act moment personality begins is referred to the individual;s personal law. Articles )E and )! of our 5ivil 5ode give our internal rules on the beginning of human personality. Artic9) >G# 0irth determines personality" but the conceived child shall be considered born for all purposes that are favorable to it provided it be born later with the conditions specified in the following article. 3#Da4

Artic9) >(# @or civil purposes the foetus is considered born if it is alive at the time it is completely delivered from the motherNs womb. 1owever if the foetus had an intra/uterine life of less than seven months it is not deemed born if it dies within twenty/four hours after its complete delivery from the maternal womb. 3$Ea4 As civil personality is commenced at birth it is e%tinguished by death. ?nder the principle of personal law a declaration of death issued by a competent court is considered valid for all purposes. ?pon the death of a person some of his rights and obligations are totally e%tinguished while others are passed on to his successors.

D# ABSENCE

41

(he domestic law of different countries do not treat absentees alike and this has given rise to difficult problems in conflict of laws. (here are three suggested ways of dealing with the problem- first there is a rebuttable presumption that a person is dead when he has been absent for a number of years" second a person;s une%plained absence is judicially investigated and established which results in legal effects similar to those of death" and third a judicial decree shall have to be issued declaring the person dead before legal effects of death take place. 'hilippine laws follow the rebuttable presumption of the common law. Aur 5ivil 5ode statesArtic9) ;IG# After an absence of seven years it being unknown whether or not the absentee still lives he shall be presumed dead for all purposes e%cept for those of succession. (he absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy/five years an absence of five years shall be sufficient in order that his succession may be opened. 3n4 Artic9) ;I(# (he following shall be presumed dead for all purposes including the division of the estate among the heirs3!4 A person on board a vessel lost during a sea voyage or an aeroplane which is missing who has not been heard of for four years since the loss of the vessel or aeroplane" 3#4 A person in the armed forces who has taken part in war and has been missing for four years" 3$4 A person who has been in danger of death under other circumstances and his e%istence has not been known for four years. 3n4

1owever for specific purposes our laws re6uire that a declaration of death be issued before certain legal effects of death arise. @or instance article )! of the @amily 5ode re6uires that for the purpose of contracting a subse6uent marriage the spouse presnt must first institute a summary proceeding for the declaration of presumptive death of the absentee spouse without which the subse6uent marriage is void ab initio. E# NAME (he law e%pressly states that +no person can change his name or surname without judicial authority., 5ase law shows the courts have allowed petitions on grounds that the name !4 is ridiculous or tainted with dishonour or e%tremely difficult to pronounce" or #4 when the change is necessary to avoid confusion" $4 when the right to a new name is a conse6uence of a change in status" )4 a sincere desire to adopt a @ilipino name to erase signs of a former alien nationality which unduly hamper social and business life.

F# A*E OF MAJORIT% (he legal disability attached to minority and rights recogni.ed upn attainment of the age of majority are aspects of personal status. It is the individual;s personal law which determines whether he has reached the age of majority. Ance emancipated parental authority over the person and property of the child is terminated and he is 6ualified and responsible all acts of civil life save the e%ceptions established by e%isting laws in special cases such as the parent;s continued observance of their responsibilities under article )C of '.&. CE$. Likewise although *epublic Act 8o. CHED lowered the age of majority to !H years from #! years it e%pressly stated that parental consent for contracting marriage is re6uired until the age of twenty/one. *# CAPACIT% A person;s ability to act with legal effects is governed by his personal law. Ane;s personal law is viewed as best 6ualified to decide what restrictions should be imposed on the individual. *ules on capacity of an individual to bind himself

42

INSULAR $O%AT& %& 2RAN( 1$ P-il #$% (19.9) FACTS 0 Mr. @rank an American citi.en entered into a contract with the 'hil. gov;t to serve as a stenographer for a period of two years. 1e only serve for si% months hence petitioner filed a suit against him. Mr. @rank alleged that he was under 'hil. law a minor at the time the contract was entered into and was therefore not responsible under the law. 1owever it was disclosed that the contract was entered into in ?SA in which @rank was considered an adult. ISSUE $ELD 0 9hether or not Mr. @rank be held liable. 0 1e should be held liable because his capacity to enter into a contract should be governed by his national law.

PART 2OUR: C'OICE O2 LAW PRO)LE#S

-I# C$OICE OF LAW IN FAMIL% RELATIONS A# MARRIA*E !(; J (>" Marriag) is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature conse6uences and incidents are governed by law and not subject to stipulation e%cept that marriage settlements may fi% the property relations during the marriage within the limits provided by this 5ode.

Marriage as a contract has two kinds of re6uisites!. @ormal *e6uisites generally do not affect the validity of the marriage. Art. $ of the @amily 5ode provides for three formal re6uisites namely 2 a. authority of the solemni.ing officer b. marriage license c. marriage ceremony where the contracting parties appear before the solemni.ing officer #. Essential *e6uisites affects the validity of the marriage. Art. $ of the @amily 5ode prescribes two essential re6uisites to marriagea. legal capacity of the contracting parties who must be male and female b. consent freely given in the presence of a solemni.ing officer

T$EORIES ON T$E FORMAL RE+UISITES OF MARRIA*E ? !. Co6=u9sorA T5)orA 2 it is imperative for the parties to follow the formalities of the place of celebration 3this is followed in the 'hilippines4 #. O=tiona9 T5)orA 2 parties may follow either the le% loci celebrationis or their national law. (his rule is followed in most countries $. Ecc9)siastica9 Ru9) 2 (he formalities of both the le% loci celebrationis and the national law of the parties must be complied with M?E*>- Is a common/law marriage valid in the 'hils. If between foreigners and if the relationship began abroad= A8S- >es provided it is valid according to their national and according to the place where the relationship began. (o avoid injustice particular conceptions of marriage in

43

foreign jurisdiction must be considered provided it is not bigamous polygamous or universally considered incestuous. ?8IBE*SALL> 5A8SI&E*E& I85ES(A?S!. 0etween ascendants and descendants whether relationship is illegitimate or legitimate #. 0rothers and sisters 2 whether full or half/blood or legitimate or illegitimate If (urk brings to the 'hils. ) wives validly married to him. Should all marriages be considered valid here= !. @or cohabitation purposes first wife shall be considered legitimate the rest concubines. #. @or purposes and determining successional rights all wives and children considered as legitimate in view of the nationality theory. FACTUAL SITUATION 0etween @ilipinos

POINT OF CONTACT <.*. Le% loci celebrationis E%ceptions!. Art. #C (solemni6ed outside t-e P-ili22ines) Art. $7 par. ! ) 7 Q C (4oid ab initio), Art. $C (inca2acity), Art. $F (incestuous), Art. $H (2ublic 2olicy) of the family code (bigamous, 2olygamous = incestuous marriages #. consular marriages <.*. Le% loci celebrationis E%ceptions!. 1ighly immoral (bigamous, 2olygamous = incestuous marriages #. ?niversally considered incestuous ie. 0etween brothers/sisters Q between ascendants and descendants Apply rule on marriages between foreigners 2 to uphold the validity of the marriage 8ational Law 3Art. #! @amily 5ode4 provided the marriage is not highly immoral or universally considered incestuous 8ational Law of the @ilipino 3otherwise public policy may be militated against4 Le% loci celebrationis 3with prejudice with the foregoing rules

5elebrated Abroad

0etween @oreigners

Mi%ed 5elebrated 'hilippines in the 0etween @oreigners Mi%ed Marriage by 'ro%y 8ote- a marriage by pro%y is considered celebrated where the pro%y appears

$. E%trinsic validity of marriage RULES *O ERNIN* E-TRINSIC ALIDIT% <E8E*AL *?LE le% loci celebrationis !. All states recogni.ed as valid those marriages celebrated in foreign country if they comply with the formalities prescribed therein 31ague 5onvention4 #. (he forms and solemnities of contracts wills and other public instruments shall be governed by the laws of the country in which they were e%ecuted 3Article !F 5ivil 5ode4 $. All marriages solemni.ed outside the 'hilippines in accordance with the laws in force in the country they were solemni.ed and valid there as such shall also be valid in this country 3Art. #C @amily 5ode4 EO5E'(IA8S-

44

(he following are void marriages between @ilipinos even if valid in the foreign country where celebrated of in case of mi%ed marriages celebrated in the 'hilippines 2 !. #. $. ). 9hen either or both parties are below !H years of age even with parental consent" 0igamous and polygamous marriages Mistake at to identity of contracting party A subse6uent marriage performed without recording in the 5ivil *egistry the judgment or annulment or declaration of nullity and partition and distribution of properties and the delivery of children;s presumptive legitimes" 7. Marriages where either spouse is psychologically incapacitated" C. Incestuous marriages F. Boid by reason of public policy 8A(E(hese e%ceptions put into issue the capacity of the parties to enter the marriage and therefore relation to the substantive re6uirements for marriage. since the personal law of the parties e.g. the national law of the @ilipinos governs the 6uestions of intrinsic validity of marriages between the @ilipinos abroad the above enumerations are e%ceptions to le% loci celebrationis precisely because they are controlled by le% nationalii

MIOE& MA**IA<ES A0*AA& /between @ilipino and Alien /marriages of first cousins abroad /considered valid not being universally considered incestuous /doubt should be resolved in favor of validity of marriage MIOE& MA**IA<E I8 (1E '1ILI''I8ES / @ilipinos national law shall be followed otherwise public policy may be militated against MA**IA<ES 0> 'AO> /if in the 'hil. invalid due to re6uired 'hysical presence/@ilipinos and mi%ed marriages only /if foreigners valid 2 if valid in their national law /if abroad whether between @ilipinos or foreigners or mi%ed rule is le% loci celebrationis place where pro%y appears subject to e%ceptions. ADON* # C$EON* SEN* *EE 4$ P-il 4$ (19##) FACTS 0 5heong 0oo a native of 5hina died intestate in the 'hil. 1is estate was claimed on one hand by 5heong Seng <ee who alleged that he was a legitimate child of the former by virtue of marriage to (an &it in 5hina in !HD7. An the other hand Mora Adong also claimed the said estate by vertue of her marriage to the deceased in !HDC in the 'hil. the trial court ruled that 5heong Seng <ee failed to establish the 5hinese marriage. *espondent appealed contending that the alleged marriage in 5hina could be sufficiently proven mainly by matrimonial letter. ISSUE 0 9hether or not a marriage contracted in 5hina proven mainly by a matrimonial letter is valid in the 'hil. 0 8o. (he rule is that all marriages contracted outside the 'hil. which would be valid by the laws of the country in which the same were contracted are valid in the 'hil. provided that it is first necessary to prove the e%istence of such foreign law and the alleged foreign marriage by convincing evidence. In the case at bar there is no competent testimony what the laws of 5hina concerning marriage were in !HD7 and the respondent failed to prove the e%istence of the alleged prior 5hinese marriage by a clear and strong and une6uivocal evidence as to produce moral conviction of the e%istence of the alleged prior 5hinese marriage.

$ELD

45

PEOPLE # MORA DUMPO %# P-il #4% (19$ ) FACTS 0 Moro 1assan and Mora &umpo were legally married according to the rites and practices of the Mohammedan. Mora &umpo allegedly contracted another marriage with another man without her previous marriage being dissolved. *espondent was then prosecuted and convicted of the crime of bigamy. *espondent appealed alleging that her second marriage was null and void according to the Mohammedan rites on the ground that her father had not given his consent thereto. ISSUE $ELD 0 9hether or not she should be prosecuted for bigamy. 0 8o. it appears from the Mohammedan rites that before an Imam or Mohammedan priest could solemni.e marriage it is first necessary to secure the consent of the bride;s father or in the absence thereof that of the chief of the tribe to which she belongs for the marriage to be valid otherwise absence of such consent would make the marriage void. In the case at bar there was a failure of the respondent to obtain such consent hence she should not be prosecuted for bigamy.

WON* WOO %U # I O 1$ SCRA # FACTS 0 In the proceedings held before the 0oard of Special In6uiry petitioner declared that she was married to 'erfecto 0las a @ilipino in 5hina in !D#D an that their marriage was celebrated by a village leader. An the basis of such declaration the 0SI admitted her into the 'hil. as a non/6uota immigrant. 1owever this decision was reversed by the new set members of the 0SI on the ground that there was no substantial basis of a husband/wife relationship between 9oo and 0las and that there was some discrepancies found in the statements made by them in sever investigations conducted by immigration authorities concerning their alleged marriage before a village leader in 5hina in !D#D. ISSUE $ELD 0 9hether or not the alleged marriage be given effect in the 'hil. 0 8o. (he rule that a marriage contracted outside the 'hil. which is valid under the law of the country in which it was celebrated is also valid in the 'hil. cannot be given effect in the case at bar because there was no proof presented relative to the law of marriage in 5hina. In such case we should apply the general rule that in the absence of proof of the foreign law it should be presumed that it is the same as our own.

Since our law only recogni.es a marriage celebrated before any of the officers mentioned under the law and a village leader is not one of them it is clear that petitioner;s marriage even if true cannot be recogni.ed in this jurisdiction.

). Intrinsic validity of marriage RULES *O ERNIN* INTRINSIC ALIDIT% controlled by the parties personal laws 3either domiciliary or nationality4 7. Effects of marriage a# =)rsona9 r)9ations 1)t<))n s=ous)s

46

MARRIA*E AS A STATUS Marriage as a status carries with it implications in two fields!. 'ersonal rights and obligations of the spouses 2 personal affair between husband and wife and will not ordinarily be interfered with the courts of justice. Includes mutual fidelity cohabitation respect assistance and support" right of wife to use husband;s surname" duty to follow husband;s residence" <ABE*8I8< LA98ational law of the husband.3given preference/ 'oint of contact4 Subse6uent change of nationality of the spouses are proposed to have the following effects- 3Effect of 5hange4 a. if both will have a common nationality 2 the new one b. if only one will change 2 the last common nationality c. if there never was any common nationality 2 the national law of the husband at the time of the wedding 31ague 5onvention4 (Paras) it is governed by the 8A(IA8AL LA9 A@ (1E 'A*(IES. if the spouses are of different nationalities generally the national law of the husband may prevail as long as said law is not contrary to laws customs and good morals of the forum. this includes mutual fidelity respect cohabitation support and the right of the wife to use the husband;s family name. Art CD. of the @amily 5ode reads- +(he husband and the wife shall fi% the family domicile. In case of disagreement the court shall decide. (he court may e%empt one spouse from living with the other if the latter should lived abroad or there are other valid and compelling reasons for the e%emption. 1owever such e%emption shall not apply if the same is not compatible with the solidarity of the family., 5ASE:apanese woman came and admitted to the 'hilippines as transient. 1er passport was found to have been forged. &eportation proceedings ensued. Later she married a @ilipino. 5ould she still be subject to deportation= A8S- >es. Mere marriage to a @ilipino did not automatically make her a @ilipino. It is essential that she must not be possess any of the dis6ualifications for naturali.ation. 1# =ro=)rtA r)9ations o7 s=ous)s <ABE*8I8< LA9in the absence of a contrary stipulation in the marriage settlement national of the husband regardless of the place of celebration of the marriage and their residence. (Paras) it is governed by the national law of the husband without prejudice to what the 5ivil 5ode provides concerning *EAL property located in the 'hilippines

Art 9@ o" t e 2a+il= Code !rovides- In the absence of a contrary stipulation in a marriage settlement the property relations of the spouses shall be governed by the 'hil laws regardless of the place of the celebration of the marriage and their residence. (Coquia)

1owever this rule shall not applya. where both spouses are aliens b. with respect to the e%trinsic validity of contracts affecting property not situated in the 'hilippines and e%ecuted in the country where the property is located" and c. with respect to the e%trinsic validity of the contracts entered into in the 'hilippines not affecting property situated in a foreign country whose laws re6uire different formalities for their e%trinsic validity 3Art. HE @amily 5ode4

47

8A(E-

(he subse6uent change of the nationality of the husband or the wife has no effect on the spouses; original property regime E-CEPT when the law of the original nationality itself changes the marital regime in which case the property relations should change accordingly. (his is the DOCTRINE OF IMMUTABILIT% IN T$E MATRIMONIAL PROPERT% RE*IME# R)asons0 !. Marital peace in property relationship shall be more or less guaranteed" #. (he spouse will not be able to prejudice creditors who in turn cannot jeopardi.e the interest of the spouses" $. Even the spouses may protect themselves from each other.

IMMUTABILIT% OF T$E RE*IME DISTIN*UIS$ED FROM T$E MUTABILIT% OF T$E LAW 9hile subse6uent change of nationality does not affect the original property regime 3doctrine of immutability4 in the marital property relationship it cannot be denied that when the law of the original nationality itself changes the marital regime the property relations has to change accordingly.

B# DI ORCE AND ANNULMENT Art. #C of the @amily 5ode provides that - All marriages solemni.ed outside the 'hil in accordance with the laws in force in the country where they were solemni.ed and valid there as such shall also be valid in this country e%cept those prohibited under Article $7 $F and $H. 9here a marriage between a @ilipino citi.en and a foreigner is validly celebrated and divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry the @ilipino spouse shall have the capacity to remarry under 'hil. Law.

ANNULMENT.DECLARATOIN OF NULLIT% ? 9)@ 9oci c)9)1rationis <rounds for annulment 3if the marriage is voidable merely4 and grounds for declaration of nullity 3if the marriage is void ab initio4 are governed by the law alleged to have been violated" in other words it is the law of the place of celebration 3le% loci celebrationis4 subject to certain e%ceptions that furnished the grounds !. Jurisdiction to annu9 , in practically all civil countries following the nationality principle nationals of the forum are permitted to sue for annulment irrespective of their domicile. In many countries today however jurisdiction is vested in the court of the domicile of the parties Jurisdiction o8)r t5) non,r)sid)nt d)7)ndant is not essential. It is the status of the plaintiff that is in issue. 1e should be domiciled in the forum.

#. T5) go8)rning 9a< ? le% loci celebrationis 3of the marriage4 determines the conse6uences of any defect to form. <enerally the same applies with reference to substantive or intrinsic validity. 0ut with regard to capacity of the parties to marry their national law is determinative ABSOLUTE DI ORCES <E8E*AL *?LE- our courts only observe relative divorce 3legal separation4. Any divorce sought in the 'hilippine courts will not be granted @ilipino couples cannot obtain absolute divorces abroad and neither shall a valid divorce obtained abroad by @ilipino couples be recogni.ed here. E-CEPTIONS0

48

!. Balid divorce abroad between foreigners whose national law allow divorce #. 9here a marriage between a @ilipino citi.en 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 @ilipino spouse shall have capacity to remarry under 'hilippine Law. 1ague 5onvention provides that the granting of divorce or separation must comply with the national law of the spouses and the law of the place where the application for divorce is made <rounds for annulment 3if the marriage is voidable merely4 and grounds for declaration of nullity 3if the marriage is void ab initio4 are governed by the law alleged to have been violated" in other words it is the law of the place of celebration 3le% loci celebrationis4 subject to certain e%ceptions that furnished the grounds

(# DI ORCE DECREES OBTAINED B% FILIPINOS

TENC$A E3 # ESCANO 1 SCRA $

FACTS

0 An #) @ebruary !D)H in the ?niversity of San 5arlos 5ebu 5ity Bicenta EscaLo e%changed marriage vows with 'astor (enchave. without the knowledge of her parents before a 5atholic chaplain was duly registered with the local civil register. (he parents of EscaLo alarmed about the scandal that would ensue from the clandestine marriage sought priestly advice. @ather *eynes suggested a recelebration to validate what he believed to be an invalid marriage from the standpoint of the 5hurch due to the lack of authority from the Archbishop or the parish priest for the officiating chaplain to celebrate the marriage however the recelebration did not take place. An #) :une !D7E she left for the ?nited States. An ## August !D7E she filed a verified complaint for divorce against the herein plaintiff in the Second :udicial &istrict 5ourt of the State of 8evada on the ground of Ke%treme cruelty entirely mental in character.K An #! Actober !D7E a decree of divorce Kfinal and absoluteK was issued in open court by the said tribunal. Escano;s parents filed a petition with the Archbishop of 5ebu to annul their daughter;s marriage with (enchave.. (hereafter Bicenta sought papal dispensation of her marriage. (hen Bicenta married an American *ussell Leo Moran in 8evada. She ac6uired American citi.enship on H August !D7H. 0ut on $E :uly !D77 (enchave. filed a complaint against EscaLo for legal separation and damages. Bicenta claimed a valid divorce from plaintiff and an e6ually valid marriage to her present husband. (he lower court did not decree a legal separation but freed (enchave. from supporting his wife hence this appeal.

ISSUE $ELD

0 9G8 the divorce filed by EscaLo is valid. 0 8o. It is e6ually clear from the record that the valid marriage between 'astor (enchave. and Bicenta EscaLo remained subsisting and undissolved under 'hilippine law notwithstanding the decree of absolute divorce that the wife sought from the State of 8evada on grounds of Ke%treme cruelty entirely mental in character.K At the time the divorce decree was issued Bicenta EscaLo like her husband was still a @ilipino citi.en. She was then subject to 'hilippine law and Article !7 of the 5ivil 5ode of the 'hilippines 3*ep. Act 8o. $HC4 already in force at the time e%pressly provided-

49

Laws relating to family rights and duties or to the status condition and legal capacity of persons are binding upon the citi.ens of the 'hilippines even though living abroad. @rom the preceding facts and considerations there flows as a necessary conse6uence that in this jurisdiction Bicenta EscaLoNs divorce and second marriage are not entitled to recognition as valid" for her previous union to plaintiff (enchave. must be declared to be e%istent and undissolved. It follows likewise that her refusal to perform her wifely duties and her denial of consortium and her desertion of her husband constitute in law a wrong caused through her fault for which the husband is entitled to the corresponding indemnity 35ivil 5ode Art. #!FC4. 9herefore her marriage and cohabitation with *ussell Leo Moran is technically Kintercourse with a person not her husbandK from the standpoint of 'hilippine Law and entitles plaintiff/appellant (enchave. to a decree of Klegal separation under our law on the basis of adulteryK 3*evised 'enal 5ode Art. $$$4.

AN DORN # ROMILLO 1$9 SCRA 1$9 (19+ ) FACTS 0 'etitioner is a @ilipina citi.en while private respondent is an American citi.en. (hey were married in 1ongkong but thereafter obtained a divorce in the ?SA. Subse6uently after the divorce petitioner remarried to another American citi.en. 'rivate respondent filed a suit against petitioner before the *(5 of 'asig stating that petitioner;s business in Ermita the <alleon Shop is their conjugal property and asking that petitioner should make an accounting because even if they have obtained a divorce in the ?S the same is not valid and binding in the 'hil. being contrary to law and public policy. 'etitioner moved for the dismissal of the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the 8evada court wherein respondent had acknowledged that he and she had no community property. ISSUE $ELD 0 9hether or not the divorce is recogni.ed as valid in the 'hil. 0 >es. A divorce decree granted by a ?S court between a @ilipina and her American husband is binding on the American husband and is recogni.ed as valid in the 'hil. Absolute divorce obtained by an alien abroad may be recogni.ed as valid in the 'hil. if valid under the national law of such alien. Anly 'hil. nationals are covered by the policy against absolute divorces the same being considered contrary to our public policy and morality.

(his ruling does not apply if the divorce is obtained by the @ilipina. An American granted absolute divorce in his country with is @ilipina wife is stopped from asserting his right over property allegedly held in the 'hils. as conjugal property by him and his former wife.

PILAPIL # IBA%,SOMERA 1&4 SCRA % $

50

FACTS 0 'etitioner is a @ilipina while private respondent <eiling is a <erman national. 0oth parties were married in <ermany. Subse6uently because of some marital disharmony <eiling filed a divorce suit in <ermany. (hereafter the <erman court granted the divorce on the ground of failure of marriage of the spouses. Subse6uently after the divorce decree private respondent filed a complaint for adultery before the 5@I of Manila against petitioner alleging that while still married to him petitioner had affairs with two other men. 'etitioner filed for the dismissal of the case on the ground that the court is without jurisdiction to try and decide the case$ because there is already a divorce decree between the spouses under the national law of his former spouse prior to the filing of the criminal complaint hence he cannot 6ualify as an offended spouse. ISSUE $ELD 0 9hether or not the case be dismissed. 0 >es. (he status of the complainant as well as the accused must be determined as of the time the complaint was filed. (hus the person who initiates the adultery case must be an offended spouse and by this is meant that he is still married to the accused spouse at the time of the filing of the complaint. In the case at bar private respondent being no longer the husband of petitioner had no legal standing to commence the adultery case since there was already a valid divorce obtained by him in his country by which its legal effects may be recogni.ed in the 'hil. insofar as private respondent is concerned in view of the nationality principle in our civil law on the matter of status of persons.

+UITA # COURT OF APPEALS $.. SCRA 4.% FACTS 0 'etitoner and Arturo 'adlan were @ilipino citi.ens and married under the 'hil. laws. 0ecause o some marital conflicts petitioner obtained a divorce in ?S and subse6uently contracted a second marriage still in ?S. 9hen Arturo died petitioner claimed as a hereditary heir of Arturo contending that their divorce in ?S is invalid being contrary to law and public policy in the 'hil. 'rivate respondent 0landina 'adlan on the other hand claimed that she was the lawful heir because Arturo;s previous marriage was already dissolved by virtue of divorce filed by the petitioner in the ?SA. 9hen the case was elevated in the 5A the latter ordered to remand the case to the trial court because there was factual issue involved. 1owever it was contended by the petitioner that there is no need to remand the case because there was no factual issue involved because what is only to be resolved is whom of them is the proper heir of Arturo. ISSUE 0 9hether or not there was a factual issue involved as to remand the case to the trial court. 0 >es there was because there is still a need to determine as to what is the citi.enship of the petitioner at the time of her divorce of his husband becausea4 If she is no longer a @ilipino citi.en at the time of the divorce then she is no longer entitled to inherit from her husband +because a divorce obtained by an alien abroad is recogni.ed in the 'hil. provided they are valid according to hisGher national law. b4 0ut if she is still a @ilipino citi.en at the time of the divorce then she is still entitled to inherit from her husband because a divorce by a @ilipino citi.en abroad is not valid and binding being contrary to law and public policy.

$ELD

REPUBLIC 8s# CIRPRIANO ORBECIDOE III '"R" (o" 1 4$+., >ctober , #..

FACTS 0 5ipriano Arbecido III married Lady Myros M. Billanueva at the ?nited 5hurch of 5hrist in the 'hilippines in Lam/an A.amis 5ity. In !DHC 5ipriano;s wife left for the ?nited States with their son. A few years later Arbecido discovered that his wife had been naturali.ed as an American citi.en. In #EEE

51

5ipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. 5ipriano thereafter filed with the trial court a petition for authority to remarry invoking 'aragraph # of Article #C of the @amily 5ode. 8o opposition was filed. @inding merit in the petition the court granted the same. (he *epublic herein petitioner through the Affice of the Solicitor <eneral 3AS<4 sought reconsideration but it was denied 3that said article is not applicable to the said case because it only applies to a valid mi%ed marriage4. 1ence this petition for review.
ISSUE 0 9G8 *ES'A8&E8( 5A8 *EMA**> ?8&E* A*(I5LE #C A@ (1E @AMIL> 5A&E

$ELD

0 >es. (he S5 stated the twin elements for the application of par. # Art. #C!. (here is a valid marriage that has been celebrated between a @ilipino citi.en and a foreigner" and #. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. (he reckoning point is not the citi.enship of the parties at the time of the celebration of the marriage but their citi.enship at t-e time a 4alid di4orce is obtained abroad by the alien spouse capacitating the latter to remarry. In this case when 5ipriano;s wife was naturali.ed as an American citi.en there was still a valid marriage that has been celebrated between her and 5ipriano. (he naturali.ed alien wife subse6uently obtained a valid divorce capacitating her to remarry. 5learly the twin re6uisites for the application of 'aragraph # of Article #C are both present in this case. (hus 5ipriano the +divorced, @ilipino spouse should be allowed to remarry. 'ar. # Art. #C should be interpreted to include cases involving parties who at the time of the celebration of the marriage were @ilipino citi.ens but later on one of them becomes naturali.ed as a foreign citi.en and obtains a divorce decree. (he @ilipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemni.ation of the marriage. (o rule otherwise would be to sanction absurdity and injustice. A*(. #C. All marriages solemni.ed outside the 'hilippines in accordance with the laws in force in the country where they were solemni.ed and valid there as such shall also be valid in this country e%cept those prohibited under Articles $73!4 3)4 374 and 3C4 $C $F and $H. ?-ere a marriage bet3een a 1ili2ino citi6en and a 0oreigner is 4alidly celebrated and a di4orce is t-erea0ter 4alidly obtained abroad by t-e alien s2ouse ca2acitating -im or -er to remarry, t-e 1ili2ino s2ouse s-all -a4e ca2acity to remarry under P-ili22ine la3. 3Emphasis supplied

Accordingly for his plea to prosper respondent herein must prove his allegation that his wife was naturali.ed as an American citi.en. Likewise before a foreign divorce decree can be recogni.ed by our own courts the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact such laws must be alleged and proved. @urthermore respondent must also show that the divorce decree allows his former wife to remarry as specifically

52

re6uired in Article #C. Atherwise there would be no evidence sufficient to declare that he is capacitated to enter into another marriage.

LE*AL SEPARATION (here is no obstacle to aliens in securing relative divorce in the 'hilippines provided 2 !. (heir national law is willing to recogni.ed 'hilippine jurisdiction #. Separation is agreeable to the internal law of the national state o the parties NOTE0 <rounds for legal separation are the cumulative grounds provided by the national law of the parties 3le% nationalii4 &# a9iditA o7 7or)ign di8orc) 1)t<))n 7or)ign)rs (he foreign decree of divorce will be recogni.ed as valid here only if the following conditions concur 2 a. (he foreign court must have jurisdiction to grant the absolute divorce" b. (he divorce must be recogni.ed as valid by the national law of the parties 8A(E- while there is no provision of law re6uiring 'hilippines courts to recogni.e a divorce decree between non/@ilipinos rendered by a foreign court such will be recogni.ed under the principle of international comity unless to do so would violate an important public policy of the 'hilippines
(Coquia)

C# ANNULMENT AND DECLARATION OF NULLIT% (he grounds for annulment is governed by the law of the place of the celebration. (he service of summons is governed by the state or the domicile or the residence of the parties. DISTINCTION0 ANNULMENT AND DECLARATION OF NULLIT% OF MARRIA*E" A voidable marriage is valid until it is annulled. (he remedy here is therefore Annulment. If the marriage is null and void there is no need of a declaration of nullity since there is nothing to annul.. D# Par)nta9 R)9ations !. determination of legitimacy of child #. common law principles on legitimacy $. parental authority over the child

E# Ado=tion LE*ITIMAC%E LE*ITIMATION AND ADOPTION 2ACTUAL SITUATION POINT O2 CONTACT

53

'aternity and @iliation 3including 'arental Authority and *eciprocal Support4 2 legitimacy legitimation recognition presumptions of legitimacy rights and obligations of parents and children including parental authority and reciprocal support

Adoption 2 creation of the status of adoption" rights and obligations of adopter and adopted <uardianship !. over the person a. appointing court b. powers of guardian #. over the property a. appointing court b. powers of guardian $. over the person and over the property ). funerals

!. if legitimate 2 national law of the father 3Art. !7 5ivil 5ode4 #. if illegitimate 2 national law of the mother unless recogni.ed by the father in which case national law of the father 3Art. !7 of the 5ivil 5ode4 $. determination of whether legitimate or illegitimate 3national law of the father as a rule4 3Art. !7 5ivil 5ode4 Doctrin) o7 I66uta1i9itA o7 Status ? change of parent;s nationality does not affect the status of the child In general national law of the adopted NOTE: In the 'hilippines adoption by a @ilipino does not confer @ilipino citi.enship on an adopted alien child court of the domicile of the ward coe%tensive with those of the appointing court 3law of the appointing state4 court where the property is found 3le% rei sitae4 coe%tensive with those of the appointing court 3law of the appointing state4 see $ 3a4 and $ 3b4 where the body is buried

*O ERNIN* LAW OF T$E LE*ITIMAC% OF A C$ILD (he legitimacy of the child is determined by the national law of the parents at the time of birth Art. !7 855. If the parents belong to different nationalities legitimacy of the child is determined by the national law of the male parent 8A(E'resumptions of Legitimacy are not mere rules of evidence but are considered as substantive law hence governed as well by the national law of the male parent

RI*$ST OF A LE*ITIMATE C$ILD0 !. to bear the surname of the father and the mother" #. to receive support from their parents brothers and sisters in proper cases $. to the legitime and other successional rights 8A(E- (he law governing the capacity to succeed and the amount of successional rights of the legitimate children are governed by the national law of the decedent

LE*ITIMATION Is the act by which a person not born legitimate is placed upon the same footing as a legitimate child

LAWS OF RE*ULATIN* RELATIONS BETWEEN LE*ITIMATE. LE*ITIMATED C$ILDREN AND PARENTS

*O ERNIN* LAW OF T$E LE*ITIMATED C$ILD (he national law of the male parent at the time of the marriage shall govern a. whether legitimation has been effected b. whether or not the legitimation will have retroactive effect c. other connected matters

54

'ersonal law of the father controls the rights and duties of parents and children" EO5E'(- parental interest in the immovable property of the child which may be regulated by the le% situs 8A(E*eference to the personal law of the father may result in joint e%ercise of parental authority over the property of the child by father and mother 3Art. ##! @amily 5ode4. @ather;s personal law could grant parental authority to the mother of the illegitimate children 3Art. !FC @amily 5ode4 5hange in the nationality of the male parent affects the conse6uent relations between the parents and child

8A(E-

RI*$TS AND OBLI*ATIONS IN OL ED UNDER P$ILIPPINE LAWS INCLUDE0 !. 'ersonal 5are #. 'arental Authority $. 'rovide for Education ). *eciprocal Support LAWS RE*ULATIN* RELATIONS BETWEEN ILLE*ITIMATE C$ILDREN *elations between the mother and the illegitimate child are governed by the mother;s personal law. If the child is later legitimated personal law of the child follows that of the father RI*$ST OF AN ILLE*ITIMATE C$ILD0 !. to bear the surname of the mother" #. to receive support $. to legitime ADOPTION

is the process of making a child whether related or not to the adoption possess in general the rights accorded to a legitimate. (Paras) the act by which relations of paternity and affiliation are recogni.ed as legally e%isting between person not so related by nature. (Coquia)

8A(ES!. Jurisdiction to *rant Ado=tion ? (he 'hilippine 5ourts shall have jurisdiction to grant petition for adoption but must apply the le% fori with respect to procedural matters #. Ca=acitA o7 A9i)ns to Ado=t - (he cumulative substantive re6uirements of the forum and of the national law of the adopter must be complied with 1Princi!le o" Cu+ulation4 see Art. !H) @amily 5ode '& CE$ *A H7# &omestic Adoption Act and *A HE)$ Inter/5ountry Adoption Act $. E77)ct or Cons)qu)nc)s o7 Ado=tion ? a. successional rights 2 governed by the conflict rules on succession b. parental authority 2 governed by the national law of the adopter ). R)cognition o7 D)cr)) o7 Ado=tion , (he 'hilippines recogni.ed the principle of foreign adoptions validly rendered and recogni.ed where effected. 1owever such adoption is still subject to municipal law i.e. the obligation to register and adoption in the civil register )@c)=tE such adoption shall not be recogni.ed if it is contrary to public policy or residents; interest forbids its enforcement (Ag2alo)

REPUBLIC # COURT OF APPEALS ##& SCRA 4.1 FACTS 0 :ames Anthony 1ughes as American citi.en and his wife Lenita 1ughes who was later naturali.ed as a citi.en of ?SA jointly filed a petition to adopt Ma. 5ecilia and 8eil and Mario all surnamed Mabunay minor niece and nephews of Lenita who had been living with the couple even prior to the filing of the petition. (he minors as well as their parents gave consent to the adoption.

ISSUE

0 9hether or not the spouses can successfully adopt the three @ilipino minors=

55

$ELD

0 In the case of :ames being an alien he is not 6ualified to adopt because under the @amily 5ode an alien is not 6ualified to adopt e%cepta4 A former @ilipino citi.en who seeks to adopt a relative by consanguinity b4 Ane who seeks to adopt the legitimate child of hisGher @ilipino spouse or c4 Ane who is married to a @ilipino citi.en and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. In the case of Lenita although she is 6ualified to adopt under par. $3a4 of Art. !H) @5 the problem is under Article !H7 of the said law which re6uires a joint adoption by the husband and wife which is a condition that must be read along together with Art.!H). 0ecause Art. !H7 of the @amily 5ode provides that+(he husband and wife must jointly adopt e%cept in the following cases!4 9hen one spouse seeks to adopt his own illegitimate child or #4 9hen one spouse seeks to adopt the legitimate child of the other. (hey will not also fall under par.$3c4 because Lenita is already naturali.ed in other country. @or joint adoption it must be necessary that one of them is a @ilipino.

U**I LINDAMAND T$ER/ELSEN # REPUBLIC 1# SCRA 4.. FACTS 0 'etitioners ?ggi Lindamand a &anish subject who has been granted permanent residence in the 'hil. and his wife Erlinda 0lancaflor seeks to adopt the minor 5harles 0lanclaflor who is the natural child of Erlinda in the former marriage. It appears that the minor sought to be adopted has been living with them ever since the marriage of petitioners and ?ggi has treated the minor as his son. (he Manila :uvenile and &omesti *alations 5ourt denied the application on the ground that an alien cannot adopt a @ilipino unless the adoption would make the @ilipino minor a citi.en of the alien country. 'etitioner/husband being an alien he cannot adopt the minor who is a @ilipino citi.en following that of his natural mother. ISSUE $ELD 0 9hether or not the adoption of minor will prosper. 0 >es the 8ew 5ivil 5ode only dis6ualifies from being adopters those aliens that are eithera4 8on/residents or b4 9ho are residents but the *epublic of the 'hil. has broken diplomatic relations with their govt. Autside of these two cases alienage by itself alone does not dis6ualify a foreigner from adopting a person under the law. (here is no re6uirement that in order for an alien to adopt it must be that the adopted @ilipino minor becomes a citi.en of his country.

N* $IAN # COLLECTOR OF CUSTOMS $4 P-il #4+ FACTS 0 Marcosa :iongco was born in the 'hil. of a @ilipino mother and a 5hine$se father. She was married to a 5hinese citi.en. Marcosa :iongco adopted the child of his husband in the former marriage named 8g 1ian the herein petitioner. 9hen :iongco and her adopted child arrived at the port of Manila the respondent refused 8g 1ian the petitioner to enter the 'hil. ISSUE 0 9hether or not 8g 1ian be allowed to enter the 'hil.

56

$ELD

0 >es. In the case of E% parte @ong >im the @ederal 5ourt of the ?nited States held that +A 5hinese merchant domiciled in the ?S has the right to bring into this country with his wife and minor children legally adopted by him in 5hina where it is shown that the adoption was confide and that the children have lived as members of his family and have been supported by him for several years., In the case at bar the fact that 8g 1ian had been adopted by his stepmother who has the right to enter territory of the 'hil. we are of the opinion and so hold that 8g 1ian has also the right to enter the 'hil. as her adopted son.

PART 2OUR: C'OICE O2 LAW PRO)LE#S

-II# C5oic) o7 La< in Pro=)rtA !(I" SAno=sis o7 Con79ict o7 Ru9)s on Pro=)rtA 2ACTUAL SITUATION 3!4 *eal 'roperty 3e%trinsic and intrinsic validity of alienations transfers mortgages capacity of parties interpretation of documents effects of ownership co/ownership accession usufruct lease easement police power eminent domain ta%ation 6uieting of title registration and prescription E@c)=tions0 3a4 successional rights 3b4 capacity to succeed 3c4 contracts involving real property but which do not deal with the title thereto 3d4 contracts where real property is given as security POINT O2 CONTACT 3!4 )ex re sitae 3Art. !C par. ! 5ivil 5ode4

E@c)=tions 3a4 national law of decedent 3Art. !C par.#4 3b4 national law of decedent 3Art. !C par #4 3c4 the law intended will be the proper law of the contract (lex loci 4oluntatis or lex loci intentionis) 3d4 the principal contract is governed by the proper law of the contract 3 lex loci 4oluntatis or lex loci intentionis) 8ote- (he mortgage is governed by the le% re sitae.

3#4 (angible 'ersonal 'roperty 3chooses in possession4 3a4 In general tangible personal property 3e%trinsic and intrinsic validity of alienations transfers mortgages capacity of parties interpretation of documents effects of ownership co/ ownership accession usufruct lease easement police power eminent domain ta%ation 6uieting of title registration and prescription E%ceptions3a4 )ex re sitae 3Art. !C par. ! 5ivil 5ode4

E%ceptions 3a4 national law of decedent 3Art. !C par.#4 3b4 national law of decedent 3Art. !C par #4 3c4 the law intended will be the proper law of the contract (lex loci 4oluntatis or lex loci intentionis) 3d4 the principal contract is governed by the proper law of the contract 3lex loci 4oluntatis or lex loci intentionis) 8ote- (he pledge is governed by the le% re sitae.

3a4 successional rights 3b4 capacity to succeed 3c4 contracts involving real property but which do not deal with the title thereto 3d4 contracts where real property is given as security

3b4 means of transportation !4 vessels

3b4 !4 Law of the flag or in some cases the

57

#4 other means 3c4 thing in transit 3these things have a changing status because they move4 !4 loss destruction deterioration #4 validity and effect of the sei.ure of the goods $4 disposition or alienation of the the goods 3$4 Intangible 'ersonal 'roperty 3chooses in action4 3a4 recovery of debts or involuntary or garnishment of debts 3b4 voluntary assignment of debts 3c4

place of registration #4 Law of the depot 3storage place for supplies4 or resting place

!4 Law of the destination 3Art. !F7$ of (he civil code4 #4 locus regit actum 3where sei.ed4 because said place is temporary situs $4 le% loci voluntatis or le% loci intentionis because here there is contract 3$4 3a4 where debtor may be effectively serve with summons 3usually the domicile4 3b4 le% loci voluntatis or le% loci intentionis 3proper law of the contract Ather theories!4 national law of the debtor or creditor #4 domicile of the debtor or the creditor $4 le% loci celebrationis )4 le% loci solutionis 3c4 domicile of creditor 3d4 le% situs of assets of the debtor 3 for these assets can be held liable for the payment of the debts 3e4 the right embodied in the instrument 3e%. In the case of Swedish bill of e%change Swedish law determines its negotiability4 3f4 in general situs of the instrument at the time of transfer delivery or negotiation 3g4 law of the place of incorporation 3h4 law of the place of incorporation 3i4 law of the place of incorporation

3c4 ta%ation of debts 3d4 administration of debts

3e4 negotiability or non/negotiability of an instrument 3f4 validity of transfer delivery or negotiation of instrument 3g4 effect on a corporation of the sale of corporate shares 3h4 effect between the parties of the Sale of corporate shares 3i4 ta%ation on the dividends of 5orporate shares 3j4 ta%ation on the income from the sale of corporate shares 3k4 franchises

3j4 law of the place where the sale was consummated 3k4 law of the place that granted them

3l4 goodwill of a business and ta%ation thereon 3m4 patents copyrights trademarks tradenamedRs

3l4 law of the place where the business is carried on 3m4 in the absence of a treaty they are protected only by the state that granted them 8ote- @oreigners may sue for infringement of trademarks and tradenames only in the 'hilippines only if @ilipinos are granted reciprocal concessions in the state of the foreigners.

58

A# T5) Contro99ing La< (he old law on movables was mobilia se6uuntur personam which meant that the rights over movables were governed by the law of the owner;s domicile. (he applicable law is the le% situs. (he conventional wisdom for le% situs is the e%ecise of power the state where the property is situated having the sole power to decide the validity and effects of the transfer of property. (he rationale for the le% situs or le% re sitae rule now universally recogni.ed is that being physically a part of the country it should be subject to the laws thereof. B# Ca=acitA to trans7)r or acquir) =ro=)rtA (he capacity of the person to transfer or ac6uire real property is governed by the law of the place where the property is located.

LLANTINO # CO LION* C$ON* 1++ SCRA 9# FACTS 0 'etitioners spouses leased their lands in favor of the respondent who was a 5hinese national. Jnowing that the lease would end in !DCF the Llantinos re6uested respondent for a conference but the latter did not honor the re6uest and instead informed them that he had already constructed a commercial building on the land that the lease was for a period of CE years and that he was already a @ilipino citi.en. 'etitioners filed a case contending that respondent had at the e%ecution of the contract no right to hold by lease the property involved for being an alien. ISSUE $ELD 0 9hether or not the contract of lease is valid. 0 >es. A lease to an alien for a reasonable period is valid. So is an option giving an alien the right to buy real property on condition that he is granted 'hil. citi.enship. Aliens are not completely e%cluded by the constitution from the use of lands for residential purposes. (he only instance where a contract of lease may be considered invalid is if there are circumstances attendant to its e%ecution which are used as a scheme to circumvent the constitutional prohibition that is e%emption if an alien is given not only a lease of but also an option to buy a piece of land without any condition that he is granted 'hil. 5iti.enship. If the period of lease is unreasonable say 7E years or more it may amount to an indirect circumvention of the restriction and will be construed as a sale in violation of the constitutional provision.

C$EESMAN # IAC 19$ SCRA 9$ FACTS 0 'laintiff 5heesman an American citi.en got married in !DFE to 5riselda 5heesman a @ilipina but separated in !DH!. A deed of sale was e%ecuted in !DF) conveying a parcel of land and the house therein infavor of 5riselda. (homas although aware of the deed did not object to the transfer being made only to his wife. In !DH! 5riselda sold it to Estelita 'adilla. (homas sued 5riselda and Estelita and prayed for the annulment of sale on the ground that the transaction had been e%ecuted without his knowledge and consent. &efendants contended that the property sold was paraphernal having been purchased by 5riselda with funds e%clusively belonging to her. (hat (homas being an American citi.en was dis6ualified to have any interest or right of ownership in the land. (hus Estelita was a buyer in good faith. ISSUE 0 9hether or not 5heesman an alien is capacitated to 6uestion the subse6uent sale made by his wife.

59

$ELD

0 8o. (he fundamental law prohibits the sale to aliens of residential land. Sec. !) Art. OIB of the l!DF$ 5onstitution ordains that STT Save in cases of hereditary succession no private land shall be transferred or conveyed e%cept to individuals %%% 6ualified to ac6uire lands of public domain. (hus he had no capacity or peronality to 6uestion the subse6uent sale of the same property by his wife on the theory that in doing so he is merely e%cersing the prerogative of a husband in respect of a conjugal property. (o sustain such a theory would permit in direct controversies of the constitutional prohibition.

(he theory of le% sitae governs the following things connected with real propertya4the e%trinsic validity of alientation b4(ransfers c4Mortgages d45apacity of the parties d4Interpretation of documents e4Effects of ownership f4 5o/ownership g4Accession h4?sufruct i4Lease j4Easement k4'olice power l4Eminent &omain m4(a%ation n4 Muieting of title o4*egistration and p4'rescription E@a6=9)0 A :apanese donated in <ermany in favor of a @ilipino a parcel of land in the 'hilippines. 3a4 (he law of which country governs the formalities of the donation= 9hy= Ans<)r0 (he law of the 'hilippines 2 the le% re sitae governs the formalities of the donation. 3Art. !C par. ! 5ivil 5ode4. (he law of le% celebrationis does not apply because the transaction relates to land and must therefore be governed by the law of the place where the land is situated. 3b4 (he law of which country governs the capacity of the :apanese to make the alienation= 9hy= Ans<)r0 (he law of the 'hilippines 2 the le% rei sitae 2 governs the capacity of the :apanese to alienate. 3Art. !C par. ! 5ivil 5ode4 1ere the doctrine of national law under Art. !7 of the 5ivil 5ode yields precisely because the subject matter is land. 3c4 (he law of which country governs the intrinsic validity of the donation= 9hy= Ans<)r0 (he law of the 'hilippines 2 le% re sitae governs the intrinsic validity of the donation. 3Art. !C par. ! 5ivil 5ode4. (he general rule of le% voluntatis or le% intentionis yields to the le% re sitae rule because the subject matter is land. E-CEPTIONS TO T$E RULE IN T$E CASE OF REAL PROPERT% !.4 In cas) o7 succ)ssiona9 rig5ts 2 national law of the deceased #.4 Ca=acitA to succ))d 2 national law of the deceased E@a6=9)0 A (urkish citi.en died leaving parcels of land in the 'hilippines. 1ow should the court distribute the successional rights of his heirs to said real property= Suppose one of the compulsory heirs is a 5hinese what law governs the capacity of this 5hinese heir to inherit land in our country=

Ans<)r0 (he successional rights of the heir to the parcels of land in the 'hilippines shall be governed by the national law of the deceased that is (urkish law.

60

(he capacity of the 5hinese heir to inherit 'hilippine realty is also determined by (urkish law for this is the decedent;s national law. ;#" Contracts in8o98ing r)a9 =ro=)rtA 1ut <5ic5 do not d)a9 <it5 t5) tit9) to suc5 r)a9 =ro=)rtA E@a6=9)0 In Manila a <erman owning land in Swit.erland agreed to pay as salary to a :apanese employee !EP of the annual produce of the land in Swit.erland on condition that;s said land would not be e%propriated by the Swiss authorities. It was the mutual desire of both parties that the stipulation of their employment contract should be governed by 'hilippine laws. 9hat law governs the e%trinsic and intrinsic validity of their agreement= Ans<)r0 (he e%trinsic validity of the agreement is governed by 'hilippine law because the contract was celebrated in our country.(he intrinsic validity shall also be determined by 'hilippine law for this was likewise the le% loci voluntatis. (he fact that the contract involved land located in Swit.erland is of no moment for the agreement does not concern itself with any transfer of title thereto at least as between the parties.

>#" Contracts <5)r) r)a9 =ro=)rtA is gi8)n 1A <aA o7 s)curitAE t5) =rinci=a9 contract !g)n)ra99A t5) contract o7 9oan" a4 if the principal contract is valid the validity of the accessory contract of mortgage is still to be determined by the le% res sitae. If the mortgage is void by the le% re sitae the principal contract can still remain valid b4 if tested by the le% loci voluntatis or le% loci intentionis the principal contract is void the mortgage would also be void even if considered independently by itself the mortgage would have been regarded as valid by the le% re sitae. E@a6=9)0 (wo @renchmen in @rance entered into a contract of loan with 'hilippine land as security by way of mortgage. Assuming that in @rance a contract of loan to be valid must be in public instrument in the 'hilippines it does not have to be. 8ow then if the contract of loan and contract of mortgage are in private instrument can the mortgage be enforced in the 'hilippines= 8o. Since the contract of loan is in a private instrument and therefore void in @rance the contract of mortgage is rendered automatically void in our country 2 for when a principal contract fails the assessory obligations shall also be void.

Ans<)r0

C# E@trinsic And Intrinsic a9iditA O7 Con8)Aanc) @ormalities of a contract to convey property are likewise governed by the lex situs *ules#. Any transfer of property which re6uires registration of title cannot be accepted by the registry of property unless the formal re6uirements of the lex situs are complied with $. )ex situs law applies to the essential validity of transfer unless the lex intentionis is clearly established. ). )ex situs also governs the effects of the conveyance of properties. RULES FOR PERSONAL PROPERT%0 'ersonal property may be tangible or intangible. (he tangible are more appropriately referred to as choses in possession whereas intangible are more accurately known as choses in action. E@a6=9) o7 C5os)s in =oss)ssion t5at usua99A 6o8)0 +u)rA0 If the contract certain limitations of liability as to as to the negligence on the part of the carrier are agreed upon can the carrier invoke this clause of the contract at the point of destination the laws thereof as well as those of the place where the contract was made permitting such limitations if the damage and negligence of the carrier which caused such damage occurred while the merchandise was in transit in a state which did not recogni.e the validity of such stipulation=

61

Ans<)r0

>es the carrier can invoke the clause in 6uestion. It does not matter that in the state where the damages occurred the stipulation is not recogni.ed. 9hat is important is the recognition given to the stipulation at the place of destination. Art. !F7$ of the civil code provides that thelaw of country to which the goods are to be transported shall govern the liability of the common carrier for their loss destruction or deterioration.

E@a6=9) o7 C5os)s in action in intangi19) =)rsona9 =ro=)rtA0 !4 @or recovery of debts or for the involuntary assignment of debts E@a6=9)0 A <erman domiciled and found in 5alifornia owes a @ilipino in Manila in the amount of money. <enerally where should the @ilipino sue for the recovery of the debt= <enerally the suit must be instituted in 5alifornia because the debtor is domiciled and found there. 1owever should he be in :apan for instance litigation may be commenced in :apan because this is the convenient and practical solution.

Ans<)r0

#4 Balidity and effectiveness of a voluntary assignment of a debt depends on the lex loci 4oluntatis or lex loci intentionis" In other words the proper law of the contract. E@a6=9)0 A @ilipino is the creditor of a <erman domiciled in Manila. (he credit is the result of a business transaction entered into in Manila. 'ayment is stipulated to be in Manila. If the @ilipino while vacationing in :apan assigns his credit in favor of a *ussian also domiciled in Manila. 9hat law governs the validity and effectiveness of the assignment= (he proper law that should control the validity and effectiveness of the assignment should be 'hilippine law for it is evident that it is this law that the parties intended to be applicable . 3lex loci intentionis):

Ans<)r0

D# E@c)=tions to L)@ Situs Ru9) (here are at least three 3$4 e%ceptions to the application of the le% situs rule- 35o/6uia4 !. 9here the transaction does not affect transfer of title to or ownership of the land.(he governing law is lex intentionis or lex 4oluntatis: #. In contracts where real property is offered by way of a security for the performance of an obligation. E%ample- Mortgage of the land is governed by le% situs but the loan contract is governed by the rules on ordinary contracts. $. (estate or intestate succession and capacity to succeed are governed by the national law of the decedent. E# Situs o7 C)rtain Pro=)rti)s !. personal property for ta% purposes ASIATIC PETROLEUM # CO +UICO %9 P-il 4$$ (194.) FACTS 0 5o Muico entered into a contract of agency with Asiatic by virtue of which the former became the sales agent on commission of the latter. *espondent was in default in the sum of '# #!$ and without rendering account to Asiatic left for 5hina. Asiatic filed a complaint and after summons by publication 5o Muico was decalred in default and thereafter 5o;s deposit in the 0ank was levied. 5o;s counsel moved to declare the proceedings as null and void on the ground that the court never ac6uired jurisdiction over the person of the respondent because the action is one in personam against a non/resident who was summoned by publication and did not appear. ISSUE 0 9hether or not the court ac6uired jurisdiction over the person of the defendant

62

$ELD

0 >es. Although respondent was outside the 'hilippines at the time the action was instituted he possessed property found and located here in the 'hilippines and such property was within the reach of our courts. It is well emphasi.ed in this connection that all property within the state is subject to the jurisdiction of its courts and they have the right to adjudicate title thereto to enforce liens therupon and to subject it to the payment of the debts of its owners whether resident or not.

#. Money $. &ebts # kinds of movable propertya4 choses in possession 2 embraces all types of tangible physical objects b4 choses in action 2 refers to intangible objects ). corporate shares of stocks CIR # AN*LO CALIFORNIA NATIONAL BAN/ 1.% P-il 9.$

FACTS 0 *espondent 5alamba Sugar Estate Inc. 35SEI4 represented by its trustee the Anglo 5al. 8at;l 0ank is a foreign corporation organi.ed under the laws of 5alifornia duly licensed to do business in the 'hils. 'etitoner notified 5SEI of an assessment for an alleged deficiency income ta%es. 0ased on the allegation that the sale of its shares of stocks was perfected and payment took place in ?SA and that the sale was made in accordance with the laws of ?SA the 5(A absolved 5SEI from liability on the ground that the capital gains which constituted income were derived from abroad and not subject to income ta%. 'etitioner appealed contending that the situs of shares of stock of corporation is considered to be at the domicile of the latter. ISSUE $ELD 0 9A8 the situs of the corporate shares of stock is within the 'hilippines 0 8o. Shares of stock of corporation are considered as intangible personal properties. Sec. #) of 8I*5 levies income ta%es on foreign corporations only on income derived from sources within the 'hilippines and with respect to capital gains on the sale of personal properties. Sec $F 3e4 of 8I*5 deems the place of the sale as also that place or source of capital gain. Moreover income derived from sale abroad is not ta%able here in the 'hils. Anly income within the 'hilippines are ta%able.

@. 'atents (rademarks (rade 8ame 5opyright Trad)6arH 2 is the name or symbols of goods made or manufactured e%. <uess Trad) na6) 2 the name or symbol of the store or business place e%. *ustan;s S)r8ic) 6arH 2 the name or symbol of services rendered e%. @ederal E%press Co=Arig5t ? the right of literary property as recogni.ed and sanctioned by positive law. A certificate of registration of a trade name or a trademark is prima facie evidence of the validity of such registration but the same may be rebutted. <enerally the protection is for #E years renewable for another #E years. ?nder the law +any foreign corporation or juristic person to which a mark or trade name has been registered or assigned under this Act may bring an action hereunder for infringement for unfair competition or false designation of origin or false description whether or not it has been licensed to do business in the 'hilippines under the corporation code at the time it brings the complaint- provided that the country of which said foreign corporation or juristic person is a citi.en or in which it is domiciled by treaty convention or law grants a similar privilege to corporations or juristic persons of the 'hilippines. (he 5ourt decided that although the company has bot done business in the 'hilippines it has the right to protect its reputation.(he 5ourt sustained the well established rule that the right to the use of company;s corporate and trade name is a property right which may be asserted against the whole world.

63

P'ILIPS E0PORT )% %& CA #.% SCRA 4 & FACTS 0 'hilips E%port 0. B. 3'E0B4 a foreign corporation organi.ed under the laws of the 8etherlands is the registered owner of the trademark 'hilips and 'hilips Shield Emblem issued by the 'hilippine 'atent Affice. (he other petitioner 'hilips Electrical Lamps Q 'hilips Industrial &ev;t Inc. authori.ed users of the trademark and logo were incorporated and registered with the SE5. *espondent Standard 'hilips 5orp. 3Standard4 on the other hand was issued a certificate of *egistration by the SE5. 'etitioners filed a letter of complaint with the SE5 for cancellation of the word +'hilips+ from StandardTs corporate name in view of the prior registration with the 0ureau of 'atents of such trademark and logo. Standard refused to amend its articles of incorporation. 1ence petitioners filed with SE5 a petition praying for the issuance of a writ of preliminary injuction alleging inter alia infringement of trademark. 'rivate respondent contended that petitioner 'E0B has no legal capacity to sue. ISSUE $ELD 0 9A8 the foreign corporation although not doing business in the 'hilippines can sue action for infringement under the I'5. 0 >es. (he 5ourt declared that a corporation;s right to use its corporate and trade name is a property right a right in rem which it may assert and protect against the world in the same manner as it may protect against the world in the same manner as it may protect its tangible property real or personal against tresspass or conversion. It is regarded to a certain e%tent as a property right and one whcih cannot be impaired or defeated by subse6uent appropriation by another corporation in the same field.

EMERALD *ARMENT MANUFACTURIN* 8# CA # 1 SCRA %.. FACTS 0 'rivate respondent 1.&. Lee 5o. Inc. a foreign corporation organi.ed under the laws of &elaware ?SA filed with the 0ureau of 'atents (rademark Q (echnology (ransfer 30'(((4 a petition for cancellation of registration for the trademark. +Stylistic Mr. Lee+ used on skirts jeans etc. Issued in the name of petitioner Emerald Mnfg. 5orp a domestic corporation. 'rivate respondent averred that petitioner;s trademark so closely resembled its own trademark +LEE+ as to cause confusion mistake and deception on the part of the purchasing public as to the origin of the goods. 'etitioner in its anwer contended that its trademark was entirely and unmistakably different from that of private respondent and that its certificate of registration was legally and validly granted. As a defense Emerald 6uestioned the capacity to sue of Lee 5o. being a foreign corporation not licensed to do business in the country. ISSUE $ELD 0 9hether or not 1.&. Lee 5o. a foreign corporation had the capacity to sue action for infringement 0 >es. (he Supreme 5ourt ruled in the case that 1.& Lee 5o. Inc. had the capacity to sue for infringement irrespective of its lack of license to engage in business in the 'hilippines but denied the company protection for it failed to prove actual use of the emblem in the local market a re6uirement of Secs. # and #/a of the of the same law. @inally in !DDH the Intellectual 'roperty 5ode of the 'hils. 3*A H#D$4 was passed into law. (his law allowed foreign corporation not engaged in business in the 'his. to file civl or administrative action for opposition cancellation infringement or unfair competition.

64

-III#

C5oic) o7 La< in Contracts !&(" S%NOPSIS OF CONFLICT RULES ON CONTRACTS FACTUAL SITUATION 3!4 @ormal or E%trinsic Balidity E%ceptions3a4 alienation and encumbrance of property 3b4 consular contracts 3#4 5apacity of the 5ontracting parties POINT OF CONTACT 3!4 lex loci celebrationis 3Art. !F par. ! 55 3a4 )ex situs (Art. !C par.! 8554 3b4 Law of the 'hils. 3if made in the 'hilippines 3#4 national law 3Art. !7 civil code4 e%cept estoppel or in the case of Insular 0ank v. @rank adhering the theory of lex loci celebrationis 3$4 the proper law of the contract 2 lex contractus meaning the lex loci 4oluntatis or t-e lex loci intentionis Ot5)r t5)ori)s0 3a4 lex loci celebrationis 2 defect- this makes possible the invasion of the national law 3b4 lex nationalii 2 defect- this may impede commercial transactions 3c4 lex loci solutionis 2 law of the place of performance 2 defect- there may be several places of performance 3d4 'rof. Minor;s solution!4 perfection 2 le% loci celebrationis #4 cause or consideration 2 le% loci considerations $4 performance 2 le% loci solutionis

3$4 Intrinsic validity 3including interpretation of instruments and amount of damages for breach

65

CONFLICTS RULES FOR SPECIFIC CONTRACTS FACTUAL SITUATION 3!4 Sales and 0arter 3a4 e%trinsic validity 3b4 capacity of parties 3c4 intrinsic validity 3#4 Lease of 'roperty 3a4 e%trinsic validity 3b4 capacity of parties 3c4 intrinsic validity 3$4 Lease of Services 3a4 e%trinsic validity 3b4 capacity of parties 3c4 intrinsic validity 3)4 5ontract of 5ommon 5arriage of <oods 3a4 e%trinsic validity 3b4 capacity of parties 3c4 intrinsic validity 3d4 liability for loss destruction or deterioration of goods in transit 374 5ontract of Agency 3a4 e%trinsic validity POINT OF CONTACT 3!4 3a4 lex situs 3b4 lex situs 3c4 lex situs 3#4 3a4 lex situs 3b4 lex situs 3c4 lex situs lex 3$4 3a4 lex loci celebrationis 3b4 national la3 3c4 lex loci 4oluntatis or lex loci intentionis 3)4 3a4 fi%ed situs of the carrier 3depot4 3b4 fi%ed situs of the carrier 3c4 fi%ed situs of the carrier 3d4 law of the destination 3Art. !F7$4 374 3a4 lex loci celebrationis (unless the agency deals with the conveyance or encumbering of property 2 in which case the lex situs of the property applies4 3b4 national law of the parties 3unless the agency deals with the conveyance or encumbering of property 2 in which case the lex situs of the property applies4 3c4 lex loci 4oluntatis or lex loci intentionis (unless the agency deals with the conveyance or encumbering of property 2 in which case the lex situs of the property applies4 3C4 3a4 lex loci celebrationis 3b4 national law 3c4 lex loci 4oluntatis or lex loci intentionis 3F4 3a4 lex situs 3b4 lex situs 3c4 lex situs 3H4 3D4 Law of the place governs the deposit @orum that has been agreed by the parties

3b4 capacity of parties to be principal or agent 3c4 intrinsic validity

3C4 Simple Loan 3Mutuum4 3a4 e%trinsic validity 3b4 capacity of parties 3c4 intrinsic validity 3F4 5ommodatum 3a4 e%trinsic validity 3b4 capacity of parties 3c4 intrinsic validity 3H4 Money &eposits 3D4 5ontracts with Arbitration 5lause 3!E4 'ledge 5hattel Mortgage *eal Mortgage and Antichresis 3a4 e%trinsic validity 3b4 capacity of parties 3c4 intrinsic validity

3!E4 3a4 lex situs 3b4 lex situs 3c4 lex situs 8ote- (hese are accessory contracts only therefore if the principal contract 3generally the contract of loan4 is defective the accessory contract must also be deemed defective 3!!4

3!!4 <uaranty and Suretyship

66

3a4 e%trinsic validity 3b4 capacity of parties 3c4 intrinsic validity

3a4 lex loci celebrationis 3b4 national law 3c4 lex loci 4oluntatis or lex loci intentionis 8ote-(hese are also accessory contracts" if the principal contract is defective the accessory contract is also generally defective.

A# Contract in8o98ing a 7or)ign )9)6)nt 0y reason of these differing rules the forum court presented with a contracts case involving a foreign element must be aware that the parties may have entered into a contract with a particular state law in mind e%pecting it to govern 6uestions that may arise from the contract. (o do otherwise would defeat the parties reasonable ecpectations. B# E@trinsic 8a9iditA o7 contracts Le/ loci celeCrationis governs the formal or e%trinsic validity of contracts. Art. !F +(he forms and solemnties of contracts wills and other public instruments shall be governed by the laws of the country in which they are e%ecuted,. (hese principles are derived from a broader proposition that the place governs the act 3 locus regit actum). +u)rA0 1ow about contracts entered into by cablegram tele% or fa% messages between persons from different countries= 9hat is deemed to be the place of e%ecution of the contract= Art. !$!D of the civil code states that +Acceptance made by letter or telegram does not bind the offeror e%cept from the time it came to his knowledge,. (he contract in such case is presumed to have been entered into the place where the offer was made.

Ans<)r0

E@a6=9)0 A 5hinese sold in 5hile to a @ilipino a parcel of land in the 'hils. (he 'hilippine formalities of such a sale should be followed. 3Art. !C par ! of the civil code4 Bar +0 Suppose our law provides that certain instrument shall be void and unenforceable unless they beat a documentary stamps and a written contract is enteres into in the 'hils. to be performed in @rance. (he contract was not stamped in the 'hilippines as re6uired by its law. (he placing of stamp on written contract is not however re6uired by the laws of @rance. In an action brought on the contract in @rance may the defendant avail himself of the invalidity of contract= Since the forum of the problem is @rance the answer will depend not on 'hilippine 5onflict of laws but on @rench conflict of laws. An the assumption that the @rench conflicts rule on the matter is identical with ours it is believed that the contract should be considered valid and the defense of invalidity cannot be sustained. (he rule to apply is evidently lex loci 4oluntatis or t-e lex loci intentionis / that which was voluntarily agreed upon or intended by the parties.

An<)r0

C# Intrinsic 8a9iditA o7 contracts (he intrinsic validity of contracts including the considerations or cause thereof the interpretation of the instruments and the nature or amount of damages for breach or non/performance must be governed by the proper law of the contract 3lex contractus). (his is the law voluntarily agreed upon by the parties (lex loci 4oluntatis) or the law intended by them e%pressly or implicitly 3lex lcoci intentionis) (# 9)@ 9oci contractus or 9)@ 9oci c)9)1rationis (he law of the place of the making or lex loci contractus refers to the place where the contract is made.

67

&# 9)@ 9oci so9utionis (he law of the place of performance calls for the reference to a law other than the place where the acts of offer and acceptance took place. All matters relating to the time place and manner of performance sufficiency of performance and valid e%cuses for non/performance are determined by lex loci solutionis which is useful because it is undoubtedly always connected to the contract in a significant way. ;# 9)@ 9oci int)ntionis (he intrinsic validity of contracts should be governed by the law intended by the parties or lex loci intentionis" (his intention may be e%pressed in the choice/of/law provision in the contract Art. !$EC of the civil code +(he contracting parties may establish such stipulations clauses terms and conditions as they may deem convenient provided they are not contrary to law morals good customs public oerder or public policy, D# Ca=acitA to )nt)r into contracts (he capacity of the parties to enter into contract is generally governed by the national law 3Art. !7 civil code4 E%cept in the case of alienation or encumbering of properties both real and personal for here the capacity is governed by the lex situs 3Art !C par !4 Anot er e/ce!tion& is that case of Insular <ov;t v. @rank which disregarded the nationality law principle. @rank had the capacity to enter into a contract whether in the ?S or in the 'hils. since he was of majority age as determined by his national law. (he S5 held that in a case not involving property that instead of national law what should determine capacity to enter into a contract is the lex loci celebrationis" Bar +0 O and > entered into a contract in Madrid Spain wherein it was agreed that O would construct for > an apartment in Manila in consideration being >;s house and lot in San @rancisco 5alifornia. (he laws of what country would govern the3a4validity of the contract" 3b4 its performance and 3c4 its consideration=

Ans<)r0 3a4 (he validity of the contract would depend on the lex situs namely the 'hilippine law since the contract deals with a building to be constructed in Manila. 'hilippine law should govern everything about the contract. 3Art. !C par ! civil code4 3b4'rof. Minor however would say that the validity of the contract would be governed by the lex loci celebrationis 2 Spanish law" performance and damages in case of breach would depend on the lex loci intentionis 2 'hilippine law" and the sufficiency of consideration would depend on lex loci considerationis 2 5alifornia law. E# C5oic) o7 9a< issu)s in con79icts contracts cas)s ?nder the principle of freedom of contract the parties may stipulate on the law to govern their contract agreement.

68

(IN$ #AU v& S5CIP 94 P-il &+4 FACTS 0 Jing Mau as agent of defendant @rancisco Sycip sold and caused the shipment of ! EEE tons of coconut oil emulsion to :as Ma%well @asset under the agency agreement set forth in a letter in 8ew >ork addressed to Sycip and accepted by the latter. Jing was made the e%clusive agent of Sycip in the sale of 'hilippine coconut oil and its derivatives outside the 'hils. Jing filed this action to collect '7E EHD.D# as his share as agent in the sale of ! EEE tons of coconut oil emulsion. Sycip however contends that the transaction for the sale of coconut oil emulsion was not covered by the agency contract because it was agreed upon in another contract and that it was an independent and separate transaction for which Jing has been duly compensated. ISSUE $ELD 0 9hether or not there is conflict of laws involved in this case. 0 8o. (here is no conflcit of laws involved in the case because it is only a 6uestion of enforcing an obligation created by or arising from contract and unless the enforcement of the contract be against public policy of the forum it must be enforced. (he contention that as the contract was e%ecuted in 8ew >ork the 5@I of Manila has no jurisdiction over this case is without merit becuase a non/ resident may sue a resident in the courts of this country where the defendant may be summoned and his property leviable upon e%ecution in case of favorable final and e%ecutory judgment. 'S)C v& S'ER#AN 1&% SCRA $$1 FACTS 0 Eastern 0ook Supply Service 5o. a company incorporated in Singapore was granted by petitioner bank an overdraft facility of Singapore U#EE EEE. As a security for the repayment both private respondent Sherman *eloj and a certain Lowe e%ecuted a :oint and Several <uarantee in favor or petitioner bank. (he company failed to pay its obligation even after demand was made. 'etitioner bank filed a case in the *(5 of Mue.on 5ity. 'rivate respondents claim that 'hilippine courts have no jurisdiction over the case because a stipulation in their guarantee which states that + 3e -ereby agree t-at t-e courts o0 Re2ublic o0 Singa2ore s-all -a4e 5urisdiction o4er all dis2utes arising under t-is guarantee@" ISSUE $ELD 0 9hether or not the venue stipulation in the <uarantee divested of 'hilippine courts of jurisdiction 0 8o becuase the parties did not thereby stipulate that on9A the courts of Singapore to the e%clusion of all the rest has jurisdiction. 8either did the clause in 6uestion operate to divest 'hilippine courts of jurisdiction. In international law jurisdiction is defined as the right of a State to e%ercise authority over persons and things within its boundaries subject to certain e%ceptions. 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. Contracts <it5 Ar1itration C9aus) A multinational contract that contains an arbitration clause gives rise to the issue of whether one of the parties may compel the other to submit to arbitration.

PUROMINES INC# 8# CA ##. SCRA #+1 FACTS 0 'uromines Inc. and Makati Agro (rack Inc. contracted with 'hilip 0rothers Aceanic Inc. for the sale of prilled urea in bulk. (he contract provided inter alia an arbitration clause which states that disputes arising therefrom shall be settled by arbitration clause in London. An May ## !DHH KMGB Liliana &imitrova+ loaded

69

on board at >u.hay ??S* a shipment of !7 7EE metric tons of urea fro transport to Iloilo and Manila to be delivered for 'uromines. About !$ 7EE metric tons were discharged in Manila in bad order and condition. &amages were valued at 'CH$ E7C.#D. 'uromines filed a complaint with *(5 Manila for breach of contract of carriage against Maritime @actors Inc. as ship agent of the vessel in the 'hils. while 'hilip 0rothers was impleaded as charter of the vessel. It filed a motion to dismiss asserting the application of arbitration clause. ISSUE $ELD 0 9hether or not the arbitration clause agreed upon in the Sales 5ontract is valid and applicable 0 >es. 9hether the liability of respondent should be based on the sales contract or that of the bill of lading the parties are nevetheless obligated to respect the arbitration provisions on the sales contract andGor the bill of lading. 'etitioner being a signatory and party to the sales contract cannot escape from his obligation under arbitration clause therein.

CONTRACTS OF AD$ESION It is one that is not negotiated by the parties having been drafted by the dominant party and usually embodied in a standardi.ed form. It is called a contract of adhesion because the only participation of the other party is in affi%ing her signature or adhering thereto. Likewise known as a +take it or leave it contract,

PAN AM WORLD AIRWA%S 8# RAPADAS #.9 SCRA %& FACTS 0 :ose *apadas while standing in line to board the flight from <uam to Manila was ordered by a 'an Am 5ontrol agent to check in his samsonite attache case. 1e instead went to the tail end of the line trying to get through without having to cheack in his attache case. 1e was again spotted and for fear that he would miss the plane he checked it in without declaring its contents or value. ?nfortunately it never arrived in Manila and 'an Am offered to settle the claim for U!CE.EE. *apadas refused and filed a case placing the value of the lost attache case and its contents at U)# )E$.DE. In its answer 'an Am acknowledged responsibility for the loss but asserted that the claim was subject to the +8otice of 0aggage Liability Limitations+ forming part of the passenger;s ticket. ISSUE $ELD 0 9hether or not the said notice 3a contract of adhesion4 be cosidered ade6uate under the circumstances of the case. 0 >es. (here is no dispute that there was such a 8otice appearing on page # of the airline ticket stating that the 9arsaw 5onvention governs in case of death or injury to passenger of the loss damage or destruction to passenger;s luggage. (he plane ticket is what is known as a contract of adhesion and these contracts are not entirely prohibited. (he 5ourt finds the provisions in the plane ticket sufficient to govern the limitations of liabilities of the airline for loss of luggage. If the passenger fails to adhere evidence to oversome the stipulaions he cannot avoid tha application of the liability limitations. P$ILIPPINE AIRLINES 8# CA # SCRA 4+ FACTS 0 <ilda Mejia shipped through 'AL a one/unit microwave from San @ranciso 5alifornia to Mania. ?pon arrival of the unit Mejia discovered that the front glass door was broken and the damage rendered it unserviceable. Aral and written demands were made for reimbursement of the value of the oven and transportation charges paid by Mejia to 'AL which the latter ignored. Mejia demanded through an Attorney '$E EEE for actual damages '!E EEE for moral damages and '!7 EEE monthly loss for income in her catering and restaurant business. 'AL alleged that there was no valid cause of action since it acted in good faith and in compliance with the 9arsaw 5onvention and had e%ercised due diligence in the selection hiring and supervision of its employees.

70

ISSUE $ELD

0 9hether or not the petitioner;s liability for damage to Mejia;s microwave should be limited by the provisions of the airway bill. 0 8o. 9hile the 9arsaw 5onvention has the force and effect of law in the 'hilippines being a treaty commitment by the government and as a signatory thereto the same does not operate as an e%clusive enumeration of the instances when a carrier shall be liable for breach of contract or as an absolute limit of the e%tent of liability nor does it preclude the operation of the 5ivil 5ode or other pertinent laws.

Contracts 7or Int)rnationa9 Air,Trans=ortation 5onvention for the ?nification of 5ertain *ules *elating to International (ransportation by Air or known as 9arsaw 5onvention. (he 5onvention which applies to all international transportation of persons baggage or goods performed by aircraft for hire enumerate instances when the carrier is liable fi%ing the ma%imum amount of damages to be included in each case. 1owever the limits of liability shall not apply if it is proved that the damage resulted from an act or omission of the carrier his servants or agents done with intent to cause damage or recklessly and with knowledge that damage would probably result provided in such case it is proved that the servant or agent was acting within the scope of his employment.

/LM RO%AL DUTC$ AIRLINES# 8# CA % SCRA #$& FACTS 0 Spouses Mendo.a went on a world tour with their children and niece. (hey were issued JLM tickets for their entire trip. 1owever their coupon for Aer Lingus which would carry them from 0arcelona Spain to Lourdes @rance was marked *M or on re6uest. 9hen they checked in at the airport of 0arcelona only the young wards were allowed to take the plane to Lourdes while the spouses were loaded by the manager in an inhumane manner. So they had to take a train to reach their destination. (he respondents filed a complaint against JLM as the principal of the Aer Lingus for damages arising from breach of contract of carriage and for the humiliating treatment they had received. (he JLM sought complete e%oneration on the ground that tickets issued to respondents stipulate that carriage thereunder is subject to Art. $E of the 9arsaw 5onvention which provides that in case of transportation to be performed by various successive carriers the liability of carrier for damages shall be limited to occurrences on its own lines ISSUE $ELD 0 9hether or not the limited liability condition printed on the respondents ticket is binding upon them. 0 8o. (he applicability insisted upon by the JLM of Article $E of the 9arsaw 5onvention cannot be sustained because the article presupposes the occurrence of either an accident or delay neither of which took place at the 0arcelona airport. 9hat is here manifest instead is that the Aer Lingus through its manager there refused to transport the respondents to their planned and contracted destination. As noted by the 5A that condition was printed in letters so small that one would have to use a magnifying glass to read the words.(he JLM was chargeable with the duty and responsibility specifically informing the respondents of conditions prescribed in their tickets or in the vary least to ascertain the respondents read them before they accepted their passage tickets.

71

-I #

C5oic) o7 La< in Wi99sE Succ)ssion and Ad6inistration !&G" S%NOPSIS OF CONFLICTS RULES 2ACTUAL SITUATION 3!4 E%trinsic Balidity of 9ills 3a4 made by an alien abroad POINT O2 CONTACT 3!4 3a4 le% nationalii or le% domicilii or 'hilippine law 3Art. H!C civil code4 or le% loci celebrationis 3Art. !F par. !4 3b4 le% nationalii or le% loci celebrationis 3Art. H!7 civil code4 3c4 le% nationalii celebrationis 3Art. H!F civil code4 3#4 3a4 3b4 le% nationalii 3is void even if valid where made4 3Art. H!D civil code4 valid if valid according to le% nationalii or le% domicilii or le% loci celebrationis le% loci celebrationis therefore void even if apparently allowed by Art. H!F 2 because the prohibition on joint wills is clear e%pression of our public policy or le% loci

3b4 made by a @ilipino abroad 3c4made by an alien in the 'hilippines 3#4 E%trinsic validity of :oint 9ills 3made in the same instrument4 3a4 made by @ilipinos abroad 3b4 made by aliens abroad 3c4 made by aliens in the 'hilippines

3c4

3$4 Intrinsic validity of 9ills 3including the order of succession amount of successional rights and intrinsic validity of the provisions of the will4 3)4 5apacity to succeed 374 *evocation of the wills 3a4 if done in the 'hilippines 3b4 if done outside the 'hilippines !4 by a non/domiciliary

3$4 le% nationalii of the deceased / regardless of the location and nature of the property 3Art. !C par. # civil code4 3)4 le% nationalii of the deceased / not that of the heir 3 Art. !E$D civil code4 374 3a4 le% loci actus 3of the revocation4 3Art. !E$D civil code4 3b4 !4 le% loci celebrationis 3of the making of will not the revocation4 or le% domicilii 3Art. H#D civil code4 #4 le% domicilii 3'hil. Law4 or le% loci actus 3of the revocation4 3Art. !F civil code4 3C4 3a4 as le% fori of the 'hilippines applies to the procedural aspects 2 that is 2 the will must be fully probated here and due e%ecution must be shown 3b4 le% fori of the 'hilippines agains applies the procedural aspects 2 that is 2 the will must also be probated here 2 but instead of proving the due e%ecution generally it is enough to ask for the enforcement here of the foreign judgment on the probate abroad 3F4 3a4 place where domiciled at death

#4 by a domiciliary of the 'hils. 3C4 'robate of the wills made abroad 3a4 if not yet probated abroad

3b4 if already probated abroad

3F4 E%ecutors and Administrators 3a4 where appointed

72

3b4 powers

or in case of non/domiciliary where assets are found 3b4 co/e%tensive with the 6ualifying or appointing court 2 that is 2 powers may be e%ercised only within the territorial jurisdiction of the court concerned 8A(E- (hese rules also apply to principal domiciliary or ancillary administrators and receivers even in non/succession cases.

A# E@trinsic 8a9iditA o7 <i99s E%trinsic validity of will deals with the forms and solemnities in the making of wills" the number of witnesses" the form of the will 2 oral private instrument public instrument . Art# (B +(he forms and solemnities of contracts wills and other public instruments shall be governed by the laws of the country in which they are e%ecuted,. 9hen the acts referred to are e%ecuted before the diplomatic or consular officials of the *' in a foreign country the solemnities established by the 'hilippine laws shall be observed in their e%ecution. Art# K(' + 9hen a @ilipino is in the foreign country he is authori.ed to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the 'hilippines,

Art# K(4 + (he will of an alien who is abroad produces effect in the 'hilippines 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 this 5ode prescribes, Art# K(B +A will made in the 'hilippines by a citi.en or subject of another country which is e%ecuted in accordance with the law of the country of which he is a citi.en or subject and which might be proved and allowed by the law of his own country shall have the same effect as if e%ecuted according to the laws of the 'hilippines.

T5) 7o99o<ing ar) our con79icts ru9)s on t5) )@trinsic 8a9iditA o7 <i99s0 !. if the will was made by an alien abroad he must comply with the formalities of the le% nationalii or le% domicilii or 'hilippine law 3Art. H!C civil code4 or le% loci celebrationis 3Art. !F par. ! civil code4 E%ample- If a :apanese domiciled in Argentina makes a will in Me%ico while vacationing there the will may be considered e%trinsically valid by our courts if it has complied with the formalities prescribed in :apan Argentina Me%ico or the 'hilippines. #. If a @ilipino makes a will abroad he may comply with the formalities of the le% nationalii 3'hilippine law4 or le% loci celebrationis 3law of the place where he may be or where he makes a will4 3Art. H!7 civil code4

$. If an alien makes a will in the 'hilippines he is allowed to comply with the formalities of his own country 3le% nationalii4 or the law of the 'hilippines 3Art. H!F civil code4 E-TRINSIC ALIDIT% OF JOINT WILLS Art# K(K +(wo or more persons cannot make a will jointly or in the same instrument either for their reciprocal benefit or for the benefit of a third person,.

73

Art# K(I +9ills prohibited by the preceding article e%ecuted by @ilipinos in a foreign country shall not be valid in the 'hilippines even though authori.ed by the laws of the country where they may have been e%ecuted, T5) 7o99o<ing ar) t5) ru9)s0 !. If joint wills are made by @ilipinos abroad the same shall be considered void in the 'hilippines even if they were valid in the place where they were e%ecuted. #. joint wills made by aliens abroad shall be considered valid in the 'hilippines if valid according to the le% nationalii or le% domicilii or le% loci celebrationis $. joint wills made by aliens in the 'hils. even if valid in accordance with their national law will not be countenanced in the 'hils. because otherwise our public policy may be militated against. E-TRINSIC ALIDIT% OF $OLO*RAP$IC WILLS (he rules contained in Art. H!C Q H!F on wills made by aliens abroad or in the 'hils. apply to holographic wills. Art. H!E of the civil code defines holographic will as one entirely written dated and signed by the hand of the testator himself. It is not subject to any other form need not be witnessed and may be made in or out of the 'hils. IN RE ESTATE OF JO$NSON $9 P-il 1 % FACTS 0 A petition was filed for probate of the holographic will of Emil :ohnson a native of Sweden and a naturali.ed citi.en of the ?S who died in Manila on the ground that :ohnson was at the time of his death a citi.en of Illinois ?SA and that the will was duly e%ecuted in accordance with the law of Illinois hence could be properly probated here in the 'hils. pursuant to Sec. C$C of the 5ode of 5ivil 'rocedure. After the will was admitted to probate an alleged daughter of :ohnson moved for the annulment of the decree of probate and the commencement of the intestate administration of the estate on the ground that the deceased testator was not a resident of the State of Illinois and that the probated will was not in accordance with the laws of said State ISSUE $ELD 0 9hether or not order of probate be set aside on the ground invoked by the appellant 0 8o. (he proof adduced by the trial court shows that the testator was at the time of his death a citi.en of the ?S and of the State of Illinois his will was provable under this section in the 5ourts of the 'hils. provided the instrument was so e%ecuted as to be admissible to probate under the laws of the State of Illinois. 8evertheless even supposing that the trial court may have erred in taking judicial notice of the law of Illinois on the point in 6uestion such error is not available to the petitioner because the petition does not state any fact from which it would appear that the law of Illinois is different from what the court found.

B# Intrinsic 8a9iditA o7 <i99s (he intrinsic validity of the wills including the order of succession the amount of successional rights and the intrinsic validity of the provisions of the will shall be governed by the le% nationalii of the deceased regardless of the location and nature of the property whether real or personal. 3Art. !C par. # civil code4 Art# (4 =ar & +1owever intestate and testamentary successions both with respect to the order of succession and the amount of successional rights and to the intrinsic validity of the 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 where said property may be found, E@a6=9)0 A 5hinese died in Manila leaving a 0M9 car and a parcel of land in 'ampanga 'hils. (he law of which country governs the successional rights of his heirs to both the car and land=

74

Suppose the 5hinese also left parcels of land in 5hina and 5uba what should our courts do= Ans<)r0 (he law of 5hina being the le% nationalii of the deceased governs the successional rights to both the car and the parcel of land. 3Art. !C par. # civil code4

Aur courts have no jurisdiction to award the 5hinese and 5uban lands in favor of the heirs of the deceased since they are outside the 'hilippines. As a matter of fact in the inventory of the assets of the deceased these lands will ordinarily not be included unless the properties are themselves within the territorial jurisdiction of the 'hils. 3<ibbs v. <ov;t4 CA%ETANO 8# LEONIDAS 1#9 SCRA ## FACTS 0 Adoracion 5ampos died leaving 1ermogenes 5ampos as the only compulsory heir. 8enita 'aguia on the other hand filed a petition of the reprobate of the will of the deceased which was allegedly e%ecuted in the ?S and for her appointment as the administratri% of the estate. (he will of the deceased was admitted to and allowed probate in the 'hils. and 'aguia was then appointed as administratri%. Although the parties admit that the 'ennsylvania law does not provide for legitimes the petitioner/father of the deceased argued that such law should not apply because it would be contrary to the sound and established public policy and would ran counter to the specific provisions of 'hilippine law. ISSUE $ELD 0 0 9hich law shall govern the intrinsic validity of the provisions of the 'hilippine law (he private respondents have sufficiently established that Adoracion was at the time of her death an American citi.en and a permanent resident of 'hiladelphia 'ennsylvania ?SA. (herefore the law which governs her will is the law of 'ennsylvania ?SA which is the national law of the decedent. It is a settled rule that as regards the intrinsic validity of the will as provided for by Art. !C par # and Art. !E$D of the 5ivil 5ode the national law of the decedent must apply.

PAULA LLORENTE 8# CA J ALLICIA LLORENTE $4 SCRA 9# FACTS 0 (he deceased Loren.o Llorente an enlisted serviceman of the ?S 8avy married to herein petitioner 'aula Llorente was admitted to ?S citi.enship in !D)$. ?pon discovery of petitioner;s adulterous relationship with his brother he subse6uently filed for a divorce before the Superior 5ourt of 5alifornia which the court granted. Meanwhile he returned to the 'hils. and married respondent Alicia Llorente in Manila producing three children. In Loren.o;s last will and testament he be6ueathed all his properties to Alicia and to their children. 'aula then filed with the same court *(5 of 5amarines Sur a petition for letters of administration over Loren.o;s estate in her favor. (he 5ourt declared the intrinsic disposition of the will as void and found that the divorce granted to Loren.o is void and cannot be applied in the 'hils. ISSUE $ELD 0 9hether or not the will was intrinsically valid 0 9hether the will is intrinsically valid and who shall inherit from Loren.o are issues best proved by foreign law which must be pleaded and proved. 9hether the will was e%ecuted in accordance with the formalities re6uired is answered by referring to the 'hilippine law. In this case the court remanded the case to the trial court for ruling on the intrinsic validity of the will of the deceased.

75

C# Int)r=r)tation o7 <i99s 'ursuant to the nationality principle in our 5ivil 5ode the interpretation of a will or testament must be governed by the rules of interpretation of the decedent;s national law. In contracts the principal rule in wills is that +where the terms are clear and unambiguous the le% intentionis of the parties should be followed., +9hen there are ambiguous provisions the intention of the party or the e%act meaning he may have ascribed to them can be inferred by referring to the conte%t of the instrument or the testator;s contemporaneous and subse6uent acts. In case a will admits of different dispositions the interpretation by which the disposition is to be operative shall be referred. D# R)8ocation 0eing a unilateral and purely personal act a will is revocable at any timr before the death of the testator. Any waiver or restriction of this right is void. If a revocation done outside the 'hilippines by a person who does not have a domicile in this country is valid when it is done according to!. the law of the place where the wil was made 3le% loci celebrationis4 #. the law of the place where the testator had his domicile at that time 3le% loci domicilii4 If a revocation is done outside the 'hils. by one domiciled in the 'hilippines the law of the domicile which is 'hlippine law or the law of the place of the revocation 3le% loci actus4 controls. ?nder the 'hilippine law wills are deemed revoked e%cept in the following cases!. by implication of law #. by some will codocil or other writing e%ecuted as provided in the case of wills $. by burning tearing cancelling or obliterating the will with the intention of revoking it by the testator himself or by some other persons in his presence and by his e%press direction. +UER%0 9hen a testator revokes his will in the state where he is domiciled and then changes his domicile to another state where he dies. If the revocation of his will was valid by the laws of the State where he revoked it but invalid by the laws of the state of domicile at the time of his death which law will control the situation=

ANSWER0 5ommon law countries apply law of the domicile at the time of the testator;s death. 1owever 'hilippine law clearly provides the law of the place of revocation E# Pro1at) 'robate is an adjudication that the last will and testament of a person was e%ecuted with all the formalities re6uired by law. ?nder *ule FE Sec. D of the *evised *ules of 5ourt a will shall be disallowed in any of the following cases!. If not e%ecuted and attested as re6uired by law #. If the testator was insane or otherwise incapable to make a will at the time of its e%ecution $. If it was e%ecuted under duress the influence of fears and threats ). If it was produced by undue and improper pressure and influence on the part of the beneficiary or some other person for his benefits

76

7. If the signature of the testator was procured by fraud or trick and he did not intend that the instruments should be his will at the time of fi%ing the signature thereat

SUNTA% 8# SUNTA% 9 P-il .. FACTS 0 :ose Suntay a @ilipino citi.en died in 5hina leaving real and personal properties in the 'hils. and a house in Amoy 5hina. Intestate proceedings were instituted in the 5@I of 0ulacan and @ederico the child of the deceased on his first marriage was appointed as an administrator of the estate. Subse6uently the surviving widow filed a petition for probate of the will claiming that it has been e%ecuted and signed in the 'hils. by the deceased. 1owever the petition was denied because the will was lost before hearing. After the war Selvino the son of the deceased on his second marriage petitioned for testate proceedings praying for the probate of the will e%ecuted in 5hina in !D$! which he claimed was already probated there. 5@I of 0ulacan disallowed the alleged will. Selvino appealed contending that the wills proved and allowed in a foreign country according to the laws of such foreign countries may be allowed filed and recorded by the 5@I in the 'hils.

ISSUE $ELD

0 9hether or not the will e%ecuted in 5hina be probated here in the 'hilippines 0 8o. In the absence of proof that the municipal court of 5hina is a probate court and on the 5hinese law of procedure in probate matters it may be presumed that the proceedings in the matter of probating a will in the 5hinese courts are the same as those provided in out laws on the subject. 1ence in the absence of notice to the interested heirs residing in the 'hils. probate of a will can be denied.

DA DE PERE3 8#TOLETE #$# SCRA &## FACTS 0 :ose and Evelyn lived in 8ew >ork with their three children. (hey make a will e%ecutd separately but containing the same provisions that if any of them survived theiir properties would go to their children with *afael brother of the deceased :ose as trustee. In :anuary !DH# :ose and his entire family perished in a fire that gutted their home. *afael filed a separate proceedings for the probate of the two wills in 8ew >ork. (hey were admitted to probate and letters testamentary were issued in his favor. An the other hand Salud the mother of Evelyn filed in 5@I 0ulacan a petition to reprobate the wills and insisted that the separate wills of 5unanan spouses should be probated jointly. ISSUE $ELD 0 0 9hether or not joint probate be allowed >es. Sec. ! of **5 provides that +the rules shall be liberally construed in order to promote their object and to assist the parties in obtaining just speedy and ine%pensive determination of every action and proceedings,. 9hat the law e%pressly prohibits is the making of joint wills. In this case the 5unanan spouses e%ecuted separate wills. Since the two wills contain essentially the same provisions and pertain to property which in all probability are conjugal in nature practical considerations dictate their joint probate. Moreover the evidence necessary for the reprobate of the wills which have been probated outside the 'hils. are as follows-

77

!. the due e%ecution of the will in accordance with the foreign laws #. the testator domiciled in a foreign country $. the will has been admitted to reprobate in such country ). the fact that the foreign tribunal id a foreign court 7. the laws on foreign country or procedure and allowance of wills

F# Ad6inistration o7 )stat)s (he administration of the estate of the deceased consists of the duties to manage and settle the decedent;s debts and distribute the residuum of the estate to the deceased;s heirs. 9hen the will has been proved and allowed it is the duty of the probate court to issue letters testamentary thereon to the person so named in the will upon the latter;s application (he title of domiciliary administrator is of no e%traterritorial force and e%tends only to assets of a decedent found within the state or country where it was granted. An administrator appointed in one state has no power over properties in another state or country. An ancillary administrator is one appointed by the court of foreign country where the assets or property are located. TA%A* 8# BEN*UET CONSOLIDATED INC# #% SCRA #4# FACTS 0 'erkins died leaving two stock certificates in the 0enguet 5onsolidated Inc. a 'hil. 5orporation. (he certificates were in possession of 5ountry (rust 5o. of 8ew >ork which was the domiciliary adminstrator of the estate of the deceased. Meanwhile anciliary administration proceedings in the 5@I of Manial were instituted and the court appointed La.aro Mar6ue. as anciliary administrator wo was substituted by *enato (ayag. A dispute arose between the domiciliary and anciliary administratoes as to which of them was entitled to the possession of the stock certificates. (he 5@I ordered the domiciliary administrator to produce and deposit the certificates with (ayag or with the 5erk of 5ourt but the former did not comply with the said order. (ayag petitioned the 5ourt to issued an order declaring the stocks certificates as lost which the court granted. 1ence this appeal by the oppositor 0enguet 5onsolidated Inc. ISSUE $ELD 0 9hether or not ancillary administrator is entitled to the possession of the stock certificates 0 >es. (he ancillary administration is proper whenever a person dies leaving in a country other than that of is last domicile property to be administered in the nature of assets of the deceased liable for his individual debts or to be distributed among his heirs. It would follow then that the authority of the probate court to re6uire that anciliary administrato;s right to the stock certificatesVstanding in her name in the books of appellant/0enguet 5onsolidated Inc. be respected is e6ually beyond 6uestion. @or appellant is a 'hil. 5orporation owing full allegiance and subject to the unrestricted jurisdiction of the local courts. Its shares of stock cannot therefore be considered in any wise as immune from lawful court orders

*# Trusts (rust is a right of property real or personal held by one party for the benefit of another. It may be created by deed during the lifetime of the settler or by will.

78

(estamentary trusts depend for their e%trinsic validity on the will which created them. (he rules governing wills as to capacity and e%trinsic re6uirements apply. Since a trust involves a property the rule of lex situs determines the validity of a trust created by a last will and testament.

- #

C5oic) o7 La< in Torts and Cri6)s !&& J &;" A# SAno=sis o7 con79icts ru9)s 2ACTUAL SITUATION Liability and damages for torts in general NOTE- the locus delicti 3place of commission of torts4 is faced by the problem of characteri.ation. In civil law countries the locus delicti is generally where the act began" in common law countries it is where the act first became effective POINT O2 CONTACT Le% loci delicti commissi 3law of the place where the delict was committed4 NOTE: liability of foreign torts may be enforced in the 'hilippines if the tort is not penal in character if the enforcement of the tortuous liability would not contravene our public policy if our judicial machinery is ade6uate for such enforcement

P$ILIPPINE CONFLICT RULE ON TORTS Artic9) &G of the 5ivil 5ode provides +74ery 2erson 3-o, contrary to la3, 3ill0ully and negligently cause damage to anot-er, s-all indemnity t-e latter 0or t-e same"A

As a general rule the liability and damages for torts are governed by le% loci delicti 3law of the place where the delict was committed4

C5aract)ri:ation o7 t5) =9ac) o7 <rong !9ocus d)9icti" !. Co66on 9a< t5)orA 2 looks at the place where the last event necessary to make an actor liable for an alleged tort occurs 3where the injury is sustained4 #. Ci8i9 9a< t5)orA 2 view the situs of torts as the place where the tortuous act was committed Mod)rn t5)ori)s in tort 9ia1i9itA !. O19igation T5)orA 2 the tortuous act gives rise to an obligation which is transitory and follows the person committing the tortuous act and may be enforced wherever he may be found #. Doctrin) o7 E9)cti8) Concurr)nc) ? either the laws of the state where the actor engaged in this conduct and where the injury was incurred may be invoked $. T5)orA o7 Most Signi7icant R)9ations5i= ? the applicable law shall be the law of the country which has the most significant relationship to the situation. In determining the state which has the most significant relationship the following factors are to be taken into accounta. place where the injury occurred b. place of conduct causing the injury

79

c.

domicile residence nationality place of incorporation and place of business d. place where relationship between the parties is centered 1Saudi AraCian
Airlines v& CA6 :;F SCRA ?8;4

># Stat),Int)r)st Ana9Asis ? this principle provides for the following methodologya. determine false or spurious conflicts 3i.e. internal laws of the different states have the same result or when only one state has an interest in applying its tort law. b. if there is true conflict!. if interested forum 2 apply the law of such State which has greater interest in upholding its tort law" #. if disinterested forum 2 dismiss on the ground of non forum conveniens

'# Ca8)rLs Princi=9) o7 Pr)7)r)nc) ? guideline on which rules on torts may be applied by states in absence of statutory provision Stat),Int)r)st Ana9Asis ? this principle provides for the following methodologya. determine false or spurious conflicts 3i.e. internal laws of the different states have the same result or when only one state has an interest in applying its tort law. b. if there is true conflicta. where the state of injury provides for higher standard of conduct or financial protection against injury than the state where the tortuous act was done the law of the former shall govern" b. where the state of injury and conduct provides for lowed standard and financial protection that the home state of the person suffering the injury the law of the state of conduct and injury shall govern" c. where the state in which the defendant has acted has established special controls over conduct of the kind in which defendant was engaged the special controls and benefits must he applied although the state has no relationship to the defendant" d. where the law in which the relationship has its seat imposed higher standard of conduct or financial protection than the law of the state of the injury the former law shall govern. Conditions 7or t5) En7orc)6)nt o7 Tort C9ai6s (he tort is not penal in character If the enforcement of the tortuous liability would not contravene our public policy If our judicial machinery is ade6uate for such enforcement P5i9i==in) Ru9) Salonga suggests for the following methodology in solving tort problems in the 'hilippinesa. ascertain and weigh the purpose underlying the tort law of the forum. If the tort law of the 'hilippines embodies a social or economic policy then the law of the forum on torts shall be applied" b. if the 'hilippines has no concern or interest in the application of the internal law and the other states have interest apply the law of such state NOTE 0 (he state where an injury has occurred has interest in compensating the injured party. 9hereas the state where the action has acted has interest in regulating conduct of persons found in its territory

SPECIAL RULES !. If the tort committed aboard a public vessel whether on the high seas or in a foreign territorial waters the country to which the vessel belongs is the locus delicti" the law of the flag is thus the le% loci delicti commissi" #. if the tort takes place aboard a private or merchant vessel on the high seas the law of the flag is likewise the le% loci delicti commissi" $. if the tort concerns property whether real or personal the le% situs is usually also the le% loci delicti commissi" ). maritime torts

80

a. if the colliding vessels are of the same state or carry the same flag said law is the le% loci delicti commissi" b. if the vessels come from different states whose laws however on the matter are identical said laws constitute the le% loci delicti commissi" c. if the vessels come from different states with different laws the le% loci commissi is the general maritime law as understood and applied by the forum where the case is tried B# LIABILIT% AND DAMA*ES FOR TORTS IN *ENERAL liability and damages for torts in general are governed the le% loci delicti commissi 3the law of the place where the delict or wrong was committed4

C# LOCUS DELICTI *ENERAL RULE 0 (he essential elements of a crime and its penalties are generally determined by the law of where the crime was committed 3 locus regit actum)

E-CEPTIONS0 !. crimes committed by state officials diplomatic representatives and officials of recogni.ed international organi.ations 3base on the theory of state immunity from suits4 #. crimes committed on board a foreign vessel even if within the territorial waters of the coastal state as long as the effect of such crime does no affect the peace and order of the coastal state" $. crimes which although committed by 'hilippine nationals aboard are punishable under the local law pursuant to the protective principle of criminal jurisdiction 3Article # of the *'54 T$EORIES TO W$AT COURT $AS JURISDICTION !. (erritoriality theory 2 where the crime was committed #. 8ationality theory 2 country which the criminal is a citi.en or a subject $. *eal (heory 2 any state whose penal code has been violated has jurisdiction where the crime was committed inside or outside its territory" ). 'rotective theory 2 any state whose national interests may be jeopardi.ed has jurisdiction so that it may protect itself" 7. 5osmopolitan or university theory 2 state where the criminal is found or which has his custody has jurisdiction" C. 'assive personality theory 2 the state of which the victim is a citi.en or subject has jurisdiction NOTE 0 In the 'hilippines we follow the territoriality theory in general. 1ence our penal laws apply only to crimes committed within the country. E-CEPTION0 Article # of *'5 stresses the protective theorya. Affense committed while in a 'hilippine vessel or airship b. @orging or 5ounterfeiting any coin currency note of the 'hilippines or any obligation issued by the government" c. Introduction into the country of the abovementioned obligations and securities" d. 9hile being public officers and employees any offense committed in the e%ercise of their functions" e. 5rimes against national security and the law of the nations as defined in (itle ! 0ook ! of the *'5. CRIMES COMMITED ABOARD PRI ATE OR MERC$ANT ESSELS !. if the crime committed aboard a private or merchant vessel occurred on the high seas the country of the flag of the vessel has jurisdiction. (hus if the vessel carries the @rench flag 'hilippine courts have no jurisdiction e%cept those provided in Article # of *'5. #. If the crime aboard a private or merchant vessel of a foreign state took place inside 'hilippine territorial waters 2 two theories have generally been used to determine the 6uestion of jurisdiction- the English rule 3which emphasi.es the territorial principle4 and the @rench rule 3which stresses the nationality theory4.

81

a. T5) Eng9is5 Ru9) 2 here the territory where the crime was committed 3'hilippines4 will have jurisdiction e%cept in matters relating to the internal order and discipline in the vessel and those which affect solely the ship and its occupants such as minor or petty criminal offenses committed by members of the crew.

c. T5) Fr)nc5 Ru9) 2 under this rule founded on the opinion of the @rench 5ouncil of State in !HEC the state whose flag is flown by the vessel would have jurisdiction e%cept if the crime affects the peace order security and safety of the territory.

2ACTUAL SITUATION !. essential elements of a crime and penalties therefor

POINT O2 CONTACT generally where committed 3locus regit actum4 T$EORIES TO W$AT COURT $AS JURISDICTION !. (erritoriality theory 2 where the crime was committed #. 8ationality theory 2 country which the criminal is a citi.en or a subject $. *eal (heory 2 any state whose penal code has been violated has jurisdiction where the crime was committed inside or outside its territory" ). 'rotective theory 2 any state whose national interests may be jeopardi.ed has jurisdiction so that it may protect itself" 7. 5osmopolitan or university theory 2 state where the criminal is found or which has his custody has jurisdiction" C. 'assive personality theory 2 the state of which the victim is a citi.en or subject has jurisdiction NOTE 0 In the 'hilippines we follow the territoriality theory in general. 1ence our penal laws apply only to crimes committed within the country.

#. the locus delicti of certain crimesfrustrated and consummated homicide murder infanticide and parricide frustrated and consummated homicide murder infanticide and parricide bigamy theft and robbery where the victim was injured 3not where the aggressor wielded his weapon where the intended victim was 3not where the aggressor was situated4 so long as the weapon or the bullet either touched him or fell inside the territory where he was where the illegal marriage was performed where the property was unlawfully taken from the victim 3not the place to which the criminal went after the

82

conspiracy to commit treason rebellion or sedition note: ot-er cons2iracies are not 2enali6ed by our la3s libel continuing crime comple% crimes D# CRIMES # TORTS

commission of the crime4 where the conspiracy was formed 3not where the overt act of treason rebellion or sedition was committed4 where published or circulated any place where the offense begins e%ists or continues any place where any of the essential elements of the crime took

TORT is transitory in character and as such liability is deemed personal to the tortfeasor and makes him amenable to suit in whatever jurisdiction he is found while CRIME is local in that the perpetrator of the wrong can be sued only in the state wherein he commits the crime

TORT is an injury to an individual who may be situated in any place while a CRIME is an injury to the state where it is committed TORTS law assign liability to the perpetrators in order to indemnify the victim for injuries he sustained while PENAL laws are promulgated to punish and reform the perpetrators and deter them and others from violating the law Bar +u)stion0 A @rench vessel in transit is anchored along a pier at 'ort Area Manila. (here was found in a cabin of one of the members of the crew who is a @renchman a package of opium. (he @rench sailor admitted possession of the same. May he be criminally prosecuted for illegal possession of opium in our courts= 9hy= Suppose the package opium was already lowered from the boat and placed on a banca that was floating on the water alongside the vessel ready to be brought ashore amy a criminal prosecution be filed in the 'hilippines= 9hy= Ans<)r0 3a4 8o prosecution will succeed in the case involving merely the illegal possession of opium because there is actually no disturbance of the public order in the 'hils. 3b4 (he act of placing the opium aboard that banca ready to be brought ashore is a violation of our public policy morals safety and order conse6uently the act should be punished. SAUDI ARABIAN AIRLINES 8# CA #DF SCRA 4%9

FACTS 0 Milagros Morada a flight attendant of the petitioner SA?&IA was attemptedly raped by a certain Saudi national. (hree years later after the said incident before the departure of her flight from *iyadh for Manila an officer of the petitioner brought her to the Saudi court where she was made to sign a document written in Arabic and interrogated by a judge. 'etitioner assure her that these were merely a routine procedure necessary to drop the case against the two men who attemptedly raped her. 0ut to her shock she was sentenced to imprisonment and to #HC lashes of adultery going to the disco and listening to the music and sociali.ing with male crew all in violation of Islamic law. 'etitioner terminated her contract before she was allowed to return to Manila. Morada then filed a case for damages against the petitioner based on violations of these provisions which are actionable Art. !D +Every person must in the e%ercise of his duties act with justice give everyone his dues and observe honesty and good faith+ and Art #! +8y person who willfully causes loss or injury to another in a manner that is contrary to morals good customs or public policy shall compensate the latter for damage+ (he petitioner 6uestioned the jurisdcition of the 'hilippine courts to try the case for lack of substantial interest in the case and that 'hilippine law shall not govern this case. ISSUES 0 3!49hether or not 'hilippine law shall govern this case

83

3#49hether or not 'hilippine court has jurisdiction to try the case. $ELD 0 3!4>es because 'hilippines is the situs of the tort complained of and the place having the mist interest in the problem. It is in the 'hilippines where the petitioner allegedly deceived private respondent a @ilipina residing and working here. ?nder the State of the Most Significant *elationship *ules the following contacts are to be taken into accounta& Place < ere t e in,ur= occured C& Place < ere t e conduct causing t e in,ur= occurred c& Do+icile6 residence6 nationalit=6 !lace o" incor!oration and !lace o" Cusiness o" t e !arties d. Place < ere t e relations i! i" an= Cet<een t e !arties is centered. 3#4 >es. 9here the action is one involving torts the connecting poin of contract could be the place where tortious conduct occurred. (he *(5 of Mue.on 5ity possesses jurisdiction over the subject matter of the suit. A party whose cause of action is based on a 'hilippine law particularly Arts. !D Q #! has no obligation to plead and prove the law of another State.

TIME INC# RE%ES )t a9 $9 SCRA $.$ FACTS 0 Billegas and Enrile filed a case for libel against (IME Inc. a foreign corporation for an alleged libel arising from a publication of (IME maga.ine that Billeas was the source of graft and corruption and nepotism in Asia and that it was Enrile who helped Billegas borrow an amount without interest. (IME Inc. moved to dismiss the case for lack of jurisdiction and improper venue relying upon the provisions of *A )$C$ that if the offended party is a public officer with office in Manila the proviso limits him to two choices of venue namely in the 5@I of Manial or in the city or province where the libelous acrticle was printed and first published. 1owever the complaint was lodged in the 5@I of *i.al despite the fact that the plaintiffs are public officers with offices in Manila. ISSUE $ELD 0 9hether or not the 5@I of *i.al has jurisdiction to try the case 0 8o. A libeled public official must sue in court of the locality where he holds office in order that the prosecution of action should interfere as a little as possible with the discharge of his official duties and labors. (he only alternative allowed him by law is to prosecute those responsible for the libel in the place where the offending article was printed and first published. Since the offending publication was not printed in the 'hilippines the alternative venue was not open to respondent Mayor Billegas of Manila and ?ndersecretary of @inance Enrile who were the offended parties. 1ence the venue provisions of *A )$C$ should be deemed mandatory for the party bringing the action unless tha 6uestion of venue should be waived by the defendant which is not the case here.

LIAN* 8# PEOPLE OF T$E P$ILIPPINES $#$ SCRA %9# FACTS 0 'etitioner is a foreigner and economist working with the Asian &ev;t 0ank. Sometime in !DD) for allegedly uttering defamatory words against fellow A&0 worker :oyce 5abal he was charged before the Me(5 Mandaluyong 5ity with two counts of grave oral defamation. 'etitioner filed a motion to dismiss the case based on the protocol submitted by the &@A to the counrt stating that the petitioner is covered by the immunity from legal process based on the agreement between the A&0 and 'hilippine government regarding the head6uarters of A&0 in the country which provides that staffs and officers of the bank including the consultants and e%perts performing missions in the bank shall enjoy immunity from legal process with respect to acts performed by them in their official capacity e%cept when the bank waives the immunity. ISSUE 0 9hether or not the said immunity clause can be invoked by the petitioner.

84

$ELD

0 8o. (he mere invocation of the immunity clause does not ipso facto result in the dropping of the charges. (he immunity mentioned therein is not absolute but subject to e%ception that the act was done in official capacity. (he commission of the said crime is not part of of his official functions.

PEOPLE 8# WON* C$EN* 4 P-il &#9 FACTS 0 9ong 5heng a 5hinese citi.en is accused of having illegally smoked opium aboard the English mercahnt vessel 5hangsa wile it was anchored in Manila 0ay two and a half miles from the shore of the city. 9omg 5heng filed a demurrer to the information alleging lac of jurisdiction of the lower court whcih granted the demurrer and dismissed the case. 'etitioner appealed to the Supreme 5ourt contending that the court has jurisdiction over the case because the crime was committed aboard merchant vessel within our jurisdictional waters.

ISSUE

0 9hether or not 'hilippine courts ac6uire jurisdiction over the crime committed aboard merchant vessels within our jurisdictional waters.

$ELD

0 >es. ?nder the English *ule which is based on the territorial principle and followed in the ?S S+crimes perpetrated under such circumstances are in general triable in the courts of the country within whose territory they were committed. 1ence if the passenger starts smoking opium within our territorial waters aboard a foreign merchant vessel that offense becomes a breach of public order and therefore triable in our courts.

- I#

C$OICE OF LAW AFFECTIN* CORPORATIONS AND OT$ER JURIDICAL ENTITIES A# CORPORATIONS 2ACTUAL SITUATION 'owers and Liabilities POINT O2 CONTACT *)n)ra9 Ru9)0 the law of the place of incorporation E@c)=tions0 @or constitutional purposes 2 even if the corporation was incorporated in the 'hil. it is not deemed a @ilipino corporation and therefore cannot ac6uire land e%ploit our natural resources and perate public utilities unless CEP of capital is @ilipino owned @or wartime purposes 2 we pierce the corporation veil and go to the nationality of the controlling stockholders to determine if the corporation is an enemy 3control test) law of the place of incorporation

@ormation of the 5orporation 3re6uisites4- kind of stocks transfer of stocks to bind corporation issuance amount and legality and dividends and duties of members stockholders and officers Balidity of corporate acts and contracts 3including ultra vires acts4

law of the place of incorporation and law of the place of performance 3the act or contract must be authori.ed by both laws4 law of the place of incorporation provided that the public policy of the

*ight to sue and amenability to court processes and suits against it

85

&omicile

*eceivers 3appointment and powers4

forum is not militated against If not fi%ed by the law creating or recogni.ing the corporation or by any other provision 2 the domicile is where its legal representation is established or where it e%ercises its principal functions 3Article !74 'rincipal receiver is appointed by the courts of the state of incorporation" ancillary receivers by the courts of any state where the corporation has assets 3authority is co/e%tensive4 with the authority of the appointing

P)rsona9 9a< o7 cor=orations (he personal law of a corporation is the law of the State where it is incorporated. Since a corporation is an artificial being created by law it possesses only the rights and powers conferred upon in its charter. 1ence if the law creating the corporation does not give authority to enter into certain contracts such contracts made by it in another state shall e void despite the e%press permission given by the laws of that other state.

Matt)rs <5)r) t5) =)rsona9 9a< o7 t5) cor=oration go8)rns0 !. *e6uisites for formation of the corporation and its legal character #. 5apacity and powers of the corporation" note- however two re6uisites should be asked in determining the legal effect of an act of a corporation- 3a4 is the corporation authori.ed by its charter to do the particular act= 3b4 is this act permitted by the law of the place where the act is done $. Jinds of stocks allowed and transfer of stocks in a way that would be binding on the corporation ). Issuance amount and legality of dividends 7. (he internal organi.ation of the corporate enterprise the rights and liabilities of shareholders members directors officers their relation inter se and stockholders; participation in the management and in the profits C. Alteration or modification of the charter and the dissolution of the corporation M#E# *RA% 8# INSULAR LUMBER CO# %& P-il 1$9 FACTS 0 &efendant 5orporation is a corporation organi.ed under the laws of 8ew >ork and is licensed to engage business in the 'hilippines to which plaintiff is a stockholder. 1owever plaintiff M.E. <ray does not own $P of the total capital stock nor does he represent stockholders who own $P of its capital. 'laintiff asked the corporation to let him e%amine its books but the corporation refused on the ground that under 8ew >ork laws only stockholder owning at least $P of the total capital stock are entitled to such right. 'laintiff contends that under the 'hilippine law he is entitled to e%amine the books of the corporation to which he is a stockholder. ISSUE $ELD 0 9hether or not 'hilippine law shall govern in this case giving the plaintiff the right to e%amine the books of the corporation. 0 8o. (he stipulation of facts is binding upon the parties and cannot be altered by either of them.(he plaintiff is bound to adhere the agreement made by him with the defendant corporation because the personal law of the corporation is the law of the State where it is incoporated.(he defendant is a corporation under 8ew >ork law licensed to do business in the 'hilippines. ?nder the laws of 8ew >ork the rights of a stockholder to e%amine the books of corporation organi.ed under said laws consist in making a written re6uest within $E days. (he plaintiff not

86

being a stockholder owning at least $P of the capital stocks of the defendant corporation has no right to e%amine its books and records nor to re6uire a statement of its affairs. E@c)=tions to t5) ru9) o7 incor=oration t)st a. 5onstitutional and Statutory *estrictions

A state if it sees fit may by legislation e%clude a foreign corporation altogether subject to constitutional limitations or prescribe any conditions it may see fit as prere6uisite to the corporation;s right to do business within its territory.

PALTIN* 8# SAN JOSE PETROLEUM INC# 1+ SCRA 9#4 FACTS 0 San :ose 'etroleum a 'anamanian 5orporation filed with the 'hilippine SE5 a sworn registration statement for the registration and licensing for sale in the 'hilippine Boting (rust 5ertificates representing #M shares of its capital stock with a par value of UE.$7 a share at '!.EE. allegedly the entire proceeds of the sale will be devoted e%clusively to finance the operations of San :ose Ail 5o. Inc. a domestic mining corporation. 'etitioner 'lating anf others who were prospective investors in the shares of respondent corporation opposed on such registration and licensing on the ground that the tie/up between the issuer San :ose 'etroleum Ail Investment a 'anamanian corporation and San :ose Ail a domestic corporation violates the 'hilippine 5onstitution that +the privilege to utili.e e%ploit and develop our natural resources was granted to corporation CEP of its capital stock belongs to @ilipino with parity rights granted to the ?S citi.en. *espondent corporation contends that it was an American business enterprise entitled to parity rights in the 'hilippines as embodied in the Laurel/ Langley agreement. ISSUE $ELD 0 9hether or not San :ose 'etroleum an American business enterprise is entitled to parity rights in the 'hilippines. 0 8o. *espondent corporation was not owned and controlled directly by the citi.ens of the ?S because it was owned and controlled by a corporation organi.ed in 'anorama. 8either it was indirectly owned and controlled by American citi.ens through Ail Investment for the latter was owned and controlled by two Bene.uelan corporation. (he tie/up violates the constitution. <ranting arguendo that these individual stockholders are American citi.ens it is necessary to establish that the different status of which they are stockholders are citi.ens allow @ilipino citi.ens or corporation or association owned and controlled by @ilipino citi.ens to engage in the e%ploitation of the natural resources of said states.

1# Contro9 T)st during t5) <ar

In wartime the courts may pierce the veil of corporate identity and look into the nationality of the controlling stockholders to determine the +citi.enship, of the corporation

FILIPINAS COMPANIA DE SE*UROS 8# C$RISTERN $UENEFELD +9 P-il 4 FACTS 0 5hristern 1uenefeld Q 5o. Inc. obtained from petitioner fire insurance in the sum of '!EE EEE covering merchandise contained in a building in 0inondo Manila. In !D)# during the :apanese military occupation the building and insured merchandise were burned. (he total loss was fi%ed at 'D# C7E.EE. At first the

87

petitioner refused to pay the claim however in pursuance of the order of the &irector of the 'hilippine E%ecutive 5ommission it paid to the respondent the said amount of loss. (he petitioner then filed in the 5@I of Manila for recovery of the amount it paid to respondent on the gound that the policy issued in !D)! had ceased to be effective because of the outbreak of the war between the ?.S. and <ermany and that the payment made by the petitioner to respondent corporation during the :apanese military occupation was under pressure. ISSUE $ELD 0 9hether or not petitioner is entitled to recover what was paid to respondent. 0 >es. In wartime the courts may pierce the veil of corporate identity and look into the nationality of the controlling stockholders to determine the citi.enship of the corporation. ?nder 'hil. Insurance Law in Sec. H provides that +any one e%cept a public enemy may be insure+. An insurance policy ceases to be allowable as soon as an insured becomes a public enemy. (he respondent having become an enemy corporation on &ecember !E !D)! the insurance policy issued in its favor by the petitioner a 'hilippine corporation had ceased to be valid and enforceable. 1ence the petitioner is entitled to recover what was paid to the respondent.

Do6ici9) or r)sid)nc) o7 7or)ign cor=oration A foreign corporation that has been granted license to operate in the 'hilippines ac6uires domicile in the 'hilippines. (he object of the 5orporation 5ode in re6uiring a foreign corporation to secure a license to transact business in the 'hilippines is to prevent it from ac6uiring a domicile for the purpose of business without taking steps necessary to render it amenable to suit in the local courts.

STATE IN ESTMENT $OUSE INC# 8# CITIBAN/ #.$ SCRA 9 FACTS 0 *espondent banks the 0ank of America 8.(. Q 5itibank 8.A. and 1ongkong Q Shanghai 0anking 5orporation jointly filed with the 5@I of *i.al for involuntary solvency of 5onsolidated Mines Inc. 35MI4 on the ground that the latter committed specific acts of insolvency. (he petitioners State Investment 1ouse Inc. Q State @inancing 5enter Inc. opposed on the ground that the court had no jurisdiction to take cogni.ance of the petition because respondent banks are not resident creditors and they were merely licensed to do business and being branches in the 'hilippines could not be deemed as resident creditors as contemplated under the insolvency law. ISSUE 0 9hether or not the respondent banks being branches in the 'hilippines may be considered +residents of the 'hil Islands as that term is used in Sec. #E of the Insolvency law. 0 >es. A foreign corporation that has been granted license to operate in the 'hilippines ac6uires domicile in the 'hilippines. Aur laws and jurisprudence indicate a purpose to assimilate foreign corporation duly licensed to do business here to the status of domestic corporations. 9hat effectively makes such a foreign corporation a resident corporation in the 'hilippines is its actually being in the 'hilippines and licitly doing business here +locality of e%istence+ being to repeat the necessary element in the signification of the term resident corporation.

$ELD

Jurisdiction o8)r 7or)ign cor=orations (he prevailing rule is that with the consent of a state a foreign corporation shall be recogni.ed and will be allowed to transact business in any state which gives its consent. (he consent doctrine is established in Secs. !#7 !#C !#F Q !#D of the 5orporation 5ode. Art. #D of the 5orporation 5ode mandates that all foreign corporations lawfully doing business in the 'hilippines shall be bound by all laws rules and regulations applicable to domestic corporations.

88

Service upon foreign corporations doing business in the 'hilippines may be made on!. Its resident agent #. In the absence thereof process will be served on the government official designated by law or any of its officers or agent within the 'hilippines $. An any officer or agent of said corporation in the 'hilippines ). Serving summons through diplomatic channels

Rig5t o7 7or)ign cor=orations to 1ring suit (he right of a private corporation to bring suit in the forum and its amenability to court processes and suits against it are governed by the lex 0ori. @rom the theoretical viewpoint the country like ours may completely prohibit a foreign corporation from transacting business in the 'hilippines" we may even prohibit it from filing suit here. Ac6uisition by a foreign corporation of a license to transact business in the 'hilippines is an essential prere6uisite for filing a suit of the corporation before our courts. (his rule is embodied in Article !$$ of the 5orporation 5ode which says that +such corporation may be sued or proceeded against before 'hilippine courts or administrative tribunals on any valid cause of action recogni.ed under 'hilippine laws.

Bar +u)stion0 A issued in the *(5 of Manila by 5alifornia 5andy 5orporation a corporation organi.ed under the laws of 5alifornia for damages in the amount of '7M arising from a breach of contract whereby A had agreed to sell to said corporation 7EE tons of sugar to be delivered in San @rancisco where the contract was entered into. 9ould you grant A;s motion to dismiss the complaint on the ground that the plaintiff corporation has no capacity to sue it not having previously obtained a license to transact business in the 'hilippines= State your reasons briefly.

Ans<)r0

I would deny the motion to dismiss. 3!4 (he contract was an isolated transaction. 3#4 (he plaintiff was not transacting business in the 'hilippines the contract having entered into in San @rancisco and e%pressly agreed upon to be consummated there. So long therefore as the jurisdictional re6uirements are complied with the plaintiff;s suit may properly be entertained by our tribunals of justice.

Bar +u)stion0 A 8ew >ork 5orporation takes part in bidding for the construction of a building in Makati. (he 8ew >ork 5orporation won the bid but the construction company which opened the bid refused to sign the contract with the 8ew >ork corporation for the construction of the building. (he 8ew >ork 5orporation then sued. As 8ew >ork 5orporation had not e%pressly obtained a license to engage in business in the 'hilippines the construction company moved to dismiss the suit on the ground that 8ew >ork has no right or personality to sue in the 'hilippine courts. 1ow should the motion to dismiss be resolved= Ans<)r0 (he motion to dismiss should be denied. (o take part in the bidding does not constitute +transacting business, as the term is understood in the 'hilippine law 2 for this is an isolated act.

$OME INSURANCE 8# EASTERN S$IPPIN* LINES 1#$ SCRA 4#4 FACTS 0 'etitioner 1ome Insurance was the insurer of the two consignees Atlas 5onsolidated Mining &ev;t 5orp. and 1ansa (ransport Jantor whose goods were transported by herein respondent shipping lines. 9hen the shipments arrived in Manila some of the goods were in bad order. 1ence the petitioner a foreign insurance company paid for the damaged goods. ?pon payment petitioner became subrogated of the right to claim against respondent. *espondent in its answer to petitioner;s complaint however denied the latter;s capacity to sue by asserting that at the time the contract of insurance was

89

entered into petitioner was not yet licensed to do business in the 'hilippines. 'etitioner however contends that the company was duly licensed to do business in the 'hilippines through its agent Mr. Bictor 0ello. ISSUE $ELD 0 9hether or not the petitioner has the capacity to sue before the 'hilippine 5ourts. 0 >es. (he lack of capacity to sue at the time of the e%ecution of the contract was cured by the subse6uent registration and was strengthened by the procedural aspect of this case. A foreign corporation duly licensed to do business in the 'hilippines has the right to bring suit before our courts. 9hen the complaints in these two cases were filed the petitioner had already secured the necessary license to conduct its insurance business in the 'hilippines. It could alreay file suits. Moreover the general denials made by private respondents were inade6uate to attack the foreign corporation;s lack of capacity to sue in the light of its positive averment that it is authori.ed to do so. ATLANTIC MUTUAL INSURANCE CO# 8# CEBU STE EDORIN* 1& P-il 1.$& FACTS 0 'etitioners both foreign corporations e%isting under the laws of the ?S sued 5ebu Stevedoring 5o. a domestic corporation for recovery of a sum of money. (hey alleged that the latter as a common carrier undertook to carry a shipment of copra for delivery to 'rocter and <amble in 5ebu however upon discharge the copra was found damaged. 'laintiffs as subrogees to the shipper and consignee demand settlement from defendant due to its failure to comply with its obligation as carrier to deliver the copra in good order. &efendant moved to dismiss the case on the grounds that plaintiffs had no legal personality to appear before 'hilippine courts and had no capacity to sue. ISSUE 0 9hether or not the plaintiffs had the capacity to sue before our courts.

$ELD

0 8o. Sec. CD of the 5orp. Law provides that no foreign corporation shall be permitted to transact business in the 'hils unless it shall have the license re6uired by law and until it complies with this law shall not be permitted to maintain any suit in the local courts. Sec. ) *ule H of **5 re6uires that +fact showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal e%istence of an organi.ed association of persons that is made a party must be averred. In the case at bar all that was averred was that they are both foreign corporations e%isting under the laws of the ?.S.

E@c)=tions to 9ic)ns) r)quir)6)nt0 a# Iso9at)d Transactions

An isolated business is one which is occasional incidental and casual not of a character to indicate a purpose to engage in business. A business is isolated if there is no continuity of conduct and intention on the part of the foreign corporation to establish a continuous business within the state.

1# Action to =rot)ct trad)6arHE trad) na6)E good <i99E =at)nt or 7or un7air co6=)tition

A foreign corporation engaging in business without a license may file a complaint for unfair competition since that is essentially a suit enjoining the unfair trader from pursuing the unlawful competition and in order to allow the aggrieved party to recover damages. (his rule is based on e6uity considerations.

90

LE ITON INDUSTRIES 8# SAL ADOR 114 SCRA 4#. FACTS 0 'rivate respondent Leviton Mfg. 5o. Inc. a foreign corporation organi.ed and e%isting under the laws of 8ew >ork ?SA is the largest manufacturer of electrical devices under the trademark +Leviton+ Said electrical devices are being e%ported to the 'hilippines and well known to @ilipino consumers under the trademark +leviton+. 'etitioners Leviton Industries a partnership organi.ed in the 'hils. began manufacturing electrical devices under the tradename +Leviton Industries+ and claimed that they had registered with the 'hilippine 'atent Affice the trademarks +Leviton Label and Leviton+. 'rivate respondent filed a complaint for unfair competition against petitioner because the trademark on its products would cause confusion in the minds of the consumers. 'etitioners moved to dismiss on the ground that the private respondent failed to allege its capacity to sue and no license to business in the 'hilippines. ISSUE $ELD 0 9hether or not private respondent has the capacity to sue for unfair competition before 'hilippine 5ourts. 0 >es. A foreign corporation engaging in business without a license may file a complaint for unfair competition since that is essentially a suit enjoining the unfair trader pursuing the unlawful competition and in order to allow the aggrieved party to recover damages. An action to protect trademark trade name goodwill patent or unfair competition is one of the e%ceptions to license re6uirement in bringing suit before the 'hilippine courts by a foreign corporation. 1owever Sec. #!/A of *A !CC is without 6ualification. Its literal tenor indicates as a condition sine 6ua non the registration of the trademark of the suing foreign corporation with the 'hilippine 'atent Affice.

c# Agr))6)nts 7u99A transact)d outsid) t5) P5i9i==in)s

A foreign corporation is allowed to maintain an action on a transaction wholly celebrated and consummated abroad. (he vital policy of stabili.ing commercial transactions will be greatly jeopardi.ed if our laws deprived foreign corporations of this privilege.

$AN* LUN* BAN/ 8# SAULO* #.1 SCRA 1$& FACTS 0 'etitioner which was not doing business in the 'hils. entered into two continuing guarantee agreements with 5ordova 5hin San in 1ongkong whereby the latter agreed to pay on demand all sums of money which may be due the bank from 9orlder Enterprise. 9hen 9orlder Enterprise defaulted its payment petitioner filed a suit in 1ongkong against 9orlder and 5hin San a resident of 'hilippines and thereafter obtained a favorable judgment ordering 9orlder and 5hin San to pay the petitioner. A demand letter was sent by the petitioner to 5hin San at his 'hilippine address but the latter made no reply. 'etitioner then filed an action before *(5 of Makati to enforce his claim for a sum of money which was perfected esecuted and consummates in 1ongkong. 5hin San moved to dismiss the action on the ground that petitioner has no capacity to sue before our courts. ISSUE 0 9hether or not petitioner foreign bank has the capacity to sue before the 'hil. courts.

91

$ELD

0 >es. A foreign corporation is allowed to maintain an action on a transaction wholly celebrated and consummated abroad. 'etitioner may not be denied the privilege of pursuing its claims against private respondent for a contract which was entered into and consummated outside the 'hilippines. Atherwise we will be hampering the growth and dev;t of business relations between @ilipinos and foreign nationals. (he vital policy of estabili.ing commercial transactions will be greatly jeopardi.ed if our laws deprived foreign corporations of this privilege.

d# P)tition 7i9)d is 6)r)9A a coro99arA d)7)ns) in a suit against it A foreign corporation is not maintaining a suit in our courts but is merely defending itself when it files a complaint for the sole purpose of preventing the lower court from e%ercising jurisdiction over the case. As suc a foreign corporation is not re6uired to allege and prove that it has capacity to sue.

P$ILIPPINE COLUMBIA ENTERPRISES 8# LANTIN $9 P-il $&% FACTS 0 'laintiff Jatoh Q 5o. Inc. is a foreign corporation organi.ed in :apan while defendant is a domestic corporation. 'laintiff filed an action against the defendant for the collection of ten different shipments of steel products allegedly ordered by the defendant but the latter refused to pay after duly receiving the said shipments. &efendant moved to dismiss on the ground that the plaintiff had not engaged in business in the 'hilippines and that the transactions were made and consummated in :apan. 1ence the plaintiff had no capacity to sue before the 'hilippine courts. 'laintiff contends that since defendant filed a counterclaim against the plaintiff they would be recogni.ing the plaintiff;s legal capacity to sue. ISSUE $ELD 0 9hether or not plaintiff has the capacity to sue before 'hilippine courts 0 >es. 'etition filed is merely a corollary defense in a suit against it. (he filing of a counterclaim by a 'hilippine corporation does not constitute an implied recognition of the foreign corporation;s legal capacity. (his is because in a counterclaim the plaintiff 3foreign corporation4 in the main case becomes the defendant. (hus the prohibition does not apply.

B# S=)cia9 Cor=oration (# R)9igious Soci)ti)s and Cor=oration So9)

A religious society which is a corporate aggregate. A corporation Sole is an incoporated office composed of only one person. Art. !!E of the 5orporation 5ode states +(he chief archbishop bishop priest minister or other presiding elder of a religious sect may form a corporation sole for the purpose of managing its affairs property and temporalities+

&# Transnationa9 Cor=orations

(ransnational corporations are clusters of several corporations each with a separate entity e%isting and spread out in several countries but controlled by the head6uarters in a developed state where it was originally organi.ed.

(he personal law of the transnational corporation is that of the host country the major decisions regarding its operation and management come from the parent corporation in the industriali.ed state.

92

(he main characteristic of a transnational is that all the locally incorporated branches are joined together by the common control and management of higher officials in the home state.

+u)rA0 &oes a state has jurisdiction over a parent corporation by reason of the dact that it has jurisdiction over the parent;s subsidiary corporation as to e%tent to which a state has jurisdiction over a subsidiary by reason of the fact that it has jurisdiction over the parent.

Ans<)r0 (he *estatement Seond on 5onflict of Laws suggests that jurisdiction over the parent will e%ist if the parent controls and dominates the subsidiary. (he American courts have ruled that jurisdiction over the parent corporation can be ac6uired when the separate e%istence of subsidiary has not been faithfully maintained. (heee activities of the subsidiary in the state will provide a basis for jurisdiction over the parent if these activities C# Partn)rs5i= (he e%istence or non/e%istence of the legal or juridical personality of the partnership the capacity of the firm to contract and the liability of the firm and partners to thrid persons are all governed by the personal law of the partnership 2 this is the law of the place where it was created. 'hilippine internal law provides that if the domicile of the partnership is not identified by the law creating it it is deemed domiciled in the place where its legal representation is established or where it e%ercises its principal functions. 2ACTUAL SITUATION (he e%istence of non e%istence of legal personality of the firm capacity to contract liability of the firm and the partners to third persons POINT O2 CONTACT the personal law of the partnership that is the law of the place where it was created 3Article 1 o0 t-e Code o0 Commerce, sub5ect to t-e exce2tions gi4en in t-e case o0 cor2oration) E@c)=tions0 @or constitutional purposes @or wartime purposes 'hilippine Law 3law of the place where branches were created4 Article 1 o0 t-e Code o0 Commerce, 'hilippine Law 3law of the place where branches were created4 Article 1 o0 t-e Code o0 Commerce, If not fi%ed by the law creating or recogni.ing the partnership by any other provision 2 the domicile is where its legal representation is established or where it e%ercises its principal functions 3Article !74 'rincipal receiver is appointed by the courts of the state of incorporation" ancillary receivers by the courts of any state where the corporation has assets 3authority is co/e%tensive4 with the authority of the appointing 'rovide a basis for jurisdiction over the subsidiary 5an be said to have been done in the course for the parent corporation or on its behalf

5reation of branches in the 'hilippines" validity and effect of the branches; commercial transaction and the jurisdiction of the court &issolution winding up and termination of branches in the 'hil. &omicile

*eceivers 3appointment and powers4

93

D# Foundations @oundations are combinations of capital independent of indiciduals and organi.ed principally for charitable medical or educational purposes . +u)rA0 If a foreign corporation does business in the 'hilippines and obtains a license therefore does it become a domestic corporation or does it remain a foreign corporation.

Ans<)r0 3a4 If aside from doing business here and obtaining a license therefor it is incorporated under our laws it becomes a domestic corporation. It becomes anew juristic entity and its foreign personality and foreign charter are automatically disregarded. 3b4 If on the other hand it becomes not a domestic corporation but a domesticated one it could be considered a 'hilippine corporation in some aspects and a foreign corporation in other matters. &omestication is the process whereby state effect a change in the status of a foreign corporation at least in legal effect that is for certain local purposes a codition precedent to its being permitted to transact business within the State.

PART 2I%E: 2OREI$N JUD$E#ENTS 1?4

- II# R)cognition and En7orc)6)nt o7 For)ign Judg6)nts @oreign judgment refers to all decisions rendered outside the forum and encompasses judgments decrees and orders of courts of foreign countries as well as those of sister states in a federal system of government. A foreign judgment does not itself have any e%tra/territorial application. (hus it may ordinarily be enforced only within the territory of the tribunal issuing it. @or a foreign judgment to be effective in our country it is imperative that it be proved in accordance with our prescribed rules on the matter. A# Distinction 1)t<))n r)cognition and )n7orc)6)nt RECO$NITION O2 2OREI$N JUD$#ENT 5ourts will allow the foreign judgment to be presented as a defense to a local litigation Involves merely the sense of justice &oes not re6uire either an action of a special proceeding May e%ist without enforcement EN2ORCE#ENT O2 2OREI$N JUD$#ENT 'laintiff wants courts to positively carry out and make effective in the state a foreign judgment Birtually implies a direct act of sovereignty 8ecessitates a separate action or proceeding brought precisely to make the foreign judgment effective 8ecessarily carries with it recognition

*easons why not all foreign judgments can be recogni.ed or enforced in our country!. (he re6uisite proof thereof may not be ade6uate #. (hey may contravene our established public policies $. (hey may contradict one another- obviously contradictions we cannot be guided by

). In some other countries the administration of justice may be shockingly corrupt

94

B# Bas)s 7or R)cognition and En7orc)6)nt o7 For)ign Judg6)nts a4 T5)orA o7 Co6itA 2 under this theory we apply the foreign law because of its convenience and finally because we want to give protection to our citi.ens residents and transients in our land.

b4 T5)orA o7 )st)d Rig5ts or O19igation o7 For)ign Judg6)nts 2 here we seek to enforce the final judgment not the foreign law itself but the rights that have been vested under such foreign law.

c4 T5)orA o7 Loca9 La< 2 foreign law is applied not because it is foreign but because our own laws by applying similar rules re6uire us to do so hence it is as if the foreign law has become part and parcel of our own local law.

d4 T5)orA o7 $ar6onA o7 La<s 2 this theory insist that in many cases we have to apply foreign laws so that wherever a case is decided that is irrespective of the forum the solution should be appro%imately the same thus identical or similar solutions anywhere and everywhere. 9hen the goal is reali.ed there will be a +harmony of laws,

e4 T5)orA o7 Justic) 2 the purpose of all laws including 5onflict of Laws is the dispensing of justice if this can be attained in many cases by applying the proper foreign law we must do so.

D)7)cts o7 T5)orA o7 Co6itA0 !. (heory presupposes the e%istence of an international duty. (here is no such duty. (heoretically every state may apply its own internal law e%clusively.

#. (he theory assumes although in a minimal sense a desire to show courtesy to other states. (his is not true. (he real reason for the application of proper foreign law id the avoidance of +gross inconvenience and injustice to litigants, whether natives or foreigners. According to 'rof. Minor the basis of 5AL is something more than comity to the litigants. It is an answer to the demands of justice and enlightened policy.

$. (heory apparently leaves the application of the foreign law to the discretion of the forum. 5learly this will prevent the adoption of definite rules and principles for 5AL.

/inds o7 Co6itA0

!. Co6itA 1as)d on r)ci=rocitA 2 is simple. If the laws and judgments of the forum are recogni.ed in a foreign state the forum in turn will recogni.e the laws and judgments emanating from said foreign state.

95

#. Co6itA 1as)d on =)rsuasi8)n)ss o7 t5) 7or)ign 2udg6)nt 2 it says that if the forum is persuaded that a foreign judgment is meritorious and has been rendered by a court of competent jurisdiction it will not hesitate to enforce that foreign judgment in the forum even if the foreign forum does not reciprocate Co99at)ra9 Matt)rs0 (he following collateral matters must first be e%amined before proper foreign law is to be applied!. 8ature and 'roof of foreign judgments #. 8ature and composition of conflicts rules $. 5haracteri.ation or classification of conflict rules and judgments ). Barious theories on status and capacity 7. 'roblem of the renvoi

C# Po9ici)s Und)r9Aing R)cognition and En7orc)6)nt !4 R)s Judicata 2 under this principle those who have contested an issue shall be bound by the result of the contest and that matters once tried and decided with finality in one jurisdiction shall be considered settled as between the parties.

&" Bar and M)rg)r

M)rg)r 2 considers the plaintiff;s cause of action as merged in the judgment and as a result he may not relitigate that e%act claim.

Bar ? refers to a situation where a successful defendant interposes the judgment in his favour to avert a second action by the plaintiff on the same claim.

$4 Doctrin) o7 Co99at)ra9 )sto==)9 2 renders conclusive all essential issues of fact actually litigated in the suit decided on by the foreign court. 9hereas res judicata seeks to end litigation by disallowing a suit on the same claim" collateral estoppels is concerned with the issue preclusion by barring relitigation of an issue already litigated on a prior proceeding. D# R)quisit)s 7or R)cognition and En7orc)6)nt !. (here must be proof of the foreign judgment" for the recognition there is no necessity for a separate action or proceeding #. (he judgment must be on a civil or commercial matter $. (here must be no lack of jurisdiction no want of notice no collusion no fraud no clear mistake of law or fact 8ote-

96

a. Fraud 5)r) 6ust 1) E@trinsic 7raud 2 that is fraud based on facts not controverted or resolved in the case where the judgment was rendered

b. *egarding clear mistake of law or fact the supreme court of the ?.S. reversing the S5 of the 'hils. held that even if there is a clear mistake of law or fact this alone will not prevent the recognition or enforcement of a foreign court 31ongkong4 judgment which otherwise fulfils all the other re6uisites.

). (he judgment must not contravene a sound established policy of the forum. 8otea. An unfaithful mother awarded by a ?S court custody of her child was denied said custody by our 'hilippine courts b. A litigant not satisfied with the decision of a 'hilippine court resorted to a foreign court to obtain another remedy. @ailing in this foreign venture he now seeks the enforcement of the 'hilippine decision which he had formerly abandoned.

$ELD0 (he litigants whether they are citi.ens or foreigners should respect the decisions of 'hilippine courts but if they choose to resort to a foreign court asking for a remedy that is incompatible with the e%ecution of a decision obtained in the 'hilippines and obtained a decision that is adverse they should not be permitted to repudiate the decision of the foreign court and to ask the enforcement of the decision of the 'hilippine court which they have abandoned. (o permit them to litigate in that manner is contrary to the order and public interest of the 'hilippines because it disturbs the orderly administration of justice.

7. (he judgment must be res judicata in the state that rendered it.

T5) r)quisit)s 7or r)s 2udicata ar) t5) 7o99o<ing0 a. :udgment must be final b. (he court rendering the judgment must have jurisdiction over the subject matter and the parties c. (he judgment must be on the merits d. (here must be identity of the parties subject matter and cause of action 2 e%cept that the recognition or enforcement of a foreign action is now the recognition or enforcement of the foreign judgment on the original cause of action

97

'rovisions of the *ules of 5ourt on @oreign :udgments-

S)c# >K# E77)ct o7 7or)ign 2udg6)nts# (he effect of a judgment of a tribunal of a foreign country having jurisdiction to pronounce the judgments as followsa4 In case a judgment against a specific thing the judgment is conclusive upon the title to the thing b4 In case of a judgment against a person the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subse6uent title" but the judgment may be repelled by evidence of a want of jurisdiction want of notice to the party collusion fraud or clear mistake of law

W5os) 2udg6)nt is r)a99A )n7orc)dM

It would seem that when our courts enforce a foreign judgment by allowing it the effect is that it is really our own court;s judgment that we enforce. NORT$WEST ORIENT AIRLINES 8# CA #41 SCRA 19# FACTS 0 'laintiff 8orthwest Airlines and defendant 5.@. Sharp Q 5o. through its :apan branch entered into an international passenger sales agency agreement whereby it authori.ed the latter to sell its airline tickets. &efendant was unable to remit the proceeds of the ticket sales hence plaintiff sued the defendant for the collection of the unremitted proceeds with a claim for damages in a (okyo court. A writ of summons were issued against defendant at its office in >okohama but the bailiff failed twice to serve the writs. (he (okyo court decided to have the writs of summons served at defendant;s head office in Manila in which the defendant accepted but failed to appear at the hearings. (he (okyo court decided in favor of the plaintiff. 1owever the judgment remained unsatisfied. 1ence petitioner filed a suit for the enforcement of judgment before *(5 of Manila. &efendant filed its answer and averred that the judgment of the :apanese court was void having been rendered without due and proper notice to them. (he said case for enforcement was tried on the merits and defendant moved for demurrer of evidence on the ground that the foreign judgment sought to be enforced is void for want of jurisdiction over the person of the defendant. ISSUE $ELD 0 9hether or not the foreign judgment can be recogni.ed and enforced under 'hilippine courts. 0 >es. A foreign judgment is presumed to be valid and binding in the country from which it comes until the contrary is shown. It is also proper to presume the regularity of the proceedings ang the giving of due notice therein. Alternatively in the light of the absence of proof regarding :apanese law the processual presumption may be invoked. Apllying it the :apanese law on the matter is presumed to be similar with the 'hilippine law on service of summons on a private corporation doing business in the 'hilippines. Sec. !) of the *ules of 5ourt provides that if defendant is a foreign corporation doing business in the 'hilippines the service may be made-

!4 on its resident agent designated in accordance with law for that purpose" #4 absence thereof on the government offcial designated by law to that effect or

98

$4 on any of its officers or agents within the 'hilippines. Accordingly the e%traterritorial service of summons on it by the :apanese court was valid not only under the processual presumption but also because of the presumption of regularity of performance of official duty.

BOUDARD 8# TAIT %& P-il 1&. FACTS 0 Mr. 0oudard as widow of Maria 0oudard and as guardian of their children obtained a favorable judgment from the 5@I of 1anoi @rench Indo/5hina for the sum of )E EEE piastras against (ait who had been declared in default for his failure to appear at the trial. Said judgment was based on the fact that Mr. 0oudard who was an employee of (ait was killed in 1anoi by co/employees although outside the fulfillment of a duty. 0oudard filed a petition with the 5@I of Manila for the e%ecution of the 1anoi judgment but the court dismissed on the ground of lack of jurisdiction of the 1anoi 5ourt (ait not being a resident of that country. 1ence this appeal. ISSUE $ELD 0 9hether or not the judgment of 1anoi 5ourt is conclusive in our jurisdiction. 0 8o. (he e%hibits presented by the appellant show that the summons alleged to have been adressed to the appellee was delivered in Manila to :.M. Shotwell a representative or agent of 5hurchwill Q (ait Inc. which is an entity entirely different from the appellee. (he rule in matters of this nature is that judicial proceedings in a foreign country regarding payment of money are only effective against a party if summons is duly served on him within such foreign country before the proceedings. (he fundamental rule is that jurisdiction in personam over non/residents so as to sustain a money judgment must be based upon personal service within the state which renders the judgment.

RAMIRE3 8# *MUR 4# P-il + FACTS 0 Samuel a native of Swit.erland and domiciliary of the 'hilippines for many years died in Iloilo leaving a valuable estate which he disposed by will. 1e had one natural daughter Leona 5astro. It was shown that in !DH7 5astro married to @rederick Jauffman a 0ritish subject. (hree children were born of this marriage. In !DE) Jauffman went to 'ari @rance pusposely for obtaining a divorce from 5astro under @rench law. A divorce decree was then issued. 5astro married &r. Earnest Mory in England. (wo children were born of that marriage. In !D!E 5astro died. 0oth sets of children claim that Leona 5astro was the recogni.ed natural daughter of 0ischoff and she would have been his forced heir had she been alive at the time of her father;s death. ISSUE $ELD 0 9hether or not the divorce decree obtained in @rance be recogni.ed as valid in the courts of the 'hilippines 0 8o. (he decree of divorce upon which reliance is placed by the representation of the Mory children cannot be recogni.ed as valid in the 'hilippines. (he @rench tribunal has no jurisdiction to entertain an action for the dissolution of a marriage contracted in these Islands by persons domiciled here such marriage being indissoluble under the laws then prevaling in this country. (he claims of Mory children to participate in the estate of Samuel 0ischoff must therefore be rejected. (he right to inherit is limited to legitimate legitimated and acknowledged natural children. (he children of adulterous relations are wholly e%cluded.

BORT$WIC/ 8# CASTRO 1 # SCRA ##9

99

FACTS 0 'etitioner 9illiam 0orthwick an American citi.en living in the 'hilippines owned real property interests in 1awaii. 'rivate respondent :oseph Scallon sued 0orthwick on the promissory notes which the latter issued and became due. 'etitioner was declared in default by the 5ircuit 5ourt of 1awaii due to his failure to appear and answer the complaint. 1owever private respondent failed to have the foreign judgment e%ecuted in 1awaii and 5alifornia be enforced because petitioner had no assets in those States. (he foreign judgment was sought to be enforced in the 'hilippines by filing before 5@I of Makati a complaint to enforce the same on the ground that petitioner had real properties in Madaluyong 5ity. 'etitioner was again declared in default and was ordered to pay Scallon the amount prayed for. (he court issued an amendatory order and upon receipt petitioner moved for new trial but the same was denied. 1ence this petition contending that the foreign judgment was unenforceable in the 'hils.for bwing rendered without jurisdiction over his person. ISSUE $ELD 0 9hether or not foreign judgment is enforceable in 'hilippine courts. 0 >es because both the 1awaii court and 'hilippine court accorded 0orthwick the opportunity to answer the complaint and impugn the complaints against him which opoortunities he failed to do so hence he was declared in default. It is true that the foreign judgment against the person is merely presumptive evidence of a right as between the parties and rejection threof may be justified among others by evidence of want of jurisdiction of the issuing authority under *ule $D of the *ules of 5ourt. ?nfortunately petitioner was not able to impugn the judgment against him. (hus the verdict must go against him. Absence fraud collusion a default judgment is as conclusive as adjudication between the parties as when rendered after answer and complete contest in open court.

+UERUBIN 8# +UERUBIN +& P-il 1#4 FACTS 0 Silvestre Muerubin a @ilipino citi.en married petitioner Margaret Muerubin in 8ew Me%ico ?SA. (hey had a daughter named Muerubina. 0oth spouses instituted a divorce proceedings against each other. (he Superior 5ourt of Los Angeles granted the divorce decree filed by Margaret and the same court awarded +joint custody+ of the child. Muerubina was to be kept in a neutral home subject to reasonable visits by both parties. 0oth parents were restrained from taking Muerubina out of 5alifornia without the permission of the 5ourt. ?pon Margaret;s petition an interlocutory decree was granted by the court awarding her the custody of Muerubina. 0ut Silvestre together with Muerubina left San @rancisco and went to the 'hilippines and stayed in 5aoayan Ilocos Sur with the intent of protecting the child from the effects of her mother;s scandalous conduct. Margaret filed a petition for habeas corpus before 5@I for the custody of Muerubina under the interlocutiry decree of 5alifornia court granting her the child;s custody must be complied within the 'hilippines. ISSUE $ELD 0 9hether or not the interlocutory decree can be given effect within the 'hilippine courts. 0 8o. (he decree is by no means final. It is subject to change with the circumstancess. 0ecause the decree is interlocutory it cannot be implemented in the 'hilippines where the judgment is merely intelocutory the determination of the 6uestion by the court which rendered it did not settle and adjudge finally the rights of the parties.

100

ST# A IATION SER ICES CO# 8# *RAND INTLL AIRWA%S INC 'R 14.#++, >ctober #$, #..% FACTS 0 'etitioner is a foreign corporation based in Singapore engaged in the manufacture repair and maintenance of airplanes and aircrafts and respondent is a domestic corporation engaged in airline operations e%ecuted an agreement whereby petitioner agreed to undertake maintenance and modification works on respondent;s aircraft. (hey further agreed that the validity of the agreement shall be governed by the laws of Singapore and that any suit arising therefrom shall be submitted to the non/e%clusive jurisdiction of the Singapore courts. 'etitioner undertook the contracted works and billed respondent of the e%penses. 1owever the respondent failed to pay despite repeated demands by the petitioner which is in violation of the terms agreed upon. 'etitioner then filed with the 1igh 5ourt of Singapore an action for collection of sum of money. (he court issued a writ of summons to be served e%traterritorially upon respondent thru the assistance of the sheriff of 'asay 5ity to effect said summons to respondent. 1owever despite receipt of summons the respondent still failed to answer the claim. (he 1igh 5ourt of Singapore rendered a judgment by default against respondent. @or the said judgment remained unsatisfied petitioner petitoned with the *(5 of 'asay 5ity for the enforcement of said foreign judgment. *espondent moved to dismiss on the ground of lack of jurisdiction over its person which was denied. An appeal the 5A granted the petition of the respondent. 1ence this instant petition before the S5 contending that 1igh 5ourt of Singapore ac6uired jurisdiction over the person of respondent and that the judgment of default rendered by the same is enforceable in the 'hils. ISSUES 0 3!4 9hether or not Singapore 5ourt ac6uired jurisdiction over the person of respondent 3#4 9hether or not foreign judgment by default is enforceable in the 'hils. $ELD 0 3!4 >es. <enerally matters of remedy an procedure such as those relating to the service of process upon a defendant are governed by the le% fori which is the law Singapore. (he service of summons outside Singapore is in accordance with the *ules of 5ourt of Singapore which provides that the originating process may be serveda" t-ru t-e go4Bt o0 t-at country, 3-ere t-e go4ernment is 3illing to e00ect ser4ice b" t-ru a Singa2ore Consular aut-ority in t-at country, exce2t 3-ere ser4ice t-ru suc- aut-ority is contrary to t-e la3 o0 t-e country or c" by a met-od o0 ser4ice aut-ori6ed by la3 o0 t-at country 0or ser4ice o0 any originating 2rocess issued by t-at country In this case the writ of summons issued by the Singapore 5ourt was served upon respondent at its office at 'asay 5ity and was received by :oyce Austria Secretary of the <eneral Manager of the respondent company. 5onsidering that the writ of summons was served upon respondent in accordance with our rules the jurisdiction was ac6uired by Singapore 1igh 5ourt over its person. 3#4 >es. <enerally in the absence of a treaty or special contract no sovereign is bound to give effect within its dominion to a judgment rendered by a foreign tribunal however under the rules of comity utility and convenience nations have established a usage among civili.ed states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered effective under certain conditions that may vary in different countries. (he conditions for the recognition and enforcement of a foreign judgment in 'hilippine legal system is contained in Sec. )H *ule $D of the *ules of 5ourt which provides-

101

S)c# >K# E77)ct o7 7or)ign 2udg6)nt 2 (he effect of a judgment of final order of a tribunal of a foreign country having jurisdiction to render the judgment or final order is as followsa. In case of judgment or final order upon a specific ting the judgment or final order is conclusive upon the title of the thing b. In case of a judgment or final order against a person the judgment or final order is presumptive evidence of a right as between the parties and their successors/in/interest by a subse6uent title. In either case the judgment may be repelled by evidence of a want of jurisdiction want of notice to the party collusion fraud or clear mistake of law or fact. (he party attacking a foreign judgment has the burden of overcoming the presumption of its validity.

ASIA EST MERC$ANT BAN/ERS BER$AD 8# CA 'R 11.#%$, !uly #., #..1 FACTS 0 'etitioner a Malaysian corporation filed a collection suit against private respondent a domestic corporation before Malaysian 5ourt in Juala Lumpur. 'etitioner sought to recover the indemnity of the performance bond it had put up in favor of private respondent to guarantee the completion of the @elda project. (he Malaysian 5ourt decided in favor of the petitioner but private respondent failed to pay the same. 'etitioner instituted a complaint with the *(5 of 'asay 5ity to enforce the judgment of foreign court. 'rivate respondent moved to dismiss the complaint on the ground that said foreign judgment is unenforceable in the 'hilippines for want of jurisdiction over the person of private respondent. (he trial court dismissed petitioner;s complaint. 1ence this petition contending that Malaysian court ac6uired jurisdiction over the person or private respondent by its voluntary submission to the court;s authority thru its appointed counsel Mr. (ee and that said foreign judgment should be recogni.ed and enforced in the 'hilippines. ISSUES 0 3!4 9hether or not Malaysian court ac6uired jurisdiction over the person of private respondent 3#4 9hether or not the 5A erred in denying recognition and enforcement to said foreign judgment $ELD 0 3!4>es. (he recognition to be accorded a foreign judgment is not necessarily affected by the fact that the procedure in the courts of country in which such judgment was rendered differs from that country in which the judgment is relied on. Matters of remedy and procedure such as those relating to service of summons or court process upon the defendant is governed by le% fori which is the law of Malaysia. In the instant case records show that upon filing of the case Messrs. Allen Q <ledhill Advocates and Solicitors with address in Juala Lumpur entered their conditional apperance for private respondent 6uestioning the regularity of the writ of service of summons but subse6uently withdrew the same when it reali.ed that the writ was properly served and that the matter was represented by their counsel Mr. (ee. Supported also by documentary evidence shows that summons in chambers abs affidavit of Jhaw 5hay (ee counsel for private respondent. It was then incumbent upon private respondent to present evidence as to what Malaysian procedural law is and to show that under it as alleged by it is invalid. 1owever in this case it did not. Accordingly the presumption and regularity of service of summons and the decision thereafter rendered by Malaysian court must be respected.

102

3#4 >es. (here is no merit to the argument that the foreign judgment is not enforceable in the 'hilippines in view of the absence of any statement of facts and law upon which the award in favor of the petitioner is based. 5onsidering that under Malaysian court a valid judgment may be rendered even without stating in the judgment every fact and law upon which the judgment is based then the same must be accorded respect and the courts in this jurisdiction cannot invalifate the judgment of the foreign court simply because our rules provide otherwise.

E# *rounds 7or non,r)cognition A 7or)ign 2udg6)nt is not conc9usi8) i70 !4 (he judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the re6uirements of due process of law #4 (he foreign court did not have personal jurisdiction over the defendant $4 (he foreign court did not have jurisdiction over the subject matter A 7or)ign 2udg6)nt n))d not 1) r)cogni:)d i70 !4 (he defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend #4 (he judgment was obtained by fraud $4 (he cause of action or claim for relief on which the judgment is based is repugnant to the public policy of this state )4 (he foreign judgment conflicts with another final and conclusive judgment 74 (he proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in 6uestion settled otherwise than the proceeding in that court C4 In the case of jurisdiction based only on personal service the foreign court was a seriously inconvenient forum for the trial of the action 3forum non/ conveniens4 F# Proc)dur) 7or )n7orc)6)nt !. A petition should be filed in the proper court attaching an authenticated copy of the foreign judgment to be enforced Authentication calls for the 'hilippine consul assigned to the country where the foreign judgment was decreed to certify that had been rendered by a court of competent jurisdiction #. (he petition must comply with all the re6uisites of an enforceable judgment $. A re6uirement to file action anew has been considered as +an attempt to reconcile the principle of territorial jurisdiction of courts which demands that the enforcement of judgment outside the territory of the rendering court must be placed upon some other basis than the authority of the rendering court which ceased at its jurisdictional limits 2 and the principle of res 5udicata" FOREI*N ARBITRAL AWARDS RA I&K' incor=orat)d t5) UNCITRAL !Unit)d Nations Co66ission on Int)rnationa9 Trad) La<" AWARD Mod)9 La< FEATURES OF RA I&K' APPL%IN* AND INCOPORATIN* T$E UNCITRAL MODEL LAW0 (# T5) RTC 6ust r)7)r to ar1itration in =ro=)r cas)s#

103

?nder Sec. #) the *(5 does not have jurisdiction over disputes that are properly the subject of arbitration pursuant to an arbitration clause and mandates the referral to arbitration in such cases.

&# For)ign ar1itra9 a<ards 6ust 1) con7ir6)d 1A t5) RTC

@oreign arbitral awards while mutually stipulated by the parties in the arbitration clause to be final and binding are not immediately enforceable or cannot be implemented immediately. @oreign arbitral awards when confirmed by the *(5 are deemed not as a judgment of the foreign court but as a foreign arbitral award and when confirmed are enforced as final and e%ecutor decisions of our courts of law.

;# RTC 5as 2urisdiction to r)8i)< 7or)ign ar1itra9 a<ards

9hile the *(5 does not have jurisdiction over disputes governed by arbitration mutually agreed upon by the parties still the foreign arbitral award is subject to judicial review by the *(5 which can set aside reject or vacate it.

># *rounds 7or 2udicia9 r)8i)< di77)r)nt in do6)stic and 7or)ign ar1itra9 a<ards

@or foreign or international arbitral awards which must first be confirmed by the *(5 the grounds for setting aside rejecting or vacating the awards by the *(5 are provided under Art. $) 3#4 of the ?85I(*AL Model Law.

@or final domestic arbitral award also need confirmation by the *(5 pursuant to Sec #$ of *A FHC and shall be recogni.ed as final and e%ecutor decisions of the *(5 they may only be assailed before the *(5 and vacated on the grounds provided under Sec. #7 of *A HFC.

'# RTC d)cision o7 assai9)d 7or)ign ar1itra9 a<ard a==)a9a19)

Sec. )C of *A D#H7. A decision of the *(5 confirming vacating setting aside modifying or correcting an arbitral award may be appealed to the 5A in accordance with the rules and procedure to be promulgated by the S5.

(he losing party who appeals from the judgment of the court confirming an arbitral award shall be re6uired by the appellate court to post a counterbond e%ecuted in favour of the prevailing party e6ual to the amount of the award in accordance with the rules to be promulgated by the S5.

104

Distinctions 1)t<))n 7or)ign ar1itra9 a<ard 7ro6 7or)ign 2udg6)nt0 !. @oreign arbitral award is a better alternative because the same is readily enforceable whereas foreign judgment is not readily enforceable for it re6uires proof and allegations of a foreign law. #. @oreign arbitral award when confirmed by the *(5 shall be recogni.ed and enforced as foreign arbitral award and not as judgment of a foreign court whereas foreign judgment when confirmed by the *(5 shall be enforced as a judgment of the foreign court. $. @oreign arbitral award when validly stipulated upon by the parties shall be final and binding whereas in foreign judgment there is no stipulation involved e%ecuted by the parties. ). @oreign arbitral award is done thru alternative dispute resolution whereas foreign judgment does not involved alternative dispute resolution because the same should be done in regular courts proceedings.

*rounds 7or t5) r)2)ction o7 a 7or)ign ar1itra9 a<ard und)r Art# Con8)ntion0

o7 N)< %orH

a. *ecognition Q enforcement of the award may be refused at the re6uest of the party against whom it is invoked only if that party furnishes to the competent authority where the recognition and enforcement is sought proof that-

!. parties to the agreement referred to in Art. II were under the law applicable to them under some incapacity or said agreement is not valid under the law to which the parties have subjected it or under the law of the country where the award was made. #. 'arty against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or otherwise unable to present his case. $. Award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration ). 5omposition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties.

7. Award has not yet become binding on the parties or has been set aside or suspended by a competent authority in which the award was made.

b. *ecognition or enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that-

!. Subject matter of the difference is not capable of settlement by arbitration under the law of that country

#. *ecognition or enforcement of the award would be contrary to the public policy of that country.

(O$IES v& LER#A G P$S#C 'R 14$ +1, !anuary &, #..+ FACTS 0 'etitoner Jorea (echnologies 5o. Ltd. 3JA<IES4 A Joren 5orp. engaged in the supply and installation of L'< 5ylinder manufacturing plants and private

105

respondent 'acific <eneral Steel Mfg. 5orp. 3'<SM54 a domestic corp. e%ecuted a contract in the 'hilippines whereby JA<IES would set up an L'< cylinder mfg. plant in 5armona 5avite. @or allegedly altering the 6uantity and lowering the 6uality of the machineries Q e6uipment delivered by JA<IES '<SM5 cancelled the contract and would dismantle Q transfer the machineries in 5armona plant. JA<IES asserted that '<SM5 could not unilaterally rescind the contract and that their dispute should be settled by arbitration as agreed upon in Art. !7 the arbitration clause of their contract. JA<IES then instituted an Application for Arbitration before J5A0 in Seoul Jorea pursuant to said Art. !7 as amended and resolved said dispute in their favor. Meanwhile JA<IES filed a complaint for specific performance against '<SM5 before *(5 of Muntinlupa alleging among others that '<SM5 violated Art. !7 of the contract by unilaterally rescinding the same without resorting to arbitration and thus praying that '<SM5 be restrained from dismantling Q transferring the machinery. '<SM5 opposed to the (*A since Art. !7 was null and void for being against public policy as it ousts the local courts of jurisdiction. (he *(5 denied said application of (*A and held that Art. !7 was invalid which later affirmed by the 5A. ISSUE $ELD 0 9hether or not arbitration clause Is valid 0 >es. Established is the rule that the law of the place where the contract is made governs. (he contract was perfected in the 'hilippines. (herefore our laws ought to govern. 8onetheless Art. #E)) of the 5ivil 5ode sanctions the validity of mutually agreed arbitral clause or finality of an arbitral award. (he arbitration clause was mutually agreed upon by the parties. It has not been shown to be contrary to any law or against public policy. OIL G NATURAL $AS CO##ISSION v& CA #9$ SCRA #% FACTS 0 'etitoner Ail Q 8atural <as 5ommission a foreign corporation controlled by the gov;t of India entered into a contract with private respondent 'A5EM5A whereby the latter undertook to supply petitioner ) $EE metric tons of oil well cement. (he oil well cement was loaded on board by the ship MB Surutana 8ava at the port of Surigao 5ity. &ue to a dispute between the shipowner Q private respondent the cargo did not reach its destination in India and instead it was withheld in 0angkok. &espite the fact the private respondent had already received payment and despite several demands it failed to deliver the oil well cement. 'etitioner then informed private respondent that they referred the claim to an arbitrator pursuant to clause !C of their contract. (he chosen arbitrator one Shri Malhotra resolved the dispute in petitioner;s favor. (o enable to e%ecute the arbitral award petitioner filed before the 5ourt of 5ivil :udge in &ehra &un India praying that the decision of arbitrator be made +(he *ule of 5ourt, in India. (he foreign court issued an order in favor of the petitioner in which the said arbitral award shall be a part of the decree. Accordingly petitioner filed a complaint with *(5 of Surigao 5ity for

the enforcement of the foreign judgment. (he *(5 dismissed the complaint for lack of valid cause of action and held that the referral of the dispute to the arbitrator is erroneous. (he 5A affirmed the trial court;s decision declaring that arbitrator did not have jurisdiction thus the foreign court could not validly adopt the arbitrator;s award. 1ence this petition. ISSUE $ELD 0 9hether or not the foreign judgment is valid and enforceable in the 'hilippines. 0 >es. (he recognition to be accorded a foreign judgment is not necessarily affected by the fact that the procedure in the court;s of country in which the judgment was rendered differs from that of the court;s of the country in which the judgment is relied on. Matters of remedy Q procedure are governed by the le% fori. (hus if under the procedural rules of the 5ivil 5ourt of India a valid judgment may be rendered by adopting the arbitrator;s findings the same must be respected. #ARIA RE)ECCA #A(APU$A5 )A5OT v& CA 'R 1 %$ , (o4ember &, #..+

106

FACTS 0 Bicente 0ayot A @ilipino citi.en and *ebecca Makapugay identified as an American citi.en were married in Mandaluyong 5ity on April #E !DFD Q were later blessed with a child named Ali%. Sometime in !DDC *ebecca initiated divorce proceedings in the &ominican *epublic. (he &ominican 5ourt issued 5ivil &ecree on @ebruary ## !DDC ordering the dissolution of their marriage and leaving them to remarry after completing the legal re6uirements but giving them the joint custody and guardianship over Ali%. Ane year later the same 5ourt issued another civil decree settling the couple;s property relations pursuant to an agreement they e%ecuted which states that the conjugal property which they ac6uired during their marriage consists only of real and personal properties at Muntinlupa. An March !) !DDC *ebecca filed a petition before the *(5 of Makati 5ity for declaration of nullity of marriage pursuant to said civil decree issued by the &ominican 5ourt. An May #D !DDC *ebecca e%ecuted an Affidavit of Acknowledgment stating under oath that she is an American citi.en and that since !DD$ she and Bicente have been living separately. In #EE! *ebecca filed another petition before *(5 of Muntinlupa for declaration of absolute nullity of marriage. Bicente then moved to dismiss the case on grounds of lack of cause of action and that petition is barred by the prior judgment of divorce which motion was denied. *ebecca on the other hand interposed an opposition insisting her @ilipino citi.enship as affirmed by the &A: and that there is no valid divorce to speak of. An appeal the 5A effectively dismissed the petition of *ebecca. ISSUE $ELD 0 9hether or not divorce decree is valid as to constitute res judicata. 0 >es. At the time of the divorce *ebecca was still to be recogni.ed as an American citi.en. At the very least she chose before during Q shortly after her divorce her American citi.enship to govern her marital relationship. 0eing an American citi.en she was bound by the national laws of the ?S a country which allows divorce. <iven the validity of divorce secured by *ebecca the same shall be given a res judicata effect in this jurisdiction. As an obvious result of divorce decree the marital vinculum between *ebecca and Bicente is considered severed. ROE'R v& RODRI$UE* 4.4 SCRA 49 FACTS 0 'etitioner 9olfgang *oehr A <erman citi.en and resident of <ermany married private respondent 5armen *odrigue. a @ilipina in 1armburg <ermany in !DHE. (heir marriage was subse6uently ratified in 8egros Ariental in !DH!. In !DDC private respondent filed a petition for declaration of nullity of marriage before *(5 of Makati 5ity. 'etitioner moved to dismiss the case but the same was denied. An &ecember !C !DDF petitioner obtained a decree of divorce from the 5@I of 1amburg/0lankenese wherein the court awarded to him the custody of their two children. In view of said decree petitioner filed a second motion to dismiss on action filed by private respondent on the ground that the trial court

had no jurisdiction over the subject matter of the action as a decree of divorce had already been promulgated dissolving the marriage of petitioner and private respondent. (he trial court thru public respondent :udge Salonga granted the motion. 'rivate respondent filed a motion for partial reconsideration praying that the case proceed for the purpose of determining the issues of custody of children and the distribution of properties. 'ublic respondent reversed her previous order and allowed the case to proceed. ISSUE $ELD 0 9hether or not the case be allowed to proceed despite the decree of divorce already obtained in <ermany. 0 >es. As a general rule divorce decrees obtained by foreigners in other countries are cogni.able in our jurisdiction but the legal effects thereof e.g. custody care and support of the children must still be determined by our courts. 0efore our courts can give the effect of res judicata to a foreign judgment such as the award of custody of petitioner by the <erman court it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds under *ule $D Sec 7E3now Sec. )H4 of the *ules of 5ourt.

107

*?LE $D SE5. )H. 700ect o0 0oreign 5udgments. / (he effect of a judgment of a tribunal of a foreign country having jurisdiction to pronounce the judgment is as follows3a4 In case of a judgment upon a specific thing the judgment is conclusive upon the title to the thing" 3b4 In case of a judgment against a person the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subse6uent title" but the judgment may be repelled by evidence of a want of jurisdiction want of notice to the party collusion fraud or clear mistake of law or fact.

.UAS'A LAW O22ICE G LE$END INTAL RESORTS LTD&6 versus SPECIAL SI0T' DI%ISION O2 CA6 ('OO )OO )OON G PICA*O LAW 2IR# 'R 1+#.1$, Cecember 4, #..9 FACTS 0 'etitioner LI*L a 1ongkong corp. licensed to operate a resort 5asino hotel in Subic 0ay 'hils. filed a complaint for annulment of contract specific performance with damages Q application for (*A before *(5 of Alongapo against 'A<5A* Q S0MA on the basis of the agreement it entered into with the latter which was later amended which in effect suspend limit reduce or modify petitioner;s license to operate the Subic 0ay 5asinos and from entering with any agreement from other entities for the operation of other 5asinos in the Subic @ree 'ort Wone. (he trial court annulled the amendment of the aforesaid agreement. Meanwhile petitioner LI*L;s companies filed before the 1ongkong 5ourt for winding up which ordered the appointment of Jelvin @lynn Q 0orrelli as li6uidators of petitioner LI*L and further granting to them the power to manage its business. 'ursuant to said orders @lynn sent a letter to private respondent 0oon informing him that he had already been terminated as 5EA of LI*L/Subic as well as private respondent 'ica.o law office notifying that its legal services had also been terminated. 'etitioner LI*L later engaged the legal services of petitioner Muasha Law office as its new counsel to represent in all proceedings in the 'hils. 'etitioner Muasha Law Affice filed its Entry of Appearance as counsel of petitioner in a case pending before the appellate court. (he appellate court refused to recogni.e their appearance because being a foreign judgment our courts could not take judicial notice thereof and further concludes that untill the alleged order of the 1ongkon 5ourt had been recogni.ed before our local courts it was still the private respondent 'ica.o Law Affice was recogni.ed as the only counsel entitled to represent petitioner LI*L. ISSUE 0 9hether or not the order of the 1ongkong 5ourt can be recogni.ed and enforced in our 5ourts.

$ELD

0 8o. (he act of terminating the legal services of private respondent 'ica.o law Affice and engaging in its place petitioner Muasha law office was a mere e%ercise of petitioner LI*L;s prerogative thru its appointed li6uidators which was an internal affair that re6uires no prior recognition in a separate action. (herefore the court can no longer pass upon the issue.

P'ILIPPINE ALU#INU# W'EELS INC& v& 2AS$I ENTERPRISES INC& $4# SCRA &## FACTS 0 0ased on their distributorship agreement e%ecuted in ?S petitioner 'A9I a 'hil. 5orp. shipped H 7D) wheels to respondent @AS<I a 5alifornian corp. and the latter paid the @A0 value of said wheels. After finding that the shipment was defective and in non/compliance with the re6uirement @AS<I filed an action against 'A9I and @'S an Italian corp. for breach of contract with recovery of damages before the 5alifornia &istrict 5ourt. 'ending resolution of the case the parties entered into a settlement agreement whereby petitioner had to e%ecute several letters of credit 3L54 in favor of @AS<I. 1owever dispite its assurances and @AS<I;s insistence 'A9I still failed to open the first L5 allegedly due to 5entral 0ank in6uiries and restrictions. (he parties subse6uently entered into a

108

Supplemental Settlement of Agreeement and motion for entry of judgment which was e%ecuted by @AS<I;s president and 'A9I;s counsel Mr. (homas *eady. @or failure again to comply with their agreement respondent pursue the case with 5alifornia 5ourt which obtained a favorable judgment. ?nable to satisfy said foreign judgment respondent filed a complaint for its enforcement before *(5 of Makati 5ity. (he trial court dismissed the case on grounds that the decree was tainted with collusion fraud and clear mistake of law. An appeal the 5A ordered the full enforcement of the 5alifornia judgment. 1ence this appeal. 'etitioner contends that the foreign judgment cannot be enforced because Mr. *eady had already terminated his services from them and that the motion for entry of judgment is void. ISSUE $ELD 0 9hether or not foreign judgment is enforceable before the 'hilippine courts. 0 >es. @rom the time the stipulation for judgment was entered until the certificate of finality of judgment was issued by the 5alifornia 5ourt no notification was issued by 'A9I to @AS<I regarding its termination of Mr. *eady;s services. If 'A9I were indeed hoodwinked by Mr. *eady who purportedly acted in collusion with @AS<I it should have aptly raised the issue before the forum which issued the judgment in line with the principle of international comity. @raud to hinder the enforcement within this jurisdiction of a foreign judgment must be )@trinsic that is fraud based on facts not controverted or resolved in the case where judgment is rendered or would deprive the party against whom judgment is rendered a chance to defend an action to which he has a meritorious case or defense. (he fraud involved in this case was intrinsic or that fraud which goes to the very e%istence of the cause of action 2 such as fraud in obtaining consent to a contract is deemed adjudged and therefore cannot militate against the recognition or enforcement of the foreign judgment. #IJARES v& RANADA 4 SCRA $9& FACTS 0 'laintiffs filed a class suit with the ?S &istrict 5ourt of 1awaii against the estate of 'res. Marcos alleging that they suffered tortious acts in the hands of military forces during the Marcos regime. (he ?S &istrict 5ourt awarded to the plaintiff class an amount of U!.DC0 as compensatory Q e%emplary damages. Meanwhile present petitioners filed a complaint with Makati *(5 for the enforcement of foreign judgment claiming that they are members of the plaintiff class in whose favor said foreign court awarded damages and that the same should be recogni.ed and enforced in our courts pursuant to *ule $D Sec )H of the *ules of 5ourt. *espondent Marcos estate moved to dismiss the case raising non/ payment of correct filing fees. 'etitioners however claimed that the re6uired filing fees are e%orbitant despite the fact that said action is not capable of pecuniary estimation. An the other hand respondent :udge *anada ruled against

petitioners. In its present petition for certiorari petitioners assailed the twin orders of respondent :udge and asserted that said action belongs to the class where the 5ourt has recogni.ed as being incapable of pecuniary estimation. 51* likewise intervened in this case asserting the immediate enforcement Q e%ecution of the said foreign judgment because once the case has been decided between the same parties in one country on the same issue with finality" it can no longer be relitigated in another country invoking principle of comity and vested rights. ISSUES 0 3!4 9hether or not foreign judgment can be recogni.ed in our courts as the same is capable of pecuniary estimation. 3#4 9hether or not foreign judgment should outrightly be enforced before our courts even without filing a separate action. $ELD 0 3!4 >es. (he 5ourt ruled that the complaint to enforce foreign judgment is one capable of pecuniary estimation and that petitioners; payment of docket fees of only ')!E.EE corresponds to the same amount re6uired for +other actions not involving property,

109

3#4 8o. Sec. )H *ule $D acknowledges that the final judgment is not conclusive yet but presumptive evidence of a right of petitioner against the Marcos Estate. Marcos Estate is not precluded to present evidence" if any of want of jurisdiction want of notice to the party collusion fraud or clear mistake of law or fact. Such issues are to be litigated before the trial court but within the confines of the matters for proof as laid down in the aforesaid rule. (he actionable issues are generally restricted to a review of jurisdiction of the foreign court the service of personal notice collusion fraud or mistake of fact or law. As stated in @errer;s case. +If every judgment of a foreign court were reviewable on the merits the plaintiff would be forced back on his original cause of action rendering immaterial the previously concluded litigation,. Moreover there is no obligatory rule derived from treaties or conventions that re6uires the 'hilippines to recogni.e foreign judgment or allow a procedure for the enforcement thereof. 1owever generally accepted principles of international law by virtue of the incorporation clause of the 5onstitution form part of the laws of the land even if they do not derive from treaty obligations. DAN$WA TRANSPORTATION CO& INC& v& SAR#IENTO & SCRA 1#4 FACTS 0 1eller an American citi.en Q Airman @irst 5lass of ?S Air @orce presently assigned and stationed at 5lark Air 0ase 'ampanga who sustained serious physical injuries due to bus collision filed an action for damages before 5@I of 'ampanga against petitioners &angwa a domestic corp. Q owner of the bus company and :ames <ayot the bus driver. 'etitioners moved to dismiss the complaint on the ground of improper venue since 1eller is not a resident of 'ampanga in view of his allegation in the complaint. 1eller opposed contending that he has the privilege to elect with court to file his action and he had chosen 5@I of 'ampanga because he is a resident thereof not only at the time of the commencement of present action but even before the accident happened. *espondent :udge Sarmiento ruled in favor of 1eller declaring that his action was properly instituted in 5@I of 'ampanga because residence under this action need not be continuous it is sufficient that a party though a foreign subject has is actual residence in the place where the action was brought. 1ence this petition for prohibition. ISSUE 0 9hether or not 5@I of 'ampanga;s order of dismissal is proper.

$ELD

0 >es. (here is no 6uestion that private respondent 1eller has his fi%ed place of abode at 5lark Air 0ase 'ampanga. (here is no showing that 1eller has not resided consistently and with continuity in his place of abode at 5lark Air 0ase at the time he filed his action. As held in Joh v. 5A the term +resides, as employed in the rule on venue on personal action filed with the 5@I means the place of abode whether permanent or temporary of the plaintiff or the defendant as distinguished from domicile which denotes a fi% permanent residence to which when absent one has the intention of returning. 2ELICITAS A#OR3CATALAN v& CA 14 SCRA %.&

FACTS 0 'etitoner @elicitas Amor/5atalan married respondent Arlando in !D7E in Mabini 'angasinan. (hereafter they migrated to the ?SA and allegedly became naturali.ed citi.ens thereof. After $H years of marriage they divorced in April !DHH. Arlando subse6uently married respondent Merope in 5alasiao 'angasinan. 'etitioner filed a petition for declaration of nullity of marriage with damages before *(5 of &agupan 5ity against respondents Arlando and Merope contending that said marriage was bigamous since Merope had a prior subsisting

110

marriage with Eusebio. *espondents moved to dismiss on the ground of lack of cause of action as petitioner was allegedly not a real/party/in/interest however it was denied. (he trial court decided in favor of the petitioner. An appeal the 5A reversed the decision of the trial court. 1ence this instant petition for review contending that petitioner has the personality to file petition for declaration of nullity of marriage. ISSUE $ELD 0 9hether or not petitioner has the personality to file petition for declaration of nullity of marriage. 0 8o. 'etitioner;s personality to file said petition cannot be ascertained because of the absence of divorce decree and the foreign law allowing it. It is true that under the 8ew 5ivil 5ode which is the law in force at the time the respondents were married or even in the @amily 5ode there is no specific provision as to who can file a petition to declare the nullity of marriage however only a party who can demonstrate a proper interest can file the same. (he said petition must be prosecuted or defended in the name of the real party in interest and must be based on a cause of action. 1ence the case was remanded to the trial court for reception of additional evidence necessary to determine whether respondent Arlando was granted a divorce decree and whether foreign law which granted the same allows or restricts remarriage.

- nothing follows -

)@c)=t t5) 7ina9 )@a6inationsE 5)5)5)NNN

1r)aH a 9)g =i=sNNN

111