San Beda Conflicts of Law

2005 CENTRALIZED BAR OPERATIONS

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PRIVATE INTERNATIONAL LAW Private International Law or Conflict of Laws  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 a foreign law or foreign laws. Elements: (1) Conflict of Laws is part of the municipal law of the State; (2) There is a directive to courts and administrative agencies; (3) There is a legal problem involving a foreign element; and (4) There is either an application or non-application of a foreign law or foreign laws. Nature of Conflicts Rules: It is a part of the national law of every state. NOTE: A factual situation that cuts across territorial lines and is affected by diverse laws of two or more States is said to contain a foreign element.  Functions: 1. To provide rules in deciding cases where either the parties, events or transactions are linked to more than one state jurisdiction; 2. To promote stability and uniformity of remedies / solutions regardless of place of suit. PUBLIC International Law

PRIVATE International Law

As to nature or character 1. International in National, municipal character as it or local in character applies in the international sphere As to sources 2. Custom, treaty Generally derived and general from the internal principles of law law of each state; recognized by except any conflict civilized nations and of laws question juridical decisions which is governed and teachings of the by a treaty (e.g.

most highly qualified publicists

Hague Convention on the Conflicts of law relating to the Form of Testamentary Dispositions) most highly Hague Convention qualified publicists on the Conflicts of law relating to the Form of Testamentary Dispositions) As to applicability 3. Governs rights Deals with rights and obligations of and obligations of States and their private individuals relationships among and their private themselves transactions which involve a foreign element As to persons involved 4. Governs only Governs individuals states and or corporations internationally recognized organizations As to transactions 5. Recognizes trans- Assumes control actions in which over transactions sovereign States are strictly private in interested nature As to remedies 6. In case of All remedies are violation of provided by International Law, municipal laws of the State may resort the State, such as to diplomatic resort to courts and protest, negotiation, administrative arbitration or tribunals adjudication by filing cases before international tribunals or may even resort to use of force or go to war

 Sources: 1. Civil Codes of different countries 2. Constitution which contains principles on nationality and comity 3. Special statues (E.g. Corporation Code, General Banking Law, etc.) 4. Treaties and International conventions

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

267 MEMORY AID IN CIVIL LAW

5. Treatises, commentaries and studies of learned jurists 6. Judicial decisions 7. International customs JURISDICTION I. JURISDICTION OVER THE PERSON  Acquired by the voluntary appearance of a party and his submission to authority or by service of summons. 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. personal or substituted service of summons (section 6 and 7 Rule 14 of the Revised Rules of Court) II. JURISDICTION OVER PROPERTY  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.  This kind of jurisdiction is 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 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). 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.  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. Long-arm Statutes  Statutes which specify the kinds of contacts upon which jurisdiction will be asserted over a defendant outside of state territory. III. JURISDICTION OVER THE SUBJECT MATTER  The test of jurisdiction is whether or not the law vests upon the tribunal the power to enter upon the inquiry. Ways of Disposing of Conflicts Cases: 1. Dismiss the case, either because of lack of jurisdiction or refusal to assume jurisdiction pursuant to the doctrine of forum non conveniens; or 2. Assume jurisdiction over the case and apply the law of the forum; or 3. Assume jurisdiction over the case and apply foreign law.  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 sovereignties, a lack of comity towards foreign states. Principle of forum non conveniens  A court may resist imposition upon its jurisdiction even when jurisdiction is authorized by law. The

CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)


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reason given for refusal to assume jurisdiction is that to do so would prove inconvenient for the forum.  In sustaining a plea of forum of non conveniens, public and private interests should be weighed: 1. Private Interest of the litigant a. Ease of access to source of proof b. Availability of compulsory process for attendance of unwilling witnesses c. Cost of obtaining and attendance of willing witnesses d. Possibility of viewing the premises if appropriate e. Other practical problems that make trial of the case easy, expeditious and inexpensive 2. Public Interest a. Administrative difficulties encountered when courts’ dockets are clogged b. Appropriateness of having the trial in a court familiar with the applicable state law.

GENERAL RULE:

No rule of Private International Law would be violated if the courts should decide to dispose of all cases, whether domestic or conflicts cases, according to the internal law of the forum EXCEPTION: Where a foreign, sovereign, diplomatic official, or public vessel or property of another State is involved, or where a State has, by treaty, accepted limitations upon its jurisdiction over certain persons or things. Instances Justifying the Application of Internal Law to Conflicts Cases: 1. Where application of internal law is decreed; 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: a) When the enforcement of the foreign law would run counter to

b) c) d) e) f) g)

h)

an important public policy of the forum; Where the application of the foreign law would infringe good morality; Where the foreign law is penal in nature; Where the foreign law is procedural in nature; When the question involves immovable property of the forum; Where the foreign law is fiscal or administrative in nature; Where the application of foreign law would involve injustice or injury to the citizens or residents of the forum; and Where the application of foreign law would endanger the vital interests of the State.

CHOICE OF LAW APPROACHES TO CHOICE OF LAW A. Traditional or Single-aspect method  theories which have traditionally concentra-ted on one element of a situation in order to connect a case to a particular legal community 1. Vested Rights Theory o Rights acquired in one country must be recognized and legally protected in other countries. The forum will not apply before a law but will simply recognize the right vested by said law. 2. Local Law Theory o In conflict problems, the court does not enforce a foreign law but a right created by its own law by treating a case as a purely domestic case that does not involve a foreign element. 3. Cavers' Principle of Preference o 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.




B. Modern or Multi-aspect method  approach where all the important factors of the case both territorial and non-territorial, are analyzed and the applicable law is arrived at by “rationally elaborating and applying the policies and purposes underlying the particular legal rules that come in question as well as the needs of the interstate or international intercourse.” 1. Place of the Most Significant Relationship  Adopts an approach which identifies a plura-lity of factors that must be considered in the light of choice of law principles. 2. Interest Analysis  Urges the resolution of conflict problems by looking at the policy behind the laws of the involved states and the interests each state had in applying its own law. 3. Comparative impairment  Calls for subordination of the state objective which would be least impaired. 4. Functional Analysis  Looks into the general policies of the states (beyond those reflected in its substantive laws) and to policies or values relating to effective and harmonious intercourse between states 5. Choice-influencing Considerations  Courts will prefer rules of law, whether they are forum law or another state’s law as long as they make “good socioeconomic sense for the time the court speaks” and are sound in view of present day conditions.  These are five major choiceinfluencing considerations which would lead the courts to the choice-of-law decisions in a given case: a. predictability of results; b. maintenance of interstate and international order; c. simplification of judicial task; d. application of better rule law; and

e. advancement of forums interests. 6. Convenient Theory (forum conveniens)  the application of a foreign law in such a convenient forum, which implies a susbstantial connection with a given conflict problem “must be analytically understood as an exception from the basic rule calling for the application of the lex fori”. TEST FACTORS OR POINTS OF CONTACT  Circumstances which may serve as the possible test for the determination of applicable law  The most important of these points are the following: 1. The nationality of a person, his domicile, his residence, his place of sojourn, or his origin. 2. The seat of legal or juridical person, such as a corporation. 3. The situs of a thing, that is the place where the thing is, or is deemed to be situated. In particular, the lex situs is decisive when real rights are involved. 4. The place where an act has been done, the locus actus, such as the place where a contract has been made, a marriage celebrated, a will signed or a tort committed. The lex loci actus is particularly important in contracts and torts. 5. The place where the act is intended to come into effect, the place of performance of contractual duties, or the place where the power of attorney is to be exercised 6. The intention of the contracting parties as to the law that should govern the agreement, the lex loci intentionis 7. The place where judicial and administrative proceedings are instituted or done. The lex fori – the law of the forum – because matters of procedure not going to the substance of the claim involved are governed by it; and because lex fori applies


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whenever the content of the otherwise applicable law is excluded from application in a given case for the reason that it falls under one of the exceptions to the application of the foreign law 8. The flag of the ship, which in many cases is decisive of practically all legal relationships of the ship and of its master or owner as such. It also covers contractual relationships, particularly contracts of affreightment NOTE: The Philippines follows the Single-aspect method and our conflicts rules are mostly found in the Civil Code (Article 15, 16, 17). These rules specify the geographical location from where the governing law is found, consistent with the traditional approach to choice of law. The difficulty in following these territorially rigid rules is the inherent rigidity and unjust decisions that may result in its application. To avoid these, courts have resorted to characterization and renvoi which operate as “escape devices” CHARACTERIZATION  The process by which a court at the beginning of the choice of law process assigns a disputed question to the proper area in substantive law. 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  2 Types of Characterization: 1. Subject Matter Characterization – calls for the classification of a factual situation into a legal category. 2. Substance-Procedure Dichotomy – directs to what extent the court will apply foreign law.

NOTE: If issue is substantive, apply foreign law, but if procedural, forum law. I.

Statute of Frauds a. Substantive - if the words of the law relate to forbidding the obligation. b. Procedural - if the law forbids the enforcement of the obligation.\

II.

Statute of Limitations and Borrowing Statutes 1. Statute of limitations a. Substantive - when the limitation was directed to the newly created liability specifically 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 NOTE: 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.

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




PROOF OF FOREIGN LAW 1. By pleading and proof a. Written law i. By official publication ii. Copy attested by officer having legal custody plus 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 (Section 24 Rule 132 of the Revised Rules of Court) b. Unwritten law – by testimony of experts or writings of jurists 2. Judicial Notice (when the laws are already within the actual knowledge of the court, such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties concerned claim otherwise PCIB vs. Escolin 56SCRA266) 3. To conclude that the parties who fail to introduce proof as to the content of a foreign law acquiesce to the application of the forum law.  proceeds from the theory that the basic law is the law of the forum and when the claimed applicable foreign law is not proved, then the court has no reason to displace the basic law 4. Presumption that the foreign law is the same as the law of the forum (Doctrine of Processual Presumption) PERSONAL LAW  The law which governs persons, legal condition, capacity, civil status, etc. NOTE: Personal law governs a person wherever he goes. The personal law of an individual is either his national law or the law of his place of domicile.

A. Nationality Law Theory  The Philippines adheres to the nationality law theory. Article 15 of the Civil Code provides that Laws relating to family rights and duties, or to the status, condition, and legal capacity of persons are binding upon Filipino citizens, even though living abroad.  It is for each State to determine who are its nationals (Hague Convention). Thus, the Philippine Constitution enumerates those who are citizens of the Philippines.  Problems in Applying the Nationality Principle 1. Dual or Multiple Citizenship  This arises from the concurrent application of jus soli and jus sanguinis a. In matters of status, he is usually considered by the forum as exclusively its own national, his additional foreign nationality is disregarded b. In case the 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. NOTE: Hague Convention on Conflict of Nationality Laws formulated the following principle in Article 5: “… 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 resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.” 2. 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.


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 A person may become stateless by the following means: a. Deprived of his citizenship for any cause, such as commission of a crime; b. Renounciation of one’s nationality by certain acts, express or implied; c. Voluntary release from his original state; 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  The individual’s private rights, condition, status, and capacity are determined by his physical location. NOTE: The forum determines domicile according to its own standards. General Rules on Domicile: 1. No person shall be without domicile 2. A person cannot have 2 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 domicile 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 Legal Classification of Domicile 1. Domicile of origin  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  Upon emancipation, the child may acquire a domicile of choice 2. Constructive Domicile  a domicile assigned by operation of law to persons legally incapable of choosing their own domicile (e.g. minors, mentally disabled) 3. Domicile of Choice (voluntary domicile)  place freely chosen by a person sui juris  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. PERSONAL STATUS & CAPACITY  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. RENVOI  A procedure whereby a legal 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).  It literally means a “referring back” 4 Ways of Treating the Renvoi Problem 1. Rejection  If the conflicts rules of the forum refer the case to the law of another state, it is deemed to mean only the




2. 

3. 



4. 

internal law of that state. Thus, the court will apply the foreign law. Acceptance 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. Mutual Desistment 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 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  It is that which occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi. Transmission  It is the process of applying the law of a foreign state through the law of a second foreign state. CHOICE OF LAW PROBLEMS I. FAMILY RELATIONS  Under the New Civil Code, questions of family rights, duties, status, conditions and capacity are governed by lex nationalii. A. MARRIAGE 1. Extrinsic validity - governed by lex loci celebrationis. GENERAL RULE: a. All states recognize as valid those marriages celebrated in foreign countries if they comply

with the formalities prescribed therein (Hague Convention). b. 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 (Article 17 Civil Code). c. 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 (Article 26 Family Code).

EXCEPTIONS: The following are void marriages in the Philippines even if valid in the foreign country where celebrated: a. When either or both parties are below 18 years of age even with parental consent; b. Bigamous and polygamous marriages; c. Mistake as to identity of a contracting party; d. 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; e. Marriages where either spouse is psychologically incapacitated; f. Incestuous marriages; and g. Void marriages by reason of public policy. NOTE: These exceptions put into issue the capacity of the parties to enter into the marriage and therefore 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


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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, 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, it is doubtful whether this will be recognized here. 2. Common law marriages GENERAL RULE: if valid in the State where the parties cohabitated 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 marital status NOTE: common law marriages are not recognized under the Philippine internal law 3. Marriage on board a vessel on High seas  since nation whose flag the ship is flying has jurisdiction over the ship, the rule is that compliance with this law is required for a marriage to be validly contracted 4. Consular marriages  for states, including the Philippines (Article 10 Family Code), which authorize their consular or diplomatic agents in foreign countries to solemnize marriages in accordance with their domestic laws  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.

Effects of Marriage 1. Personal relations 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 said law is not contrary to law, customs and good morals of the forum.

2. Intrinsic validity - controlled by the parties’ personal laws (either domiciliary or nationality).

Doctrine of Immutability of Matrimonial Property Regime  That the change of the nationality on the part of the husband or the wife or of both does not affect the original property regime EXCEPT

2. Property relations between the spouses  The Hague Convention declares that the governing law on matrimonial property regime is: a. The internal law designated by the spouses before the marriage b. 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. (Article 80 Family Code)




when the law of the original nationality itself changes the marital regime hence, the property regime has to change accordingly. B. DIVORCE AND SEPARATION  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.  Grounds for divorce are dictated by lex fori. GENERAL RULE: We only observe relative divorce (legal separation) in the Philippines. Divorce decrees obtained by Filipinos abroad have no validity and no effects thereof are recognized in this jurisdiction. 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 (Article 26, Family Code). C. ANNULMENT AND DECLARATION OF NULLITY 1. For states that follow the traditional approach – grounds would follow lex loci celebrationis. 2. For states that are policy-centered applicable law is the law of the state of marital domicile. D. PARENTAL RELATIONS Determination of Legitimacy of a Child  Legitimacy of the child is governed by the 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 vs. COMELEC, Ronald Allan Kelly Poe and Fornier (GR 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. The 1935 Constitution confers citizenship to all persons whose fathers are Filipino citizens regardless of whether the children are legitimate or illegitimate.  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 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. Article176 Family Code) E. ADOPTION  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


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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 (4th) degree of consanguinity or affinity; or b. one who seeks to adopt the legitimate son/daughter 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 within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.  The requirement of sixteen years difference between the adopter and the adoptee is not applicable if the adopter is: i. the biological parent of the adoptee ii. the spouse of the adoptee’s parent  Inter-Country Adoption  A socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines.

II. PROPERTY A. CONTROLLING LAW 1. Immovable property – governed by lex situs. 2. Movable property – may be governed by: a. lex domicilii – law of the owner’s domicile. b. lex situs - the law of the place where the property is located. c. lex loci actus – law of the place where the transaction is completed. d. proper law – law of the state which has the most real connection with the transfer. Philippine Rule:  Real property as well as personal property is subject to the law of the country where it is situated (lex situs). (Article 16 Civil Code).  Rationale for lex situs or lex rei sitae rule: the property being physically part of the country should be subject to the laws thereof. B. CAPACITY TO TRANSFER OR ACQUIRE PROPERTY  governed by lex situs. C. EXTRINSIC AND INTRINSIC VALIDITY OF CONVEYANCES GENERAL RULE: Governed by lex situs. EXCEPTIONS: 1. Where the transaction does not affect transfer of title or ownership of the land  proper law of the transaction will govern, which may be lex intentionis or lex voluntatis. 2. When real property is offered by way of security for the performance of an obligation: a. Mortgage of the land is governed by lex situs b. Loan contract is governed by rules of ordinary contracts. 3. Testate or intestate succession or capacity to succeed – governed by the national law of the decedent.




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.

transaction which will uphold its validity. The owner is thus permitted to choose between several legal systems: 1. Law of the temporary resting place (e.g. interim port) 2. Lex loci actus 3. Law of the place of destination 4. Law of the last real situs of goods

D. 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 determines the creation and the transfer of interests (lex situs)

 Rules governing Means of Transport: a. in case of sea going vessels – the law of the flag ; or b. as in states consisting of several countries (e.g.United Kingdom) – the place of registry.

 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  Rules governing goods in transitu: a. Seizure and arrest – Where the owner’s creditor’s seize the goods in transit, the result is that the transport is discontinued and a temporary resting place is thereby created. On 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. b. Disposition of goods – questions arising from transactions involving movables in transit may be resolved by law of any place having substantial connection with the

2. Choses in action (intangible movables) a. Debts i. Voluntary transfer or assignment of choses in action - there are 3 theories as to the law which should govern: a) Law of the domicile of the owner b) Law of the place where the assignment was executed c) Law of the place where the debt is recoverable ii. Involuntary transfer of choses in action (e.g. garnishment) - governed by the law of the state where jurisdiction is effectively exercisable against the garnishee. NOTE: Jurisdiction to which the garnishee is amenable is the jurisdiction of the country where the debt can be recovered, i.e., in any country in which the debtor is present or can be served effectively with process. b. Negotiable instrument – governed by the law of the place indicated in the instrument or place of delivery. c. Corporate shares – as against the corporation and third persons, the transfer or assignment are governed by the law of the place of incorporation.


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d. Goodwill - governed by the law of principal place of business. III. CONTRACTS A. Extrinsic validity – governed by lex loci celebrationis. B. Intrinsic validity – there are 3 possible laws that govern: a. law of the place where the contract is made or lex loci contractus b. law of the place of performance or lex loci solutionis c. 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 (Article 1306 Civil Code) NOTE: Hence, 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.  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 C. Capacity to enter into contracts – determined by the personal laws of the contracting parties (either nationality or domiciliary) D. Choice of law issues in Conflicts Contract Cases 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. 2. Contracts with Arbitration Clause  In the Philippines, the provisions of the Civil Code on arbitration and the arbitration law RA 876 embodies 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 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 or Barter of goods – governed by lex situs. b. Simple loan granted by financial institutions – law of the permanent place of business. c. Loan granted by a private individual or where subject matter of loan is personal – law where the loan was obtained.




d. Pledge, Chattel mortgage, antichresis – lex situs. e. 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 NOTES:  Convention applies to all international carriage of person, 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 (Alitalia vs. IAC and Pablo 192SCRA9)  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 nor does it regulate or exclude liability for 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

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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 the action will prescribe if it is not brought within two 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: the method of counting the period of limitation is determined by the law of the forum (lex fori) With respect to 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



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has 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.

IV. WILLS AND ADMINISTRATION OF ESTATES 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 – governed by the laws of the country in which will is executed; or  Philippine law b) testator is an Alien i. will is executed in the Philippines  Philippine law; or  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 (Article 819 Civil Code).  This prohibition does not apply to joint wills executed by aliens, hence a joint will executed by aliens in a state where such will is valid shall be considered as valid in the Philippines. As to joint wills executed by aliens in the Philippines, although the law is silent, it has been suggested that in accordance with the express policy of Article 819 of the Civil Code, said will should not be probated if it affects the heirs in the Philippines. 2. Intrinsic validity of wills – governed by the national law of the person whose will is under consideration. 3. Interpretation of wills – governed by the decedent’s national law 4. Revocation of wills  If the 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  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  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: a. law of the place where the will was made, or




b. law of the place in which the testator had his domicile at the time of revocation; 5. Probate of wills – being procedural in character, the law of the forum governs procedural matters. 6. 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. Hence, administration is governed by the law of the state where the administration takes place or lex fori. NOTE: The Administration extends only to the assets of the decedent found within the state or country where it was granted so that an administrator appointed in one state has no power over the property in another state or country. To administer the property situated in a foreign state, the administrator must be re-appointed, or a new one named in that state. V. TORTS  Lex loci delicti comissi or law of the place where the alleged tort was committed will govern. Concepts of Place of Wrong 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. 2. Place of conduct – view the situs of torts as the place where the tortuous act was committed. Obligation theory  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. 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: 1. Place where the injury occurred 2. Place of conduct 3. Domicile, residence, nationality, place of incorporation and place of business 4. Place where relationship between the parties is centered Conditions for the Enforcement of Tort Claims 1. The foreign tort is based on a civil action and not on a crime; 2. The foreign tort is not contrary to the public policy of the forum; and 3. The judicial machinery of the forum is adequate to satisfy the claim. 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. VI. CRIMES GENERAL RULE: Lex loci delicti or the law of the place where the crime was committed will govern since it determines the specific law by which the criminal is to be penalized and at the same time designates the state that has jurisdiction to punish him. 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


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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) VII. BUSINESS ASSOCIATIONS 1. Corporation/Partnership Personal law GENERAL RULE: Personal law is the law of the state where it was incorporated or formed. EXCEPTIONS: a. Constitutional and Statutory Restrictions (Art. XII) b. 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 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  with the consent of the state a foreign corporation will be recognized and will be allowed to transact business in any state which gives it consent. This consent doctrine is established in section 125, 126, 127, and 128 of the Corporation Code of the Philippines NOTE: all foreign corporations lawfully doing business here in the Philippines shall be bound by all laws rules and regulations applicable to domestic corporations except provisions for the creation, formation, organization or dissolution of corporations or those which fix the relations the relations, liabilities, responsibilities or duties of stockholders, members or officers of the corporation to each other. NOTE: service of summons upon foreign corporations doing business in the Philippines may be made on:

1. Its resident agent; 2. In the absence thereof, process will be served on the government official designated by law or any of its officers or agent within the Philippines; and 3. on any officer or agent of said corporation in the Philippines 4. serving summons through diplomatic channels Right of a Foreign Corporation to bring suit GENERAL RULE: No foreign Corporation transacting business in the Philippines without a license, or its successors or assigns, shall be permitted to maintain or intervene in any action, suit or proceeding in any court or administrative agency of the Philippines but such corporation may be sued or proceeded against before Philippine courts or administrative tribunals on any valid cause of action recognized under the Philippine laws (Section 133 Corporation Code). Hence, acquisition by a foreign Corporation of a license to transact business in the Philippines is an essential prerequisite for the filing of suits before courts. EXCEPTIONS: 1. Isolated transactions 2. Action to protect trademark, trade name, goodwill, patent or for unfair competition 3. Agreements fully transacted outside the Philippines 4. Petition filed is merely a corollary defense in a suit against it Effect of Failure to Secure a license to Transact Business  The foreign corporation which does business in the Philippines without a license has no right to sue in the Philippines, but can still be sued. Although the contracts entered into may be valid as between the parties, it may not be enforced in the Philippine courts. 2. Trusts  When the trust contains an express choice of law provision, that law shall be applied.




 In the absence of express provision, the courts will deem controlling the law that will sustain the validity of the trust. FOREIGN JUDGMENTS Foreign judgment  Decisions rendered outside the forum and encompasses judgments, decrees and orders of courts of foreign countries. Recognition of foreign judgment  Passive act of giving effect to a judgment of another forum without necessarily filing an action in the forum giving effect to the judgment. Enforcement of foreign judgment  A foreign judgment is enforced when, in addition to being recognized, a party is given affirmative relief to which the judgment entitles him and it necessarily requires the filing of an action. Requisites for Recognition or Enforcement: 1. The foreign judgment was rendered by a judicial or quasi-judicial tribunal which had jurisdiction over the parties and the case; 2. Judgment must be valid under the laws of the court that rendered it; 3. Judgment must be final and executory to constitute res judicata in another action; 4. State where the foreign judgment was obtained allows recognition or enforcement of Philippine judgments;

5. Judgment must be for a fixed sum of money; 6. Foreign judgment must not be contrary to the public policy or good morals of the country where it is to be enforced; and 7. Judgment must not have been obtained by fraud, collusion, mistake of fact or law. 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: (a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a 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).


San Beda Conflicts of Law

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