REVIEWER IN CONFLICT OF LAWS

Cheryl M. Navarro
2007-0026
Arellano University School of Law
DEFINITION OF TERMS
Conflict of Laws
- or Private International Law
- that part of the municipal law of a state which directs its courts and
administrative agencies, when confronted with a legal problem
involving a foreign element, whether or not they should apply foreign
law or foreign laws.
Public International Law
- the body of legal rules which apply between sovereign states and
such other entities as have been granted international personalities.
DISTINCTIONS BETWEEN CONFLICT OF LAWS AND PUBLIC
INTERNATIONAL LAW
CONFLICT OF LAW
1.) MUNICIPAL
2.) PRIVATE
INDIVIDUALS

BASIS
Nature
Persons Involved

PRIVATE

Transactions

RESORT TO
MUNICIPAL
TRIBUNALS

Remedies/ Sanctions

LAW OF NATIONS
INTERNATIONAL
SOVEREIGN STATES &
ENTITIES POSSESSED
OF AN
INTERNATIONAL
PERSONALITY
GENERALLY
AFFECTING PUBLIC
INTEREST; THOSE
WHICH IN GENERAL
ARE OF INTEREST TO
SOVEREIGN STATES
MAY BE FORCIBLE OR
PEACEFUL
Forcible:
1. severance of
diplomatic relations,
2. retorsions,
3. reprisals,
4. embargo,
5. boycott,

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6. non-intercourse,
7. pacific blockades,
8. collective measures
under the UN
Charter, and
9. WAR
Peaceful:
1. diplomatic
negotiation,
2. tender & exercise of
good offices,
3. mediation,
4. inquiry and
conciliation,
5. arbitration,
6. judicial settlement by
the ICJ,
7. reference to regional
agencies,
8. reference to the UN
Theory of Comity
- we apply the foreign law because of its CONVENIENCE, and finally,
because WE WANT TO GIVE PROTECTION to our citizens, residents
and transients in our land.
Theory of Vested Rights
- we SEEK TO ENFORCE not the foreign law itself but THE RIGHTS
THAT HAVE BEEN VESTED under such foreign laws.
Theory of Local Law
- We apply foreign law not because it is foreign, but BECAUSE OUR
OWN LAWS, by applying similar rules, REQUIRE US TO DO SO;
- It is as if the foreign law has become PART AND PARCEL of our own
local law.
Theory of Harmony of Laws
- In many cases we have to apply the foreign laws so that WHEREVER
A CASE IS DECIDED, i.e., irrespective of the forum, THE SOLUTION
SHOULD BE APPROXIMATELY THE SAME
- thus, identical or similar solutions anywhere and everywhere. When
the goal is realized, there will be a harmony of laws.
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Theory of Justice
- the PURPOSE OF ALL LAWS, including Conflict 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.
Comity
- the RECOGNITION that one nation allows within its territory, to the
LEGISLATIVE, EXECUTIVE OR JUDICIAL ACTS OF ANOTHER NATION,
having due regard both to INTERNATIONAL DUTY and
CONVENIENCE, and the RIGHTS OF ITS OWN CITIZENS, or other
persons who are under the protection of its laws.
Characterization/ DOCTRINE OF QUALIFICATION
- the process of determining under what category a certain set of facts
or rules fall
- the process of deciding whether or not the facts relate to the kind of
question specified in a conflicts rule.
- Also called the doctrine of qualification
- The ultimate purpose is to enable the forum to SELECT THE PROPER
LAW.
Status
- the place of an individual in society, and
- consists of personal qualities and relationships, more or less
permanent, with which the state and the community are concerned.
- Among the things which make up the status of a person are the ff.: his
being married or unmarried, widowed or divorced, his being a
legitimate or an illegitimate child of his parents, his being a minor or
his having reached the age of majority; his capacity to enter into
various transactions.
Capacity
- merely a part of status, and the sum total of his rights and obligations.
- The Civil Code distinguishes 2 kinds of capacity: CAPACITY TO ACT
and JURIDICAL CAPACITY.
- Capacity to act or ACTIVE CAPACITY is the power to do acts with
legal effects
- Juridical capacity or PASSIVE CAPACITY is the fitness to be the
subject of legal relations
Personal Law
- The law that attaches to an individual, wherever he may go- a law that generally governs his status, his capacity, his family
relations, and the consequences of his actuations.
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This may be the NATIONAL LAW of his DOMICILIARY LAW or the

LAW OF THE SITUS depending upon the theory applied and
enforced in the forum.

Nationality Theory
- the theory by virtue of which the status and capacity of an individual
are generally governed by the law of his nationality.
Naturalization
- a judicial process of acquiring citizenship where formalities of the
law have to be complied with, including a JUDICIAL HEARING and
APPROVAL OF THE PETITION
- it may also mean the acquisition of another citizenship by such acts
as marriage to a citizen, and the exercise of the option to elect a
particular citizenship.
Domiciliary Theory
- the theory that in general, the status, condition, rights and obligations,
and capacity (SCROC) of a person should be governed by the law of
his domicile.
Situs or Eclectic Theory
- in general, the capacity, legal condition, or status (C.LC.S) of an
individual should be governed by the law of the place where an
important element of the problem occurs or situated.
- If the participation of the individual concerned is active as when he
does the act voluntarily, the governing law is the law of the actual
situs of the place of the transaction or event.
- If the participation is passive, as when the effects of the act are set
forth in the law, the governing law is the law of the legal situs or the
legal situs of an individual is supposed to be his domicile.
RENVOI
- literally means REFERRING BACK;
- the problem arises when there is doubt as to whether a reference to a
foreign law is a reference to the internal law of said foreign law, or is
a reference to the whole of the foreign law, including its conflicts
rules.
- renvoi (from the French, meaning "send back" or "to return
unopened") is a subset of the choice of law rules and it may be
applied whenever a forum court is directed to consider the law of
another state.
DOUBLE RENVOI

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occurs when the local court, in adopting the foreign court theory,
discovers that the foreign court accepts the renvoi
Double Renvoi or the Foreign Courts Doctrine which will also ensure
parity of result so long as no other relevant law is using it. In this
scenario, the forum court considers that it is sitting as the foreign
court and will decide the matter as the foreign court would.

Transmission
- the process of applying the law of a foreign state through the law of a
second foreign state.
Marriage as a contract
- ARTICLE 1 FAMILY CODE:
Marriage 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, consequences and
incidents are governed by law and not subject to stipulations except
that marriage settlements may fix the property relations during the
marriage within the limits provided by the Family Code.
- marriage as any other contract has two kinds of requisites: the formal
and the essential requisites.
Marriage as a Status
- carries with it implications in two fields:
1. the realm of personal rights and obligations of the spouses; and
2. the realm of property relations.
Annulment
- the remedy to a voidable marriage, i.e., a valid marriage until
annulled.
Absolute Divorce
- a mode of dissolving the marital ties granted for causes subsequent to
the marriage ceremony. There is no Divorce in the Philippines.
Legal Separation
- or divorce a mensa et thoro
- or separation from bed and board
- or relative divorce
- does not sever the marriage bonds
- Reconciliation prevents a suit for legal separation or rescinds one
already granted.
- Can be granted for causes subsequent to the celebration of the
marriage
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The grounds are those given by the national law of the parties
concerned inasmuch as this is purely a question of status, the validity
of the marriage being presumed or admitted.

Some Grounds for Legal Separation:

Grounds for legal separation
a) Adultery
b) Concubinage

c) attempt by one spouse against the

life of the other

National law of the parties

a) if of the same or common
nationality- the common national
law governs
b) if of different nationalities- the
grounds given by BOTH national
laws should all be considered proper
grounds
NOTE: Residence requirement if suit
is brought in the Philippines:
a) if cause occurred in the
Philippines- NO RESIDENCE
REQUIREMENT
b) if cause occurred outside the
Philippines- ONE YEAR
RESIDENCE is required in our
country

LEGAL SEPARATION DISTINGUISHED FROM ANNULMENT OF MARRIAGE

LEGAL SEPARATION
Can be granted from causes arising
after the celebration of marriage
Grounds are given by the national
parties concerned
Presumes the validity of marriage

ANNULMENT
Can be granted for causes existing
prior to or at the time the wedding
takes place
Grounds are given by the lex loci
celebrationis
Questions the very existence of the
status

GROUNDS FOR LEGAL SEPARATION:

1. repeated physical violence or grossly abusive conduct directed
against the petitioner, a common child, or a child of the petitioner
2. physical violence or moral pressure to compel the petitioner to
change religious or political affiliation
3. attempt of respondent to corrupt or induce the petitioner, a common
child or a child of the petitioner , to engage in prostitution, or
connivance in such corruption or inducement
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4. final judgment sentencing the respondent to imprisonment or more

than 6 years, even if pardoned
5. drug addiction or habitual alcoholism of the respondent
6. lesbianism or homosexuality of the respondent
7. contracting by the respondent of a subsequent bigamous marriage,
whether in the RP or abroad
8. sexual infidelity (adultery or concubinage) or perversion
9. attempt by the respondent against the life of the petitioner
10. abandonment of petitioner by respondent w/o justifiable cause for
more than one year.
Notes:
Mere preponderance of evidence will suffice to prove the existence of
any of the grounds, although in no.4, previous criminal conviction is
essential in view of the necessity of a final judgment.
Abandonment as used herein is synonymous to criminal desertion,
i.e., a husbands or wifes abandonment or willful failure without just
cause to provide for the care, protection or support of the spouse
who is in ill health or necessitous circumstances. This includes both
the INTENTION to ABANDON and the EXTERNAL ACT by which the
intention is carried into effect.
Paternity (or maternity)
- the civil status of the father (or mother) with respect to the child
begotten by him (or her).
Filiation
- the status of the child in relation to the father or mother.
Parental Affection
- the love of the parents for the child
Filial Affection
- the love of the child for the parents
Legitimation
- a remedy or process by means of which those who in fact were not
born in wedlock, and should therefore be ordinarily considered
illegitimate children, are, by fiction and upon compliance with certain
requirements, regarded by the law as legitimate, it being supposed
that they were born when their parents were already validly married.
- The requisites for legitimation are those prescribed by the
national law of the father.
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The following constitute the internal requisites for the legitimation of an

illegitimate child:
1) The child must be conceived and born outside wedlock of parents
who at the time of the conception were disqualified by any
impediment to marry each other.
2) There must be subsequent valid marriage
When we mention the relationship between the child and the parents, we
inferentially include also the following matters:
a)
b)
c)
d)

presumptions of legitimacy and illegitimacy

rights and obligations of parents and children
parental authority
reciprocal support

Adoption
- the process of making a child, whether related or not to the adopter,
possess in general the rights accorded to a legitimate child.
CONFLICTS RULES ON ADOPTION
1) Whether or not the status of adoption has been created depends on
the national law of the adopter.
2) If the adoption takes place in the Philippines, our countrys
procedural requisites must be complied with in accordance with the
theory of lex fori in procedural matter.
3) Adoption cannot be allowed without judicial approval.
4) The following are not allowed to adopt:
-

The GUARDIAN WITH RESPECT TO THE WARD prior to the approval

of the final accounts rendered upon the termination of their
guardianship relation;
Any person who has been CONVICTED OF A CRIME INVOLVING
MORAL TURPITUDE;
An ALIEN except:

a) a former Filipino citizen who seeks to adopt a relative by

consanguinity
b) one who seeks to adopt the legitimate child of his/her Filipino
spouse; or
c) one who is married to a Filipino citizen and seeks to adopt jointly
with his/her spouse a relative by consanguinity of the latter.

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Note:
An alien with whose government of the RP has no diplomatic relations
may not be adopted.
Adoption of a foreigner does not grant said foreigner Philippine
citizenship.
Doctrine of Immutability of Status
- theory that the STATUS OF A CHILD- HIS LEGITIMACY- IS NOT
AFFECTED BY ANY SUBSEQUENT CHANGE IN THE NATIONALITY
OF THE PARENTS.
- However, the national law of the parents will be changed should the
parents effect a change of nationality: the rights and obligations of
parents and child will now be determined by the new national law.
Example: A Filipino illegitimate child who becomes a legitimated child of his
Filipino parents by virtue of recognition by both parents and their
subsequent valid marriage, continues to be a legitimate child even if the
parents should subsequently embrace another nationality.
The parental and filial rights and obligations will now be governed the NEW
nationality, but the child is considered still a legitimated child, despite any
contrary rule under the new nationality. Moreover, the new rights and
obligations will be effective only from the moment the new nationality is
embraced, not before.
Guardianship
- there are generally 3* kinds of guardians
1. Guardians over the Person*- appointed generally by the
courts where the ward is domiciled. Their powers are
coextensive with the authority of the appointing court. Hence, a
guardian as such, is not permitted to sue in other jurisdictions
unless his guardianship is also recognized in such foreign
courts. However, he may litigate in his own individual or private
capacity.
2. Guardians over the Property* - appointed by the court where
the property of the ward may be found; their powers are fixed
by the appointing court, and cannot have extraterritorial
application.
Should the ward have properties in foreign states, ancillary
guardianship proceedings are imperative.

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3. General Guardians* (over both the person and the property

of the wards). Can generally be appointed only by the court of
the country where the ward is domiciled and where the
properties are located. Powers are coextensive with those of
the court that designated them.
4. Domiciliary Guardians (appointed by the courts of the
domicile of the wards)
5. Ancillary Guardians (those appointed elsewhere)
Real Property
- part of the country where it is located.
- Its immovability makes it logical that it shall be subject to the laws of
the states where it is found (lex situs/lex rei sitae)
Personal Property
- movable property
- governed by the law of the owner (MOBILIA SEQUUNTUR
PERSONAM)
- may be tangible or intangible
- TANGIBLES- Choses in possession
- INTANGIBLES- Choses in action (such as shares of stock, franchises,
and copyrights)
REAL AND PERSONAL PROPERTIES
FACTUAL SITUATION
1) Real property
- extrinsic 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,
taxation,
quieting of title,
registration and
prescription

Exceptions:
a) successional rights
b) capacity to succeed
c) contracts involving real
property but which do not
deal with the title thereto
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POINT OF CONTACT
Lex rei sitae (Art. 16, NCC)

- national law of the decedent

- national law of the decedent
- lex loci voluntatis/ lex loci
intentionis

d) contracts where the real

property is given as security

- the principal contract (usu. Loan)

is governed by the proper law of
the contract (lex loci voluntatis/
lex loci intentionis
note: the mortgage itself, however, is
governed by the lex rei sitae. There
is a possibility that the principal
contract is valid but the mortgage is
void; or it may be the other way
around. If the principal contract is
void, the mortgage would also be
void (for lack of proper cause or
consideration0, although by itself,
the mortgage could have been valid.

2) Tangible Personal Property

a) in general
EXCEPTIONS: SAME AS THOSE FOR
REAL PROPERTY

n) LEX REI SITAE

Exceptions: same as those for real
property except that in example
concerning the mortgage the same
must be changed to a pledge of
personal property.

b) means of transportation
-

vessels

law of the flag (or in some

cases of the place of registry)

other means

law of the depot or resting

place

c) thing in transitu (these things

have a changing status
because they move)
- loss, destruction,
deterioration
- validity and effect of the
seizure of the goods

law of the destination

locus regit actum (where

seized) bec. Said place is their
temporary situs
lex loci voluntatis/lex loci
intentionis

disposition of alienation of the

goods

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3) Intangible personal property

a) recovery of debts or
involuntary assignment
of debts (garnishment)
b) voluntary assignment
of debts

a) where the debtor may be

effectively served with
summons (usu. The domicile)
b) lex loci voluntatis/ lex loci
intentionis (proper law of the
contract)
other theories:
1) NATIONAL LAW OF THE
CREDITOR OR DEBTOR
2) DOMICILE OF THE DEBTOR
OR THE CREDITOR
3) LEX LOCI CELEBRATIONIS
4) LEX LOCI SOLUTIONIS

c) taxation of debts
d) administration of debts

c) domicile of the creditor

d) lex situs of assets of the
debtor (for these assets can be
held liable for the payment of
the debts)

e) negotiability or nonnegotiability of an
instrument
f) validity of transfer,
delivery or negotiation
of the instrument

e) the right embodied in the

instrument

g) effect on a corporation
of the sale corporate
shares

f) in general, situs of the

instrument at the time of
transfer, delivery or
negotiation
g) law of the place of
incorporation

h) effect between the

parties of the sale of
corporate shares

h) lex loci voluntatis/lex loci

intentionis

i) taxation on the
dividends of corporate
shares

i) law of the place of

incorporation

j) taxation on the income

of the sale corporate
shares

j) law of the place where the

sale was consummated

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k) franchises
l) goodwill of a business
and taxation thereon

k) law of the place that granted

them
l) law of the place where the
business is carried on

m) patents, copyrights,
trademarks, trade
names

m) in the absence of a treaty, they

are protected only by the state
that granted them.
Note: foreigners may sue for
infringement of trademarks and
tradenames in the RP only if
Filipinos are granted reciprocal
concessions in the state of the
foreigners.

Chose
- a thing, an article of personal property
- a chattel personal, and is either IN ACTION OR IN POSSESSION
Chose in Action (Intangible Personal Property)
- a thing in action
- the right of bringing an action or
- right to recover a debt or money
Chose in action means any of the following:
1) Right of proceeding in a court of law to procure payment of sum of
money, or right to recover a personal chattel or a sum of money by
action;
2) A personal right not reduced into possession, but recoverable by a
suit at law;
3) A right to personal things of which the owner has the possession,
but merely a right of action for their possession;
4) Includes personal chattels which are not in possession, and all
property in action which depends entirely on contracts express
or implied;
5) A right to receive or recover a debt, demand, or damages on a
cause of action ex-contractu or for a tort or omission of a duty.
Chose in Possession (Tangible Personal Property)
- Personal thing of which one has possession
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Goodwill
- the PATRONAGE of any established trade or business
- the BENEFIT acquired by an establishment BEYOND the mere value
of the capital stocks, funds, or property employed therein IN
CONSEQUENCE OF THE GENERAL PUBLICS PATRONAGE AND
ENCOURAGEMENT which it receives from its customers.
Trademark
- the name or symbol of goods made or manufactured.
Trade name
- the name or symbol of a store or business place
Service Mark
- the name or symbol of services rendered.
Copyright
- the right of literary property as recognized and sanctioned by
positive law.
Will
-

an act whereby a person is permitted, with the formalities prescribed

by law, to control to a certain degree the disposition of his estate, to
take effect after his death.

Succession
- a mode of acquisition by virtue of which the property, rights and
obligations, to the extent of the value of the inheritance, of a person
are transmitted through his death to another or others either by his
will or by operation of law.
Theories on the Proper Law for the Transmission of Successional Rights
1) Unitary or Single System- one law governs the transmission of both
real and personal property
2) Split or Scission System- one law governs real property while another
determines successional rights to personal property.
WILLS, SUCCESSION, AND ADMINISTRATION
FACTUAL SITUATION
1) Extrinsic Validity of Wills
a) made by an alien abroad
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POINT OF CONTACT
a) lex nationalii/ lex

b) made by a Filipino abroad

c) made by an alien in the RP

domicilii/ RP law/ lex

loci celebrationis
b) lex nationalii/ lex loci
celebrationis
c) lex nationalii/ lex loci
celebrationis

2) Extrinsic validity of JOINT

WILLS (made in the same
instrument)
a) made by Filipinos
abroad
b) made by aliens abroad

a) lex nationalii (void even

if valid where made)
b) valid if accdg. Lex
nationalii/ lex
domicilii/ lex loci
celebrationis
c) made by aliens in the
c) lex loci celebrationis
Philippines
therefore VOID
3) Intrinsic Validity of wills
Lex nationalii of the deceased(including order of succession, regardless of the location and nature
amount of successional rights, of the property
and intrinsic validity of the
provisions of the will)
4) Capacity to succeed
Lex nationalii of the deceased
5) Revocation of wills
a) if done in RP
a) lex loci actus (of the
revocation)
b) if done outside RP
b)
- by a non-domiciliary
- lex loci celebrationis of
the WILL/ lex loci domicilii
- by a domiciliary
- lex domicilii/ lex loci
actus of REVOCATION
6) probate of wills made abroad
a) if not yet probated
a) lex fori
b) if already probated abroad
b) lex fori (must also be
probated in the RP; but
enforcement of the
foreign judgment on
probate is enough)
7) Executors and administrators
a) where appointed

a) if domiciled- where
domiciled at death
if not domiciled- where the

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b) powers

assets are found

b) co-extensive with the
qualifying or the
appointing court
note: these rules also apply to
principal, domiciliary or ancilliary
administrators and receivers even in
non-succession cases.

Holographic Wills
- a will which is entirely written, dated and signed by the hand of the
testator himself.
- Subject to no other form and need not be witnessed.
- The disposition of the testator written below his signature must be
dated and signed by him in order to make them valid as testamentary
dispositions.
Decedent and Testator
- decedent is the general term applied to the person whose property is
transmitted through succession, whether or not he left a will, if he left
a will, he is also called a testator.
Testamentary Capacity
- the capacity to comprehend the nature of transaction in which the
testator is engaged at the time,
- to recollect the property to be disposed of and the persons who
would naturally be supposed to have claims upon the testator, and
- to comprehend the manner in which the instrument will distribute
his property among the objects of his bounty.
Attestation Clause
- the clause wherein the witnesses certify that the instrument has been
executed before them, and the manner of the execution of the same.
Estate
- the interest which a person has in lands, or any other subject of
property
Obligation
- a juridical necessity to, to do or not to do.
- A juridical relation whereby a person (creditor) may demand from
another (debtor) the observance of a determined conduct and in case
of breach, may demand satisfaction from the assets of the latter.
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Contract
- a meeting of the minds between 2 persons whereby one binds
himself, with respect to the other, to give something or to render
some service.
- An agreement which creates an obligation
- Agreement upon sufficient consideration, to do or not to do a
particular thing.
- May be express or implied.
Express Contract
- the agreement is formal and stated verbally or in writing
- the terms of the agreement are declared by the parties in writing or
verbally at the time it is entered into
Implied Contract
- the agreement in fact is presumed or inferred from the acts of the
parties
- may also arise from mere consent
- where one party rendered services to another, and these services
were accepted by the latter, in the absence of proof that the services
were rendered gratuitously, an obligation results to pay the
reasonable worth of the services rendered upon the implied contract
of hiring, under the principle of facio ut des, i.e., I do that you may
give.
Tort
- a legal wrong committed upon anothers person or property,
independent of a contract
Crime
- an act or omission punishable by law
Felony
- transgression against the Revised Penal Code
Offense
- transgression against a special law
Infraction
- transgression against a local or municipal or local ordinance
Corporation

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an artificial being created by operation of law, having the right of

succession and the powers, attributes, and properties expressly
authorized by law or incident to its existence.

Natural Moral Law

- rule of human conduct implanted by God in our nature and in our
conscience, urging us to do whatever is right and avoid whatever is
evil.
Special Laws
- regulate, for instance, the treatment of foreign insurance companies,
the reciprocal privileges in the matters of patents, the requisites
before an alien may obtain a copyright, the conditions under which
alien retail trade may still continue, and the grant of incentives to
foreign investors.
LEX SITUS
- law of the place where the property is situated
- governs almost everything that concerns real property: formalities
for their alienation, the capacity to encumber or otherwise dispose of
them, and so forth.
- In the Philippines, this rule applies to both real and personal property.
LEX LOCI CELEBRATIONIS
- law of the place of the celebration or execution
- governs generally all transactions insofar as FORMALITIES OR
SOLEMNITIES are concerned.
- One important exception to this rule is whenever property is
involved, in which a case it is the lex situs that should control.
Criminal Law Principle of Territoriality
- the place or territory where a crime has been committed has
jurisdiction to try the offense that has been committed.
Criminal Law Principle of Generality
- criminal laws of a country bind both the citizens and the aliens who
are in the said country or territory.
- Penal laws and those of public security and safety shall be obligatory
upon all who live or sojourn in Philippine territory, subject to the
principles of public international law and to treaty stipulations.
- Aliens come under our territorial jurisdiction because while they are
in our country, they owe some sort of allegiance, even if it be
temporary.
JURISDICTION
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from the Latin jus dicere, i.e., the right to speak.

The authority of a tribunal to hear and decide a case and also the
power to enforce any judgment it may render thereon in foreign
states, subject to the rights of said states.

JURISDICTION OVER THE SUBJECT MATTER

- Conferred by law; the consent or the submission of the parties on this
point is of no consequence; only the law confers it and only the law
may change it.
- the authority of a court to hear and decide cases of the general class
to which the proceedings in question belong
- the allegations in the petition or complaint, read together with the
proper jurisdictional law, will confer jurisdiction on the court
JURISDICTION OVER THE PERSON
- the power of the court to render a judgment that will be binding on
the parties involved: the plaintiff and the defendant
- jurisdiction over the person of the plaintiff is acquired from the
moment he institutes the action by the proper pleading
- jurisdiction over the person of the defendant is acquired through the
following means:
1. voluntary appearance
2. personal substituted service of summons
JURISDICTION OVER THE RES
- jurisdiction over the particular subject matter in controversy,
REGARDLESS of persons who may be interested therein.
FORUM-SHOPPING
- the practice of looking over the courts of the world for possible
advantages ought to be curbed
PUBLIC POLICY
- the manifest will of the state
- that which it desires on account of its own fundamental principles of
justice, its own perception of morals, and its deep-rooted traditions
for the common weal.
COMITY BASED ON RECIPROCITY
- if the laws and judgments of the forum are recognized in a foreign
state, the forum in turn will recognize the laws and judgments
emanating from said foreign state.
RECOGNITION OF A FOREIGN JUDGMENT

19 | P a g e

our courts will allow said FOREIGN JUDGMENT TO BE PRESENTED

AS A DEFENSE TO A LOCAL LITIGATION
involves merely the sense of justice
does not require either action or a special proceeding
may exist without enforcement

ENFORCEMENT OF FOREIGN JUDGMENTS

- a plaintiff wants the courts to POSITIVELY CARRY OUT AND MAKE
EFFECTIVE IN THE PHILIPPINES A FOREIGN JUDGMENT
- virtually implies a direct act of sovereignty
- necessitates a separate action or proceeding brought precisely to
make the foreign judgment effective
- necessarily carries with it recognition
Extrinsic Fraud
- fraud based on facts not controverted or resolved in the case where
the judgment was rendered.
Intrinsic Fraud
- fraud which goes to the very existence of the cause of action.
PURELY INTERNAL RULE
- Governs a purely domestic problem, one without any foreign element
- Directly answers a given problem
CONFLICTS RULE
- applies when the factual situation involves a foreign element
- merely indirectly responds by indicating whether internal or foreign
law is to be applied.
FACTUAL SITUATION
- set of facts presenting a conflicts problem
- defines its object certain operatives facts
- raises a legal question
POINT OF CONTACT OR THE CONNECTING FACTOR
- the law of the country with which the factual situation is most
intimately connected.
CAPACITY TO SUCCEED
- The factual situation indicating that a person is dead, and someone
alleges a right or capacity to inherit from the former.
TOTALITY APPROACH

20 | P a g e

getting the law intended by the parties to govern the contract then
applying the intended law in its totality including its periods of
prescription and its statute of frauds.

LEX FORI THEORY

- the forum considers its own concepts its own characterization,
otherwise there will be a virtual surrender of sovereignty right in the
forums own home.
LEX CAUSAE THEORY
- the exact opposite of the lex situs theory
- the law identified in the choice-of-law stage of the conflict process as
the one to be applied to determine the case
- the characterization of the foreign state, which is the principal point
of contact, is supposed to be followed.
UNIVERSAL ANALYTICAL THEORY/ COMPARATIVE APPROACH THEORY
- common factors both in the LEX FORI and the LEX CAUSAE are taken
into consideration in order to avoid unjust results
- Characterization comes only after a general comparative analytical
study of the jurisprudence of all the states involved.
DUAL THEORY OF LEX FORI AND LEX CAUSAE
- Similar to the Comparative Approach Theory, except that instead of
considering worldwide conceptions, ONLY TWO CONCEPTS ENTER
INTO THE PICTURE: THE CHARACTERIZATION OF THE LEX FORI
AND THAT OF THE LEX CAUSAE.
AUTONOMOUS THEORY (may be related to TRANSMISSION)
- The forum should consider the characterization of the country
referred to in the conflicts rule of the lex causae
- Hence, if the characterization in the forum State A points to State B as
the lex causae, and the conflicts rule in State B refers to State C as the
proper point of contact, it is the characterization in State C which
must be used by State A.
NATURAL-BORN CITIZENS
- those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship.
NATURALIZED CITIZENS
- citizens who are not natural-born citizens and those who become
citizens through judicial proceedings
CITIZENS BY ELECTION
21 | P a g e

Citizens who, by virtue of certain legal provisions, become such by

choosing or electing Philippine citizenship at the age of 21 or within a
reasonable time hereafter.

EFFECTIVE NATIONALITY THEORY

- if the deceased is not a citizen of the forum, we must get the law of
the nation of which he was both a national and a domiciliary
DOMICILE
- the place where a person has certain settled, fixed, legal relations
because it is assigned to him by the law at the moment of birth
(DOMICILE OF ORIGIN)
- the place assigned to him by law after birth on account of a legal
disability caused for instance by minority, insanity, or marriage in the
case of a woman or because he has home there (CONSTRUCTIVE
DOMICILE/DOMICILE BY OPERATION OF LAW)
- that to which, whenever he is absent, he intends to return
(DOMICILE OF CHOICE)
DOMICILE OF ORIGIN (DOMICILIUM ORIGINS)
- acquired at birth
- applies only to infants
- never changes for a person is born only once.
CONSTRUCTIVE DOMICILE (DOMICILIUM NECESSARIUM)
- given after birth
- all those who lack capacity to choose their own domicile (infants,
married women, idiots and insane)
- Legal disabilities prevent their making a choice
- May change from time to time, depending upon circumstances
DOMICILE OF CHOICE
- a result of the voluntary will and action of the person concerned
PRINCIPLE OF ONLY ONE DOMICILE
- No natural person can have more than one domicile at a time while a
person may have more than one residence, the Civil Code recognizes
only one domicile: the place of habitual residence.
RESIDENCE
- a more or less temporary place of abode which may be located in
several places
FOREIGN COURT THEORY

22 | P a g e

International PINGPONG/ International Football/ Revolving Doors/

inextricable circle
The RP court, in deciding the case, will put itself in the position of the
foreign court and whatever the foreign court will do respecting the
case, the RP court will likewise do.

THEORY OF DESISTMENT
- the RP court desists or refrains from applying a foreign law because
of its inadequacy being founded on a different basis. Hence, the RP
court applies its internal law.
Ordinary Children
- with an intra-uterine life of at least 7 months.
- Mere birth is sufficient
Extraordinary Children
- if the intra-uterine life be less than 7 months
- the child must have lived for at least 24 hrs. after its complete
delivery from the maternal womb
NCC Article 40. Birth 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.
NCC Article 41. For civil purposes, the fetus is considered born if its is alive
at the time it is completely delivered from the mothers womb. However, if
the fetus had an intra-uterine life of less than 7 months, it is not deemed
born if it dies within 24 hrs. after its complete delivery from the maternal
womb.
Presumptive Personality
- Personality does not begin at birth, it begins at conception. It is
essential that birth should occur later, otherwise the fetus will be
considered as never having possessed legal personality.
Emancipation
- takes place by the attainment of majority. Unless otherwise provided,
majority commences at the age of 18 yrs.
Absence
- the legal status of a person who disappears from his domicile, his
whereabouts being unknown
- Article 384 of the Civil Code:

23 | P a g e

2 years having elapsed without any news about the absentee or

since the receipt of the last news, and 5 years in case the absentee has
left a person in charge of the administration of his property, his
ABSENCE may be declared.
-

Article 386 of the Civil Code:

The judicial declaration of absence shall not take effect until six
months after its publication in a newspaper of general circulation.
PRESUMPTION OF DEATH
Article 390. [ORDINARY ABSENCE] After the absence of 7 years, it being
unknown whether or not the absentee still lives, he shall be presumed dead
for all purposes, except those of succession.
The absentee shall not be presumed DEAD for the purpose of opening his
succession till after an absence of 10 years.
If he disappeared after the age of 75 years, an absence of 5 years shall be
sufficient in order that his succession may be opened.
In ordinary absence- death is presumed to have occurred on the last day of
the period
In extraordinary / qualified absence- death is presumed to have occurred at
the beginning of the period.
SURVIVORSHIP
The rules on survivorship are found in Article 43 of the Civil Code and in
Rule 131 of the Rules of Court:
Article 43 CC. If there is doubt, as between 2 or more persons who are
called to succeed each other, as to which of them died first, whoever
alleges the death of one prior to the other, shall prove the same;
IN THE ABSENCE OF PROOF, it is presumed that THEY DIED AT THE
SAME TIME AND THERE SHALL BE NO TRANSMISSION OF RIGHTS
FROM ONE TO THE OTHER.
Rule 131, Sec. 3 (jj) Rules of Court:
When 2 or more persons perish in the same calamity, such as wreck, battle,
or conflagration, and it is not shown who died first, and there are no
24 | P a g e

particular circumstances from which it can be inferred, the survivorship is

presumed from the probabilities resulting from the STRENGTH AND AGE
OF THE SEXES, according to the following rules:
1. if both were under the age of 15, the older is presumed to have
survived;
2. if both were above the age of 60, the younger is presumed to have
survived;
3. if one is under 15 and the other above 60, the former is presumed to
have survived;
4. if both be over 15 and under 60, and the sexes be different, the male
is presumed to have survived; if the sexes be the same, then the older;
5. if one be under 15 or over 60, and the other between those ages, the
latter is presumed to have survived.
MARRIAGE AS A CONTRACT
FACTUAL SITUATION
1. ) if celebrated abroad
* between Filipinos

* between foreigners

POINT OF CONTACT
1.)
LEX LOCI CELEBRATIONIS (without
prejudice to the exceptions under
bigamous, polygamous, and
incestuous marriages and consular
marriages
LEX LOCI CELEBRATIONIS except if
the marriage is:
a) Highly immoral (like
bigamous and
polygamous marriages)
b) Universally considered
incestuous, ie., bet.
Brothers and sisters
and bet. Ascendants
and descendants.

* mixed

LEX LOCI CELEBRATIONIS except if

the marriage is:
c) Highly immoral (like
bigamous and
polygamous marriages)
d) Universally considered
incestuous, ie., bet.
Brothers and sisters

25 | P a g e

and bet. Ascendants

and descendants.
- TO UPHOLD THE VALIDITY OF THE
MARRIAGE.
If celebrated in the Philippines
between foreigners

mixed
Marriage by proxy (celebrated
where the proxy appears)

NATIONAL LAW provided the

marriage is not highly immoral or
universally considered incestuous
NATIONAL LAW of the Filipino
(otherwise public policy may be
militated against)
LEX LOCI CELEBRATIONIS (with
prejudice to the foregoing rules)

MARRIAGE AS A STATUS
FACTUAL SITUATION
1) Personal Rights and Obligations
between the Husband and the Wife

POINT OF CONTACT
NATIONAL LAW OF THE HUSBAND
Note: Effect of subsequent change of
nationality

2) Property Relations between the

Husband and the Wife

a) if both will have a new

common nationality, THE
NEW ONE;
b) if only one will change, THE
LAST COMMON NATIONALITY
c) if there was never any
common nationality, THE
NATIONAL LAW OF THE
HUSBAND AT THE TIME OF
THE WEDDING
NATIONAL LAW OF THE HUSBAND,
w/o prejudice to Art. 80 of the FC, to
wit:
In the absence of a contrary
stipulation in a marriage settlement,
the property relations of the spouses
shall be governed by RP laws,
regardless of the place of the
celebration of the marriage and their
residence.

26 | P a g e

This rule shall not apply:

1) Where both spouses are
aliens;
2) With respect to the extrinsic
validity of contracts affecting
property not situated in the
RP and executed in the
country where the property is
located.
3) With respect to the extrinsic
validity of contracts entered
into in the RP but affecting
property situated in a foreign
country whose laws require
different formalities for its
extrinsic validity.
Effect of Change of Nationality- No
EFFECT accdg. To the Doctrine of
immutability in the matrimonial
property regime.

Article 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
1. A person on board a vessel lost during a sea voyage, or on an
airplane which is missing, who has not been heard for 4 years since
the loss of the vessel or airplane;
2. a person in the armed forces who has taken part in war, and has
been missing for 4 years.
3. a person who has been in danger of death under other
circumstances and his existence has not been known, for 4 years.
Juridical Jurisdiction
- authority to hear and determine a legal controversy.
- The jurisdiction of our tribunals of justice is governed by our own law
on the matter.
Legislative Jurisdiction
27 | P a g e

the authority to enact laws

the competence of a persons national law to govern his status

Compulsory Rule
- it is IMPERATIVE for the parties to follow the formalities of the
PLACE OF CELEBRATION
Optional Rule
- the parties may follow EITHER THE LEX LOCI CELEBRATIONIS OR
THEIR NATIONAL LAW
Ecclesiastical Rule
- the formalities of BOTH THE LEX LOCI CELEBRATIONIS AND THE
NATIONAL LAW of the parties must be complied with
Common-Law Marriage
- the living-in together or the celebration of a man and a woman as
husband and wife without getting married
Marriage by Proxy
- One where one of the parties is merely represented at the ceremony
by a friend or delegate
Absolute Community Regime
- Almost all the properties of the marriage are owned in common by
the husband and the wife
Relative Community Regime/Community Partnership of Gains or the
Ganancial System
- everything earned during the marriage belong to the conjugal
partnership
Complete Separation of Property Regimes
- each owns his/her earnings
Dotal or Dowry System
- the wife, before the marriage, delivers a dowry or property to the
husband to help out in the marriage obligations, but later, when the
marriage is dissolved, the property of its value must be returned.
Complete Absorption or Administration by the husband
- the husband owns all the properties of the marriage, but he is liable
for all the debts
Marital Administration System
28 | P a g e

each spouse still owns his/her property, but the husband

administers all the properties.

Immutability of Matrimonial Property Regime Doctrine

- REGARDLESS OF CHANGE OF NATIONALITY on the part of the
husband or the wife or both, THE ORIGINAL PROPERTY REGIME AT
THE START OF THE MARRIAGE REMAINS.
Mutability of Law
- when the law of the original nationality itself changes, the marital
regime, the property relationship, has to change accordingly.
- This cannot be helped for law is essentially a dynamic thing;
- However, vested rights must be duly protected.
Socially grotesque situation
- a situation where a Filipino woman is still married to a man who is no
longer her husband
Abandonment
- Synonymous to CRIMINAL DESERTION
- A husbands or wifes willful failure without just cause to provide
for the care, protection or support of a spouse who is still in ill health
or necessitous circumstances
- Includes both the intention to abandon and the external act by which
the intention is carried into effect.
BIGAMY
- committed by any person who shall contract a second or subsequent
marriage before the former marriage has been legally dissolved, or
- who shall contract a second or subsequent marriage before the
absent spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceedings.
Sexual Infidelity
- Unfaithfulness in marriage
- Adultery and concubinage are encompassed in the term
Sexual perversion
- an abnormality by a person in matters of sex
Pre-marital Sex
- indulging by an unmarried couple in sexual intercourse prior to
getting married.
Adultery
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voluntary sexual intercourse of a married person other than the

offenders husband or wife
committed by a married woman who shall have sexual intercourse
with a man not her husband; and by a man who has carnal knowledge
of her, knowing her to be married, even if the marriage be
subsequently declared void.

OPEN AND NOTORIOUS ADULTERY

- The parties must reside together publicly in the face of society as if
conjugal relations existed between them, and their so living and the
fact that they are not husband and wife must be known in the
community
Concubinage
- committed by any husband who (1)shall keep a mistress in the
conjugal dwelling or (2)have sexual intercourse under scandalous
circumstances with a woman not his wife, (3)cohabit with her in any
other place.
ILLICIT COHABITATION
- the living together as man and wife of two persons who are not
lawfully married with the implication that they habitually practice
fornication (unlawful sexual intercourse between two unmarried
persons).
ATTEMPT BY ONE SPOUSE AGAINST THE LIFE OF THE OTHER
- the attempt must not be justified as in the case of lawful self-defense;
nor must it be one where the attempt was made because the other
was caught in flagrante delicto with a lover. The attempt must be one
of attempted or frustrated parricide, not one caused by negligence for
in the latter case, it cannot be said that there was an attempt.
Note:
Art. 59. FC: No legal separation may be decreed unless the Court has taken
steps toward the reconciliation of the spouses and is fully satisfied, despite
such efforts, that reconciliation is highly improbable.
Defenses in Legal Separation:
a) Condonation- forgiveness, express or implied. Must be free,
voluntary, and not induced by duress or fraud
b) Consent- may be express or implied. Must be unclouded by fraud,
duress, or sometimes even mistake
c) Connivance

30 | P a g e

d) Recrimination or mutual guilt- a charge made by an accused

person against the accuser; in particular, a countercharge of adultery
or concubinage made by one charged with the same offense in a suit
for legal separation, against the person who has charged him or her.
e) Collusion- Art. 60 of FC: No decree of legal separation shall be
promulgated upon stipulation of facts or a confession of judgment.
This is an agreement whereby one party will pretend to have
committed the ground relied upon.
f) Prescription- Art. 57, FC: An action for legal separation shall be filed
within 5 years from the time of the occurrence of the cause. Need not
be alleged.
Note:
Art. 58 FC: An action for legal separation shall in no case be tried before 6
months shall have elapsed since the filing of the petition.
The cooling-off period (6 months) is the period of time in which no action
may be taken by either sides.
Purpose: to enable the parties to cool-off.
Art. 61 FC: After the filing of the petition for legal separation, the spouses
shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute
community or conjugal partnership property. The administrator appointed
by the court shall have the same powers and duties as those of a guardian
under the Rules of Court.
Note: The spouses, while may be entitled to live separately from each other
after the filing of the petition, are not required to do so.
Effects of legal separation:
1) Spouses may live separately
2) Marriage bonds not severed
3) The absolute community or the conjugal partnership shall be
dissolved and liquidated
4) The offending spouse shall have no right to any share of the
net profits earned by the absolute community or the conjugal

31 | P a g e

partnership, which shall be forfeited (in accordance with the

provisions of Art. 43)
5) The custody of the minor children shall be awarded to the
innocent spouse, subject to Art. 213 of FC
6) The offending spouse shall be disqualified from inheriting
from the innocent spouse by intestate succession.
7) The provisions in favor of the offending spouse made in
the will of the innocent one shall be revoked by operation of
law. (the provisions of the will being referred to here are
provisions made PRIOR TO and NOT AFTER the decree of legal
separation; otherwise it cannot be said that the decree revokes
any provision, for the will had not yet been made.)
TWO THINGS THAT MAY BE REVOKED BY THE INNOCENT SPOUSE:
1) Donations made in favor of the offending spouse (must be brought
within 5 years from the time the decree of legal separation has
become final); and
2) Designation of the offending spouse as beneficiary in the insurance
contracts of the innocent spouse.
Condonation
- forgiveness, express or implied
- to constitute valid defense, it must be free, voluntary, and not induced
by duress or fraud.
RECRIMINATION OR MUTUAL GUILT
- a charge made by an accused person against the accuser
- a counter charge of an adultery or concubinage made by one charged
with the same offense in a suit for legal separation, against the person
who has charged him or her.
COLLUSION
- an agreement whereby one party will pretend to have committed the
ground relied upon.
RECONCILIATION
- a bilateral act, requiring common consent, whether express or
implied.
- In law of domestic relations, reconciliation is a voluntary resumption
of marital relations in the fullest sense.
- Shall have the ff. consequences:
a. The legal proceedings, if still pending, shall thereby be
terminated in whatever stage;
32 | P a g e

b. The final decree of legal separation shall be set aside, but

the separation of property and any for forfeiture of the
share of the guilty spouse already effected shall subsist,
unless the spouses agree to revive their property regime.
CONSANGUINITY
- kinship
- blood relationship
- the connection or relation of persons descended from the same stock
or common ancestor.
AFFINITY
- connection existing in consequence of a marriage, between each of
the married persons and the kindred of the other.
Lineal Consangunity
- subsists between persons of whom one is descended in a direct line
from the other and so upwards in the direct ascending line and so
downwards in the direct descending line.
COLLATERAL CONSANGUINITY
- Subsists between persons who have the same ancestors, but who do
not descend or ascend one from the other
DIRECT AFFINITY
- subsists between the husbands and his wifes relations by blood, or
between the wife and the husbands relations by blood.
SECONDARY AFFINITY
- subsists between the husbands and his wifes relations by marriage
COLLATERAL AFFINITY
- Subsists between the husband and the relations of his wifes relations

ENUMERATION
Elements of Private International Law:

33 | P a g e

1.
2.
3.
4.

Conflict of laws is that part of the municipal law of the State

The direction to Courts and Administrative agencies
A legal problem involving a foreign element
The application or non-application of foreign law/foreign laws

Importance of Conflict of Laws

1. To adjust conflicting rights in international mercantile and corporate
transactions
2. To solve personal, family, property and successional contractual
problems, possessed of facts or elements operating in two or more
states.
Scope of Functions of Conflict of Laws
1. To prescribe the conditions under which the court is competent to
entertain such a suit
2. To determine for each cases the particular territorial system of
law by reference to which the rights of the parties must be
ascertained
3. To specify the circumstances in which a foreign judgment can be
recognized as a decisive of the question in dispute
In other words,
1. The determination of which country has jurisdiction
2. The applicability to a particular case of either the local or the foreign
law
3. The determination of the force, validity and effectiveness of a foreign
judgment
Why conflict of law is observed?
1. States must of necessity observe the subject because it is part of
their municipal law. Surely, a government, anywhere and anytime,
is duty bound to enforce and respect its own municipal legislation
2. individuals observe it because of fear of municipal sanctions
SOURCES OF CONFLICT OF LAWS
1. Indirect
- Natural Moral Law
- Work of Writers
2. Direct
- Constitutions
34 | P a g e

Codifications
Special Laws
Treaties and Conventions
Judicial Decisions
International Customs

Kinds of Jurisdiction
1. Jurisdiction over the subject matter
2. Jurisdiction over the person
3. Jurisdiction over the res
Reasons for Refusal to Assume Jurisdiction: Forum Non Conveniens
1. the evidence and the witnesses may not be readily available
2. the court dockets of the forum may already be clogged; to permit
additional cases would inevitably hamper the speedy
administration of justice
3. the evils of forum shopping
Application of the Internal or Domestic Law
1. when the law of the forum expressly so provides in its conflicts
rules
2. when the proper foreign law has not been properly pleaded and
proved
3. when the case involves any of the exceptions to the application of
the proper foreign law
Exceptions To The Application Of Foreign Law
1) When the foreign law, judgment or contract is:
- Contrary to almost universally conceded principles of morality
(contra bonos mores)
- Contrary to a sound and established public policy of the forum
- Involves procedural matters
2) When the case involves:
- Penal laws, contracts and judgments
- Purely fiscal or administrative matters
- Real or personal property situated in the forum
3) When the application of the foreign law, judgment, or contract:
- May work undeniable injustice to the citizens or residents of the
forum
- May work against the vital interests and national security of
the state of the forum
35 | P a g e

Proving of a Written Foreign Law

1. By an OFFICIAL PUBLICATION thereof;
2. By 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
Proving of an Unwritten Law
1. By the ORAL TESTIMONY of expert witnesses
2. By PRINTED AND PUBLISHED BOOKS OF REPORTS OF DECISIONS
of the country involved, if proved to be commonly admitted in such
courts
Theories on Why the Foreign Law may in Some Cases Be Given Effect
1. Theory of Comity
2. Theory of Vested Rights
3. Theory of Local Law
4. Theory of Harmony of Laws
5. Theory of Justice
Kinds of Comity
1. Based on Reciprocity
2. Based on the persuasiveness of foreign judgment
Reasons why not all foreign judgments can be recognized or enforced in our
country
1. The requisite proof thereof may not be adequate
2. They may contravene our established public policy
3. They may contradict one another: one cannot be guided by
contradictions
4. The administration of justice may be shockingly corrupt in some
countries
Conditions and Requisites Before Foreign Judgments may be Recognized
and Enforced in the Philippines
1. Proof of Foreign Judgment (For recognition, there is no necessity
for a separate action or proceeding
2. the judgment must be on civil or commercial matter
3. No lack of jurisdiction, No want of notice, No collusion, No fraud,
No clear mistake of law or fact
4. The judgment must not contravene a sound and established
public policy of the forum

36 | P a g e

The Requisites for Res Judicata

1. The judgment must be final
2. The court rendering the judgment must have jurisdiction over the
subject matter and the parties
3. The judgment must be on the merits
4. There must be identity of parties, of subject matter, and of cause of
action
Kinds of Conflicts Rule
1. One-Sided Rule/ Unilateral Rule
2. All-sided Rule/ Multilateral Rule
Factors Which Give Rise to the Problem of Characterization
1. Different legal systems attach to the same legal term with different
meanings;
2. Different legal systems may contain ideas or conceptions completely
unknown to one another
3. Different legal systems apply different principles for the solution of
problems which, in general terms, are of common nature
Steps in Characterization (According to Dean Falconbridge)
1. Characterization of the questions
2. Selection of the proper law
3. Application of the proper law
Steps in Characterization (According to Edgardo Paras)
1. Determination of the facts involved
2. Characterization of the factual situation
3. Determination of the conflicts rule which is to be applied
4. Characterization of the point of contact or the connecting factor
5. Characterization of the problem as procedural or substantive
6. pleading and proving of the proper foreign law
7. application of the proper foreign law to the problem
Theories in Characterization (DUAL LT)
1.
2.
3.
4.
5.
6.

LEX FORI
LEX CAUSAE
UNIVERSAL ANALYTICAL
DUAL THEORY OF LEX FORI AND LEX CAUSAE
AUTONOMOUS THEORY
TOTALITY THEORY

Two kinds of capacity:

1. capacity to act
37 | P a g e

2. juridical capacity
Characteristics of Status: (CCUPS)
1. conferred principally by the State
2. a matter of public or social interest
3. a concept of social order
4. cannot be easily terminated at the mere will or desire of the parties
concerned
5. generally supposed to have a universal character
THEORIES ON PERSONAL LAW OR THE LAW THAT SHOULD GOVERN
STATUS AND CAPACITY IN GENERAL
1. Nationality Theory- Personal Theory
2. Domiciliary Theory- Territorial Theory
3. Situs Theory- Eclectic Theory
3 Kinds of Citizens of the Philippines
1. Natural-born
2. Naturalized
3. Citizen by election
2 Theories on Whether Place or Ancestry Determines Citizenship
1. Jus Soli
2. Jus Sanguinis
Citizens of the Philippines Under the 1987 Constitution
1. Those who are citizens of the Philippines at the time of the adoption
of the 1987 Constitution
2. Those whose fathers or mothers are citizens of the Philippines
3. Those born before 17 January 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority
4. those who are naturalized in accordance with law.
Qualifications for Naturalization
1. AGE. The petitioner must not be less than 21 years old on the date of
the hearing of the petition
2. RESIDENCE. he must have resided in the Philippines for a continuous
period of not less than 10 years.
3. MORAL. He must be of good moral character and

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4. CONSTI. He must believe in the principles underlying the Philippine

Constitution
5. CONDUCT. he must have conducted himself in a proper and
irreproachable manner during the entire period of his residence in
the Philippines in his relation with the constituted government as
well as with the community in which he is living.
6. PROPERTY. he must have a real estate in the Philippines worth not
less than PHP5,000.00 OR must have some lucrative trade, profession,
or lawful occupation.
7. LANGUAGE. he must be able to speak an write English or Spanish and
any one of the principal Philippine languages
8. MINORS. he must have enrolled his minor children of school age in
any of the public schools/private schools recognized by the Bureau of
Private Schools where RP history, government, and civics are taught
or prescribed as part of the school curriculum during the entire
period of the residence required of him, prior to the hearing of the
petition.
3 Kinds of Domicile
1. domicile of origin
2. constructive domicile
3. domicile of choice
Proposed Solution to the Renvoi
1. Reject the Renvoi
2. Accept the Renvoi
3. Follow the Theory of Desistment/ mutual disclaimer of jurisdiction
theory, to wit:
THEORY OF DESISTMENT
- the RP court desists or refrains from applying a foreign law because
of its inadequacy being founded on a different basis. Hence, the RP
court applies its internal law.
4. make use of the foreign court theory, to wit:
FOREIGN COURT THEORY
- International PINGPONG/ International Football/ Revolving Doors/
inextricable circle
- The RP court, in deciding the case, will put itself in the position of the
foreign court and whatever the foreign court will do respecting the
case, the RP court will likewise do.

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Emancipation takes place by:

1.
2.
3.
4.

Marriage of the minor

attainment of the age of majority
parental concession
judicial concession

ASPECTS OF MARRIAGE
1. As a contract
2. As a union, a status, a legal relation
Substantial or Essential Requisites of Marriage of Filipinos
1.
2.
3.
4.
5.

legal capacity of the contracting parties

consent of the contracting parties freely given
marriage license, except in marriage of exceptional cases
authority of the person solemnizing the marriage
marriage ceremony

Personal Rights and Obligations between the husband and the wife
1. Mutual fidelity, cohabitation, and respect
2. Mutual assistance and support
3. Right of the wife to use the husbands name
STATELESSNESS
1.
2.
3.
4.

DEPRIVATION of citizenship for any cause.

RENUNCIATION of nationality by certain acts, express or implied
VOLUNTARY RELEASE from his original state
BORN in a country which recognizes only the principle of jus
sanguinis but whose law of the parents recognizes only the principle
of jus soli.

Personal Law of stateless individuals

The Hague Conference of 1928 on International Private Law suggested that
the personal law of stateless individuals shall be:
1. the law of the domicile (habitual residence)
2. secondarily the law of the place of temporary residence
RULES ON STATUS IN GENERAL

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FACTUAL SITUATION
1. Beginning of personality
2. Ways and effects of
emancipation
3. Age of majority
4. Use of names and surnames
5. Use of titles and nobility
6. Absence
7. Presumptions of death and
survivorship

POINT OF CONTACT
National law of the child
National law
National law
National law
National law
National law
Lex fori

ANNULMENT OF VOIDABLE MARRIAGE AND DECLARATION OF NULLITY

OF A VOID MARRIAGE
FACTUAL SITUATION
1) Grounds for annulment (if the
marriage is voidable merely)
2) Grounds for declaration of
nullity (if marriage is void ab
initio)

POINT OF CONTACT
The law alleged to have been
violated: in other words, it is the law
of the place of celebration (lex loci
celebrationis) subject to certain
exceptions that furnish the grounds)

ARTICLE 26. All marriages solemnized outside the RP is accordance with

the laws in force in the country where they were solemnized, and valid
there as such, shall also be valid in this country, except those prohibited
under Articles 35 (1), (4), (5) and (6), Articles 36, 37, and 38.
Article 35:
The ff. marriages shall be void from the beginning:
*those contracted by any party below 18 years of age even with the
consent of parents or guardians
*those bigamous or polygamous marriages not falling under Art. 41
* those subsequent marriages that are void under Art. 53
Article 36:
A marriage contracted by any party, who at the time of the celebration, was
psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even of such incapacity
becomes manifest only after its solemnization.
Article 37:
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Marriages between the ff. are incestuous and void from the beginning
whether the relationship between the parties be legitimate or illegitimate:
1. between ascendants and descendants of any degree
2. between brothers and sisters of the full or half blood
Article 38:
The ff. marriages shall be void from the beginning for reasons of public
policy:
1. between collateral blood relatives, whether legitimate or
illegitimate, up to the 4th civil degree
2. between step-parents and step-children
3. between parents-in-law and children-in-law
4. between the adopting parent and adopted child
5. between the surviving spouse of the adopted child and the adopter
6. between an adopted child and a legitimate child of the adopter
7. between adopted children of the same adopter
8. between parties where one, with the intention to marry the other,
killed that persons spouse, or his or her own spouse.
REQUIREMENTS TO PROVE A FOREIGN MARRIAGE:
1. the existence of the pertinent provision of the foreign marriage law
2. the celebration or performance of the marriage in accordance with
said law
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall likewise
have the capacity to remarry under the RP law.
SIMPLY PUT: If valid where celebrated, it is also valid here.
NOTES:

Insofar as the grounds for annulment or nullity are concerned,

it is not the National law that governs, it is the LEX LOCI
CELEBRATIONIS, subject to certain exceptions.
The grounds for LEGAL SEPARATION are those indicated in the
national law of the parties concerned, and not those of the
place of celebration of marriage. Art. 15 will apply because a
suit or legal separation necessarily admits the validity of the
marriage.

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 Two Filipinos are married by the Philippine Ambassador to the

US inside the RP Consulate in Washington D.C. In US, lets say,
an Ambassador is authorized to perform marriages, will such
marriage be given cognizance in the RP? Ans: NO. Having been
celebrated in the RP consulate in Washington, the marriage is
considered to have been performed in the Philippines. Under
our law, the ambassador cannot perform a marriage; ONLY
CONSULs-GENERAL, and VICE-CONSULS can under the Family
Code.
Since we follow the NATIONALITY THEORY, our courts have
jurisdiction to take cognizance of annulment and nullity suits
where the litigants are Filipinos, or where they are
domiciliaries of the Philippines.
Church annulments of marriages and declarations of their
nullity are only for religious purposes, and are not binding on
our civil laws and courts of our country, unless amendments to
our family Code are made.
Art. 36 OF FC: A marriage contracted by any party, who at the
time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall
likewise be void if such incapacity becomes manifest only after
its solemnization.
Under Church laws, examples of PHYCHOLOGICAL
INCAPACITY will include inter alia:
1. A wrong concept of marital vows and marital
infidelity
2. Alcoholism
3. Gambling
4. Womanizing
5. Adamant refusal to give support to a degree
incompatible with a mature understanding of
responsible married life
This degree is of course subject to determination by the courts,
particularly the SC. And even if these causes should manifest
themselves long after the wedding, said causes are considered
to be potentially existing already at the time of the celebration
of the marriage.
ABSOLUTE DIVORCE
FACTUAL SITUATION
1) if sought in the RP (whether by
Filipinos or by foreigners)
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POINT OF CONTACT
1) lex fori (therefore, will not be
granted)

2) if obtained abroad:
a) bet. Filipinos

b) bet. Foreigners

c) mixed

a) national law (therefore, not valid

here even if valid abroad; and
this is true regardless of the
divorce)
b) National law (if valid in the State
granting it and valid according to the
national law of the parties, will also
be valid here)
c) apply (a) and (b) respectively.

ABSOLUTE DIVORCE Distinguished from ANNULMENT

ABSOLUTE DIVORCE
Presupposes a VALIDLY EXISTING
MARRIAGE
Granted for causes SUBSEQUENT to
the marriage ceremony

ANNULMENT
Ends a marriage which though
considered valid in the interim,
nonetheless, is DEFECTIVE
Granted for causes AT THE VERY
TIME THE MARRIAGE IS ENTERED
INTO

KINDS OF DIVORCE:
1) ABSOLUTE DIVORCE (Divorce a vinculo matrimoniee)
marital ties are dissolved.
2) RELATIVE DIVORCE (divorce a mensa et thoro)- separation
from bed and board or legal separation, where parties remain
married, although this time, they are allowed to live separately
from each other.
PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP, AND FUNERALS
FACTUAL SITUATION
- Paternity and filiation
- Including Parental Authority
and
- Reciprocal support
- Legitimacy
- Legitimation
- Recognition
- Presumptions of legitimacy
- Rights and obligations of
parents and children
- Including parental authority
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POINT OF CONTACT
If legitimate, NATIONAL LAW OF
THE FATHER
If illegitimate, NATIONAL LAW OF
THE MOTHER.
If illegitimate but recognized by the
father, the NATIONAL LAW OF THE
FATHER.
Determination of whether legitimate

and reciprocal support

Adoption- creation of the

status of adoption; rights and
obligations of adopter and
adopted.

or illegitimate, NATIONAL LAW OF

THE FATHER, in general.
Doctrine of Immutability of Statuschange of parents nationality does
not affect the status of the child.
In general, NATIONAL LAW OF THE
ADOPTER.
In the Philippines, adoption by a
Filipino does not confer Filipino
citizenship on an adopted alien child.

Guardianship

a) Over the person

- appointing court

powers of guardian

b) Over the property

- appointing court

powers of guardian

c) over the person and over the

property (general guardian)
- appointing court
-

powers of guardian

- Funerals- incidents thereof

court of the domicile of the

ward
coextensive with those of the
appointing court (law of the
appointing state)
court where the property if
found (lex rei sitae)
coextensive with those of the
appointing court

court where the property and

the ward are found
- coextensive with those of the
appointing court
Where the body is buried.

FUNERALS
-

the incidents of funerals are governed by the law of the country

where the body is to be buried.
The duty and the right to make arrangements for the funeral of a
relative devolve on the persons obliged to support the deceased
while still alive.
Every funeral shall be in keeping with the social standing of the
deceased. The higher the social standing of the deceased in life, the
more dignified and expensive his funeral be, as a general rue.

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Prohibited is pompous and elaborate funeral of a criminal on whom

the death penalty has been inflicted.
The "center of gravity" approach, first adopted by the Court of Appeals of
New York, might be characterized as a simplified version of the "most
significant relationship" test of the Second Restatement. This approach
authorizes courts to look at all the existing contacts between the various
parties to a suit and various jurisdictions. Ultimately, the court should
choose the law of whatever jurisdiction is most closely tied to the case.

HOW FOREIGN LAW IS GIVEN APPLICATION IN THE PHILIPPINES:

1.
2.
3.
4.

By statutory directives (consent of the State)

By agreement of the parties
By treaty or convention
By conflict of laws rule

In their absence -A. Principles governing Conflict of Law Cases

1. Substance vs. Procedural Principles
All matters of procedure are governed by the law of the forum where the case is filed,
while matters of substance are governed by the law of the country where the cause of
action arose.

PROBLEM: Some laws may be treated by one country as procedural and by

another country as substantive (e.g. statute of limitations)

SOLUTIONS:

Government Interest Analysis - the law of the country whose interest is most
impaired by failure to apply its statute should be applied
Borrowing Statute - the law of the country has a statute borrowing the
prescriptive period provided in the foreign statute; EXCEPTION: when contrary
to public policy or prohibitive laws

2. Center of Gravity Doctrine (Grouping of Contacts Principle or State of the

Most Significant Relationship Theory)

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Law of the state which has the most significant relationship with the occurrence and
with the parties determines their rights and liabilities in tort or in contract
3. Renvoi Doctrine (Table Tennis Theory)
The conflict of law rule of the forum resorts to the foreign law, which in turn refers
back to the law of the forum.

RENVOI DOCTRINE APPLIED

Aznar vs. Garcia, G.R. No. L-16749, Jan. 3, 1963

FACTS:
Edward Christensen, who at his death was a US citizen but domiciled in the
Philippines, left a will, devising unto Maria Helen a certain amount of money and
giving the rest of his estate to Maria Lucy. Helen opposed the partition on the ground
that she is deprived of her legitime. Her contention is that the law of California directs
that the law of the domicile (Philippines) should govern the will.
ISSUE: Whether or not the national law or the domiciliary law should apply
HELD:
The intrinsic validity of wills is governed by the national law of the decedent. In the
present case, the national law of Edward is the laws of California. However, there were
two conflicting California laws regarding succession. One is enunciated in In Re
Kaufman (which does not provide for legitimes) and another is Art. 946 of the
California Civil Code (which provides that the law of the domicile applies). SC held
that the national law is Art. 946, which is the conflict of laws rule of California. The
reason is that In Re Kaufman applies only to residents while Art. 946 is specific to nonresidents. Thus, since Art. 946 contains a refer-back to Philippine laws (the law of the
domicile), then Maria Helen is entitled to her legitime.

4. Lex Fori
The law of the forum governs all matters pertaining to procedural or remedial rights.

B. Applicability of Foreign Laws and its Exceptions

WHEN FOREIGN LAW, EVEN THOUGH APPLICABLE, MAY NOT BE GIVEN
APPLICATION:

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1.
2.
3.
4.

Foreign law contravenes prohibitive law or public policy of the forum

Relationship of the parties affects public interest
Real property is involved (apply lex rei sitae)
Foreign law, judgment or contract is contrary to a sound and established public
policy of the forum
5. Foreign law is procedural in nature (lex fori governs procedural matters)
6. Foreign law is penal in nature

EXCEPTION: CONTRARY TO SOUND PUBLIC POLICY

Bank of America, NT vs. American Realty Corporation, .G.R No. 133876, Dec. 29,
1999

FACTS:
Bank of America, duly licensed to do business in the Philippines and existing under the
laws of California, USA, granted US Dollar loans to certain foreign corporate
borrowers. These loans were secured by two real estate mortgages by American Realty,
a domestic corporation. When the borrowers defaulted, Bank of America sued them
before English courts. While these cases were pending, Bank of America likewise
judicially foreclosed the real estate mortgages in the Philippines. Thus, American
Realty sued for damages against Bank of America.
ISSUE: Whether or not Bank of America can judicially foreclose the real estate
mortgages despite pendency of the civil suits before English courts
HELD:
English law purportedly allows the filing of judicial foreclosure of mortgage despite
pendency of civil suit for collection. But English law was never properly impleaded and
proven. Thus, the doctrine of processual presumption applies.
SC further held that even assuming arguendo that English laws were proven, said
foreign law would still no find applicability. When the foreign law, judgment or
contract is contrary to a sound and established public policy of the forum, the said
foreign law, judgment or order shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, public policy and good customs shall not be
rendered ineffective b laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country. The public policy sought to be protected
in the instant case is the principle imbedded in our jurisdiction proscribing the splitting
of a single cause of action.

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Moreover, the foreign law should not be applied when its application would work
undeniable injustice to the citizens or residents of the forum.

C. Authentication, Electronic Evidence and Judicial Cognizance of Foreign

Judgments
**To be recognized by Philippine courts, foreign laws and judgments must be alleged
and proved.

HOW FOREIGN PUBLIC DOCUMENTS ARE PROVED:

1. Official publication
2. Certified true copy or one 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

The certificate must be made by a secretary of the embassy or legation, consul

general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is
kept
Authenticated by his seal of office

**If the foreign law or judgment does not comply with the above requirements, it will
not be recognized and the Doctrine of Processual Presumption will apply (Philippine
courts will assume the foreign law is the same as Philippine laws).

GENERAL RULE: Philippine courts are not authorized to take judicial notice
of foreign laws.

EXCEPTIONS:

Where there are exceptional circumstances when the foreign laws are already
within the actual knowledge of the court (generally known or actually ruled
upon in a prior case)
Where the courts are familiar with the specific foreign laws (e.g. Spanish civil
law)
Where the adverse party did not dispute the application of foreign law
Where the tribunal is a quasi-judicial body which is not bound by strict rules of
technicality

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