San Beda College of Law

2010 Centralized Bar Operations

CONFLICT OF LAWS Public and Private International

(PUBLIC INTERNATIONAL LAW) Law Distinguished
Public International Private International
That part of the law of each state or nation Law Law
which determines whether, in dealing with a As to nature or character
legal situation, the law of some other state or International in National, municipal or
nation will be recognized, given effect or character local in character
As to persons involved
applied. (16 Am. Jur. 2d, Conflicts of Laws,
Governs states and Governs private
Sec. 1) entities internationally individuals or
recognized or corporations
The law concerning the rights of persons possessed of
within the territory and dominion of one nation, international personality,
by reason of acts, private or public, done exceptionally,
within the dominion of another nation (Hilton individuals, too.
vs. Guyot 159 U.S. 113) As to transactions involved
Recognizes transactions Assumes control over
FUNCTIONS OF PRIVATE INTERNATIONAL in which sovereign transactions which are
LAW States are interested strictly private in nature
As to remedies applied
1. To prescribe the conditions under which a
In case of violation of All remedies are
court or agency is competent to entertain a International Law, the provided by municipal
suit or proceeding involving facts State may resort to laws of the State, such
containing a foreign element diplomatic protest, as resort to courts and
2. To specify the circumstances in which negotiation, arbitration administrative tribunals
foreign judgment will be recognized as or adjudication by filing
valid and binding in the forum cases before
3. To determine for each class of cases the international tribunals or
particular system of law by reference to may even resort to use
of force or go to war
which the rights of the parties must be
ascertained – this is the fundamental
problem of choice of law

ELEMENTS: Sources
1. Direct Sources:
1. There is a legal problem involving a
a. Bilateral and multilateral treaties and
foreign element; a case involving a factual
international conventions;
situation that cuts across territorial lines
b. Codifications and special statutes;
and is affected by diverse laws of two or
c. Judicial decisions; and
more States is said to contain a foreign
d. International customs
element.
Article I. Indirect Sources:
2. The primary function is to determine
Section I.1 The natural moral law,
whether the rules of law or the judgments
Section I.2 The writings and
of some other State/s will govern and if so,
treatises of thinkers and famous
to what extent should these be recognized
writers and jurists, among others
or applied in the forum.

AREAS OF PRIVATE INTERNATIONAL LAW JURISDICTION

1. Choice of Law
2. Jurisdiction In International law, it is often defined as the
3. Recognition and Enforcement of Foreign right of a State to exercise authority over
Judgments persons and things within its boundaries,
subject to certain exceptions:
1. Judicial Jurisdiction – Legal authority
of a state to exercise authority, through its
courts or agencies, to hear and adjudicate
cases.
2. Legislative Jurisdiction – The power of
a state to regulate or control, through rules
of law, interest of persons in a thing, event
or situation.
TYPES OF JUDICIAL JURISDICTION
A. Jurisdiction over the person
Competence of a court to render a
decision that will bind the parties to a
case.
1. Jurisdiction over the person of the
plaintiff is acquired from the moment
he invokes the aid of the court and
voluntarily submits himself by
institution of the suit through proper
pleadings.
2. Jurisdiction over the person of the
defendant is acquired through:
a. Voluntary appearance OR
b. Coercive process through
personal or substituted service of
summons (Sec. 6 and 7, Rule 14,
Revised Rules of Court)
c. Service upon foreign private
juridical entities through its
resident agent designated in
accordance with law for that
purpose or if none, the
government official designated by
law to that effect or any of its
officers or agents within the
Philippines (Rule 14, Sec. 12)
B. Jurisdiction over the res
Jurisdiction over the particular subject
matter in controversy, regardless of the
persons who may be interested therein.
 Results either from the seizure of
property under a legal process or from
the institution of legal proceedings
wherein the court’s power over the
property is recognized and made
effective.
 Referred to as in rem jurisdiction in
contrast to in personam jurisdiction
 Another form of jurisdiction is quasi in
rem which affects only the interests of
particular persons in the thing.
Note: Summons by publication is
authorized in three cases:
1. If the action is in rem, or
2. Quasi in rem, or
3. Involves the personal status of the
plaintiff (Rule 14, Secs. 15-16)
Where the suit is in personam, jurisdiction
over the defendant must be acquired by
voluntary appearance or by
personal/substituted service of summons.
However, service by publication may be
allowed in accordance with Sec 14, Rule
14 of Revised Rules of Court (defendant
whose identity or whereabouts are
unknown).
Note however the view that the personal
action must be converted to in rem (e.g. by
attachment of property).
Long-arm Statutes
A law that allows a plaintiff to make a claim
against a defendant, who is a non-
domiciliary of a state, provided that there
are minimum contacts with the forum to
justify jurisdiction over him.
C. Jurisdiction over the subject matter
 Conferred by law;
 The power to hear and determine
cases of the general class to which
the proceedings in question belong.
Test of Jurisdiction – whether or not the law
vests upon the tribunal the power to enter
upon the inquiry.
Basic Principle Underlying All Rules of
Jurisdiction:
A State does not have jurisdiction in the
absence of some reasonable basis for
exercising it, whether the proceedings are in
rem, quasi in rem, or in personam. To be
reasonable, the jurisdiction must be based on
some minimum contacts that will not offend
traditional notions of fair play and substantial
justice.
Minimum Contacts Test and Fundamental
Fairness Test
Due process requires only that in order to
subject a defendant to a judgment in
personam, if 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. (International Shoe Co. vs.
Washington 326 U.S. 310)
In both in rem and quasi-in rem, all that due
process requires is that defendant be given
adequate notice and opportunity to be heard
which are met by service of summons by
publication.
Jurisdiction Clause
A clause in a contract whereby a provision is
inserted which provides that any dispute
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2010 Centralized Bar Operations
arising under the contract shall be tried before
the competent court of a particular State or by
a specific court by that State.
WAYS OF DISPOSING OF CONFLICTS
CASES:
1. Dismiss the case, either because of lack of
jurisdiction or refusal to assume
jurisdiction over the case such as in cases
of the application of the doctrine of forum
non conveniens; or
2. Assume jurisdiction over the case and
apply the internal law of the forum; or
3. Assume jurisdiction over the case and
take into account or apply the law of some
other State/s.
Principle of forum non conveniens
A court, though it has jurisdiction of a case,
may decline to exercise it where there is no
legitimate reason for the case to be brought
there, or where presentation in that court will
create hardship on the defendants or on
relevant witnesses because of the court’s
distance from them. (Gifis, Dictionary of Legal
Terms, Third Edition, pp. 193-194)
Note: The court will not dismiss the case
under the doctrine unless the plaintiff has
another forum open to him.
Even if the court has jurisdiction over a
conflicts case it may, by invoking the principle
of forum non conveniens, refuse to exercise or
assume that jurisdiction, in view of any of the
following practical reasons:
1. Evidence and witness may not be readily
available in the forum;
2. Court dockets of the forum may already be
clogged and permitting additional cases
would hamper the speedy administration
of justice;
3. Belief that the matter can be better tried
and decided in another jurisdiction, either
because the main aspects of the case
transpired there or the material witnesses
have their residence there;
4. To curb the evils of forum shopping;
5. Forum has no particular interest in the
case;
6. Other courts are open and the case may
be better tried in said courts;
7. Inadequacy of the local judicial machinery
8. Difficulty of ascertaining the foreign law
applicable
Instances Justifying the Application of
Internal Law to Conflicts Cases:
1. Where application of internal law is
decreed;
3
2. Where there is failure to plead and prove
foreign law;
3. Where a case involves any of the
exceptions to the application of foreign
law.
CHOICE OF LAW
THEORIES THAT JUSTIFY THE
APPLICATION OF FOREIGN LAW IN
CONFLICTS CASES:
1. Theory of Comity
The application of foreign legal systems in
cases involving foreign element is proper
because their non-application would
constitute a disregard of foreign
sovereignty (a lack of comity towards other
States).
← Comity – The doctrine requiring
courts of one state to recognize the laws
and judgments of another state, in order to
secure the reciprocal recognition by that
foreign state of the laws and judgments of
the first state.
2. Vested Rights Theory
The function of Conflicts of Law is to give
effect to rights acquired under the proper
foreign law, and not to enforce foreign law.
← Thus, rights acquired in one country
must be recognized and legally protected
in other countries. The forum will not apply
the foreign law but will simply recognize
the right vested by said law.
3. Local Law Theory
← A foreign rule cannot be applied
unless it has been “appropriated” by the
State of the forum and transformed into a
domestic rule.
←
← In conflict of laws problem, the court
does not enforce a foreign right but a right
created by its own law by treating a case
as a purely domestic case that does not
involve a foreign element.
4. Theory of Justice (Caver’s Principle
of Preference)
← Choice of law should be determined
by considerations of justice and social
expediency and should not be the result of
mechanical application of the rule or
principle of selection.
←
5. Harmony of Laws Theory
← Identical or similar problems should be
given identical or similar solutions, thus
resulting in harmony of laws.

Exceptions to Application of Foreign Law
1. Where enforcement of foreign law is
contrary to an important public policy of
the forum (e.g., Protection of the working
class, policy against divorce, etc).
Kinds of Public Policy as to Extent of
Operations:
a. One which operates no matter where
the event or transaction takes place
b. One which operates only where the
event or transaction takes place in the
forum and is not offended if the
transaction is completed abroad.
Public Policy may be used by courts in
different ways:
a. It may refuse to entertain the case
because enforcement of the action is
against its public policy and dismiss it
without prejudice.
b. It may entertain the case but apply its
own domestic law to decide the
controversy in favor of the plaintiff.
c. It may entertain the case but invoke its
own public policy in order to apply the
forum’s domestic law.
2. Where application of foreign law would
be against good morality in the wider
sense of the term as understood in the
forum (Contra bonus mores)
3. Foreign penal law – Crimes committed
in foreign countries cannot be prosecuted
in the Philippines (territoriality in Criminal
Law).
 Based on the assumption that in the
enforcement of the rules of public
order of a State, other States are not
concerned and should not, as a
general rule interfere.
 Enforcement of foreign penal law must
be distinguished from their
recognition; a state may recognize
foreign penal laws for various
purposes, though it will not directly
enforce such laws in its jurisdiction.
 A penal clause in a contract entered
into abroad may be enforced here
because such is NOT criminal in
nature but only provides for liquidated
damages.
4. Foreign procedural law - all procedural
aspects of a given case are to be
determined by the internal law of the
forum, regardless of where the transaction
occurred out of which the claim in question
arose.
← Reason: If foreign procedural laws
were to be applied, it would involve a
making over of the machinery for the
administration of justice in the forum.
5. Questions relating to property in the
forum.
← Reason: Art. 16 of the Civil Code
mandate the application of Lex Situs or
Lex Rei Sitae to ALL properties, whether
real or personal, found and located here.
←
6. Foreign fiscal or administrative law,
i.e. tax law, local rates and the like
← Reason: A sovereign has no legal duty
to assist foreign governments in the
financing of their activities.
←
7. Where application of foreign law would
involve injustice or injury to the residents
of the forum.
8. Where application of foreign law would
endanger the foreign relations or vital
interests of the state.
PROOF OF FOREIGN LAW
General Rule: No Judicial Notice of Foreign
Law. If alleged to apply, it must be PROVED
according to the following rules:
1. Written law
a. By official publication
b. Copy attested by officer having legal
custody thereof. If the record is not
kept in the Philippines, a certificate
with seal from secretary of embassy,
legation, consul general, consul, vice
consul, consular agent or any officer in
the foreign service of the Philippines
stationed in the foreign country to the
effect that said officer has custody is
required (Sec. 24 Rule 132 of the
Revised Rules of Court).
c. A published treatise on the subject law
provided that the court takes judicial
notice of the competence of the writer,
or evidence is introduced to establish
the author’s competence (Rule 130,
Sec. 46).
2. Unwritten law – by oral testimony of
expert witnesses.
 The testimony of an expert witness
may be allowed to prove a foreign law.
The court has ruled in other cases that
Sec. 25, Rule 132 of the Rules of
Court does not exclude the
presentation of other competent
evidence to prove the existence of a
foreign law (Asiavest Limited v. Court
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2010 Centralized Bar Operations
of Appeals. GR. NO. 128803.
September 25, 1998).
Processual presumption of law means that
foreign law is the same as the law of the forum
when the former is either not alleged or if
alleged, it is not proved.
Effect of failure to plead or prove foreign
law
1. Technically, if the plaintiff’s cause of action
rests on foreign law and it is not proved,
there is no cause of action. This may be a
proper ground for Demurrer to Evidence. If
the defense rests on foreign law that is not
proved, the defense fails (Aquino,
Elements of Private International Law, 2nd
ed., page 101).
2. The case will not be dismissed; the
doctrine of processual presumption will
become operative.
Note: This proceeds from the theory that
the basic law is the law of the forum and
when the claimed applicable foreign law is
not proved, the court has no reason to
displace the basic law.
 A Philippine court may take judicial notice,
as when the laws are already within its
actual knowledge, 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 (PCIB v.
Escolin. GR Nos. L-27860 & 27896
September 30, 1975).
NATURE, COMPOSITION &
CHARACTERIZATION OF CONFLICTS
RULES
Conflict Rules
A provision found in our own law which
governs a factual situation possessed of a
foreign element. It is usually expressed in the
form of an abstract proposition that a given
legal question is governed by the law of a
particular country (which may be an internal
law or the proper foreign law), to be
ascertained in the manner indicated in the
provision.
Two kinds of conflict rules
1. One-sided rule – indicates when
Philippine law will apply
2. All-sided or multilateral rule – indicates
whether to apply the local law or the
proper foreign law
5
Parts of every conflict rules
1. The factual situation – the set of facts or
situation presenting a conflicts problem
because there is a foreign element
involved.
2. The point of contact or connecting
factor – the law of the country with which
the factual situation is most intimately
connected.
CHARACTERIZATION OR DOCTRINE OF
QUALIFICATION
Process of deciding whether or not the facts
relate to the kind of question specified in a
conflicts rule (Saudi Arabian Airlines v. CA,
G.R. No. 122191, October 8, 1998).
Three stages in Characterization:
1. The problem of classification
2. The characterization of the point of contact
or the connecting factor
3. The extent of the application of the law
that is chosen as applicable to the conflicts
case
 The court should apply the selected
proper law to the factual situation for
the purpose of deciding what, if any,
legal consequences result from the
situation or, if a thing is in question,
what interests are created in the thing.
 The law chosen should be applied
only insofar as it brings about the
good it was intended to bring.
Most Common Problem of
Characterization:
 Whether or not a particular rule of law is
Procedural or Substantive.
 If issue is substantive, apply foreign law,
but if procedural, forum law.
A. Questions of Evidence
Procedural and the law of the forum must
control.
B. Statute of Frauds
1. Substantive - if the words of the law
relate to forbidding the obligation.
2. Procedural - if the law forbids the
enforcement of the obligation.
C. Statute of Limitations and Borrowing
Statutes
1. Statute of limitations
a. Substantive - when the limitation
was directed to the newly created
liability to warrant a qualification of
the right (specificity test).
 b. Procedural - if it operates to bar
only the legal remedy without
impairing the substantive right
involved.
2. Borrowing statute - Directs the state of
the forum to apply the foreign statute
of limitations to the pending claims
based on a foreign law
 The characterization of a statute
of limitation into procedural or
substantive becomes irrelevant
when the country of the forum has
a borrowing statute. It has the
practical effect of treating the
foreign statute of limitation as one
of substance.
Note: 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 characterization given such
a law (Cadalin v. POEA. GR No. 104776.
December 5, 1994).
Depecage
 The phenomenon where the different
aspects of the case involving a foreign
element may be governed by different
systems of law.
 Allows the other relevant interests of the
parties to be addressed; permits the courts
to arrive at a functionally sound result
without rejecting the methodology of the
traditional approach
Proposed Solutions to the Problem of
Characterization:
1. The Lex Fori Solution
← The forum characterizes according to
its own law, and then applies the law
(domestic or foreign) consequent upon its
classification.
2. The Lex Causae Solution
← Characterization will depend on the
governing law.
3. The Analytic Jurisprudence and
Comparative Law Solution
← Calls upon the court to determine the
common patrimony of juridical concepts;
Employs characterization of a universal or
quasi-universal character.
4. The Double Characterization
Solution
← Couples the lex fori and lex causae
solution
←
PERSONAL LAW
That law which attaches to a person wherever
he may go and generally governs his status,
capacity, condition, family relations and the
consequences of his actuations (Sempio-Diy,
Handbook on Conflict of Laws, 2004 edition p.
29). It differs from national law in that the latter
refers to a system of law which determines the
personal law.
It may be his national law, the law of his
domicile, or the situs of the event or
transaction wherein he was involved,
depending on the theory applied in the forum
(Sempio-Diy, Handbook on Conflict of Laws,
2004 edition, p. 29)
THEORIES IN DETERMINING THE
PERSONAL LAW OF AN INDIVIDUAL
A. National theory (personal theory)
The personal law of an individual is his
national law.
Note: Adopted mostly by civil law
countries like the Philippines since their
people are bound more by a national spirit
of unity, common history and mores so
that the identity and legal position of their
citizens are guaranteed by a consistent
application by their national laws on status
and family relations wherever they may
go. (Sempio-Diy, Handbook on Conflict of
Laws, 2004 edition, p. 31)
Nationality refers to the membership in a
political community, one that is personal
and more or less permanent, not
temporary.
In conflict of laws, the word nationality and
citizenship are used interchangeably.
 The Philippines adheres to the
nationality theory (Art. 15, New Civil
Code).
 It is for each State to determine who
are its nationals (Hague Convention);
but it must be consistent with
international treaties, international
customs, and principles of law
generally recognized with regard to
nationality.
Problems in Applying the Nationality
Principle
Dual or Multiple Citizenship arises from
the concurrent application of jus soli and
jus sanguinis at birth or from a refusal of
certain States to accept a full application
of the doctrine of expatriation or from
marriage or from a formal and voluntary
act
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2010 Centralized Bar Operations
1. In matters of status, he is usually
considered by the forum as
exclusively its own national, his
additional foreign nationality is
disregarded
2. In case litigation arises in a third
country, the law most consistently
applied is that of the country of which
the person is not only a national but
where he also has his domicile or
habitual residence, or in the absence
thereof, his residence.
←
Theory of Effective Nationality
A third state shall, of the nationalities
which any such person possesses,
recognize exclusively in its territory either
the nationality of the country of which he is
habitually and principally a resident, or the
nationality of the country with which in the
circumstances he appears to be in fact
most closely connected (Art. 5 Hague
Convention on Conflict of Nationality
Laws).
Statelessness
Stateless persons are generally subject to
the law of their domicile or habitual
residence, and in default thereof, to the
law of their temporary residence (Hague
Conference of 1928 on International
Private Law).
A person may become stateless by the
following means:
a. Deprivation of his citizenship for any
cause, such as commission of a
crime;
b. Renunciation of one’s nationality by
certain acts, express or implied;
c. Voluntary release from his original
state; and
d. If born in a country which recognizes
only the principle of jus sanguinis of
parents whose law recognizes only
the principle of jus soli.
Note: Convention on the Reduction of
Statelessness adopted in 1961 mandates
that the jus sanguini country grant its
nationality to a person born within its
territory if he would otherwise be stateless,
and the jus soli country to extend its
nationality to a person who would
otherwise be considered stateless when
one of his parents is a citizen of the
contracting state.
B. Domiciliary Theory (Territorial Theory)
7
The individual’s private rights, condition,
status, and capacity are determined by the
law of his domicile or lex domicilii.
Adopted mostly by common law countries
whose populations consists of peoples of
different nationalities with varying
traditions, culture and ideals, and whose
unity may be considered achieved by
adopting the law of their domicile.
(Sempio-Diy, Handbook on Conflict of
Laws, 2004 edition, pp. 31-32)
Note: The forum determines domicile
according to its own standards.
Domicile is the place of which a person
has a settled connection for certain legal
purposes, either because his home is
there or because that is the place
assigned to him by law.
Domicile Residence Citizenship
Fixed,
permanent Place of
residence to abode, Indicates ties
which, when whether of allegiance
absent, one has permanent or and loyalty
the intention of temporary
returning
Legal Classification of Domicile
1. Domicile of origin
a. Minor
 Person’s domicile at birth
 Legitimate child’s domicile of
origin is that of his father and
an illegitimate child’s is that of
his mother.
 Legitimated child’s domicile of
origin is that of his father at
the time of his birth, since the
effects of legitimation retroacts
to the time of the child’s birth.
 In case of a foundling,
domicile is in the country
where he is found.
 In case of an adopted child,
his domicile is that of the
adopter’s which becomes his
constructive domicile
b. Married Women
The right to decide the question of
where the family domicile should
be established is now a joint
prerogative of husband and wife
(Family Code).
2. Constructive Domicile (Domicile by
Operation of Law): domicile assigned
 by law to persons legally incapable of
choosing their own domicile (e.g.
minors, mentally disabled)
←  It is a French word which means “referring
Domicile Of Origin Constructive Domicile
Acquired at birth Assigned after birth
Assigned only to Assigned to persons
infants under legal disabilities
May change from time
Never changes
to time
3. Domicile of Choice (Voluntary
Domicile)
 Place freely chosen by a person
sui juris as his home and to which,
whenever he is absent, he intends
to return
 To acquire domicile of choice,
there must be a concurrence of
physical presence in the new
place and unqualified intention to
make that place one’s home.
General Rules on Domicile (Gallego v.
Verra, G.R. No. L-48641, November 24,
1941):
1. No person shall be without domicile.
2. A person cannot have two
simultaneous domiciles.
3. Every natural person, as long as he is
free and sui juris, may change his
domicile at pleasure.
4. Domicile once acquired is retained
unless a new one is gained.
5. The presumption is in favor of the
continuance of domicile. The burden
of proof is on the one who alleges that
a change of domicile has taken place.
6. To acquire a fresh domicile, residence
and intention must concur; to retain an
existing domicile, either residence
there or intention to remain must be
present; to abandon a domicile,
residence in a new place and intention
to abandon the old place must concur.
C. Situs or Eclectic Theory
The capacity, condition, or status of a
person is governed by the law of the place
(situs) where an important element of the
problem occurs or is situated.
RENVOI
A procedure whereby a jural matter presented
is referred by the conflict of laws rules of the
forum to a foreign state, the conflict of laws
rule of which in turn refers the matter back to
the law of the forum (remission) or a third state
(transmission). (Coquia, Conflict of Laws,
2000 ed., p. 102)
back”
 It does not apply when the forums and the
foreign states are similarly governed by
the nationality or domiciliary theories.
FOUR WAYS OF TREATING THE RENVOI
PROBLEM
1. Rejection (Internal Law Solution) – 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 that state.
Thus, the court will apply the foreign law.
2. Acceptance (Single Renvoi/Single
Transmission) – 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 (internal law and
conflicts of laws rules). Thus, the court will
recognize the referral back and apply local
law.
3. Desistment Theory (Mutual Disclaimer
of Jurisdiction Theory) – 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. Hence, the local court will
apply local law.
This has the same result as the
acceptance of the renvoi doctrine but the
process used by the forum court is to
desist applying the foreign law.
4. Foreign Court Theory – Forum court
assumes the same position that the
foreign court would take if the case is
litigated in the foreign state.
Double Renvoi – 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 through the law of a
second foreign state.
PERSONAL STATUS AND CAPACITY
Synopsis of the Rules on Status
Factual Situation Point of Contact
Beginning of personality National law of the Child
of natural persons (Art. 15, NCC)
Age of Majority National law (Art. 15)
Use of Names and
National law (Art. 15)
Surnames
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Use of Titles of Nobility National law (Art. 15)
Absence National law (Art. 15)
Presumptions of Death
Lex Fori
and Survivorship
Status – the place of an individual in society,
and consists of personal qualities and
relationship, more or less permanent with
which the state and community are concerned.
Capacity – merely a part of status, and
defined as the sum total of an individual’s
rights and obligations.
Kinds of Capacity
1. Capacity to act - power to do acts with
legal effect
2. Juridical capacity - the fitness to be the
subject of legal relations.
 In the determination of status and capacity
of persons, our Civil Code follows the
nationality principle when dealing with
Filipinos.
 When dealing with aliens, it depends on
which principle their country follows but if
the alien is in the Philippines, the
nationality theory is applied by implication
CHOICE OF LAW PROBLEMS
FAMILY RELATIONS
Under the New Civil Code, questions of family
rights, duties, status, conditions and capacity
are governed by lex nationalii.
MARRIAGE
A. Marriage as a contract
Extrinsic validity - governed by lex loci
celebrationis.
General Rules:
1. All states recognize as valid those
marriages celebrated in foreign
countries if they comply with the
formalities prescribed therein (Hague
Convention).
2. The forms and solemnities of
contracts, wills and other public
instruments, shall be governed by the
laws of the country in which they were
executed (Art. 17, Civil Code).
3. All marriages solemnized outside the
Philippines, in accordance with the
laws in force in the country where they
were solemnized, and valid there as
such, shall also be valid in this country
(Art. 26, Family Code).
9
Exceptions: The following are void
marriages in the Philippines even if valid in
the foreign country where celebrated:
1. When either or both parties are below
18 years of age even with parental
consent;
2. Bigamous and polygamous marriages;
3. Mistake as to identity of a contracting
party;
4. A subsequent marriage performed
without recording in the Civil Registry
the judgment of annulment or
declaration of nullity, partition and
distribution of properties and the
delivery of the children’s presumptive
legitimes;
5. Marriages where either spouse is
psychologically incapacitated;
6. Incestuous marriages; and
7. Void marriages by reason of public
policy.
Note: These exceptions put into issue the
capacity of the parties to enter into the
marriage and relate to the substantive
requirement for marriage. Since the
personal law of the parties, e.g. the
national law of Filipinos, governs the
questions of intrinsic validity of marriages
between the Filipinos abroad, the above
enumerations are exceptions to lex loci
celebrationis precisely because they are
controlled by lex nationalii
Rules on Extrinsic Validity of Certain
situations:
1. Proxy marriages
General Rule: Where permitted by
the law of the place where the proxy
participates in the marriage ceremony,
they are entitled to recognition in
countries adhering to lex loci
celebrationis rule, at least insofar as
formal validity is concerned.
Note: Internal Philippine law DOES
NOT sanction proxy marriages; but if
celebrated in a foreign state in
accordance with the formalities
prescribed by its laws, it may be
recognized in the Philippines under
the lex loci celebrationis rule.
2. Common law marriages: If valid in
the State where the parties cohabited
while holding themselves out as man
and wife, it is given recognition in
sister States which do not permit this
 informal method of entering into the 1. If both husband and wife will have a
marital status new common nationality- the new
national law will govern their personal
Note: Common law marriages are not relations.
recognized under the Philippine 2. If only one will change nationality- the
internal law last common nationality will be
applicable.
3. Marriage on board a vessel on High 3. If there never was any common
seas: Since the nation whose flag the nationality- the governing rule will be
ship is flying has jurisdiction over the the national law of the husband at the
ship, the rule is that compliance with time that the marriage was entered
this law is required for a marriage to into.
be validly contracted
Note: In situation (3), some writers are of
4. Consular marriages: Marriages the opinion that the national law of both
between Filipino citizens abroad may spouses should govern.
be solemnized by a consul-general,
consul or vice-consul of the
Philippines (Art. 10, Family Code)

Marriage performed by a consular and

diplomatic agent empowered by the
sending state to officiate marriage is
valid in the receiving state only if the
latter has agreed to his acting in that
capacity.

Intrinsic validity - controlled by the

parties’ personal laws (either domiciliary or
nationality).

B. Marriage as a status
Personal rights and obligations
between the spouses – governed by the
national law of the parties

Note: If the spouses have different

nationalities, generally the national law of
the husband may prevail as long as it is
not contrary to law, customs and good
morals of the forum.

 Justice Sempio-Diy is of the opinion

that it will be the national law of the
wife or Philippine law that would
govern the spouses’ personal relations
by parity of reasoning with Art. 80 of
the Family Code (Handbook of
Conflicts of Laws, page 79).
 The marriage of an alien woman to a
Filipino husband does not ipso facto
make her a Filipino citizen and does
not excuse her from her failure to
depart from the country upon the
expiration of her extended stay here
as an alien (Djumantan v. Domingo,
G.R. No. 99358, January 30, 1995).

Effect of change of nationality

 San Beda College of Law
2010 Centralized Bar Operations
Property relations between the
spouses
The Hague Convention declares that the
governing law on matrimonial property
regime is:
1. The internal law designated by the
spouses before the marriage
2. In the absence thereof, the internal
law of the state in which the spouses
fix their 1st habitual residence
Philippine Rule on property relations:
In the absence of a contrary stipulation in
the marriage settlements, the property
relations of the spouses shall be governed
by Philippine laws, regardless of the place
of the celebration of the marriage and their
residence.
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 Philippines and
executed in the country where the
property is located; AND
3. With respect to the extrinsic validity of
contracts entered into in the
Philippines but affecting property
situated in a foreign country whose
laws require different formalities for
their extrinsic validity (Art. 80 Family
Code).
Doctrine of Immutability of Matrimonial
Property Regime
Regardless of the change of nationality by
either or both of the spouses, the original
property regime that prevailed at the start
of their marriage prevails.
Divorce (A Vinculo Matrimonii)
Hague Convention 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.
Synopsis of the rules on divorce
Factual Situation Point of Contact
1. If sought in the Lex Fori (will not be
Philippines (whether granted)
by Filipinos or Exception: Muslim
foreigners) Divorces
2. If obtained abroad National Law (thus,
BETWEEN NOT VALID here even
FILIPINOS if valid abroad)
11
3. If obtained abroad National Law (if valid in
BETWEEN the state granting it,
FOREIGNERS and valid according to
the national law of the
parties, it will be valid
here)
4. If obtained abroad Apply (2) and (3)
between a FILIPINO respectively. See,
AND A FOREIGNER however, Art. 26, par. 2
of the Family Code
which allows the
Filipino spouse to
remarry in the event
that the alien spouse
obtains a divorce
RULES ON DIVORCE IN THE PHILIPPINES
General Rule: We only observe relative
divorce or legal separation (a mensa et thoro)
in the Philippines.
Exception:
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 have
capacity to remarry under Philippine law (Art.
26, Family Code).
Note: Even if the marriage is not a mixed
marriage, meaning both are Filipino citizens, at
the time of celebration of such marriage, if
later on one of the spouses becomes a citizen
of another country and obtains a valid divorce
decree there, the spouse who did not change
his/her citizenship will be considered also
divorced and free to remarry. (Republic vs.
Cipriano Orbecido III, G.R. No. 154380,
October 5, 2005)
Conflicts rules on legal separation
 If the parties are of the same nationality,
the grounds for legal separation are those
given by their personal law.
 If the parties are of different nationalities,
the grounds available under the personal
law of the husband as well as those
available under the law of the wife are all
available grounds for granting legal
separation.
Annulment and Declaration of Nullity
Annulment – remedy if the marriage is
voidable; Grounds are those provided for by
the law alleged to have been violated
Declaration of Nullity – remedy if the
marriage is void ab initio; Grounds are the
exceptions to the Lex Loci Celebrationis in Art.
26 of the Family Code

Jurisdiction to Annul
Vested in the court of the domicile of the
parties; jurisdiction over the non-resident
defendant is not essential. It is the status of
the plaintiff that is in issue. He should be
domiciled in the forum.
The Governing Law
Lex loci celebrationis determines the
consequences of any defect to form.
Generally, the same applies with reference to
substantive or intrinsic validity. But with regard
to capacity of the parties to marry, their
national law is determinative.
Status of Children
A. Legitimacy and illegitimacy
Determination of Legitimacy of a Child
Legitimacy of the child is governed by the
common personal law of the parents
(either domiciliary or nationality).
Philippine rule:
 The legitimacy of the child is governed
by the national law of the parents.
 If parents belong to different
nationalities, legitimacy of the child is
governed by the national law of the
father.
 Personal law of the illegitimate child is
the mother’s personal law.
Note: However, in the case of Tecson v.
COMELEC, Ronald Allan Kelly Poe and
Fornier (G.R. No. 161434. March 3, 2004),
the Supreme Court held that providing
neither conditions nor distinctions, the
1935 Constitutions states that among the
citizens of the Philippines are those whose
fathers are citizens of the Philippines,
regardless of whether the children are
legitimate or illegitimate.
Doctrine of Immutability of Status
The status of the child (whether legitimate
or illegitimate) is not affected by a
subsequent change of nationality of the
parents. If the child is later legitimated,
personal law of the child follows that of the
father.
Parental Authority over the Child
Personal law of the father controls the
rights and duties of parents and children
Note: Reference to the personal law of the
father may result in joint exercise of
parental authority over the property of the
child by father and mother (e.g. Article
221, Family Code).
Father’s personal law could grant parental
authority to the mother of the illegitimate
children (e.g. Article 176, Family Code)
B. Legitimation
The requisites of legitimation are those
prescribed by the national law of the
parents. If the parents have different
national laws, the national law of the father
is determinative.
C. Adoption
The determinative law as to whether the
relationship of adoption has been created
or not:
1. The child’s personal law, to protect his
well-being;
2. If the child does not reside in the
country of his citizenship, the personal
law of the adopter will govern, or the
personal law of the adopter and that of
the child will be applied concurrently.
Under the Domestic Adoption Act of
1998, an alien may adopt provided that
he is:
1. Of legal age,
2. In possession of full civil capacity and
legal rights,
3. Of good moral character,
4. No conviction of any crime involving
moral turpitude,
5. Emotionally and psychologically
capable of caring for children,
6. At least sixteen years older than the
adoptee,
7. In a position to support and care for
his children,
8. His country has diplomatic relations
with the Philippines,
9. Residence in the Philippines for at
least three continuous years prior to
the filing of the application for adoption
and maintains such residence until the
adoption decree is entered,
10. Certificate of legal capacity to adopt in
his country to be issued by his
diplomatic or consular office, and
11. His government allows the adoptee to
enter his country as his adopted
son/daughter
The requirement on residency AND
certificate of qualification to adopt
may be waived for the following:
a. A former Filipino citizen who seeks
to adopt a relative within the fourth
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2010 Centralized Bar Operations
(4th) degree of consanguinity or succeed
affinity; or
b. One who seeks to adopt the b. Contracts involving b. Lex Loci Voluntatis
legitimate son/daughter of his/her real property but or Lex Loci
which do not deal Intentionis
Filipino spouse; or
with the title thereto
c. One who is married to a Filipino
citizen and seeks to adopt jointly c. Contracts where real
with his/her spouse a relative property is given as c. The principal
within the fourth (4th) degree of security contract is governed
consanguinity or affinity of the by the proper law of
the contract. The
Filipino spouse.
mortgage, however,
is governed by Lex
The requirement of sixteen years Rei Sitae.
difference between the adopter and 2. Tangible Personal
the adoptee may be waived if the Property
adopter is: (Choses in Possession)
a. The biological parent of the
adoptee a. In general a. Lex rei Sitae
b. The spouse of the adoptee’s ← Exceptions: ← Exceptions:
same as those for same as that for
parent
real property real property except
that the security is
Inter-Country Adoption called a pledge, not
A socio-legal process of adopting a Filipino a mortgage
child by a foreigner or a Filipino citizen ←
permanently residing abroad where the b. Means of b.
petition is filed, the supervised trial transportation i. Law of the flag
custody is undertaken, and the decree of i. Vessels or
adoption is issued outside the Philippines. ii. Other means ii. Law of the
place of
registry or
This is an alternative means of child-care if iii. Law of the
the child cannot be cared for in any depot
suitable manner in the Philippines.

Note: Adoption is not one of the ways c. Thing in Transitu c.

prescribed by law for the acquisition of i. Loss, i. Law of the
Filipino citizenship. destruction, destination
ii. Deterioration ii. Locus regit
iii. Validity and actum (where
Please see Remedial Law Memory Aid for the
effect of the seized)
Procedure for Adoption and Persons for more seizure of iii. Lex loci
on the Domestic and Inter-Country Adoption goods voluntatis or
Laws. iv. Disposition or lex loci
alienation of intentionis
PROPERTY goods

3. Intangible Personal
CONTROLLING LAW Property (Chooses
 Real property as well as personal property in Action)
is subject to the law of the country where it
is situated (Art. 16 of the NCC). a. Recovery of debts or a. Where debtor may
 Rationale for lex situs or lex rei sitae rule: involuntary be effectively served
the property being physically part of the assignment of debts with summons
country should be subject to the laws b. Voluntary b. Lex loci voluntatis or
thereof. assignment of debts lex loci intentionis

Synopsis of Conflict Rules on Property Capacity to transfer or acquire property

Factual Situation Point Of Contact Governed by lex situs.
1. Real Property Lex Rei Sitae
(art. 6, par.1, NCC) EXTRINSIC AND INTRINSIC VALIDITY OF
Exceptions: CONVEYANCES
a. Successional rights a. National law of the General Rule: Governed by lex situs.
and Capacity to decedent Exceptions:

13
1. Art. 16, par. 2 of NCC
2. The issue is the rights and liabilities of the
parties as a matter of contract even if the
subject matter is land.
3. The validity and effect of the obligation
which the encumbrance on an immovable
secures.
4. Under a policy-centered approach, when
the situs of the movable at the time of the
transfer was insignificant or accidental.
5. When the issue involves consideration
other than the validity and effect of the
transfer – the court may look into the law
of another state which has a real interest
in applying its law.
6. The validity of the contract to transfer an
immovable.
SPECIAL TYPES OF MOVABLE PROPERTY
1. Choses in possession (tangible
physical objects)
General Rule: governed by the law of the
place where the property is located at the
time of transaction and determines the
creation and the transfer of interests (lex
situs)
Exception: those which do not have a
fixed situs (usually in motion or those
having changing situs), are given
ARTIFICIALLY CONSTRUCTIVE SITUS
← Patents,
← Rules governing different kinds of
transfers:
a. Voluntary transfers of interests in
chattels (other than assignment for the
benefit of creditors) – validity and
effect of conveyance as between the
parties are determined by the local law
of the State which, with respect to the
particular issue, has the most
significant relationship to the parties.
b. Acquisitions of title by operation of law
(e.g. acquisition by prescription or
adverse possession, validity and
priority of attachments, levies of
execution, statutory liens) – governed
by lex situs
2. Choses in action (intangible
movables)
← Credits or Debts
a. Voluntary transfer or assignment of
choses in action - 3 theories as to the
law which may govern:
i. Personal law of the parties
ii. Law of the place where the
assignment was executed
iii. Law of the place where the debt is
recoverable
b. Involuntary transfer of choses in action
(e.g. garnishment) – governed by the
law of the state where the debtor may
be served with summons, which is
usually at his domicile.
c. Situs of a debt for taxation purposes –
the domicile of the creditor, where the
collectible credit may be taxed.
d. Administration of debts – the situs is
the place where the assets of the
debtor are usually situated.
Negotiable instrument – governed by the
law of the place indicated in the instrument
or place of delivery.
Corporate shares – as against the
corporation and third persons, the transfer
or assignment are governed by the law of
the place of incorporation. As between the
assignor and assignees, the transfer will
be governed by the law most closely
connected to the transaction.
Goodwill – governed by the law of the
principal place of business.
Franchises – subject to the law of the
state that granted them.
copyrights, trademarks,
tradenames, and servicemarks – the
GENERAL RULE is that these are
protected only by the state that granted or
recognized them. EXCEPTION: when a
treaty provides otherwise.
INTERPRETATION AND EFFECT OF
CONVEYANCE
Law of situs governs
RULES GOVERNING GOODS IN
TRANSITU:
1. Seizure and arrest – Where the
owner’s creditor seizes the goods in
transit, the result is that the transport is
discontinued and a temporary resting
place is thereby created. The law of this
place will depend on whether the seizure
was lawful or whether he has acquired a
lien, pledge, privilege, or a similar right or
what pertains to that right.
2. Disposition of goods – questions
arising from transactions involving
movables in transit may be resolved by
law of any place having substantial
connection with the transaction which will
uphold its validity. The owner is thus
 San Beda College of Law
2010 Centralized Bar Operations
permitted to choose between several legal
systems:
a. Law of the temporary resting place
(e.g. interim port)
b. Lex loci actus
c. Law of the place of destination
d. Law of the last real situs of goods
RULES GOVERNING MEANS OF
TRANSPORT:
1. In case of sea going vessels – the law
of the flag ; OR
2. As in states consisting of several
countries (e.g. United Kingdom) – the
place of registry.
CONTRACTS
Extrinsic Validity – governed by lex loci
celebrationis otherwise called lex loci
contractus (Art. 17 of the NCC).
Variations:
1. A contract entered into by the parties
in two different countries by cablegram,
telex or fax is presumed to have been
entered in the place where the offer was
made (Art. 1319, par. 2, NCC)
2. If the place of execution was merely
casual or accidental, the law which has the
most significant relationship to the
transaction should be applied
Intrinsic Validity – there is no specific
provision in the NCC. However, the policy of
our law is to give effect to the intention of the
parties (Art. 1306 Civil Code). There are 3
possible laws that may govern:
1. Law of the place where the contract is
made or lex loci contractus
2. Law of the place of performance or lex
loci solutionis
3. Law intended by the parties or lex loci
intentionis
PHILIPPINE RULE
The contracting parties may establish such
stipulations, clauses, terms, conditions as they
may deem convenient provided that they are
not contrary to law, morals, good customs,
public order, or public policy (Art. 1306, Civil
Code)
Note: When the parties stipulate that the
contract be governed by the specific law, such
will be recognized (lex loci intentionis) subject
to the limitation that it is not against the law,
morals, and public policy of the forum, and it
15
must bear a substantive relationship to the
transaction.
In the absence of an effective choice of law,
express or implied, the contract will be
governed, with respect to the particular issue
involved, by the law which has the closest and
most substantial connection with the
transaction and the parties
Capacity to enter into contracts –
determined by the personal laws of the
contracting parties (either nationality OR
domiciliary) (Art. 15 of the NCC).
Choice of Law Issues in Conflicts Contract
Cases
Generally, the parties cannot select a law that
has NO connection at all with the transaction.
1. Choice of Forum Clause
 Parties may stipulate on the venue of
the suit in case of litigation concerning
the contract. However, a case arising
from a contract will be litigated in the
forum chosen by the parties if the
choice of forum clause specifically
identifies it as the only venue.
 When there is no fraud or
overreaching, and there is no showing
that the choice of forum clause would
be unreasonable and unjust, the
clause must be given effect.
Cognovit Clause: A clause in a contract
whereby the debtor may agree to be
subject to the jurisdiction of a specific
court or courts in case he breaches the
contract or defaults in payments. Also
called confession-of-judgment clause
(Coquia, Conflicts of Law, 2000 ed. p.
379)
2. Contracts with Arbitration Clause
 In the Philippines, the provisions of the
Civil Code on arbitration and the
arbitration law R.A. 876 embody a
clear legislative policy in favor of
settling controversies by a method
considered more expeditious, less
expensive and with greater chance in
some cases for substantial justice.
 Many courts apply to arbitration
agreements the law of whatever place
the parties have designated as
governing, thus sustaining their
agreement to arbitrate.
3. Adhesion Contracts
 Adhesion contracts are not entirely
prohibited. The one who agrees to the
 contract is in reality free to reject it
entirely; if he adheres, he gives his
consent.
 When there is no proof of
arbitrariness, abuse of power, or gross
negligence, the contract or stipulation
will be enforced. Such contract is
valid if it is reasonable and just under
the circumstances, and has been fairly
and freely agreed upon.
 When there is an oppressive use of
superior bargaining power, a nor does it regulate or exclude liability for
Philippine court may be justified in
refusing to apply the contract or a
stipulation thereof on the ground that
there is no real arm’s-length
transaction between the contracting
parties.
4. Special Contracts
a. Sale, Donation or Barter of goods –
governed by lex situs.
b. Lease of Property
 If it creates real rights – lex situs
 If it does NOT create real rights –
law on contracts.
c. Pledge, Chattel Mortgage, Real Estate
Mortgage, antichresis – lex situs.
d. Contract of Loan
 If mutuum - rules on contracts
 If Commodatum – lex situs
e. Lease of service, agency, guaranty, or
suretyship – the law on contracts
 An agency to alienate or
encumber real property - 
governed by Lex Situs.
Transportation by Sea:
i. Philippine ports to Foreign ports –
law of the country of destination
ii. Foreign ports to Philippine ports
 Civil Code – primary law
 Code of Commerce
 Carriage of Goods by Sea Act
f. International Air Transportation –
governed by the Warsaw Convention
Note: Convention applies to all international
carriage of persons, baggage or goods
performed by aircraft for hire. It does NOT
apply to carriage of mail and postal packages.
 Liability of carrier for loss, destruction and
deterioration of goods transported to the
Philippines from a foreign country is
governed primarily by the Civil Code and
NOT by Warsaw Convention.
 The limit of liability for baggage lost is
$1,000 and for death of passenger is at
$100,000. However, the parties may
stipulate a higher limit of liability (Alitalia
vs. IAC and Pablo, G.R. No. 71929,
December 4, 1990).
 Period of responsibility includes the time
during which baggage or goods are in the
charge of the carrier, whether in an airport
or in any place, whatsoever.
 It does not operate as an exclusive
enumeration of instances when a carrier
shall be liable for breach of contract or as
an absolute limit of the extent of liability
other breaches of contract by the carrier,
misconduct of its employees, or for some
particular or exceptional type of damage.
 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 that it is proved that the servant
or agent is acting within the scope of the
employment.
 Suits may be prosecuted in any of the
following places at the option of the
plaintiff-passenger:
1. Court of the domicile of the carrier
2. Court of the principal place of
business of the carrier
3. Court where the carrier has a place of
business through which the contract
was made
4. Court of the place of destination
Action will prescribe if not brought within 2
years from the:
1. Date of arrival at the destination
2. Date on which the aircraft ought to
have arrived
3. Date on which the transportation
stopped
Note: Method of counting the period of
limitation is determined by the law of the forum
(lex fori)
Transportation by successive carriers –
each of the carrier who accepts the
passengers or baggage shall be subject to the
rules set out in the convention and shall be
deemed as one of the contracting parties
insofar as the contract deals with that part of
the transportation which is performed under
his supervision.
 The passenger or representative can take
action only against the carrier who
performed the transportation during which
the accident or delay occurred, unless by
express agreement the first carrier has
 San Beda College of Law
2010 Centralized Bar Operations
assumed the responsibility for the entire
journey.
 As regards baggage or goods, the
passenger or consignor shall have a right
of action against the first carrier, and the
passenger or consignee shall have the
right of action against the last carrier.
Furthermore, each may take an action
against the carrier who performed the
transportation during which the loss,
damage or delay took place. These
carriers shall be jointly and severally liable
to the passenger, or to the consignor or
consignee.
In cases where the convention does not apply,
the Second Restatement holds that the validity
of the contract of carriage as well as the rights
created thereby are determined, in the
absence of an effective choice of law by the
parties, by the local law of the state from which
the passenger departs or the goods are
dispatched, UNLESS with respect to the
particular issue, some other State has a more
significant relationship to the contract and to
the parties.
WILLS AND ADMINISTRATION OF
ESTATE
TWO THEORIES IN DETERMINING THE
PROPER LAW FOR THE TRANSMISSION
OF SUCCESSIONAL RIGHTS:
1. Unitary or Single System
← Only one law determines transmission
of real and personal properties
2. Split or Scission System
Succession to real property is governed by
the lex situs, while movable or personal
property is governed by law of the domicile
of deceased at the time of death.
Note: Philippine Law follows the Unitary
System (Art. 16 of the NCC).
GENERAL RULES IN PHILIPPINE
CONFLICTS LAW (Art. 17, Par.2 of the NCC):
1. Law governing the Extrinsic validity
of wills:
a. Testator is a Filipino
i. Will is executed in the Philippines
– Philippine law
ii. Will is executed in a foreign
country
 Lex loci celebrationis;
 Philippine law
b. Testator is an Alien
i. Will is executed in the Philippines
 Philippine law; or
17
 National law of the testator
ii. Will is executed in a foreign
country
 National law of the testator; or
 Law of Domicile; or
 Lex loci celebrationis; or
 Philippine law
←
← Note: Joint wills executed by Filipinos
whether in the Philippines or abroad, even
though authorized by the foreign country in
which they may have been executed, shall
not be valid in the Philippines (Art. 819,
Civil Code).
←
←
depends upon the observance of the law
in force at the time it is made.
1. Law governing the intrinsic validity
of wills:
← Governed by the national law of the
person whose will is under
consideration in force at the time of his
death (Art. 16, par. 2, NCC).
←
2. Interpretation of wills – governed by
the decedent’s national law.
3. Revocation of wills
a. If revocation takes place in the
Philippines, whether the testator is
domiciled in the Philippines or in some
other country, it is valid when it is in
accordance with the laws of the
Philippines.
b. If the revocation takes place outside
the Philippines, by a testator who is
domiciled in the Philippines, it is valid
when it is in accordance with the laws
of the Philippines.
c. Revocation done outside the
Philippines, by a testator who does not
have his domicile in this country, is
valid when it is done according to the:
i. Law of the place where the will
was made, OR
ii. Law of the place in which the
testator had his domicile at the
time of revocation.
4. Probate of wills – being procedural in
character, the law of the forum governs
procedural matters.
5. Administration of Estates –
Philippine law and procedure follow the
main principle of territorialism. The axiom
is that the law of the domicile governs
distribution but the law of the State
 appointing the administrator or executor
governs administration. Administration is
governed by the law where administration
takes place, and that is the law of the
country from which the administrator
derives his authority.
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.

Note: The Administration extends only to

the assets of the decedent found within
the state or country where it was granted.
To administer the property situated in a
foreign state, the administrator must be re-
appointed, or a new one named in that
state.

6. Distribution of Estates – regulated

according to the national law of the person
whose succession is under consideration
(Art. 16, par. 2 of the NCC)

CADUCIARY RIGHTS
The State is the last heir of a deceased
person. Hence, the State succeeds to the
properties left by the said deceased as an heir.

TORTS

Lex loci delicti comissi or law of the place

where the alleged tort was committed will
govern.

CONCEPTS OF PLACE OF WRONG (Locus

Delicti)
1. Place of injury (Common Law
Concept) – looks to the place where the
last event necessary to make an actor
liable for an alleged tort occurs.

It adheres to the vested rights theory in

that if the harm does not take place then
the tort is not completed. (Coquia, Conflict
of Laws, 2000 ed. p. 409)

2. Place of conduct (Civil Law Rule) –

views the situs of torts as the place where
the tortuous act was committed.
This is premised on the principle that the
legality or illegality of one’s act should be
determined by the law of the state where
he is at the time he does the act. (Coquia,
Conflict of Laws, 2000 ed. p. 409)

3. Most Substantial Connection

Theory (Theory of Dr. Rabel) – the locus
delicti is determined by the place where
the important and substantial acts leading
to the tortuous act were committed.

OBLIGATION THEORY
 San Beda College of Law
2010 Centralized Bar Operations
MODERN THEORIES IN DETERMINING
LIABILITY FOR TORTS
1. Theory of Most Significant
Relationship
An action for tort may be filed in the
country where it has the most significant
relationship. In determining the state which
has the most significant relationship, the
following factors are to be taken into
account:
a. Place where the injury occurred;
b. Place of conduct causing the injury;
c. Domicile, residence, nationality, place
of incorporation and place of business
of the parties; and
d. Place where relationship between the
parties is centered.
Gives controlling effect to the law of the
jurisdiction which, because of its
relationship or contact with the occurrence
or the parties, has the greatest concern
with the specific issue of the case.
1. The Interest-Analysis Approach
Considers the relevant concerns that two
or more states may have in the case. The
State which has the more relevant and
weighty interests in the case should be
considered the locus delicti.
2. Qaver’s Principle of Preference
A higher standard of conduct and financial
protection given to the injured party by one
State is applied by the State where the
injury happened, if the latter State adopts
a lower standard of conduct and financial
protection to the injured.
KILBERG DOCTRINE
Where a wrongful death occurred in one state
and the action for damages is brought in
another state, the latter is not bound by any
limitation of liability arising from the wrongful
death in the place by the law of the place
where the conduct causing death occurred
concerning limitations on damages.
Rationale: Laws that set limitations on
damages are procedural and, therefore, the
law of the forum should be applied. (Kilberg v.
Northeast Airlines, Inc., 9 N.Y.2d 34, 211
N.Y.S.2d, 133, 172 N.E.2d 526)
Conditions for the Enforcement of Tort
Claims
1. The foreign tort is based on a civil
action and not on a crime;
2. The enforcement of the tort would not
infringe the public policy of the forum; and
19
3. The judicial machinery of the forum is
adequate for its proper enforcement.
PHILIPPINE RULE ON FOREIGN TORTS:
 There is no governing specific statutory
law but courts may give due course on the
theory of vested rights or most significant
relationship provided that there are
minimum contacts and the defendant can
be served with summons.
 In case of injuries which involve physical
harm, mental disturbance, false
imprisonment, malicious prosecution – the
law of the State where the injury was
inflicted.
 In case of intentional torts – the law of the
State where the actor initiated or carried
out the tortuous act.
CRIMES
Penal laws and those of public security shall
be obligatory upon all who live or sojourn in
Philippine territory subject to the principles of
Public International Law and to treaty
stipulations (Art. 14, NCC).
General Rule: Lex loci delicti or the law of the
place where the crime was committed will
govern.
Exceptions:
1. Crimes committed by state officials,
diplomatic representatives and officials of
recognized international organizations.
Note: This is based on the theory of state
immunity from suits
2. 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 not affect the peace
and order of the coastal state
3. Crimes which, although committed by
Philippine nationals abroad are punishable
under the local law pursuant to the
protective principle of criminal jurisdiction
(i.e. Article 2 of the Philippine Revised
Penal Code)
THEORIES AS TO WHAT COURT HAS
JURISDICTION TO TRY CRIMINAL CASES
(Theories on Extraterritorial Competence)
1. Territorial theory – The State where
the crime was committed has jurisdiction
to try the case.
Two Kinds:
 a.The Subjective Territorial Principle –
the state where the crime begun may
prosecute the same even though the
crime was completed in another state.
b.The Objective Territorial Principle –
The state can prosecute crimes begun
abroad but completed within its
territory. (Sempio-Diy, Handbook on
Conflict of Laws, 2004 edition, p. 138
citing Paras)
1. Nationality or personal theory
(active nationality theory) – The country
of which the criminal is a citizen or a
subject has jurisdiction to try him for the
offense he is supposed to have
committed, whether the effectuation of the
act be inside or outside its territory,
PROVIDED that the act is a crime under
his country’s penal law.
2. Protective theory – Any State whose
national interests may be jeopardized has
jurisdiction over criminal offenses, even if
committed outside its territory, and even if
committed by an alien in order that it may
protect itself.
3. Real theory (eclectic theory) – Any
State whose penal code has been
transgressed upon has jurisdiction to bring
justice to the perpetrators of the offense,
whether the crime was committed inside or
outside its own territory.
4. Cosmopolitan or university theory –
Any State where the criminal is found or
which has custody over him is vested with
jurisdiction to try him for the crime he is
alleged to have committed – UNLESS
extradition is possible.
5. Passive personality theory (passive
nationality theory) – The state of which
the victim is a citizen or subject has
jurisdiction.
Note: The Philippines follows as a general rule
the TERRITORIAL THEORY; by way of
exception, we also occasionally and in the
proper cases make use of the PROTECTIVE
THEORY.
BUSINESS ASSOCIATIONS
CORPORATION/ PARTNERSHIP THEORIES
ON THE PERSONAL OR GOVERNING LAW
OF A CORPORATION
1. The personal law is the law of the place of
incorporation;
2. The personal law is the law of the place or
center of management (central office
principle); and
3. The personal law is the place of
exploitation
RULE FOLLOWED IN THE PHILIPPINES
General Rule: Place of incorporation rule
Exceptions:
1. Constitutional and Statutory
Restrictions (Art. XII)
2. Control test during war – courts may
pierce the veil of corporate identity and
look into the nationality of stockholders to
determine citizenship of the corporation
The Law of the Place of Incorporation is
applicable to the following issues:
1. Existence and the legal character of
the corporation
2. Capacity and powers of the
corporation
3. Internal organization of the corporate
enterprise
4. Alteration of the charter and the
dissolution of the corporation
DOMICILE OR RESIDENCE OF FOREIGN
CORPORATIONS
When not fixed by the law creating them, it
shall be understood to be the place where
their legal representation is or where they
exercise their principal functions.
Note: A foreign corporation granted license to
operate in the Philippines acquires domicile
here.
JURISDICTION OVER FOREIGN
CORPORATIONS
Consent Doctrine - A foreign corporation will
be recognized and will be allowed to transact
business in any state which gives it consent.
This doctrine is established in Sec. 125, 126,
127, and 128 of the Corporation Code of the
Philippines
Note: All foreign corporations lawfully doing
business in the Philippines shall be bound by
all laws, rules and regulations applicable to
domestic corporations EXCEPT provisions on
the creation, formation, organization or
dissolution of corporations or those which fix
the relations, liabilities, responsibilities or
duties of stockholders, members or officers of
the corporation to each other.
 San Beda College of Law
2010 Centralized Bar Operations
How summons served
Service of summons upon foreign corporations TRUSTS
doing business in the Philippines may be When the trust contains an express choice of
made on: law provision, that law shall be applied. In the
1. Its resident agent; absence of express provision, the courts will
2. In the absence thereof, on the government deem controlling the law that will sustain the
official designated by law or any of its validity of the trust.
officers or agent within the Philippines;
3. On any officer or agent of said corporation RECOGNITION AND ENFORCEMENT OF
in the Philippines; and FOREIGN JUDGMENTS
4. Through diplomatic channels.
Foreign judgment
Right of a Foreign Corporation to bring suit Decisions rendered outside the forum and
General Rule: No foreign corporation encompass judgments, decrees and orders of
transacting business in the Philippines without courts of foreign countries.
a license, or its successors or assigns, shall
be permitted to maintain or intervene in any Recognition of Enforcement of
action, suit or proceeding in any court or Foreign Judgment Foreign Judgment
administrative agency of the Philippines; but The defendant or
The plaintiff or
such corporation may be sued or be respondent is
petitioner wants the
presenting the foreign
proceeded against before Philippine courts or court to positively carry
judgment merely as a
administrative tribunals on any valid cause of defense, on the basis
out and make effective
action recognized under the Philippine laws the foreign judgment.
of res judicata.
(Sec. 133, Corporation Code). Acquisition by a Invokes merely a
foreign corporation of a license to transact sense of justice
business in the Philippines is an essential (Perkins v. Benguet Implies an act of
prerequisite for the filing of suits before courts. Consolidated Mining, sovereignty
L-1981-82, May 28,
Exceptions: 1954)
1. Isolated transactions; Needs no proceeding
or action but implies Requires a separate
2. Action to protect trademark, trade
that the same has action brought
name, goodwill, patent or for unfair already been filed precisely to make the
competition; against the defendant foreign judgment
3. Agreements fully transacted outside who is invoking the effective.
the Philippines; and foreign judgment
4. Petition filed is merely a corollary
defense in a suit against it. Note: Enforcement necessarily implies
5. To enforce a right not arising out of a recognition; recognition does not necessarily
business transaction, e.g. tort that imply enforcement.
occurred in the Philippines;
6. When the parties have contractually Examples of foreign judgments which can only
stipulated that the Philippines is the venue be recognized: declaratory judgments,
judgments which give no affirmative relief and
of actions;
judgments which determine the parties’
7. When the party sued is barred by the
interests in a thing or status.
principle of estoppel and/or principle of
unjust enrichment from questioning the Requisites for Recognition or Enforcement:
capacity of the foreign corporation; and 1. It must be a judgment in a judicial or
8. Recovery of misdelivered property. quasi-judicial action issued by an impartial
court of competent jurisdiction;
Effect of Failure to Secure a License to 2. The defendant has been given reasonable
Transact Business notice and opportunity to be heard;
1. The foreign corporation which does 3. The foreign judgment must have disposed
business in the Philippines without a of the controversy on the merits;
license has no right to sue in the 4. It must not be barred by prescription both
Philippines, but it can still be sued. in the State where it was promulgated and
2. The contracts entered into are valid as where it is sought to be enforced;
between the parties, but it may not be 5. Judgment must be final and executory to
enforced in the Philippine courts. constitute res judicata in another action;

21
6. State where the foreign judgment was
obtained allows recognition or
enforcement of Philippine judgments;
7. Judgment must be for a fixed sum of
money;
8. Foreign judgment must not be contrary to
the public policy or good morals of the
country where it is to be enforced;
9. Judgment must not have been obtained by
fraud, collusion, mistake of fact or law; and
10. It must be a judgment on civil or
commercial matters, including questions of
status.
Procedure of Enforcement of Judgment in
the Philippines:
1. Filing of petition in the proper court
attaching an authenticated copy of the
foreign judgment
2. Authentication calls for the Philippine
consul assigned to the country where the
foreign judgment was decreed to certify
that such judgment was rendered by a
court of competent jurisdiction. (Coquia,
Conflict of Laws 2000 ed., p. 561)

PHILIPPINE RULE:
The effect of a judgment or final order of a
tribunal of a foreign country, having jurisdiction
to render the judgment or final order is as
follows:
1. In a judgment or final order upon a specific
thing, the judgment or final order is
conclusive upon the title to the thing; and
2. In 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 subsequent title.

IN EITHER CASE, the judgment or final order

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
(Rule 39, Sec. 48 of the 1997 Rules of Civil
Procedure)

THREE MODES OF ENFORCEMENT OF

JUDGMENTS:
1. By filing a petition in the court where the
judgment is sought to be recognized for
the recognition of the judgment

2. By a summary procedure known as

exequatur proceedings
Exequatur Procedure: A summary
procedure outlined in the statutes of some
civil law countries such as France, Italy,
Switzerland and Austria for the
enforcement of foreign judgments that
have no automatic effect or authority in
themselves.

3. By registration of the foreign judgment in a

registry of judgments in the forum where it
is with or without judicial supervision.
(Coquia, Conflict of Laws 2000 ed., p.
561-563)