CONFLICT OF LAWS - INTRODUCTION
A. DEFINITION
CONFLICT OF LAWS
-Part of the law which comes
into play when the issue before
the court affects some fact,
event or transaction that is so
clearly connected with a
a
conflicts
case.
foreign system of law as to
necessitate recourse to that
system
-Embraces those universal
a
foreign
element.
principles of right and justice
which govern the courts of one
state having before them cases
involving operation and effect
of laws of another state or
country
-That part of municipal law of a
state which directs its courts
and administrative agencies,
when confronted with a legal
problem involving a foreign
element, whether or not they
should apply a foreign law or
foreign laws
CONFLICT OF LAWS CASE
-any case which involves facts
occurring in more than one
state or nation, so that in
deciding the case, it is
necessary to make a choice
between the laws of different
states or countries
B. PURPOSE AND THEORIES
1. THEORY OF COMITY-
according to this theory, no
foreign law would be allowed
to operate in another state
except by the "comity of
nations"; i.e. the reciprocal
courtesy which the members of
the family of nations owe to
one another
2. VESTED RIGHTS THEORY-
Under this theory, our courts
enforce not foreign law or
foreign judgment but the right
or rights that have been vested
under such law or judgment.
Rights once acquired should be
enforced regardless of where
the suit for its enforcement was
filed. If a foreign law gives a
person a right, the mere fact
that the law of the forum does
not give him a similar or the
same right is no reason to
refuse to help him get what
belongs to him. The exception
is if the foreign law is against
the public policy of the forum.
It is a principle of every
civilized law that vested rights
should be protected. This
principle also discourages
forum shopping
3. THEORY OF LOCAL LAW-
We apply a foreign law not
because it is foreign, but
because our own law by
applying a similar rule requires
us to do so; hence, it is as if the
foreign law has becomes part
of our own internal or domestic
law.
Example: Art. 16, paragraph 2
of the Civil Code requires us to
apply the national law of the
deceased in the matter of his
testate or intestate succession.
We apply it not because it is the
appropriate foreign law, but
because our own Civil Code tells
us to do so.
4. THEORY OF HARMONY OF
LAWS-Identical or similar
problems should be given
identical or similar solutions
thus resulting in harmony of
laws. Certainty of solutions to
the same or similar problems
are of particular importance in
areas where the parties are
likely to think in advance of the
legal consequences of their
transaction.
Example: transactions involving
real property should be
governed by the lex situs. Also, a
person's civil status must be
governed by a single law for the
sake of certainty.
5. THEORY OF JUSTICE-Since
the purpose of all laws,
including Conflict of Laws, is
the dispensation of justice, the
proper foreign law should be
applied in order to attain this
objective.
**It is said that the theories do
not mutually exclude one
another; perhaps, the truth
may be found in their
combination. The policies
behind all of the theories have
validity. Indeed, there may be a
gain in using different theories
at different places to make
more readily apparent the
change in policies deemed
dominant as the situations
vary.
C. CONFLICT OF LAWS VS.
PUBLIC INTERNATIONAL
LAW
(refer to separate table)
D. ELEMENTS
1. Part of municipal law
2. Directive to
courts/administrative agencies
3. Foreign element
4. Application or non-
application of foreign law
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 1
E. FOREIGN ELEMENT
Where the factual antecedents
satisfactorily establish the
existence of a foreign element,
we agree with petitioner that
the problem herein could
present
A factual situation that cuts
across territorial lines and is
affected by the diverse laws of
two or more states is said to
contain
(Saudi Arabian v. CA)
Foreign element in Land
Ownership/Title Disputes:
A conflict of law situation
arises only when:
(1) There is a dispute over the
title or ownership of an
immovable, such that the
capacity to take and transfer
immovables, the formalities of
conveyance, the essential
validity and effect of the
transfer, or the interpretation
and effect of a conveyance, are
to be determined; and
(2) A foreign law on land
ownership and its conveyance
is asserted to conflict with a
domestic law on the same
matters. Hence, the need to
determine which law should
apply. (Laurel v. Garcia)
PHASES - JURISDICTION
F. RESOLUTION OF
CONFLICTS PROBLEMS
1. PHASES INVOLVED IN
RESOLVING CONFLICTS
PROBLEMS
Three consecutive phases are
involved:
(1) jurisdiction
(2) choice of law
(3) recognition and
enforcement of judgments.
Corresponding to these phases
are the following questions:
(1) Where can or should
litigation be initiated?
(2) Which law will the court
apply? and
(3) Where can the resulting
judgment be enforced?
or
States.
The
courts
jurisdiction can never be left to
**Jurisdiction and choice of law
are two distinct concepts.
Jurisdiction considers whether
it is fair to cause a defendant to
travel to this state; choice of
law asks the further question
whether the application of a
substantive law which will
determine the merits of the
case is fair to both parties.
JURISDICTION:
For a court to validly exercise
its power to adjudicate a
controversy, it must have
jurisdiction over the plaintiff or
the petitioner, over the
defendant or the respondent,
over the subject matter, over
the issues of the case and, in
cases involving property, over
the res or the thing which is the
subject of the litigation.
Jurisdiction over the subject
matter in a judicial proceeding
is conferred by the sovereign
authority which establishes
and organizes the court. It is
given only by law and in the
manner prescribed by law. It is
further determined by the
allegations of the complaint
irrespective of whether the
plaintiff is entitled to all or
some of the claims asserted
therein. To succeed in its
motion for the dismissal of an
action for lack of jurisdiction
over the subject matter of the
claim, the movant must show
that the court or tribunal
cannot act on the matter
submitted to it because no law
grants it the power to
adjudicate the claims.
DISPOSITION OF CASES:
It should be noted that when a
conflicts case, one involving a
foreign element, is brought
before a court or
administrative agency, there
are three alternatives open to
the latter in disposing of it:
(1) dismiss the case, either
because of lack of jurisdiction
or refusal to assume
jurisdiction over the case;
(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
power to hear cases and
controversies is derived from
the Constitution and the laws.
While it may choose to
recognize laws of foreign
nations, the court is not limited
by foreign sovereign law short
of treaties or other formal
agreements, even in matters
regarding rights provided by
foreign sovereigns
A. VENUE VS. JURISDICTION
Venue and jurisdiction are
entirely distinct matters.
Jurisdiction may not be
conferred by consent or waiver
upon a court which otherwise
would have no jurisdiction
over the subject-matter of an
action; but the venue of an
action as fixed by statute may
be changed by the consent of
the parties and an objection
that the plaintiff brought his
suit in the wrong country may
be waived by the failure of the
defendant to make a timely
objection. In either case, the
court may render a valid
judgment. Rules as to
the consent or agreement of
the parties, whether or not a
prohibition exists against their
alteration (Davao Light v. CA)
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 2
PHASES - CHOICE OF LAW & ENFORCEMENT OF JUDGMENT
3. CHOICE OF LEX FORI-law of the forum; --However, the VALIDITY OF FOREIGN -Consequently, the party
LAW/CHARACTERIZATION that is, the positive law of the characterization of a statute JUDGMENTS attacking a foreign judgment
state, country or jurisdiction into a procedural or has the burden of overcoming
A. DOCTRINE OF of whose judicial system of the substantive law becomes -A foreign judgment is the presumption of its validity.
QUALIFICATION court where the suit is brought irrelevant when the country of presumed to be valid and
or remedy is sought is an the
forum
has
a
borrowing
binding in the country from C. DOCTRINE OF
Choice-of-law problems seek to integral part. statute.
which it comes, until the PROCESSUAL PRESUMPTION
answer two important contrary is shown. It is also
questions: **Substantive rights are BORROWING STATUTE- Said proper to presume the As to what the foreign law is is
(1) What legal system should determined by the law where statute has the practical effect regularity of the proceedings a question of fact, not of law. It
control a given situation where the action arose (lex loci) while of treating the foreign statute and the giving of due notice may not be taken judicial
some of the significant facts the procedural rights are of limitation as one of therein notice of and must be pleaded
occurred in two or more states; governed by the law of the substance.
A
borrowing
and proved like any other fact.
and place of the forum (lex fori) statute
directs the state of the -Under Section 50, Rule 39 of Sections 24 and 25, Rule 132 of
(2) to what extent should the forum to apply the foreign the Rules of Court, a judgment the Rules of Court provide that
chosen legal system regulate GENERAL RULE ON statute of limitations to the in an action in personam of a it may be evidenced by an
the situation PROCEDURAL RULES: pending claims based on a tribunal of a foreign country official publication or by a duly
As a general rule, a foreign foreign law having jurisdiction to attested or authenticated copy
Before a choice can be made, it procedural law will not be pronounce the same is thereof.
is necessary for us to applied in the forum. PHILIPPINE BORROWING presumptive evidence of a right
determine under what category Procedural matters, such as STATUTE: as between the parties and Alternatively, in the light of the
a certain set of facts or rules service of process, joinder of Section 48 of our Code of Civil their successors-in-interest by absence of proof regarding the
fall. This process is known as actions, period and requisites Procedure is of this kind. Said a subsequent title. The foreign law law, the
characterization,
or
the
for appeal, and so forth, are Section
provides:
If
by
the
judgment may, however, be presumption of identity or
doctrine
of
qualification.
governed by the laws of the laws of the state or country assailed by evidence of: similarity or the so-called
forum. This is true even if the where the cause of action (1) want of jurisdiction, processual presumption may
DOCTRINE OF action is based upon a foreign arose, the action is barred, it is (2) want of notice to the party, be invoked
QUALIFICATION / substantive law also barred in the Philippine collusion,
CHARACTERIZATION -It is the Islands. (3) fraud, or
process
of
deciding
whether
LAW ON PRESCRIPTION: (4) clear mistake of law or fact 4. ENFORCEMENT OF
or not the facts relate to the A law on prescription of actions B. CONSIDERATIONS OF JUDGMENT
kind of question specified in a is sui generis in Conflict of PUBLIC POLICY Also, under Section 3 of Rule the party attacking a foreign
conflicts
rule.
The
purpose
of
Laws in the sense that it may EXCEPTION TO THE 131, a court, whether of the judgment, the private
characterization
is
to
enable be viewed either as procedural Philippines or elsewhere, respondent herein, had the
the forum to select the proper or substantive, depending on BORROWING STATUTE: enjoys the presumption that it burden of overcoming the
law the characterization given such The courts of the forum will not was acting in the lawful presumption of its validity.
a law. enforce any foreign claim exercise of jurisdiction and has The foreign judgment being
obnoxious
to
the
forums
public
regularly performed its official valid, there is nothing else left
policy. duty to be done than to order its
enforcement (Oil & Natural
Gas)

Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 3

CHOICE OF LAW - CONNECTING FACTORS
POINTS OF CONTACT (Saudi
Arabian v. CA):
(1) The nationality of a person,
his domicile, his residence, his
place of sojourn, or his origin;
(2) the seat of a legal or
not
going
to
the
juridical person, such as a
corporation;
(3) the situs of a thing, that is,
the place where a 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 an act is
intended to come into effect,
e.g., the place of performance of
contractual duties, or the place
where a power of attorney is to
be exercised;
(6) the intention of the
contracting parties as to the
law that should govern their
agreement, the lex loci
intentionis;
(7) the place where judicial or
administrative proceedings are
instituted or done. The lex
forithe law of the forumis
particularly important because,
as we have seen earlier,
matters of
procedure
substance of the claim involved
are governed by it; and because
the lex fori applies whenever
the content of the otherwise
applicable foreign law is
excluded from application in a
given case for the reason that it
falls under one of the
exceptions to the applications
of foreign law; and
(8) the flag of a 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.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 4
STATUTORY PROVISIONS
1. CONSTITUTION
CITIZENSHIP
Section 1. The following
are citizens of the
Philippines:
1. Those who are citizens of
the Philippines at the time
of the adoption of this
Constitution;
2. Those whose fathers or
mothers are citizens of the
Philippines;
3. Those born before January
17, 1973, of Filipino
mothers, who elect
Philippine Citizenship
upon reaching the age of
majority; and
4. Those who are naturalized
in the accordance with law.
Section 2. Natural-born
citizens are those who are
citizens of the Philippines
from birth without having
to perform any act to
acquire or perfect their
Philippine citizenship.
Those who elect Philippine
citizenship in accordance
with paragraph (3), Section
1 hereof shall be deemed
natural-born citizens.
Section 3. Philippine
citizenship may be lost or
reacquired in the manner
provided by law.
Section 4. Citizens of the
Philippines who marry aliens
shall retain their citizenship,
unless by their act or omission
they are deemed, under the
law to have renounced it.
Section 5. Dual allegiance of
citizens is inimical to the
national interest and shall be
dealt with by law.
SUFFRAGE
Section 1. Suffrage may be
exercised by all citizens of the
Philippines, not otherwise
disqualified by law, who are at
least eighteen years of age, and
who shall have resided in the
Philippines for at least one
year and in the place wherein
they propose to vote, for at
least six months immediately
preceding the election. No
literacy, property, or other
substantive requirement shall
be imposed on the exercise of
suffrage.
2. CIVIL CODE
Article 14. Penal laws and
those of public security and
safety shall be obligatory
upon all who live or sojourn in
the Philippine territory,
subject to the principles of
public international law and
to treaty stipulations.
Article 15. Laws relating to
family rights and duties, or to
the status, condition and legal
capacity of persons are
binding upon citizens of the
Philippines, even though
living abroad.
Article 16. Real property as
well as personal property is
subject to the law of the
country where it is stipulated.
However, intestate and
testamentary successions,
both with respect to the order
of succession and to the
amount of successional rights
and to the intrinsic validity of
testamentary provisions, shall
be regulated by the national
law of the person whose
succession is under
consideration, whatever may
be the nature of the property
and regardless of the country
wherein said property may be
found.
Article 17. The forms and
solemnities of contracts, wills,
and other public instruments
shall be governed by the laws
of the country in which they
are executed.
When the acts referred to are
executed before the diplomatic
or consular officials of the
Republic of the Philippines in a
foreign country, the
solemnities established by
Philippine laws shall be
observed in their execution.
Prohibitive laws concerning
persons, their acts or property,
and those which have for their
object public order, public
policy and good customs shall
not be rendered ineffective by
laws or judgments
promulgated, or by
determinations or conventions
agreed upon in a foreign
country
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 5
Article 815. When a Filipino is
in a foreign country, he is
authorized to make a will in any
of the forms established by the
law of the country in which he
may be. Such will may be
probated in the Philippines.
Article 816. The will of an alien
who is abroad produces effect in
the Philippines if made with the
formalities prescribed by the law
of the place in which he resides,
or according to the formalities
observed in his country, or in
conformity with those which this
Code prescribes.
Article 817. A will made in the
Philippines by a citizen or
subject of another country,
which is executed in accordance
with the law of the country of
which he is a citizen or subject,
and which might be proved and
allowed by the law of his own
country, shall have the same
effect as if executed according to
the laws of the Philippines.
Article 818. Two or more
persons cannot make a will
jointly, or in the same
instrument, either for their
reciprocal benefit or for the
benefit of a third person
STATUTORY PROVISIONS CONTINUATION
Article 819. Wills, prohibited
by the preceding article,
executed by Filipinos in a
foreign country shall not be
valid in the Philippines, even
though authorized by the laws
of the country where they may
have been executed.
Article 829. A revocation
done outside the Philippines,
by a person who does not
have his domicile in this
country, is valid when it is
done according to the law of
the place where the will was
made, or according to the law
of the place in which the
testator had his domicile at
the time; and if the revocation
takes place in this country,
when it is in accordance with
the provisions of this Code.
Article 1039. Capacity to
succeed is governed by the
law of the nation of the
decedent.
Article 1319. Consent is
manifested by the meeting of
the offer and the acceptance
upon the thing and the cause
which are to constitute the
contract. The offer must be
certain and the acceptance
absolute. A qualified
acceptance constitutes a
counter-offer.
Acceptance made by letter or
telegram does not bind the
offerer except from the time it
came to his knowledge. The
contract, in such a case, is
presumed to have been
entered into in the place
where the offer was made.
Article 1319. Consent is
manifested by the meeting of
the offer and the acceptance
upon the thing and the cause
which are to constitute the
contract. The offer must be
certain and the acceptance
absolute. A qualified
acceptance constitutes a
counter-offer.
Acceptance made by letter or
telegram does not bind the
offerer except from the time it
came to his knowledge. The
contract, in such a case, is
presumed to have been
entered into in the place
where the offer was made.
Article 1753. The law of the
country to which the goods
are to be transported shall
govern the liability of the
common carrier for their loss,
destruction or deterioration.
3. FAMILY CODE
Art. 10. Marriages between
Filipino citizens abroad may
be solemnized by a consul-
general, consul or vice-consul
of the Republic of the
Philippines. The issuance of
the marriage license and the
duties of the local civil
registrar and of the
solemnizing officer with
regard to the celebration of
marriage shall be performed
by said consular official.
Art. 21. When either or both
of the contracting parties are
citizens of a foreign country,
it shall be necessary for them
before a marriage license can
be obtained, to submit a
certificate of legal capacity to
contract marriage, issued by
their respective diplomatic or
consular officials.
Stateless persons or refugees
from other countries shall, in
lieu of the certificate of legal
capacity herein required,
submit an affidavit stating the
circumstances showing such
capacity to contract
marriage.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 6
Art. 26. 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, except those
prohibited under Articles 35
(1), (4), (5) and (6), 3637 and
38.
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. 35. The following
marriages shall be void from
the beginning:
(1) Those contracted by any
party below eighteen years of
age even with the consent of
parents or guardians;
(2) Those solemnized by any
person not legally authorized
to perform marriages unless
such marriages were
contracted with either or both
parties believing in good faith
that the solemnizing officer
had the legal authority to do
so;
STATUTORY PROVISIONS CONTINUATION
(3) Those solemnized without
license, except those covered
the preceding Chapter;
(4) Those bigamous or
polygamous marriages not
failing under Article 41;
(5) Those contracted through
mistake of one contracting
party as to the identity of the
other; and
(6) Those subsequent
marriages that are void under
Article 53.
Art. 36. A marriage contracted
by any party who, at the time of
the celebration, was
psychologically incapacitated
to comply with the essential
marital obligations of marriage,
shall likewise be void even if
such incapacity becomes
manifest only after its
solemnization.
Art. 37. Marriages between the
following are incestuous and
void from the beginning,
whether relationship between
the parties be legitimate or
illegitimate:
(1) Between ascendants and
descendants of any degree; and
(2) Between brothers and
sisters, whether of the full or
half blood
Art. 38. The following
marriages shall be void from
the beginning for reasons of
public policy:
(1) Between collateral blood
relatives whether legitimate or
illegitimate, up to the fourth
civil degree;
(2) Between step-parents and
step-children;
(3) Between parents-in-law
and children-in-law;
(4) Between the adopting
parent and the adopted child;
(5) Between the surviving
spouse of the adopting parent
and the adopted child;
(6) Between the surviving
spouse of the adopted child and
the adopter;
(7) Between an adopted child
and a legitimate child of the
adopter;
(8) Between adopted children
of the same adopter; and
(9) Between parties where one,
with the intention to marry the
other, killed that other person's
spouse, or his or her own
spouse.
Art. 80. In the absence of a
contrary stipulation in a
marriage settlement, 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 its extrinsic
validity
Art. 96. The administration
and enjoyment of the
community property shall
belong to both spouses jointly.
In case of disagreement, the
husband's decision shall
prevail, subject to recourse to
the court by the wife for proper
remedy, which must be availed
of within five years from the
date of the contract
implementing such decision.
In the event that one spouse is
incapacitated or otherwise
unable to participate in the
administration of the common
properties, the other spouse
may assume sole powers of
administration. These powers
do not include disposition or
encumbrance without
authority of the court or the
written consent of the other
spouse. In the absence of such
authority or consent, the
disposition or encumbrance
shall be void. However, the
transaction shall be construed
as a continuing offer on the
part of the consenting spouse
and the third person, and may
be perfected as a binding
contract upon the acceptance
by the other spouse or
authorization by the court
before the offer is withdrawn
by either or both offerors.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 7
Art. 184. The following
persons may not adopt:
(1) The guardian with respect
to the ward prior to the
approval of the final accounts
rendered upon the termination
of their guardianship relation;
(2) Any person who has been
convicted of a crime involving
moral turpitude;
(3) An alien, except:
(a) A former Filipino citizen
who seeks to adopt a relative
by consanguinity;
(b) One who seeks to adopt the
legitimate child of his or her
Filipino spouse; or
(c) One who is married to a
Filipino citizen and seeks to
adopt jointly with his or her
spouse a relative by
consanguinity of the latter.
Aliens not included in the
foregoing exceptions may
adopt Filipino children in
accordance with the rules on
inter-country adoptions as may
be provided by law.
STATUTORY PROVISIONS CONTINUATION
Art. 187. The following
may not be adopted:
(1) A person of legal age,
unless he or she is a child
by nature of the adopter or
his or her spouse, or, prior
to the adoption, said
person has been
consistently considered
and treated by the adopter
as his or her own child
during minority.
(2) An alien with whose
government the Republic
of the Philippines has no
diplomatic relations; and
(3) A person who has
already been adopted
unless such adoption has
been previously revoked or
rescinded.
4. REVISED PENAL CODE
Article 2. Application of its
provisions. - Except as provided
in the treaties and laws of
preferential application, the
provisions of this Code shall be
enforced not only within the
Philippine Archipelago,
including its atmosphere, its
interior waters and maritime
zone, but also outside of its
jurisdiction, against those who:
1. Should commit an offense
while on a Philippine ship or
airship
2. Should forge or counterfeit
any coin or currency note of
the Philippine Islands or
obligations and securities
issued by the Government of
the Philippine Islands;
3. Should be liable for acts
connected with the
introduction into these islands
of the obligations and
securities mentioned in the
presiding number;
4. While being public officers or
employees, should commit an
offense in the exercise of their
functions; or
5. Should commit any of the
crimes against national
security and the law of nations,
defined in Title One of Book
Two of this Code.
5. CORPORATION CODE
Section 133. Doing business
without a license. 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 Philippine
laws.
6. RULES OF COURT
RULE 14
Summons
Section 1. Clerk to issue
summons. Upon the filing of
the complaint and the
payment of the requisite legal
fees, the clerk of court shall
forthwith issue the
corresponding summons to
the defendants.
Section 2. Contents. The
summons shall be directed to
the defendant, signed by the
clerk of court under seal and
contain (a) the name of the
court and the names of the
parties to the action; (b) a
direction that the defendant
answer within the time fixed
by these Rules; (c) a notice
that unless the defendant so
answers plaintiff will take
judgment by default and may
be granted the relief applied
for.
A copy of the complaint and
order for appointment of
guardian ad litem if any, shall
be attached to the original and
each copy of the summons
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 8
Section 3. By whom served.
The summons may be served
by the sheriff, his deputy, or
other proper court officer, or
for justifiable reasons by any
suitable person authorized by
the court issuing the
summons
Section 4. Return. When
the service has been
completed, the server shall,
within five (5) days
therefrom, serve a copy of the
return, personally or by
registered mail, to the
plaintiff's counsel, and shall
return the summons to the
clerk, who issued it,
accompanied by proof of
service
Section 5. Issuance of alias
summons. If a summons is
returned without being
served on any or all of the
defendants, the server shall
also serve a copy of the return
on the plaintiff's counsel,
stating the reasons for the
failure of service, within five
(5) days therefrom. In such a
case, or if the summons has
been lost, the clerk, on
demand of the plaintiff, may
issue an alias summons
STATUTORY PROVISIONS CONTINUATION
Section 6. Service in person on
defendant. Whenever
practicable, the summons shall
be served by handling a copy
thereof to the defendant in
person, or, if he refuses to
receive and sign for it, by
tendering it to him
Section 7. Substituted
service. If, for justifiable
causes, the defendant cannot
be served within a
reasonable time as provided
in the preceding section,
service may be effected (a)
by leaving copies of the
summons at the defendant's
residence with some person
of suitable age and discretion
then residing therein, or (b)
by leaving the copies at
defendant's office or regular
place of business with some
competent person in charge
thereof
Section 8. Service upon entity
without juridical personality.
When persons associated
in an entity without juridical
personality are sued under
the name by which they are
generally or commonly
known, service may be
effected upon all the
defendants by serving upon
any one of them, or upon the
person in charge of the office
or place of business
maintained in
such name. But such service
shall not bind individually any
person whose connection with
the entity has, upon due notice,
been severed before the action
was brought
Section 9. Service upon
prisoners. When the
defendant is a prisoner
confined in a jail or institution,
service shall be effected upon
him by the officer having the
management of such jail or
institution who is deemed
deputized as a special sheriff
for said purpose
Section 10. Service upon
minors and incompetents.
When the defendant is a
minor, insane or otherwise an
incompetent, service shall be
made upon him personally and
on his legal guardian if he has
one, or if none his guardian ad
litem whose appointment shall
be applied for by the plaintiff.
In the case of a minor, service
may also be made on his father
or mother
Section 11. Service upon
domestic private juridical
entity. When the defendant
is a corporation, partnership
or association organized under
the laws of the Philippines
with a juridical personality,
service may be made on
the president, managing
partner, general manager,
corporate secretary,
treasurer, or in-house counsel
Section 12. Service upon
foreign private juridical
entities. When the
defendant is a foreign private
juridical entity which has
transacted business in the
Philippines, service may be
made on its resident agent
designated in accordance with
law for that purpose, or, if
there be no such agent, on the
government official
designated by law to that
effect, or on any of its officers
or agents within the
Philippines
Section 13. Service upon
public corporations. When
the defendant is the Republic
of the Philippines, service may
be effected on the Solicitor
General; in case of a province,
city or municipality, or like
public corporations, service
may be effected on its
executive head, or on such
other officer or officers as the
law or the court may direct
Section 14. Service upon
defendant whose identity or
whereabouts are unknown.
In any action where the
defendant is designated as an
unknown owner, or the like, or
whenever his whereabouts
are unknown and cannot be
ascertained by diligent
inquiry, service may, by leave
of court, be effected upon him
by publication in a
newspaper of general
circulation and in such places
and for such time as the court
may order
Section 15. Extraterritorial
service. When the
defendant does not reside
and is not found in the
Philippines, and the action
affects the personal status of
the plaintiff or relates to, or
the subject of which is,
property within the
Philippines, in which the
defendant has or claims a lien
or interest, actual or
contingent, or in which the
relief demanded consists,
wholly or in part, in excluding
the defendant from any
interest therein, or the
property of the defendant has
been attached within the
Philippines, service may, by
leave of court, be effected out
of the Philippines by personal
service as under section 6; or
by publication in a
newspaper of general
circulation in such places and
for such time as the court
may order, in which case a
copy of the summons and
order of the court shall be
sent by
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 9
registered mail to the last
known address of the
defendant, or in any other
manner the court may deem
sufficient. Any order granting
such leave shall specify a
reasonable time, which shall
not be less than sixty (60) days
after notice, within which the
defendant must answer
Section 16. Residents
temporarily out of the
Philippines. When any
action is commenced
against a defendant who
ordinarily resides within
the Philippines, but who is
temporarily out of it,
service may, by leave of
court, be also effected out
of the Philippines, as under
the preceding section
Section 17. Leave of court.
Any application to the
court under this Rule for
leave to effect service in
any manner for which
leave of court is necessary
shall be made by motion in
writing, supported by
affidavit of the plaintiff or
some person on his behalf,
setting forth the grounds
for the application
Section 18. Proof of
service. The proof of
service of a summons shall
be made in writing by the
server and shall set forth
STATUTORY PROVISIONS CONTINUATION
the manner, place, and date of
service; shall specify any
papers which have been
served with the process and
the name of the person who
received the same; and shall
be sworn to when made by a
person other than a sheriff or
his deputy
Section 19. Proof of service by
publication. If the service
has been made by publication,
service may be proved by the
affidavit of the printer, his
foreman or principal clerk, or
of the editor, business or
advertising manager, to which
affidavit a copy of the
publication shall be attached
and by an affidavit showing
the deposit of a copy of the
summons and order for
publication in the post office,
postage prepaid, directed to
the defendant by registered
mail to his last known address
Section 20. Voluntary
appearance. The
defendant's voluntary
appearance in the action shall
be equivalent to service of
summons. The inclusion in a
motion to dismiss of other
grounds aside from lack of
jurisdiction over the person of
the defendant shall not be
deemed a voluntary
appearance
Rule 39
Section 48. Effect of
foreign judgments or final
orders. 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 131
Section 3. Disputable
presumptions. The
following presumptions
are satisfactory if
uncontradicted, but may be
contradicted and overcome
by other evidence:
(n) That a court, or judge
acting as such, whether in
the Philippines or
elsewhere, was acting in
the lawful exercise of
jurisdiction;
Rule 132
Section 25. What
attestation of copy must
state. Whenever a copy
of a document or record is
attested for the purpose of
evidence, the attestation
must state, in substance,
that the copy is a correct
copy of the original, or a
specific part thereof, as the
case may be. The
attestation must be under
the official seal of the
attesting officer, if there be
any, or if he be the clerk of
a court having a seal, under
the seal of such court.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 10
RULES ON VENUE
A. DISTINCTION BETWEEN
JURISDICTION AND VENUE
B. RULES ON VENUE
1. STIPULATION AS TO
VENUE
RULE 4
Venue of Actions
Section 1. Venue of real
actions. Actions affecting
title to or possession of real
property, or interest therein,
shall be commenced and tried
in the proper court which has
jurisdiction over the area
wherein the real property
involved, or a portion thereof,
is situated.
Forcible entry and detainer
actions shall be commenced
and tried in the municipal trial
court of the municipality or
city wherein the real property
involved, or a portion thereof,
is situated
Section 2. Venue of personal
actions. All other actions
may be commenced and tried
where the plaintiff or any of
the principal plaintiffs
resides, or where the
defendant or any of the
principal defendants resides,
or in the case of a non-
resident defendant where he
may be found, at the election
of the plaintiff
Section 3. Venue of actions
against nonresidents. If any
of the defendants does not
reside and is not found in the
Philippines, and the action
affects the personal status of
the plaintiff, or any property
of said defendant located in
the Philippines, the action
may be commenced and tried
in the court of the place
where the plaintiff resides, or
where the property or any
portion thereof is situated or
found
Section 4. When Rule not
applicable. This Rule shall
not apply.
(a) In those cases where a
specific rule or law provides
otherwise; or
(b) Where the parties have
validly agreed in writing
before the filing of the action
on the exclusive venue
thereof.
-Written stipulations as to PUBLIC POLICY
venue may be restrictive in the CONSIDERATIONS (Sweet
sense that the suit may be filed Lines):
only in the place agreed upon, Condition No. 14 is subversive
or merely permissive in that of public policy on transfers of
the parties may file their suit venue of actions. For, although
not only in the place agreed venue may be changed or
upon but also in the places transferred from one province
fixed by law. As in any other to another by agreement of the
agreement, what is essential is parties in writing pursuant to
the ascertainment of the Rule 4, Section 3, of the Rules of
intention of the parties Court, such an agreement will
respecting the matter not be held valid where it
practically negates the action of
-Unless the parties make very the claimants, such as the
clear, by employing categorical private respondents herein.
and suitably limiting language, The philosophy underlying the
that they wish the venue of provisions on transfer of venue
actions between them to be of actions is the convenience of
laid only and exclusively at a the plaintiffs as well as his
definite place, and to disregard witnesses and to promote the
the prescriptions of Rule 4, ends of justice.
agreements on venue are not to
be regarded as mandatory or
restrictive, but merely
permissive, or complementary
of said rule. The fact that in
their agreement the parties
specify only one of the venues
mentioned in Rule 4, or fix a
place for their actions different
from those specified by said
rule, does not, without more,
suffice to characterize the
agreement as a restrictive one.
There must, to repeat, be
accompanying language clearly
and categorically expressing
their purpose and design that
actions between them be
litigated only at the place
named by them.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 11
LIBEL SUITS
R.A. 4393
Section 1. Article three
hundred sixty of the Revised
Penal Code, as amended by
Republic Act Numbered
Twelve hundred and eighty-
nine, is further amended to
read as follows:
"Art. 360. Persons
responsible. Any person who
shall publish, exhibit, or
cause the publication or
exhibition of any defamation
in writing or by similar
means, shall be responsible
for the same.
"The author or editor of a
book or pamphlet, or the
editor or business manager
of a daily newspaper,
magazine or serial
publication, shall be
responsible for the
defamations contained
therein to the same extent as
if he were the author thereof.
"The criminal and civil action
for damages in cases of
written defamations as
provided for in this chapter,
shall be filed simultaneously
or separately with the court
of first instance of the
province or city where the
libelous article is printed and
first published or where any
of the offended
parties actually resides at the
time of the commission of the
offense: Provided, however,
That where one of the offended
parties is a public officer whose
office is in the City of Manila at
the time of the commission of
the offense, the action shall be
filed in the Court of First
Instance of the City of Manila or
of the city or province where
the libelous article is printed
and first published, and in case
such public officer does not
hold office in the City of Manila,
the action shall be filed in the
Court of First Instance of the
province or city where he held
office at the time of the
commission of the offense or
where the libelous article is
printed and first published and
in case one of the offended
parties is a private individual,
the action shall be filed in the
Court of First Instance of the
province or city where he
actually resides at the time of
the commission of the offense
or where the libelous matter is
printed and first
published: Provided, further,
That the civil action shall be
filed in the same court where
the criminal action is filed and
vice versa: Provided,
furthermore, That the court
where the criminal action or
civil action for damages is first
filed, shall acquire jurisdiction
to the exclusion of other courts:
And provided, finally, That
this amendment shall not
apply to cases of written
defamations, the civil
and/or criminal actions to
which have been filed in
court at the time of the
effectivity of this law.
"Preliminary investigation
of criminal actions for
written defamations as
provided for in the chapter
shall be conducted by the
provincial or city fiscal of
the province of city, or by
the municipal court of the
city or capital of the
province where such
actions may be instituted
in accordance with the
provisions of this article.
"No criminal action for
defamation which consists
in the imputation of a
crime which cannot be
prosecuted de officio shall
be brought except at the
instance of and upon
complaint expressly filed
by the offended party."
Section 2. If any section or
sections of this Act shall be
declared unconstitutional
or invalid, it shall not
invalidate the other
sections hereof.
Section 3. This Act shall
take effect only if and
when, within thirty days
from its approval, the
newspapermen in the
Philippines shall organize,
and elect the members of, a
Philippine Press Council, a
private agency of the said
newspapermen, whose
function shall be to
promulgate a Code of
Ethics, for them and the
Philippine press,
investigate violations
thereof, and censure any
newspaperman or
newspaper guilty of any
violation of the said Code,
and the fact that such
Philippine Press Council
has been organized and its
members have been duly
elected in accordance
herewith shall be
ascertained and
proclaimed by the
President of the
Philippines.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 12
APPLICATION OF THE RULES
(Time Inc. v. Reyes):
Under the first proviso in
section 1, Rep. Act 4363, the
venue of a civil action for
damages in cases of written
defamations is localized upon
the basis of, first, whether the
offended party or plaintiff is a
public officer or a private
individual; and second, if he is a
public officer, whether his
office is in Manila or not in
Manila, at the time of the
commission of the offense. If
the offended party is a public
officer with office in the City of
Manila, the proviso limits him
to two (2) choices of venue,
namely, "in the Court of First
Instance of the City of Manila or
in the city or province where
the libelous article is printed
and first published.
-The venue provisions of
Republic Act No. 4363 should
be deemed mandatory for the
party bringing the action,
unless the question of venue
should be waived by the
defendant, which was not the
case here. Only thus can the
policy of the Act be upheld and
maintained. Nor is there any
reason why the inapplicability
of one alternative venue should
result in rendering the other
alternative also inapplicable
JURISDICTION
3. RULES ON JURISDICTION
A. JURISDICTION OVER THE
PERSON, OVER THE RES AND
OVER THE SUBJECT MATTER
JURISDICTION OVER THE
SUBJECT MATTER-conferred
by law and is defined as the
power to hear and determine
cases of the general class to
which the proceedings in
question belong
that
persons
interest
in
-since jurisdiction over the
subject is conferred by law, it
cannot be conferred by consent
of the parties or by their
voluntary submission
-In the Philippines, jurisdiction
over the subject-matter is found
in the Constitution and the
Judiciary Reorganization Act, as
amended
-Since jurisdiction over the
subject matter exists only in the
abstract, it must be invoked by
filing the proper complaint or
petition with the court. And it is
the allegations of the complaint
or petition read in the light of the
proper jurisdictional law, that
confer jurisdiction on the court.
If the allegations of the
complaint show prima facie a
lack of jurisdiction, the court
must dismiss the case outright.
No preliminary hearing on the
evidence is needed. If, on the
other hand, the complaint or
petition, on its face, shows the
presence of jurisdiction, trial
must be held. Should the
evidence show that the court
really has no jurisdiction, the
case must be dismissed.
-In the realm of Conflict of
Laws, however, there is
another element which the
court must consider in
determining the matter of
jurisdiction; i.e., the possible
enforceability of its decision in
foreign states. This is because
in Conflict of Laws, jurisdiction
is the power of the court of the
forum to render a decision that
will create legal rights and
interests which other states
will recognize and enforce
JURISDICTION OVER THE
PERSON-the competence or
power of the court to render a
judgment that will bind the
parties involved, the plaintiff or
petitioner, and the defendant
or respondent
-Jurisdiction over the plaintiff
is acquired the moment he
invokes the power of the court
by instituting the action by the
proper pleading. Jurisdiction
over the defendant is acquired
when he enters his appearance
or by the coercive power of
legal processes exerted by the
court over him
-Strict compliance with the
rules on personal and
substituted service is required
before the court can acquire
jurisdiction over the person of
the defendant. However,
question of erroneous service
of summons must be raised
before judgment is rendered,
or this would be a clear case of
waiver. Moreover, defective
service may be cured by actual
receipt of the summons by the
defendant, or if in any other
manner, knowledge of the
existence of the case should
come to his attention.
JURISDICTION OVER THE
RES-jurisdiction over the
particular subject matter in
controversy, regardless of the
persons who may be interested
therein. The basis of the
exercise of the jurisdiction is
the presence of the property
within the territorial
jurisdiction of the forum, even
though the court may not have
personal jurisdiction over the
affected persons whose
interests of all persons in a
thing. Examples are land
registration cases and
admiralty cases where the
purpose is for the judgment to
bind the whole world insofar as
the subject land or vessel is
concerned and not just the
interests of specific persons.
This kind of jurisdiction is
referred to as jurisdiction in
rem, as distinguished from
jurisdiction in personam which
binds only the parties and their
successors-in-interest
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 13
B. ACTIONS IN PERSONAM;
ACTIONS IN REM; ACTIONS
QUASI IN REM
1. An action in personam is
lodged against a person based
on personal liability;
2. an action in rem is directed
against the thing itself instead
of the person;
3. while an action quasi in rem
names a person as defendant,
but its object is to
subject
a property to a corresponding
lien or obligation.
ACTIONS QUASI-IN-REM-the
purpose is neither to impose a
personal liability in a thing, nor
to affect the interests of all
persons in a thin, but to affect
the interests of particular
persons in a thing. In such a
case, the court may render
valid judgment when it has
jurisdiction over the particular
persons whose interests are
interested. Examples are
foreclosure, partition, or action
to quiet title to property.
**In actions in rem, quasi-in-
rem, or those involving the
personal status of the plaintiff,
extraterritorial service of
summons by publication is
allowed.
APPLICATION OF RULES ON JURISDICTION
VILLAREAL V. COURT OF jurisdiction of the res is lost as The following instances have C. SERVICE OF SUMMONS AS It is evident that these
APPEALS by dissolution of the been considered voluntary REQUIREMENT OF operations establish sufficient
-It is true that where the attachment. If jurisdiction of submission to the jurisdiction PROCEDURAL DUE PROCESS contacts or ties with the state
defendant in an action in the defendant is acquired but of the court: of the forum to make it
personam is a non-resident, as jurisdiction of the res is lost, it (1) the filing by defendant of a reasonable and just According
in this case, and refuses to is then purely in per-sonam . . . . motion to admit answer; D. JURISDICTIONAL ISSUES to our traditional conception of
appear and submit to the a proceeding against property (2) the filing of a motion for UNDER CONFLICTS OF LAW fair play and substantial justice
jurisdiction of the court, the without jurisdiction of the reconsideration of the CASES AS A QUESTION OF to permit the state to enforce
jurisdiction of the latter is person of the defendant is in judgment by default; and DUE PROCESS the obligations which appellant
limited to the property within substance a proceeding in rem; (3) the filing of a petition to set has incurred there. Hence we
the country which the court and where there is jurisdiction aside the judgment of default cannot say that the
may have ordered attached. In of the defendant, but the INTERNATIONAL SHOE CO. V. maintenance of the present suit
such a case, the property itself proceeding against the WASHINGTON in the State of Washington
is
the
sole
thing
which
is
property continues, that ACTIONS IN REM VS. REAL involves an unreasonable or
impleaded and is the proceeding is nonetheless ACTIONS -due process requires only that undue procedure.
responsible object which is the necessarily in rem, although in in order to subject a defendant
subject
of
the
judicial
power.
form there is but a single -The difference between to a judgment in personam, if We are likewise unable to
Accordingly,
the
relief
must
be
proceeding. personal and real actions vis-a- he be not present within the conclude that the service of the
confined to the res, and the vis actions in personam and in territory of the forum, he have process within the state upon
court cannot lawfully render a -There can be no question rem is that the former certain minimum contacts with an agent whose activities
personal judgment against regarding
the
trial
courts
determines venue; the latter, it such that the maintenance of establish
appellant's
presence

him. acquisition of jurisdiction over the binding effect of a decision the suit does not offend there was not sufficient notice
the persons of respondents the court may render over the traditional
notions
of
fair
play
of the suit, or that the suit was
-if property is attached and when
the
latters
counsel
party, whether impleaded or and substantial
justice. so unrelated to those activities
later the defendant appears, entered her appearance on not. as to make the agent an
the
cause
becomes
mainly
a
their behalf on February 7, - the activities carried on in inappropriate vehicle for
suit in personam, with the 1990. Through counsel, private behalf of appellant in the State communicating the notice. It is
added incident that the respondents voluntarily of Washington were neither enough that appellant has
property attached remains appeared by filing a Notice of irregular nor casual. They were established such contacts with
liable, under the control of the Appearance without systematic and continuous the state that the particular
court, to answer to any demand qualification and a Motion to throughout the years in form of substituted service
which may be established Lift Order of Default with question. They resulted in a adopted there gives reasonable
against the defendant by the Motion for Reconsideration, in large volume of interstate assurance that the notice will
final
judgment
of
the
court.
which they prayed for business, in the course of which be actual. Nor can we say that
This rule was affirmed in affirmative reliefs, thus appellant received the benefits the mailing of the notice of suit
Mabanag v. Gallemore in which submitting to the jurisdiction of and protection of the laws of to appellant by registered mail
it was held: The main action in the court. the state, including the right to at its home office was not
an attachment or garnishment resort to the courts for the reason- ably calculated to
suit is in rem until jurisdiction enforcement of its rights. The apprise appellant of the suit.
of the defendant is secured. obligation which is here
Thereafter, it is in personam sued upon arose out of those
and also in rem, unless very activities.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 14
FOREIGN CORPORATIONS
CORPORATION CODE
Section 123. Definition and
rights of foreign
corporations.
For the purposes of this Code, a
foreign corporation is one
formed, organised or existing
under any laws other than
those of the Philippines and
whose laws allow Filipino
citizens and corporations to do
business in its own country or
state. It shall have the right to
transact business in the
Philippines after it shall have
obtained a license to transact
business in this country in
accordance with this Code and
a certificate of authority from
the appropriate government
agency.
A. DOING BUSINESS
CORPORATION CODE
Section 133. Doing business
without a license. 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 recognised
under Philippine laws.
JURISPRUDENCE ON TWO
TESTS OF DOING BUSINESS:
SUBSTANCE TEST- whether the
foreign corporation is
continuing the body of the
business or enterprise for
which it was organized or
whether it has substantially
retired from it and turned it
over to another.
CONTINUITY TEST- implies
continuity of commercial
dealings and arrangements,
and contemplates the
performance of acts or works
or the exercise of some of the
functions normally incident to,
and in the progressive
prosecution of, the purpose
and object of its organization.
FOREIGN INVESTMENT ACT
DOING BUSINESS:
1. soliciting orders, service
contracts, opening offices,
whether liaison offices
or branches;
2. appointing representatives
or distributors, operating
under full control of the
foreign corporation, domiciled
in the Philippines or who in
any calendar year stay in the
country for a period totaling
one hundred eighty [180] days
or more;
3. participating in the
management, supervision or
control of any domestic
business, firm, entity or
corporation in the Philippines;
and
4. any other act or acts that:
a) imply a continuity of
commercial dealings or
arrangements, and
b)contemplate to that extent:
i. the performance of acts or
works, or
ii. the exercise of some of
the functions normally
incident to and in
progressive prosecution of
commercial gain or of the
purpose and object of the
business organization.
NOT DOING BUSINESS:
1. Mere investment as a
Shareholder by a foreign entity in
domestic corporations duly
Registered to do business, and/or
the exercise of rights as
such investor;
2. Having a nominee director or
officer to represent its interest in
such corporation;
3. Appointing a representative or
distributor domiciled in the
Philippines which transacts
business in the representative's or
distributor's own name and
account;
4. The publication of a general
advertisement through any print
or broadcast media;
5. Maintaining a stock of goods in
the Philippines solely for the
purpose of having the same
processed by another entity in the
Philippines;
6. Consignment by a foreign entity
of equipment with a local company
to be used in the processing of
products for export;
7. Collecting information in the
Philippines; and
8. Performing services auxiliary to
an existing isolated contract of sale
which are not on a continuing
basis, such as installing in the
Philippines machinery it has
manufactured or exported to the
Philippines, servicing the same,
training domestic workers to
operate it, and similar incidental
services.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 15
Principles regarding the
right of a foreign corporation
to bring suit in Philippine
courts:
(1) if a foreign corporation
does business in the
Philippines without a license,
it cannot sue before the
Philippine courts;
(2) if a foreign corporation is
not doing business in the
Philippines, it needs no
license to sue before Philippine
courts on an isolated
transaction or on a cause
of action entirely independent
of any business transaction;
(3) if a foreign corporation
does business in the
Philippines without a license,
a Philippine citizen or entity
which has contracted with said
corporation may be estopped
from challenging the foreign
corporation's corporate
personality in a suit brought
before Philippine courts; and
(4) if a foreign corporation
does business in the
Philippines with the required
license, it can sue before
Philippine courts on any
transaction.
RULES ON SERVICE OF SUMMONS ON FOREIGN CORPORATIONS
CORPORATION CODE
Sec. 127. Who may be a
resident agent. - A resident
agent may be either an
individual residing in the
Philippines or a domestic
corporation lawfully
transacting business in the
Philippines: Provided, That in
the case of an individual, he
(name
of
foreign
at its home or principal office.
must be of good moral
character and of sound
financial standing.
Sec. 128. Resident agent;
service of process. - The
Securities and Exchange
Commission shall require as a
condition precedent to the
issuance of the license to
transact business in the
Philippines by any foreign
corporation that such
corporation file with the
Securities and Exchange
Commission a written power of
attorney designating some
person who must be a resident
of the Philippines, on whom
any summons and other legal
processes may be served
in all actions or other legal
proceedings against such
corporation, and consenting
that service upon such resident
agent shall be admitted and
held as valid as if served upon
the duly authorized officers of
the foreign corporation
at its home office.
Any such foreign corporation
shall likewise execute and file
with the Securities and
Exchange Commission an
agreement or stipulation,
executed by the proper
authorities of said corporation,
in form and substance as
follows:
The
designated in
corporation) does hereby
stipulate and agree, in
consideration of its being
granted by the Securities and
Exchange Commission a license
to transact business in the
Philippines, that if at any time
said corporation shall cease to
transact business in the
Philippines, or shall be
without any resident agent in
the Philippines on whom any
summons or other legal
processes may be served, then
in any action or proceeding
arising out of any business or
transaction which occurred in
the Philippines, service of any
summons or other legal
process may be made upon the
Securities and Exchange
Commission and that such
service shall have the same
force and effect as if made upon
the duly-authorized officers of
the corporation at its
home office."
Whenever such service of
summons or other process
shall be made upon the
Securities and Exchange
Commission, the Commission
shall, within ten (10) days
thereafter, transmit by mail a
copy of such summons or other
legal process to the corporation
through the appropriate court
The sending of such copy by
the Commission shall be
necessary part of and shall
complete such service. All
expenses incurred by the
Commission for such service
shall be paid in advance by the
party at whose instance the
service is made.
In case of a change of address
of the resident agent, it shall be
his or its duty to immediately
notify in writing the Securities
and Exchange Commission of
the new address.
RULES OF COURT
Section 12. Service upon
foreign private juridical
entities. When the
defendant is a foreign private
juridical entity which has
transacted business in
the Philippines, service may be
made on its resident agent
accordance with law for that
purpose, or, if there be no such
agent, on the
government official designated
by law to that effect, or on any
of its officers or
agents within the Philippines.
A.M. 11-3-6
SEC. 12. Service upon foreign
private juridical entity.
When the defendant is a
foreign private juridical entity
which has transacted business
in the Philippines, service may
be made on its resident agent
designated in accordance with
law for that purpose, or, if
there be no such agent, on the
government official designated
by law to that effect, or on any
of its officers or agents within
the Philippines.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 16
If the foreign private juridical
entity is not registered in the
Philippines or has no resident
agent, service may, with leave
of court, be effected out of the
Philippines through any of the
following means:
a) B y personal service coursed
in the foreign country with the
assistance of the Department of
Foreign Affairs;
b) By publication once in a
newspaper of general
circulation in the country
where the defendant may be
found and by serving a copy of
the summons and the court
order by-registered mail at the
last known address of the
defendant;
c) By facsimile or any
recognized electronic means
that could generate proof of
service; or
d) By such other means as the
court may in its discretion
direct."
This rule shall take effect
fifteen (15) days after
publication in a newspaper of
general circulation in the
Philippines.
FORUM NON-CONVENIENS
A. DEFINITION, ORIGIN AND
BASIS
B. PURPOSE
-Forum-shopping originated as
defendant,
the
plaintiffs
a concept in private
international law, where non-
resident litigants are given the
option to choose the forum or
place wherein to bring their
suit for various reasons or
excuses, including to secure
procedural advantages, to
annoy and harass the
defendant, to avoid
overcrowded dockets, or to
select a more friendly venue.
To combat these less than
honorable excuses, the
principle of forum non
conveniens was developed
whereby a court, in conflicts of
law cases, may refuse
impositions on its jurisdiction
where it is not the most
"convenient" or available
forum and the parties are not
precluded from seeking
remedies elsewhere.
Where the Court held that
the local judicial machinery
was adequate to resolve
controversies with a foreign
element, the following
requisites had to be proved:
(1) that the Philippine Court is
one to which the parties may
conveniently resort;
(2) that the Philippine Court is
in a position to make an
intelligent decision as to the
law and the facts; and
(3) that the Philippine Court
has or is likely to have the
power to enforce its decision.
IMPORTANT:
**the propriety of dismissing a
case based on the principle of
forum non conveniens requires
a factual determination; hence,
it is more properly considered
as a matter of defense. While it
is within the discretion of the
trial court to abstain from
assuming jurisdiction on this
ground, it should do so only
after vital facts are established,
to determine whether special
circumstances require the
court's desistance
PRIVATE INTEREST FACTORS
IN APPLYING FORUM NON
CONVENIENS:
(a) the relative ease of access to
sources of proof;
(b) the availability of
compulsory process for the
attendance of unwilling
witnesses;
(c) the cost of obtaining
attendance of willing
witnesses; or
(d) all other practical problems
that make trial of a case easy,
expeditious and inexpensive.
PUBLIC INTEREST FACTORS
IN APPLYING FORUM NON
CONVENIENS:
(a) the administrative
difficulties flowing from court
congestion;
(b) the local interest in having
localized controversies decided
at home;
(c) the avoidance of
unnecessary problems in
conflict of laws or in the
application of foreign law; or
(d) the unfairness of burdening
citizens in an unrelated forum
with jury duty.
PRACTICAL REASONS
(PUYAT V. ZABARTE):
1. The belief that the matter
can be better tried and decided
elsewhere, either because the
main aspects of the case
transpired in a foreign
jurisdiction or the material
witnesses have their residence
there;
2. The belief that the non-
resident plaintiff sought the
forum[,] a practice known as
forum shopping[,] merely to
secure procedural advantages
or to convey or harass the
defendant;
3. The unwillingness to extend
local judicial facilities to non-
residents or aliens when the
docket may already be
overcrowded;
4. The inadequacy of the local
judicial machinery for
effectuating the right
sought to be maintained: and
5. The difficulty of ascertaining
foreign law
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 17
**It is well-established practice
in the application of the
principle of Forum Non
Conveniens that unless the
balance is strongly in favor of
the
choice of forum should rarely
be disturbed, and that,
furthermore, the consideration
of inadequacy to enforce the
judgment, which is one of the
important factors to be
considered in the application of
said principle, would precisely
constitute a problem to the
plaintiff if the local courts
decline to assume jurisdiction
on the basis of said principle,
considering that the defendant
is a resident of the Philippines.
CHOICE OF LAW - PERSONAL STATUS, LEGAL PERSONALITY AND CAPACITY
A. Personal Status, Legal Personality
and Capacity
1. Relevant Legal Provisions
Article 15. Laws relating to family
rights and duties, or to the status,
condition and legal capacity of persons
are binding upon citizens of the
Philippines, even though living abroad.
Article 37. Juridical capacity, which is
the fitness to be the subject of legal
relations, is inherent in every natural
person and is lost only through death.
Capacity to act, which is the power to do
acts with legal effect, is acquired and
may be lost.
Article 38. Minority, insanity or
imbecility, the state of being a deaf-
mute, prodigality and civil interdiction
are mere restrictions on capacity to act,
and do not exempt the incapacitated
person from certain obligations, as
when the latter arise from his acts or
from property relations, such as
easements.
Article 39. The following
circumstances, among others, modify or
limit capacity to act: age, insanity,
imbecility, the state of being a deaf-
mute, penalty, prodigality, family
relations, alienage, absence, insolvency
and trusteeship. The consequences of
these circumstances are governed in
this Code, other codes, the Rules of
Court, and in special laws. Capacity to
act is not limited on account of religious
belief or political opinion.
A married woman, twenty-one years of
age or over, is qualified for all acts of
civil life, except in cases specified by
law.
Article 40. Birth determines
personality; but the conceived child
shall be considered born for all
purposes that are favorable to it,
provided it be born later with the
conditions specified in the following
article.
Article 41. For civil purposes, the
foetus is considered born if it is alive at
the time it is completely delivered from
the mother's womb. However, if the
foetus had an intra-uterine life of less
than seven months, it is not deemed
born if it dies within twenty four hours
after its complete delivery from the
maternal womb.
Article 42. Civil personality is
extinguished by death. The effect of
death upon the rights and obligations of
the deceased is determined by law, by
contract and by will.
**In Conflict of Laws, the party's personal
law determines the beginning of his
personality. This varies depending on
whether he is a citizen of a country which
follows the nationality theory or the
domiciliary theory.
DEFINITIONS/CONCEPTS:
PERSONAL LAW- law which attaches to
him wherever he may go; the law that
generally governs his status, capacity,
condition, family relations and
obligations, and the consequences of his
actions
CONTROLLING LAW IS DETERMINED
BY THE FF. THEORIES:
NATIONALITY THEORY -determined
by the law of his nationality or his
national law
DOMICILIARY THEORY-determined by
the law of his domicile (also called the
territorial theory)
SITUS OR ECLECTIC THEORY -views
the law of the particular place or situs of
an event or transaction as generally the
controlling law
STATUS- the place of an individual in
society and consists of personal
qualities and relationships, more or less
permanent, with which the state and
the community are concerned
CAPACITY- is only part of one's status,
and may be defined as the sum total of
his rights and obligations
JURIDICAL CAPACITY- the fitness to be
the subject of legal relations (passive)
CAPACITY TO ACT- the power to do
acts with legal effects (active)
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 18
RECTO V. HARDEN:
The third objection of Recto (that the
contract of services has for its purpose
to secure a decree of divorce, which is
allegedly in violation of the Civil Code)
is not borne out, either by the language
of the contract between them, or by the
intent of the parties thereto. Its purpose
was not to secure a divorce, or to
facilitate or promote the procurement
of a divorce.
It merely sought to protect the interest
of Mrs. Harden in the conjugal
partnership, during the pendency of a
divorce suit she intended to file in the
United States.
What is more, inasmuch as Mr. and Mrs.
Harden are admittedly citizens of the
United States, their status and the
dissolution thereof are governed
pursuant to Article 9 of the Civil Code of
Spain (which was in force in the
Philippines at the time of the execution
of the contract in question) and Article
15 of the Civil Code of the Philippines
by the laws of the United States, which
sanction divorce. In short, the contract
of services, between Mrs. Harden and
herein appellee, is not contrary to law,
morals, good customs, public order or
public policy.
CHOICE OF LAW - PERSONAL STATUS, LEGAL PERSONALITY AND CAPACITY
BARNUEVO V. FUSTER: (Confusing
case because it talks about Philippine
courts having jurisdiction to decree a
divorce. But that was not the main
doctrine here)
One of the main contentions of the
husband was that the jurisdiction in
actions for divorce and nullification of
canonical marriages lies with
ecclesiastical courts, according to
Spanish Law. That this being so, the
action for divorce brought by the
plaintiff does not fall within the
jurisdiction of the civil courts according
to his own law of persons, because
these courts ought to apply the Spanish
law, and the said law grants the
jurisdiction over the present cause to
the ecclesiastical courts, in the place of
which no tribunal of these Islands can
subrogate itself.
SC: The authority of jurisdictional
power of courts to decree a divorce is
not comprised within the personal
status of the husband and wife, simply
because the whole theory of the statutes
and of the rights which belong to
everyone does not go beyond the
sphere of private law, and the authority
and jurisdiction of the courts are not a
matter of the private law of persons, but
of the public or political law of the
nation. "The jurisdiction of courts and
other questions relating to procedure
are considered to be of a public nature
and consequently are generally
submitted to the territorial principle.
INSULAR GOVERNMENT V. FRANK:
It is not disputed upon the contrary
the fact is admitted that at the time
and place of the making of the contract
in question the defendant had full
capacity to make the same. No rule is
better settled in law than that matters
bearing upon the execution,
interpretation and validity of a contract
are determined by the law of the place
where the contract is made. Matters
connected with its performance are
regulated by the law prevailing at the
place of performance. Matters
respecting a remedy, such as the
bringing of suit, admissibility of
evidence, and statutes of limitations,
depend upon the law of the place where
the suit is brought.
The defendant being fully qualified to
enter into the contract at the place and
time the contract was made, he can not
plead infancy as a defense at the place
where the contract is being enforced.
(Note: In the Philippines, we follow the
nationality theory. In such theory,
capacity to enter into contracts is
determined by the national law of the
party. See portion on Contracts)
B. NATIONALITY, RESIDENCE AND
DOMICILE
1. DEFINITIONS
NATIONALITY -refers to membership
in a political community, one that is
personal and more or less permanent,
not temporary.
CITIZEN -one who owes allegiance to,
and is entitled to the protection of the
State.
**In the field of Conflict of Laws,
nationality and citizenship are the same.
Thus, the national law of a Filipino is
Philippine Law, while the national law of
an alien is the law of his citizenship
**Each state has the prerogative and
authority to determine by its own
municipal law who are its nationals or
citizens (Hague Convention)
RESIDENCE -used to indicate a place of
abode, whether permanent or
temporary
DOMICILE -denotes a fixed, permanent
residence to which, when absent, one
has the intention of returning.
**Residence is not domicile, but domicile
is residence coupled with intention to
remain for an unlimited time. A man can
have one domicile for one and the same
purpose at any time, but he may have
numerous places of residence
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 19
2. RELEVANT LEGAL PROVISIONS
CONSTITUTION
Art. IV, Section 1:
The following are citizens of the
Philippines:
[1] Those who are citizens of the
Philippines at the time of the adoption
of this Constitution;
[2] Those whose fathers or mothers are
citizens of the Philippines;
[3] Those born before January 17, 1973,
of Filipino mothers, who elect
Philippine citizenship upon reaching
the age of majority; and
[4] Those who are naturalized in
accordance with law.
Section 2. Natural-born citizens are
those who are citizens of the
Philippines from birth without having
to perform any act to acquire or perfect
their Philippine citizenship. Those who
elect Philippine citizenship in
accordance with paragraph (3), Section
1 hereof shall be deemed natural-born
citizens.
Section 3. Philippine citizenship may be
lost or reacquired in the manner
provided by law.
Section 4. Citizens of the Philippines
who marry aliens shall retain their
citizenship, unless by their act or
omission, they are deemed, under the
law, to have renounced it.
Section 5. Dual allegiance of citizens is
inimical to the national interest and
shall be dealt with by law.
CHOICE OF LAW - PERSONAL STATUS, LEGAL PERSONALITY AND CAPACITY -- CONT.
Art. V
Section 1. Suffrage may be exercised by
all citizens of the Philippines not
otherwise disqualified by law, who are
at least eighteen years of age, and who
shall have resided in the Philippines for
at least one year, and resided in the
place wherein they propose to vote, for
at least six months immediately
preceding the election. No literacy,
property, or other substantive
requirement shall be imposed on the
exercise of suffrage.
RA 9225:
Natural born citizens of the Philippines
who, after the effectivity of this Act,
become citizens of a foreign country
shall retain their Philippine citizenship
upon taking the aforesaid oath
TALAROC V. UY:
The Roa decision, promulgated on
October 30, 1912, set a precedent that
was uniformly followed in numerous
cases. This long line of decisions applied
the principle of jus soli up to September
fathers
death.
According to light of the foregoing, and preceding
18, 1947, when that principle was
renounced in the cases of Tan Chong vs.
Secretary of Labor and Swee Sang vs.
The Commonwealth of the Philippines.
husbands
demise
and
that
retroactive operation.
Article IV, entitled "Citizenship of the
Constitution provides:
Section 1. The following are citizens of
the
Philippines:
1)
Those
who
are
passed Ursula Diabo had been a widow
citizens of the Philippine Islands at the
time of the adoption of this
Constitution."
On the strength of the Roa doctrine,
Alejandro D. Uy undoubtedly was
considered a full-pledged Philippine
citizen on the date of the adoption of
the Constitution, when jus soli had been
the prevailing doctrine.
In abrogating the doctrine laid down in
the Roa case and making jus sanguinis
the predominating principle in the
determination of Philippine citizenship,
the Constitution did not intend to
exclude those who were citizens of the
Philippines by judicial declaration at the
time of its adoption. If on the strength of
the Roa decision a person was
considered a full-pledged Philippine
citizen (Art. IV, sec. 1 No. 1) on the date
of the adoption of the Constitution
when jus soli had been the prevailing
doctrine, he cannot be divested of his
Filipino citizenship.
Cut out of the same pattern and
deserving of the same consideration is
the proposition that Alejandro D. Uy
became a Philippine citizen at least
upon his
would be technically fastidious to
the rule of the Roa case, a Filipino
woman married to Chinese ipso facto
reacquired her Filipino citizenship upon
her
govt.
thereafter her minor children's
nationality automatically followed that
of the mother's. It is to be noted that
when Commonwealth Act No. 63 was
for 19 years and Alejandro D. Uy had
been of age three years, and that the
new law carries no provision giving it
retroactive effect.
FRIVALDO V. COMELEC:
The repatriation of Frivaldo
RETROACTED to the date of the filing of
his application on August 17,1994. A
reading of P.D. 725 immediately shows
that it creates a new right, and also
provides for a new remedy, thereby
filling certain voids in our laws. That is,
P.D. 725 granted a new right to women
who were married to an alienthe
right to re-acquire their Filipino
citizenship even during their marital
coverture, which right did not exist
prior to P.D. 725. On the other hand,
said statute also provided a new
remedy and a new right in favor of
other "natural born Filipinos who (had)
lost their Philippine citizenship but now
desire to re-acquire Philippine
citizenship," because prior to the
promulgation of P.D. 725 such former
Filipinos would have had to undergo the
tedious and cumbersome process of
naturalization, but with the advent of
P.D. 725 they could now re-acquire
their Philippine citizenship under the
simplified procedure of repatriation. In
from the wording of the preamble, it is
unarguable that the legislative intent
was precisely to give the statute
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 20
KOOKOORITCHIN V. SOLICITOR
GENERAL:
Kookooritchkin testified categorically
that he is not a Russian citizen and that
he has no citizenship. His testimony
supports the lower court's
pronouncement that he is a stateless
refugee in this country. The Solicitor
General points out that Kookooritchkin
stated in his petition for naturalization
that he is citizen or subject of the
Empire of Russia, but the Empire of
Russia has ceased to exist since the
Czars were overthrown in 1917 by the
Bolshevists, and he disclaims allegiance
or connection with the Soviet
Government established after the
overthrow of the Czarist Government.
His testimony, besides being
uncontradicted, is supported by the
well-known fact that the ruthlessness of
modern dictatorship has scattered
throughout the world a large number of
stateless refugees or displaced persons,
without country and without flag.
Knowing the history, nature and
character of the Soviet Government, it
require further evidence of his claim
that he is stateless than his testimony
that he owes no allegiance to the Soviet
CHOICE OF LAW - PERSONAL STATUS, LEGAL PERSONALITY AND CAPACITY -- CONT.
NOTTEBOHN CASE:
Each state has the right to decide who
are its nationals using either the
principle of jus sanguinis or jus soli or
naturalisation laws. However, for a state
to claim a person as a national, the state
must have reasonable connection or an
effective
link
with that person. The relationship of an individual to a certain
consent of the individual alone is not
enough for him to be recognised by
other states as a national of the state to
which he claims to belong.
In order to be capable of being invoked
against another State, nationality must
correspond with the factual situation.
Preference is always given to the real
and effective nationality. There must be
factual ties between the person and the
state and this may be established by
several factors such as residence, family
ties, the center of his interest, etc. He
did not even change his permanent
residence. Guatemala, from the
beginning, clearly repudiated the
acquisition by Nottebohm of the
nationality of Liechtenstein. True that in
International Law, each state may lay
down rules in conferring its citizenship;
but in order to be invoked against
another state, nationality must
correspond to the factual situation
such as the social fact of attachment, or
a genuine connection of existence,
sentiments, and interests. These facts
are completely missing.
MARCOS V. COMELEC:
Domicile includes the twin elements of
the fact of residing or physical presence
in a fixed place and animus manendi, or
the intention of returning there
permanently. Residence, in its ordinary
conception, implies the factual
individual does not lose his domicile
place. It is the physical presence of a
person in a given area, community or
country.
The essential distinction between
residence and domicile in law is that
residence involves the intent to leave
when the purpose for which the
resident has taken up his abode ends.
One may seek a place for purposes such
as pleasure, business, or health. If a
person's intent be to remain, it becomes
his domicile; if his intent is to leave as
soon as his purpose is established it is
residence. It is thus, quite perfectly
normal for an individual to have
different residences in various places.
However, a person can only have a
single domicile, unless, for various
reasons, he successfully abandons his
domicile in favor of another domicile of
choice. Residence is used to indicate a
place of abode, whether permanent or
temporary; domicile denotes a fixed
permanent residence to which, when
absent, one has the intention of
returning.
A man may have a residence in one
place and a domicile in another.
Residence is not domicile, but domicile
is residence coupled with the intention
to remain for an unlimited time. A man
can have but one domicile for the same
purpose at any time, but he may have
numerous places of residence. His place
of residence is generally his place of
domicile, but it is not by any means
necessarily so since no length of
residence without intention of
remaining will constitute domicile. An
even if he has lived and maintained
residences in different places.
For political purposes the concepts of
residence and domicile are dictated by
the peculiar criteria of political laws. As
these concepts have evolved in our
election law, what has clearly and
unequivocally emerged is the fact that
residence for election purposes is used
synonymously with domicile.
Domicile of origin is not easily lost. To
successfully effect a change of domicile,
one must demonstrate:
1. An actual removal or an actual change
of domicile;
2. A bona fide intention of abandoning
the former place of residence and
establishing a new one; and
3. Acts which correspond with the
purpose.
In the absence of clear and positive
proof based on these criteria, the
residence of origin should be deemed to
continue. Only with evidence showing
concurrence of all three requirements
can the presumption of continuity or
residence be rebutted, for a change of
residence requires an actual and
deliberate abandonment, and one
cannot have two legal residences at the
same time.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 21
CHOICE OF LAW - PERSONAL STATUS, LEGAL PERSONALITY AND CAPACITY -- CONT.
RULES ON ABSENCE:
ABSENCE-special legal status
pertaining to a person who has
disappeared from his domicile, his
whereabouts being unknown, without
leaving an agent to administer his
property, or even if he had left an agent,
the power conferred has expired
ABSENCE UNDER PHILIPPINE LAW:
1. Within 2 years after a person's
disappearance without leaving an agent
to administer his property, or having
left an agent, the power of the latter had
expired, any interested person, relative,
or friend may ask the competent court
to appoint a person to represent the
absentee in all that may be necessary.
The present spouse if preferred in the
appointment when there is no legal
separation.
2. After the lapse of 2 years without any
news about the absentee or since the
receipt of the law news, and 5 years if
the absentee has left an administrator
of his property, his absence may be
declared
THE FF. MAY ASK FOR THE
DECLARATION OF ABSENCE:
1. the present spouse
2. the heirs instituted in the will of the
absentee
3. the intestate heirs, if the absentee left
no will
4. those who may have over the
property of the absentee some right
subordinated to the condition of his
death
PRESUMPTION OF DEATH:
A. FOR THE PURPOSE OF
REMARRIAGE:
The absentee may be presumed dead
after4 years of absence, the present
spouse having a well-founded belief
that the absentee is already dead
In case of disappearance where there is
danger of death, an absence of 2 years is
enough.
*In either case, a summary proceeding
for the declaration of presumptive
death is necessary
B. FOR ALL OTHER PURPOSES:
An absence of 7 years, it being unknown
w/n the absentee still lives, is necessary
C. FOR THE PURPOSE OF
SUCCESSION:
10 years, EXCEPT if the absentee
disappeared after the age of 75 years, in
which case an absence of 5 years s
enough to open his succession
EXTRAORDINARY ABSENCE /
DANGER OF DEATH SCENARIOS:
The ff. shall be presumed dead FOR ALL
PURPOSES including the division of the
estate among the heirs:
(1) A person on board a vessel lost
during a sea voyage, or an aeroplane
which is missing, who has not been
heard of for four years since the loss of
the vessel or aeroplane;
(2) A person in the armed forces who
has taken part in war, and has been
missing for four years;
(3) A person who has been in danger of
death under other circumstances and
his existence has not been known for
four years.
*Remember that for purposes of
remarriage, extraordinary absence of 2
years is enough
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 22
CHOICE OF LAW - ON NATIONALITY (NATIONALITY THEORY)
Jus Soli -A person is a citizen of the
country where he was born, or of the
country of his birth
Jus Sanguinis -Citizenship by blood
(We follow this in the Phiippines)
**Dual citizenship cannot be avoided due
to the diverse laws of the different
countries of the world as to who are their
citizens and who are not
Effective Nationality Theory -Within a
third state, a person having more than
one nationality shall be treated as if he
had only one. Without prejudice to the
application of its law in personal
matters and of any conventions in force,
a third state shall apply the nationalities
which any such person possesses,
recognize exclusively in its territory
either the nationality of the country in
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
mostly connected
Example: A is a citizen of the U.S. and of
the Philippines. His principal place of
abode or domicile is in the U.S. We refer
to U.S. Law because it is the nationality
which appears to be the most effective
connecting factor
Example: A is a Chinese national. He is
also a Japanese citizen. However, his
domicile is in Singapore. We should first
apply his two national laws and apply
them together insofar as they are
consistent with each other. If they are in
conflict, we then apply the law of
Singapore, which is his domicile.
**If a person is stateless, we cannot apply
the nationality theory since he has no
national law. We use the domiciliary
theory in this case, where we refer to the
law of his domicile or the law of the
country of his temporary domicile.
Natural-born citizens -citizens from
birth without having to perform any act
to acquire or perfect their Philippine
citizenship
Citizens by Naturalization -formerly
aliens but by judicial, legislative or
administrative process, have become
Filipino citizens
Naturalization -process of conferring
on an alien the citizenship of another
country, by any of the means provided
by law. It is considered not a matter of
right but one of privilege and may be
enjoyed only under the precise
conditions prescribed by law
Derivative Naturalization -Philippine
citizenship conferred on:
(1) the wife of a naturalized husband
(2) the minor children of a naturalized
father
(3) the alien wife of a natural-born or
naturalized citizen, in the latter case,
the marriage taken place after the
husband's naturalization
JUDICIAL NATURALIZATION (C.A. NO.
473 AS AMENDED):
QUALIFICATIONS:
(1) must not be less than 21 years of
age on the date of the hearing of the
petition
(2) he must have, as a rule, resided in
the Philippines for a continuous period
of not less than 10 years
(3) must be of good moral character,
and believe in the principles underlying
the Philippine Constitution, and must
have conducted himself in a proper and
irreproachable manner during the
entire period of his residence in the
Philippines in his relation with the
constituted government as well as his
community in which he is living
(4) he must own real estate in the
Philippines worth not less than five
thousand pesos, Philippine currency, or
must have some known lucrative trade,
profession, or lawful occupation;
(5) he must be able to speak and write
English or Spanish and any one of the
principal Philippine languages; and
(6) he must have enrolled his minor
children of school age, in any of the
public schools or private schools
recognized by the Office of Private
Education1 of the Philippines, where
the Philippine history, government and
civics are taught or prescribed as part of
the school curriculum, during the entire
period of the residence in the
Philippines required of him prior to the
hearing of his petition for naturalization
as Philippine citizen.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 23
DISQUALIFICATIONS:
(1) Persons opposed to organized
government or affiliated with any
association or group of persons who
uphold and teach doctrines opposing all
organized governments;
(2) Persons defending or teaching the
necessity or propriety of violence,
personal assault, or assassination for
the success and predominance of their
ideas;
(3) Polygamists or believers in the
practice of polygamy;
(4) Persons convicted of crimes
involving moral turpitude;
(5) Persons suffering from mental
alienation or incurable contagious
diseases;
(6) Persons who, during the period of
their residence in the Philippines, have
not mingled socially with the Filipinos,
or who have not evinced a sincere
desire to learn and embrace the
customs, traditions, and ideals of the
Filipinos;
(7) Citizens or subjects of nations with
whom the United States 2and the
Philippines are at war, during the
period of such war;
(8) Citizens or subjects of a foreign
country other than the United States
whose laws do not grant Filipinos the
right to become naturalized citizens or
subjects thereof.
CHOICE OF LAW - ON NATIONALITY (NATIONALITY THEORY)
ADMINISTRATIVE NATURALIZATION
(R.A. 9139):
QUALIFICATIONS:
(1) The applicant must be born in the
Philippines and residing therein since
birth;
(2) The applicant must not be less than
eighteen (18) years of age, at the time of
filing of his/her petition;
(3) The applicant must be of good moral
character and believes in the underlying
principles of the Constitution, and must
have conducted himself/herself in a
proper and irreproachable manner
during his/her entire period of
residence in the Philippines in his
relation with the duly constituted
government as well as with the
community in which he/she is living;
(4) The applicant must have received
his/her primary and secondary
education in any public school or
private educational institution dully
recognized by the Department of
Education, Culture and Sports, where
Philippine history, government and
civics are taught and prescribed as part
of the school curriculum and where
enrollment is not limited to any race or
nationality: Provided, That should
he/she have minor children of school
age, he/she must have enrolled them in
similar schools;
(5) The applicant must have a known
trade, business, profession or lawful
occupation, from which he/she derives
income sufficient for his/her support
and if he/she is married and/or has
dependents, also that of his/her family:
Provided, however, That this shall not
apply to applicants who are college
degree holders but are unable to
practice their profession because they
are disqualified to do so by reason of
their citizenship;
(6) The applicant must be able to read,
write and speak Filipino or any of the
dialects of the Philippines; and
(7) The applicant must have mingled
with the Filipinos and evinced a sincere
desire to learn and embrace the
customs, traditions and ideals of the
Filipino people.
DISQUALIFICATIONS:
(1) Those opposed to organized
government or affiliated with any
association of group of persons who
uphold and teach doctrines opposing all
organized governments;
(2) Those defending or teaching the
necessity of or propriety of violence,
personal assault or assassination for the
success or predominance of their ideas;
(3) Polygamists or believers in the
practice of polygamy;
(4) Those convicted of crimes involving
moral turpitude;
(5) Those suffering from mental
alienation or incurable contagious
diseases;
(6) Those who, during the period of
their residence in the Philippines, have
not mingled socially with Filipinos, or
who have not evinced a sincere desire
to learn and embrace the customs,
traditions and ideals of the Filipinos;
(7) Citizens or subjects with whom the
Philippines is at war, during the period
of such war; and
(8) Citizens or subjects of a foreign
country whose laws do not grant
Filipinos the right to be naturalized
citizens or subjects thereof.
HOW PHILIPPINE CITIZENSHIP IS
LOST:
(1) By naturalization in a foreign
country;
(2) By express renunciation of
citizenship;
(3) By subscribing to an oath of
allegiance to support the constitution or
laws of a foreign country upon attaining
twenty-one years of age or more:
Provided, however, That a Filipino may
not divest himself of Philippine
citizenship in any manner while the
Republic of the Philippines is at war
with any country;
(4) By rendering services to, or
accepting commission in, the armed
forces of a foreign country;
(5) By cancellation of the of the
certificates of naturalization;
(6) By having been declared by
competent authority, a deserter of the
Philippine armed forces in time of war,
unless subsequently, a plenary pardon
or amnesty has been granted; and
(7) In the case of a woman, upon her
marriage to a foreigner if, by virtue of
the laws in force in her husband's
country, she acquires his nationality.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 24
HOW CITIZENSHIP REACQUIRED:
(1) By naturalization: Provided, that the
applicant possess none of the
disqualification's prescribed in sec. 2 of
Act Number 2927
(2) By repatriation of deserters of the
Army, Navy or Air Corp: Provided, That
a woman who lost her citizenship by
reason of her marriage to an alien may
be repatriated in accordance with the
provisions of this Act after the
termination of the marital status; and
(3) By direct act of the National
Assembly.
PROCEDURE INCIDENT TO
REACQUISITON:
The procedure prescribed for
naturalization under Act Numbered
2927, as amended, shall apply to the
reacquisition of Philippine citizenship
by naturalization provided for in the
next preceding section: Provided, That
the qualifications and special
qualifications prescribed in section
three and four of said Act shall not be
required: And provided, further,
(1) That the applicant be at least
twenty-one years of age and shall have
resided in the Philippines at least six
months before he applies for
naturalization;
(2) That he shall have conducted
himself in a proper and irreproachable
manner during the entire period of his
residence in the Philippines, in his
relations with the constituted
government as well as with the
community in which he is living; and
CHOICE OF LAW - ON NATIONALITY (NATIONALITY THEORY)
(3) That he subscribes to an oath
declaring his intention to renounce
absolutely and perpetually all faith and
allegiance to the foreign authority, state
or sovereignty of which he was a citizen
or subject.
REPATRIATION (RA 8171):
Section 1. Filipino women who have lost
their Philippine citizenship by marriage
to aliens and natural-born Filipinos who
have lost their Philippine citizenship,
including their minor children, on
account of political or economic
necessity, may reacquire Philippine
citizenship through repatriation in the
manner provided in Section 4 of
Commonwealth Act No. 63, as amended:
Provided, That the applicant
is not a:
(1) Person opposed to organized
government or affiliated with any
association or group of persons who
uphold and teach doctrines opposing
organized government;
(2) Person defending or teaching the
necessity or propriety of violence,
personal assault, or association for the
predominance of their ideas;
(3) Person convicted of crimes
involving moral turpitude; or
(4) Person suffering from mental
alienation or incurable contagious
diseases.
Sec. 2. Repatriation shall be effected by
taking the necessary oath of allegiance
to the Republic of the Philippines and
registration in the proper civil registry
and in the Bureau or Immigration. The
Bureau of Immigration shall thereupon
cancel the pertinent alien certificate of
registration and issue the certificate of
identification as Filipino citizen to the
repatriated citizen.
R.A. No. 9225
Section 3. Retention of Philippine
Citizenship - Any provision of law to the
contrary notwithstanding, natural-born
citizenship by reason of their
naturalization as citizens of a foreign
country are hereby deemed to have re-
acquired Philippine citizenship upon
taking the following oath of allegiance
to the Republic:
xxx
Natural born citizens of the Philippines
who, after the effectivity of this Act,
become citizens of a foreign country
shall retain their Philippine citizenship
upon taking the aforesaid oath.
Section 4. Derivative Citizenship - The
unmarried child, whether legitimate,
illegitimate or adopted, below eighteen
(18) years of age, of those who re-
acquire Philippine citizenship
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 25
CHOICE OF LAW - ON DOMICILE (DOMICILIARY THEORY)
DIFFERENT KINDS OF DOMICILE:
DOMICILE OF ORIGIN -the domicile
assigned by law to a person at the
moment of his birth
CONSTRUCTIVE DOMICILE -domicile
assigned by law to a person after birth
on account of a legal disability, like
minority, insanity, imprisonment, etc.
DOMICILE OF CHOICE -domicile of a
person sui juris because he has his
home there and to which, whenever
absent, he intends to return
RULES ON DOMICILE OF ORIGIN:
(1) If the child is legitimate, his domicile
of origin is that of his parents at the
time of his birth; if the parents are
separated, the domicile of the custodial
parent
(2) If the child is illegitimate, his
domicile of origin is that of the mother
at the time of his birth
(3) If the child is legitimated, the
domicile of his father at the time of his
birth controls
(4) If the child is adopted, the domicile
of his real parents at the time of his
birth
(5) If the child is a foundling, the
country where he is found
RULES ON CONSTRUCTIVE DOMICILE:
(1) MINORS:
A. If legitimate, the domicile of both
parents. In case of disagreement, that of
the father, unless there is a judicial
order to the contrary
B. If illegitimate, the domicile of the
mother
C. In case of absence or death of either
parent, the domicile of the present
parent
D. If the child is adopted, the domicile of
choice of the adopter
(2) INSANES, IDIOTS, IMBECILES:
A. If they are below the age of majority,
the rules on minors apply to them
B. If they are of age and have guardians,
they follow the domicile of choice of
their guardians. If they have no
guardians, their constructive domicile is
their domicile of choice before they
became insane.
(3) MARRIED WOMEN:
A. If the marriage is valid:
(i) The domicile of both spouses, unless
the law allows the wife to have a
separate domicile, for valid and
compelling reasons
(ii) If there is legal separation between
the spouses, the wife can have her own
domicile of choice
(iii) If there is separation de facto, the
wife can also have a separate domicile
B. If the marriage is voidable, apply
same rules on valid marriage. After the
annulment, the wife can freely select
her own domicile of choice
C. If marriage is void, the wife can have
a domicile separate from the husband
(4) OTHER PERSONS:
A. Convict/Prisoner -one he had
possessed prior to incarceration
B. Soldiers -domicile before their
enlistment
C. Public officials/employees abroad
(diplomats) -one they had before they
were assigned elsewhere, unless they
voluntarily adopt their place of
employment as their permanent
residence
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 26
CHOICE OF LAW - FAMILY LAW
1. LEGAL PROVISIONS
CIVIL CODE:
Article 15. Laws relating to family
rights and duties, or to the status,
condition and legal capacity of persons
are binding upon citizens of the
Philippines, even though living abroad.
Article 16. Real property as well as
personal property is subject to the law
of the country where it is stipulated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount
of successional rights and to the
intrinsic validity of testamentary
provisions, shall be regulated by the
national law of the person whose
succession is under consideration,
whatever may be the nature of the
property and regardless of the country
wherein said property may be found.
FAMILY CODE:
Art. 10. Marriages between Filipino
citizens abroad may be solemnized by a
consul-general, consul or vice-consul of
the Republic of the Philippines. The
issuance of the marriage license and the
duties of the local civil registrar and of
the solemnizing officer with regard to
the celebration of marriage shall be
performed by said consular official.
Art. 21. When either or both of the
contracting parties are citizens of a
foreign country, it shall be necessary for
them before a marriage license can be
obtained, to submit a certificate of legal
capacity to contract marriage, issued by
their respective diplomatic or consular
officials.
Stateless persons or refugees from
other countries shall, in lieu of the
certificate of legal capacity herein
required, submit an affidavit stating the
circumstances showing such capacity to
contract marriage.
Art. 26. 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, except those prohibited under
Articles 35 (1),(4),(5) and (6), 36, 37
and 38.
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
Chapter 3. Void and Voidable
Marriages
Art. 35. The following marriages shall
be void from the beginning:
(1) Those contracted by any party
below eighteen years of age even with
the consent of parents or guardians;
(2) Those solemnized by any person not
legally authorized to perform marriages
unless such marriages were contracted
with either or both parties believing in
good faith that the solemnizing officer
had the legal authority to do so;
(3) Those solemnized without license,
except those covered the preceding
Chapter;
(4) Those bigamous or polygamous
marriages not failing under Article 41;
(5) Those contracted through mistake
of one contracting party as to the
identity of the other; and
(6) Those subsequent marriages that
are void under Article 53.
Art. 36. A marriage contracted by any
party who, at the time of the
celebration, was psychologically
incapacitated to comply with the
essential marital obligations of
marriage, shall likewise be void even if
such incapacity becomes manifest only
after its solemnization.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 27
Art. 37. Marriages between the
following are incestuous and void from
the beginning, whether relationship
between the parties be legitimate or
illegitimate:
(1) Between ascendants and
descendants of any degree; and
(2) Between brothers and sisters,
whether of the full or half blood.
Art. 38. The following marriages shall
be void from the beginning for reasons
of public policy:
(1) Between collateral blood relatives
whether legitimate or illegitimate, up to
the fourth civil degree;
(2) Between step-parents and step-
children;
(3) Between parents-in-law and
children-in-law;
(4) Between the adopting parent and
the adopted child;
(5) Between the surviving spouse of the
adopting parent and the adopted child;
(6) Between the surviving spouse of the
adopted child and the adopter;
(7) Between an adopted child and a
legitimate child of the adopter;
(8) Between adopted children of the
same adopter; and
(9) Between parties where one, with
the intention to marry the other, killed
that other person's spouse, or his or her
own spouse.
CHOICE OF LAW - FAMILY LAW
Art. 80. In the absence of a contrary
stipulation in a marriage settlement, 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 its
extrinsic validity.
Art. 96. The administration and
enjoyment of the community property
shall belong to both spouses jointly. In
case of disagreement, the husband's
decision shall prevail, subject to
recourse to the court by the wife for
proper remedy, which must be availed
of within five years from the date of the
contract implementing such decision.
In the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of the
common properties, the other spouse
may assume sole powers of
administration. These powers do not
include disposition or encumbrance
without authority of the court or the
written consent of the other spouse. In
the absence of such authority or
consent, the disposition or
encumbrance shall be void. However,
the transaction shall be construed as a
continuing offer on the part of the
consenting spouse and the third person,
and may be perfected as a binding
contract upon the acceptance by the
other spouse or authorization by the
court before the offer is withdrawn by
either or both offerors.
Art. 184. The following persons may
not adopt:
(1) The guardian with respect to the
ward prior to the approval of the final
accounts rendered upon the
termination of their guardianship
relation;
(2) Any person who has been convicted
of a crime involving moral turpitude;
(3) An alien, except:
(a) A former Filipino citizen who seeks
to adopt a relative by consanguinity;
(b) One who seeks to adopt the
legitimate child of his or her Filipino
spouse; or
(c) One who is married to a Filipino
citizen and seeks to adopt jointly with
his or her spouse a relative by
consanguinity of the latter.
Aliens not included in the foregoing
exceptions may adopt Filipino children
in accordance with the rules on inter-
country adoptions as may be provided
by law.
Art. 187. The following may not be
adopted:
(1) A person of legal age, unless he or
she is a child by nature of the adopter or
his or her spouse, or, prior to the
adoption, said person has been
consistently considered and treated by
the adopter as his or her own child
during minority.
(2) An alien with whose government
the Republic of the Philippines has no
diplomatic relations; and
(3) A person who has already been
adopted unless such adoption has been
previously revoked or rescinded.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 28
PILAPIL V. IBAY-SOMERA:
The crime of adultery, as well as four
other crimes against chastity, cannot be
prosecuted except upon a sworn
written complaint filed by the offended
spouse. It has long since been
established, with unwavering
consistency, that compliance with this
rule is a jurisdictional, and not merely a
formal, requirement. Corollary to such
exclusive grant of power to the offended
spouse to institute the action, it
necessarily follows that such initiator
must have the status, capacity or legal
representation to do so at the time of
the filing of the criminal action.
After a divorce has been decreed, the
innocent spouse no longer has the right
to institute proceedings against the
offenders where the statute provides
that the innocent spouse shall have the
exclusive right to institute a prosecution
for adultery. Where, however,
proceedings have been properly
commenced, a divorce subsequently
granted can have no legal effect on the
prosecution of the criminal proceedings
to a conclusion.
In the present case, the fact that private
respondent obtained a valid divorce in
his country, the Federal Republic of
Germany, is admitted. Said divorce and
its legal effects may be recognized in the
Philippines insofar as private
respondent is concerned in view of the
nationality principle in our civil law on
the matter of status of persons.
CHOICE OF LAW - FAMILY LAW
ROEHR V. RODRIGUEZ
As a general rule, divorce decrees
obtained by foreigners in other
countries are recognizable in our
jurisdiction, but the legal effects thereof,
e.g. on custody, care and support of the
children, must still be determined by
our courts.
Before our courts can give the effect of
res judicata to a foreign judgment, such
as the award of custody to petitioner by
the German court, it must be shown that
basis
to
dismiss
Gerberts
the parties opposed to the judgment
had been given ample opportunity to do
so on grounds allowed under the Rules
of Court. It is essential that there should
be an opportunity to challenge the
foreign judgment, in order for the court
in this jurisdiction to properly
determine its efficacy. In the present
case, it cannot be said that private
with
the
aliens
national
law
respondent was given the opportunity
to challenge the judgment of the
German court so that there is basis for
declaring that judgment as res judicata
with regard to the rights of petitioner to
have parental custody of their two
children. More importantly, the divorce
judgment was issued to petitioner by
virtue of the German Civil Code
provision to the effect that when a
couple lived separately for three years,
the marriage is deemed irrefutably
dissolved. The decree did not touch on
the issue as to who the offending spouse
was. Absent any finding that private
respondent is unfit to obtain custody of
the children, the trial court was correct
in setting the issue for hearing to
determine the issue of parental custody.
CANG V. CA:
As regards the divorce obtained in the
United States, this Court has ruled in
Tenchavez v. Escao that a divorce
obtained by Filipino citizens after the
effectivity of the Civil Code is not
recognized in this jurisdiction as it is
contrary to State policy. While
petitioner is now an American citizen,
as regards Anna Marie who has
apparently remained a Filipino citizen,
the divorce has no legal effect.
Parental authority is a constitutionally
protected State policy borne out of
established customs and tradition of
our people. Thus, in Silva v. Court of
Appeals, the Court expressed the
opinion that: "Parents have the natural
right, as well as the moral and legal
duty, to care for their children, see to
their upbringing and safeguard their
best interest and welfare. This authority
and responsibility may not be unduly
denied the parents; neither may it be
renounced by them. Even when the
parents are estranged and their
affection for each other is lost, the
attachment and feeling for their
offsprings invariably remain
unchanged. Neither the law nor the
courts allow this affinity to suffer
absent, of course, any real, grave and
imminent threat to the well-being of the
child.
BAYOT V. CA:
Three legal premises need to be
underscored at the outset. First, a
divorce obtained abroad by an alien
married to a Philippine national may be
recognized in the Philippines, provided
the decree of divorce is valid according
to the national law of the foreigner.
Second, the reckoning point is not the
citizenship of the divorcing parties at
birth or at the time of marriage, but
their citizenship at the time a valid
divorce is obtained abroad. And third,
an absolute divorce secured by a
Filipino married to another Filipino is
contrary to our concept of public policy
and morality and shall not be
recognized in this jurisdiction.
There can be no serious dispute that
Rebecca, at the time she applied for and
obtained her divorce from Vicente, was
an American citizen and remains to be
one, absent proof of an effective
repudiation of such citizenship. Thus,
the divorce decree she obtained herself
was valid. Given the validity and
efficacy of divorce secured by Rebecca,
the same shall be given a res judicata
effect in this jurisdiction. As an obvious
result of the divorce decree obtained,
the marital vinculum between Rebecca
and Vicente is considered severed; they
are both freed from the bond of
matrimony. In plain language, Vicente
and Rebecca are no longer husband and
wife to each other.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 29
CORPUZ V. STO. TOMAS:
The alien spouse can claim no right
under the second paragraph of Article
26 of the Family Code as the substantive
right it establishes is in favor of the
Filipino spouse. Only the Filipino
spouse can invoke the second
paragraph of Article 26 of the Family
Code; the alien spouse can claim no
right under this provision.
However, this conclusion is not
sufficient
petition before the RTC. The
unavailability of the second paragraph
of Article 26 of the Family Code to
aliens does not necessarily strip Gerbert
of legal interest to petition the RTC for
the recognition of his foreign divorce
decree. The foreign divorce decree
itself, after its authenticity and
conformity
have been duly proven according to our
rules of evidence, serves as a
presumptive evidence of right in favor
of Gerbert, pursuant to the Rules of
Court which provides for the effect of
foreign judgments.
To our mind, direct involvement or
being the subject of the foreign
judgment is sufficient to clothe a party
with the requisite interest to institute
an action before our courts for the
recognition of the foreign judgment. In a
divorce situation, we have declared, no
less, that the divorce obtained by an
alien abroad may be recognized in the
Philippines, provided the divorce is
valid according to his or her national
law.
CHOICE OF LAW - FAMILY LAW
The recognition that the RTC may
extend to the Canadian divorce decree
marriage
with
For Philippine courts to recognize a
does not, by itself, authorize the
cancellation of the entry in the civil
registry. A petition for recognition of a
foreign judgment is not the proper
proceeding, contemplated under the
Rules of Court, for the cancellation of
entries in the civil registry. Article 412
of the Civil Code declares that "no entry
in a civil register shall be changed or
corrected, without judicial order." Rule
108 of the Rules of Court sets in detail
the jurisdictional and procedural
requirements that must be complied
with before a judgment, authorizing the
cancellation or correction, may be
annotated in the civil registry.
We hasten to point out, however, that
this ruling should not be construed as
requiring two separate proceedings for
the registration of a foreign divorce
decree in the civil registry, one for
recognition of the foreign decree and
another specifically for cancellation of
the entry under Rule 108 of the Rules of
Court. The recognition of the foreign
divorce decree may be made in a Rule
108 proceeding itself, as the object of
special proceedings is precisely to
establish the status or right of a party or
a particular fact. Moreover, Rule 108 of
the Rules of Court can serve as the
appropriate adversarial proceeding by
which the applicability of the foreign
judgment can be measured and tested
in terms of jurisdictional infirmities,
want of notice to the party, collusion,
fraud, or clear mistake of law or fact.
RECIO V. RECIO:
The nullity of Redericks
Since the recognition of a foreign
Editha as shown by the divorce decree
issued was valid and recognized in the
Philippines since the respondent is a
naturalized Australian. However, there
is absolutely no evidence that proves
respondents legal capacity to marry
petitioner though the former presented
a divorce decree. The said decree, being
a foreign document was inadmissible to
court as evidence primarily because it
was not authenticated by the
consul/embassy of the country where it
will be used.
Under Sections 24 and 25 of Rule 132, a
writing or document may be proven as
a public or official record of a foreign
country by either:
(1) An official publication or
(2) A copy thereof attested by the
officer having legal custody of the
document. If the record is not kept in
the Philippines, such copy must be:
(a) Accompanied by a certificate issued
by the proper diplomatic or consular
officer in the Philippine foreign service
stationed in the foreign country in
which the record is kept and
(b) Authenticated by the seal of his
office
FUJIKI V. MARINAY:
foreign judgment relating to the status
of a marriage where one of the parties is
a citizen of a foreign country, the
petitioner only needs to prove the
foreign judgment as a fact under the
Rules of Court.
A foreign judgment relating to the
status of a marriage affects the civil
status, condition and legal capacity of
its parties. However, the effect of a
foreign judgment is not automatic. To
extend the effect of a foreign judgment
in the Philippines, Philippine courts
must determine if the foreign judgment
is consistent with domestic public
policy and other mandatory laws.
While the Philippines has no divorce
law, the Japanese Family Court
judgment is fully consistent with
Philippine public policy, as bigamous
marriages are declared void
from the beginning under the Family
Code.
A petition to recognize a foreign
judgment declaring a marriage void
does not require re-litigation under a
Philippine court of the case as if it were
a new petition for declaration of nullity
of marriage. Philippine courts cannot
presume to know the foreign laws
under which the foreign judgment was
rendered. They cannot substitute their
judgment on the status, condition and
legal capacity of the foreign citizen who
is under the jurisdiction of another
state.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 30
judgment only requires proof of fact of
the judgment, it may be made in a
special proceeding for cancellation or
correction of entries in the civil registry
under Rule 108 of the Rules of Court.
Fujiki has the personality to file a
petition to recognize the Japanese
Family Court judgment nullifying the
marriage between Marinay and
Maekara on the ground of bigamy
because the judgment concerns his civil
status as married to Marinay. For the
same reason he has the personality to
file a petition under Rule 108 to cancel
the entry of marriage between Marinay
and Maekara in the civil registry on the
basis of the decree of the Japanese
Family Court.
There is no doubt that the prior spouse
has a personal and material interest in
maintaining the integrity of the
marriage he contracted and the
property relations arising from it. There
is also no doubt that he is interested in
the cancellation of an entry of a
bigamous marriage in the civil registry,
which compromises the public record of
his marriage. The interest derives from
the substantive right of the spouse not
only to preserve his most intimate
human relation, but also to protect his
property interests that arise by
operation of law the moment he
contracts marriage.
CHOICE OF LAW - FAMILY LAW
REPUBLIC V. ORBECIDO:
We hold that Paragraph 2 of Article 26
should be interpreted to include
cases involving parties who, at the time
of the celebration of the marriage were
Filipino citizens, but later on, one of
them becomes naturalized as a foreign
citizen and obtains a divorce decree.
The Filipino spouse should likewise be
allowed to remarry as if the other party
were a foreigner at the time of the
solemnization of the marriage. To rule
otherwise would be to sanction
absurdity and injustice.
The reckoning point is not the
citizenship of the parties at the time of
the celebration of the marriage, but
their citizenship at the time a valid
divorce is obtained abroad by the alien
spouse capacitating the latter to
remarry.
However, we note that the records are
bereft of competent evidence duly
submitted by respondent concerning
the divorce decree and the
naturalization of respondent's wife. It is
settled rule that one who alleges a fact
has the burden of proving it and mere
allegation is not evidence. Accordingly,
for his plea to prosper, respondent
herein must prove his allegation that his
wife was naturalized as an American
citizen. Likewise, before a foreign
divorce decree can be recognized by our
own courts, the party pleading it must
prove the divorce as a fact and
demonstrate its conformity to the
foreign law allowing it.
BORROMEO V. DESCALAR:
If land is invalidly transferred to an
alien who subsequently becomes a
Filipino citizen or transfers it to a
Filipino, the flaw in the original
transaction is considered cured and the
title of the transferee is rendered valid.
Since the ban on aliens is intended to
preserve the nation's land for future
generations of Filipinos, that aim is
achieved by making lawful the
acquisition of real estate by aliens who
became Filipino citizens by
naturalization or those transfers made
by aliens to Filipino citizens. As the
property in dispute is already in the
hands of a qualified person, a Filipino
citizen, there would be no more public
policy to be protected. The objective of
the constitutional provision to keep our
lands in Filipino hands has been
achieved.
MULLER V. MULLER: who seeks equity must do equity, and
Aliens, whether individuals or he who comes into equity must come
corporations, are disqualified from with clean hands. It signifies that a
acquiring lands of the public domain. litigant may be denied relief by a court
Hence, they are also disqualified from of equity on the ground that his conduct
acquiring private lands. The primary has been inequitable, unfair and
purpose of the constitutional provision dishonest, or fraudulent, or deceitful as
is the conservation of the national to the controversy in issue. Thus, in the
patrimony. instant case, respondent cannot seek
reimbursement on the ground of equity
Respondent was aware of the where it is clear that he willingly and
constitutional prohibition and expressly knowingly bought the property despite
admitted his knowledge thereof to this the constitutional prohibition.
Court. He declared that he had the
Antipolo property titled in the name of
petitioner because of the said
prohibition. His attempt at
subsequently asserting or claiming a
right on the said property cannot be
sustained.
Save for the exception provided in cases
of hereditary succession, respondent's
disqualification from owning lands in
the Philippines is absolute. Not even an
ownership in trust is allowed. Besides,
where the purchase is made in violation
of an existing statute and in evasion of
its express provision, no trust can result
in favor of the party who is guilty of the
fraud. To hold otherwise would allow
circumvention of the constitutional
prohibition.
Invoking the principle that a court is not
only a court of law but also a court of
equity is misplaced. It has been held
that equity as a rule will follow the law
and will not permit that to be done
indirectly which, because of public
policy, cannot be done directly. He
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 31
CHOICE OF LAW - CONFLICT RULES ON MARRIAGE
PHILIPPINE LAW ON VALID
MARRIAGES:
ESSENTIAL REQUISITES:
(1) legal capacity of the contracting
parties who must be male and female
(2) consent freely given in the presence
o the solemnizing officer
FORMAL REQUISITES:
(1) authority of solemnizing officer
(2) valid marriage license except in
cases provided in chapter 2
(3) marriage ceremony which takes
place with the appearance of the
contracting parties before the
solemnizing officer and their personal
declaration that they take each other as
husband and wife in the presence of not
less than 2 witnesses
FOREIGN MARRIAGES OF FILIPINOS:
We follow the rule of lex loci
celebrationis; if valid in the country of
celebration, the marriage is also valid in
the Philippines, except those
enumerated in Art. 26
MARRIAGE BET. FILIPINO AND
FOREIGNER ABROAD:
If valid under the law of one of the
spouses while void under the law of the
other, we should uphold the validity of
the marriage unless the marriage is
universally incestuous or highly
immoral
MARRIAGE BET. FILIPINO AND
FOREIGNER IN THE PHIL.:
The national law of the Filipino should
be followed; otherwise, our public
policy would be violated. This is true
both as to the extrinsic and intrinsic
validity of the marriage
GOVERNING LAW ON PERSONAL
RELATIONS WHEN SPOUSES ARE OF
DIFFERENT NATIONALITIES:
G.R.: the personal relations of the
spouses are governed by the national
law of the husband
**In the Philippines, an alien woman who
marries a Filipino husband ipso facto
becomes a Filipino citizen if she does not
suffer under any disqualification for
naturalization.
As for a Filipina who marries an alien
husband, our Constitution provides that
she "shall retain her Philippine
citizenship, unless by her act or omission,
she is deemed, under the law, to have
renounced her citizenship."
CONFLICT RULES ON PROPERTY
RELATIONS OF SPOUSES:
G.R.: In case spouses are of different
nationalities, the personal law of the
husband is followed (same as rule on
personal relations)
**In the Philippines, since we follow the
nationality theory, the property relations
of the spouses are, in the absence of a
marriage settlement between them,
governed by Philippine Law, regardless
of the place of the celebration of the
marriage and their residence
If the spouses are of different
nationalities, however, meaning that one
of the spouses is a Filipino and the other,
an alien, still Philippine law will govern
their property relations. Such was the
intention of the framers of the Family
Code (See exceptions under Art. 80 of FC
above)
DOCTRINE OF IMMUTABILITY OF
MATRIMONIAL REGIME OF SPOUSES:
Regardless of the change of nationality
by the husband or the wife or both, the
original property regime that prevailed
at the start of their marriage prevails.
The reason for this doctrine are: marital
peace in the spouses' property relations
is more or less guaranteed; the spouses
will not be able to prejudice creditors,
who in turn cannot prejudice the
interests of the spouses; spouses may
protect themselves from each other
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 32
RULES ON ANNULMENT AND
DECLARATION OF NULLITY:
*If the marriage is null and void or an
absolute nullity, it may be invoked for
purpose of remarriage on the basis
solely of a final judgment declaring such
previous marriage void (Art. 40, FC)
*In Conflict of Laws, the grounds for
annulment of marriage, and those for
the declaration of nullity of marriage,
are the grounds provided for by the law
alleged to have been violated which, in
general, is the lex loci celebrationis or
the law of the place where the marriage
was celebrated, with certain exceptions
Example: If 2 Filipinos get married in
England, where sterility is a ground for
annulment, their marriage will be
annullable on such ground because
English law is the lex loci celebrationis.
As for declaration of nullity of a
marriage between 2 Filipinos abroad, the
grounds are the exceptions to the lex loci
celebrationis that are enumerated in Art.
26 of the FC
As for foreigners who get married
abroad, the exceptions to the lex loci
celebrationis would be marriages that
are highly immoral and universally
incestuous marriages.
CHOICE OF LAW - CONFLICT RULES ON MARRIAGE
*Our courts have JD to take cognizance
of annulment and nullity suits in
marriage in cases where the litigants
are Filipinos. Same goes to
domiciliaries.
In the Philippines, a Filipino citizen or
domiciliary can file a case for
annulment or declaration of nullity of
marriage even if defendant is a non-
resident of our country. Such case
involves personal status. Thus, JD can
be acquired over defendant by
publication of summons
CONFLICTS RULES ON LEGAL
SEPARATION:
(a) If the parties are of the same
nationality, the grounds for LegSep are
those given by their personal law
(b) If the parties are of different
nationalities, the grounds available
under the personal law of the husband
as well as of the wife are all available as
grounds.
JURISDICTION OF COURTS:
(a) JD in the case of aliens is not
assumed by the forum unless the
national law of the parties is willing to
recognize its JD
(b) In the Philippines, foreigners may
ask for legal separation here, even if
they did not get married in this country.
Provided that the court obtains
jurisdiction over both parties.
*According to the Special Rule on legal
separation promulgated by the SC, it is
enough that the petitioner has resided
In the Philippines for 6 months
(c) Most countries assume JD over cases
for legal separation on the basis of the
domicile of one of the parties or the
matrimonial domicile
INTERNAL RULES OF THE
PHILIPPINES FOR LEGAL
SEPARATION
GROUNDS:
(1) Repeated physical violence or
grossly abusive conduct directed
against the petitioner, a common child,
or a child of the petitioner;
(2) Physical violence or moral pressure
to compel the petitioner to change
religious or political affiliation;
(3) Attempt of respondent to corrupt or
induce the petitioner, a common child,
or a child of the petitioner, to engage in
prostitution, or connivance in such
corruption or inducement;
(4) Final judgment sentencing the
respondent to imprisonment of more
than six years, even if pardoned;
(5) Drug addiction or habitual
alcoholism of the respondent;
(6) Lesbianism or homosexuality of the
respondent;
(7) Contracting by the respondent of a
subsequent bigamous marriage,
whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against
the life of the petitioner; or
(10) Abandonment of petitioner by
respondent without justifiable cause for
more than one year.
GROUNDS FOR DENIAL:
(1) Where the aggrieved party has
condoned the offense or act complained
of;
(2) Where the aggrieved party has
consented to the commission of the
offense or act complained of;
(3) Where there is connivance between
the parties in the commission of the
offense or act constituting the ground
for legal separation;
(4) Where both parties have given
ground for legal separation;
(5) Where there is collusion between
the parties to obtain decree of legal
separation;
(6) Where the action is barred by
prescription.
*5 years prescriptive period from time
of occurrence of the cause
*If one of the parties dies during the
legal separation proceeding, the case
should be dismissed because it is a
purely personal one. Without the decree
of legal separation, there could be no
effects.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 33
STATUS OF CHILDREN
Conflict rules in determining
legitimacy:
(a) If parents are of the same
nationality, apply their common
personal law (whether their national
law or the law of their domicile)
(b) In the Philippines, the common
national law of the parents applies. If
they have different nationalities, the
national law of the father
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. But the rights and duties of
parent and child, or child and parent,
would, after the parents' change of
nationality, be governed by the new
national law of the parents
ON ADOPTION:
LAW THAT DETERMINES W/N THE
RELATIONSHIP OF ADOPTION HAS
BEEN CREATED:
(a) the child's personal law, to protect
his well-being
(b) 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
**The legal effects of the adoption are
determined by the same law that created
the relationship of adoption
**Adoption does not confer on adopted
child the citizenship of the adopter
CHOICE OF LAW - SUCCESSION
LEGAL PROVISIONS
CIVIL CODE
Article 16. Real property as well as
personal property is subject to the law
of the country where it is stipulated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount
of successional rights and to the
intrinsic validity of testamentary
provisions, shall be regulated by the
national law of the person whose
succession is under consideration,
whatever may be the nature of the
property and regardless of the country
wherein said property may be found.
Article 17. The forms and solemnities
of contracts, wills, and other public
instruments shall be governed by the
laws of the country in which they are
executed. When the acts referred to are
executed before the diplomatic or
consular officials of the Republic of the
Philippines in a foreign country, the
solemnities established by Philippine
laws shall be observed in their
execution.
Prohibitive laws concerning persons,
their acts or property, and those which
have for their object public order, public
policy and good customs shall not be
rendered ineffective by laws or
judgments promulgated, or by
determinations or conventions agreed
upon in a foreign country.
Article 815. When a Filipino is in a
foreign country, he is authorized to
make a will in any of the forms
established by the law of the country in
which he may be. Such will may be
probated in the Philippines.
Article 816. The will of an alien who is
abroad produces effect in the
Philippines if made with the formalities
prescribed by the law of the place in
which he resides, or according to the
formalities observed in his country, or
in conformity with those which this
Code prescribes.
Article 817. A will made in the
Philippines by a citizen or subject of
another country, which is executed in
accordance with the law of the country
of which he is a citizen or subject, and
which might be proved and allowed by
the law of his own country, shall have
the same effect as if executed according
to the laws of the Philippines.
Article 818. Two or more persons
cannot make a will jointly, or in the
same instrument, either for their
reciprocal benefit or for the benefit of a
third person.
Article 819. Wills, prohibited by the
preceding article, executed by Filipinos
in a foreign country shall not be valid in
the Philippines, even though authorized
by the laws of the country where they
may have been executed.
Article 829. A revocation done outside Appellants would also point out that the
the Philippines, by a person who does decedent executed two wills one to
not have his domicile in this country, is govern his Texas estate and the other
valid when it is done according to the his Philippine estate arguing from
law of the place where the will was this that he intended Philippine law to
made, or according to the law of the govern his Philippine estate. Assuming
place in which the testator had his that such was the decedent's intention
domicile at the time; and if the in executing a separate Philippine will,
revocation takes place in this country, it would not alter the law, for as this
when it is in accordance with the Court ruled in Miciano v. Brimo, a
provisions of this Code. provision in a foreigner's will to the
effect that his properties shall be
Article 1039. Capacity to succeed is distributed in accordance with
governed by the law of the nation of the Philippine law and not with his national
decedent. law, is illegal and void, for his national
law cannot be ignored in regard to
those matters that Article 10 now
BELLIS V. BELLIS Article 16 of the Civil Code states
Article 16, par. 2, and Art. 1039 of the said national law should govern.
Civil Code, render applicable the
national law of the decedent, in
intestate or testamentary successions,
with regard to four items:
(a) the order of succession;
(b) the amount of successional rights;
(C) the intrinsic validity of the
provisions of the will; and
(d) the capacity to succeed.
The parties admit that the decedent,
Amos G. Bellis, was a citizen of the State
of Texas, U.S.A., and that under the laws
of Texas, there are no forced heirs or
legitimes. Accordingly, since the
intrinsic validity of the provision of the
will and the amount of successional
rights are to be determined under Texas
law, the Philippine law on legitimes
cannot be applied to the testacy of
Amos G. Bellis
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 34
CHOICE OF LAW - SUCCESSION
CONFLICTS RULES IN THE PHILS. ON
EXTRINSIC VALIDITY OF WILLS:
(a) if a Filipino makes a will abroad, he
may comply with formalities of
Philippine law or the lex loci
celebrations
(b) If an alien makes a will abroad, he
may comply with the formalities of his
national law, law of his domicile, or the
lex loci celebrationis
(c) If an alien makes a will in the Phils.,
he may comply with the formalities of
his own country or of Philippine law
(d) As for holographic will, which must
be entirely written, dated and signed by
the hand of the testator himself, it is
subject to no other form and may be
made in or out of the Philippines, and
need not be witnessed
JOINT WILLS:
(a) Filipinos cannot make joint wills
whether here or abroad
(b) Joint wills made by aliens abroad
shall be considered valid here if valid
according to their lex nationalii or lex
domicilii or lex loci celebrationis
(c) Joint will made by aliens in the Phils.
are VOID even if valid under their lex
nationalii or lex domicilii, in order that
our public policy on joint wills may not
be militated against
(d) Joint will executed by an alien and a
Filipino abroad will be valid as to the
alien (provided valid according to his
lex nationalii, lec domicilii, or lex loci
celebrationis) but void as to the Filipino
CONFLICTS RULES ON REVOCATION
OF WILLS:
(a) If revocation is done outside the
Philippines by a person who does not
have his domicile here, revocation is
valid if done according to:
(1) the law of the place where will was
made
(2) law of his domicile at the time of
revocation
(b) If revocation is done in the Phils, it is
valid if made in accordance with the
provisions of the NCC
(c) If done outside the Phils, by a person
domiciled here, it is valid if made in
accordance with our law (lex domicilii)
or the lex actus of the revocation
(where revocation was made)
RULES ON PROBATE OF WILLS: CADUCIARY RIGHTS-where the
1. The allowance or disallowance of a decedent had properties but left no
wills is essentially procedural, so that heirs and no will, the properties revert
the law of the forum applies to all to the State where they are situated
procedural matters
2. Wills proved and allowed in a foreign
country according to the laws of each
country , may be allowed, filed, and
recorded by the proper court in the
Phils.
3. Although a foreign will had already
been probated in a foreign country, it
still has to be reprobated in the Phils in
accordance with our procedural law,
because a foreign judgment, no matter
how intrinsically meritorious, cannot
have automatic extraterritorial effect.
Instead of proving all over again its due
execution, it is sufficient to ask for the
enforcement here of the foreign
judgment of the probate abroad
EVIDENCE NECESSARY:
1. Due execution of the will in
accordance with the foreign law
2. The testator had his domicile in the
foreign country where will was
probated
3. Will had been admitted to probate in
said country
4. The foreign tribunal is a probate
court
5. The laws of the foreign country on
procedure and allowance of wills were
followed
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 35
CHOICE OF LAW - PROPERTY
LEGAL PROVISIONS
CIVIL CODE:
Article 16. Real property as well as
personal property is subject to the law
of the country where it is situated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount
of successional rights and to the
intrinsic validity of testamentary
provisions, shall be regulated by the
national law of the person whose
succession is under consideration,
whatever may be the nature of the
property and regardless of the country
wherein said property may be found.
Article 1753. The law of the country to
which the goods are to be transported
shall govern the liability of the common
carrier for their loss, destruction or
deterioration.
LAUREL V. GARCIA:
We see no reason why a conflict of law
rule should apply when no conflict of
law situation exists. A conflict of law
situation arises only when:
(1) There is a dispute over the title or
ownership of an immovable, such that
the capacity to take and transfer
immovables, the formalities of
conveyance, the essential validity and
effect of the transfer, or the
interpretation and effect of a
conveyance, are to be determined; and
(2) A foreign law on land ownership
and its conveyance is asserted to
conflict with a domestic law on the
same matters. Hence, the need to
determine which law should apply.
In the instant case, none of the above
elements exists.
The issues are not concerned with
validity of ownership or title. There is
no question that the property belongs
to the Philippines. The issue is the
authority of the respondent officials to
validly dispose of property belonging to
the State. And the validity of the
procedures adopted to effect its sale.
This is governed by Philippine Law. The
rule of lex situs does not apply.
BELLIS V. BELLIS:
In the present case, it is not disputed
that the decedent was both a national of
Texas and a domicile thereof at the time
of his death. Even assuming Texas has a
conflict of law rule providing that the
domiciliary system (law of the domicile)
should govern, the same would not
result in a reference back (renvoi) to
Philippine law, but would still refer to
Texas law.
Nonetheless, if Texas has a conflicts rule
adopting the situs theory lex where the
properties are situated, renvoi would
arise, since the properties here involved
are found in the Philippines. In the
absence, however, of proof as to the
conflict of law rule of Texas, it should
not be presumed different from ours.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 36
CHUA GUAN V. SAMAHANG
MAGSASAKA
It is a common but not accurate
generalization that the situs of shares of
stock is at the domicile of the owner.
The term situs is not one of fixed or
invariable meaning or usage. Nor
should we lose sight of the difference
between the situs of the shares and the
situs of the certificates of shares. The
situs of shares of stock for some
purpose may be at the domicile of the
owner and for others at the domicile of
the corporation; and even elsewhere.
It is a general rule that for purposes of
execution, attachment and garnishment,
it is not the domicile of the owner of a
certificate but the domicile of the
corporation which is decisive.
By analogy with the foregoing and
considering the ownership of shares in
a corporation as property distinct from
the certificates which are merely the
evidence of such ownership, it seems to
us a reasonable construction of section
4 of Act No. 1508 to hold that the
property in the shares may be deemed
to be situated in the province in which
the corporation has its principal office
or place of business. If this province is
also the province of the owner's
domicile, a single registration is
sufficient. If not, the chattel mortgage
should be registered both at the
owner's domicile and in the
province where the corporation has its
principal office or place of business. In
this sense the property mortgaged is
not the certificate but the participation
and share of the owner in the assets of
the corporation.
CHOICE OF LAW - PROPERTY
WELLS FARGO:
An examination of the adjudged cases
will disclose that the relaxation of the
original rule rests on either of two
fundamental considerations:
(1) upon the recognition of the inherent
power of each government to tax
persons, properties and rights within its
jurisdiction and enjoying, thus, the
protection of its laws; and
(2) upon the principle that as to
intangibles, a single location in space is
hardly possible, considering, the
multiple, distinct relationships which
may be entered into with respect
thereto.
When the taxpayer extends his
activities with respect to his intangibles,
so as to avail himself of the protection
and benefit of the laws of another state,
in such a way as to bring his person or
property within the reach of the tax
gatherer there, the reason for a single
place of taxation no longer obtains, and
the rule is not even workable substitute
for the reasons which may exist in any
particular case to support the
constitutional power of each state
concerned to tax.
It is undeniable that the state of
domicile is not deprived, by the
taxpayer's activities elsewhere, of its
constitutional jurisdiction to tax, and
consequently that there are many
circumstances in which more than one
state may have jurisdiction to impose a
tax and measure it by some or all of the
taxpayer's intangibles. Shares of
corporate stock may be taxed at the
domicile of the shareholder and also at
that of the corporation which the taxing
state has created and controls; and
income may be taxed both by the state
where it is earned and by the state of
the recipient's domicile. Protection,
benefit, and power over the subject
matter are not confined to either state.
In the instant case, the actual situs of
the shares of stock is in the
Philippines, the corporation being
domiciled therein.
BEAM V. YATCO:
The question raised by appellants
regarding the situs of the properties in
question, has no merit in view of the
express provisions of section 1536 of
the Revised Administrative Code,
specifying shares issued by any
corporation or sociedad annima,
organized in the Philippines among
properties subject to inheritance tax.
NDC V. CA:
The law of the country to which the
goods are to be transported governs the
liability of the common carrier in case of
their loss, destruction or deterioration
(Article 1753, Civil Code). Thus, the rule
was specifically laid down that for
cargoes transported from Japan to the
Philippines, the liability of the carrier is
governed primarily by the Civil Code
and in all matters not regulated by said
Code, the rights and obligations of
common carrier shall be governed by
the Code of Commerce and by special
laws (Article 1766, Civil Code). Hence,
the Carriage of Goods by Sea Act, a
special law, is merely suppletory to the
provisions of the Civil Code.
In the case at bar, it has been
established that the goods in question
are transported from San Francisco,
California and Tokyo, Japan to the
Philippines and that they were lost or
damaged due to a collision which was
found to have been caused by the
negligence or fault of both captains of
the colliding vessels. Under the above
ruling, it is evident that the laws of the
Philippines will apply, and it is
immaterial that the collision actually
occurred in foreign waters, such as Ise
Bay, Japan.
It appears, however, that collision falls
among matters not specifically
regulated by the Civil Code, so that no
reversible error can be found in
respondent courses application to the
case at bar of Articles 826 to 839, Book
Three of the Code of Commerce, which
deal exclusively with collision of
vessels. More specifically, Article 826 of
the Code of Commerce provides that
where collision is imputable to the
personnel of a vessel, the owner of the
vessel at fault, shall indemnify the
losses and damages incurred after an
expert appraisal. But more in point to
the instant case is Article 827 of the
same Code, which provides that if the
collision is imputable to both vessels,
each one shall suffer its own damages
and both shall be solidarily responsible
for the losses and damages suffered by
their cargoes.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 37
RULE IN THE PHILIPPINES:
Art. 15 of the NCC provides that real
property as well as personal property is
subject to the law of the country where
it is situated
WHAT MATTERS CONNECTED WITH
REAL PROPERTY ARE GOVERNED BY
LEX SITUS?
Extrinsic and intrinsic validity of
transactions over real property such as
alienations, transfers and mortgages;
capacity of the contracting parties;
interpretation of documents; effects of
ownership; co-ownership; accession;
usufruct; lease; easement; quieting of
title; registration; prescription; police
power; eminent domain and taxation,
are governed by lex situs
CONSTRUCTIVE SITUS GIVEN TO
CHOSES IN POSSESSION THAT ARE
USUALLY IN MOTION:
(1) Vessels:
(a) the law of the flag, if it is a public
vessel
(b) the law of the country of the place of
registry, if it is a private or commercial
vessel. If the vessel is docketed at a
foreign port, said port is deemed as its
temporary situs
(2) Goods in transit:
(a) As to liability for loss, destruction, or
deterioration of goods in transit, the law
of destination is applied
(b) The validity and effect of seizure of
goods in transit are governed by law of
the place where the goods were seized
which is their temporary situs
(c) disposition or alienation of goods in
transit generally governed by the
CHOICE OF LAW - PROPERTY
proper law of the contract between
parties
CONSTRUCTIVE SITUS GIVEN TO
INTANGIBLE PERSONAL PROPERTIES
OR CHOSES IN ACTION:
A. CREDITS (OR DEBTS)
(1) Involuntary transfer or assignment
of debt (garnishment) -place where the
debtor may be served with summons,
which is usually his domicile
(2) Voluntary assignment or transfer of
credit -the proper law of the contract
controls
(3) The situs of a debt for taxation
purposes is the domicile of the creditor,
where the collected credit may be taxed
(4) For the purpose of administering
debts, the situs is the place where the
assets of the debtor are actually
situated
B. NEGOTIABLE INSTRUMENTS
(1) The law that determines whether
the instrument is negotiable or not is:
(a) the law governing the rights
embodied in the instrument
(b) the situs is the place where the
instrument was executed (American
Restatement)
(2) The law that determines the validity
of the transfer, delivery, or negotiation
of negotiable instrument is generally
the law of the situs of the instrument at
the time of transfer, delivery, or
negotiation
C. SHARES OF STOCK OF
CORPORATIONS:
(1) Sale of corporate stocks are
governed by the law of the place of
incorporation, since it is there that the
transfer is recorded in the books of the
corporation
(2) Sale of corporate shares as between
the parties is governed by the proper
law of the contract
(3) Taxation on dividends received by
corporate shares is governed by the law
of incorporation.
D. FRANCHISES
*Franchises are special privileges
conferred by the government on an
individual or a corporation and are
subject to the law of the state that
granted them
E. GOODWILL OF A BUSINESS, AND
TAXATION THEREON
*Governed by the law of the place
where the business is carried on
F. PATENTS,
COPYRIGHTS,TRADEMARKS,
TRADENAMES, AND SERVICEMARKS
*See page 161 to 164 of Sempio-Diy
G.R.: in the absence of a treaty, they are
protected only by the state that granted
or recognized them
ADDED:
EXCEPTIONS TO LEX SITUS OR LEX
REI SITAE WITH RESPECT TO REAL
PROPERTIES:
1. Succession-In civil law countries,
testate/intestate succession is governed
by the national law or deceased,
regardless of location of property
2. Contracts involving real property but
do not deal with title or real rights over
the property, the issue being the
contractual rights and liabilities of the
parties, are governed by the proper law
of the contract (either the lex loci
voluntatis or lex loci intentionis)
3. In contracts where real property is
given as security by way of mortgage to
secure a principal contract, the loan
itself (principal contract) is governed by
the proper law of the contract between
the parties, while the accessory contract
of mortgage is governed by the lex situs
4. While validity of a transfer of land
must be determined by the lex situs, the
validity of a contracts to transfer is
determined by the proper law of the
contract
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 38
CHOICE OF LAW - CONTRACTS
LEGAL PROVISIONS
CIVIL CODE
Article 17. The forms and solemnities
of contracts, wills, and other public
instruments shall be governed by the
laws of the country in which they are
executed.
When the acts referred to are executed
before the diplomatic or consular
officials of the Republic of the
Philippines in a foreign country, the
solemnities established by Philippine
laws shall be observed in their
execution.
Prohibitive laws concerning persons,
their acts or property, and those which
have for their object public order, public
policy and good customs shall not be
rendered ineffective by laws or
judgments promulgated, or by
determinations or conventions agreed
upon in a foreign country.
Article 1306. The contracting parties
may establish such stipulations, clauses,
terms and conditions as they may deem
convenient, provided they are not
contrary to law, morals, good customs,
public order, or public policy.
FRANK CASE:
No rule is better settled in law than that
matters bearing upon the execution,
interpretation and validity of a contract
are determined by the law of the place
where the contract is made. Matters
connected with its performance are
regulated by the law prevailing at the
place of performance. Matters
respecting a remedy, such as the
bringing of suit, admissibility of
evidence, and statutes of limitations,
depend upon the law of the place where
the suit is brought.
The defendant being fully qualified to
enter into the contract at the place and
time the contract was made, he can not
plead infancy as a defense at the place
where the contract is being enforced.
(Note: In the Philippines, we follow the
nationality theory. In such theory,
capacity to enter into contracts is
determined by the national law of the
party. So, this ruling is no longer
controlling.)
CADALIN V. POEA
The Amiri Decree is deemed read into
the employment contracts since parties
to a contract may select the law by
which it is to be governed.
a. In such a case, the foreign law is
adopted as a system or set of terms to
regulate the relations of parties,
including questions of capacity to enter
into contract, formalities to be
observed, matter of performance, etc.
b. The parties do not have to adopt the
entire mass of the foreign law or
stipulate that the foreign law governs
the contract. They can just adopt
specific provisions of a foreign statute
that would be deemed as terms of the
contract.
c. The choice of law must bear some
relationship to the parties or their
transaction.
In this case, the Amiri Decree obviously
bears a relationship since it deals with
private sector labor employment, and
the relationship at hand is one of an
employer-employee relationship
involving the rendering of services in
the country where the Amiri Decree is
effective.
However, in this case, we will not apply
the Amiri Decree. The courts of the
forum will not enforce any foreign claim
obnoxious to the forum's public policy
to enforce the one-year prescriptive
period of the Amiri Decree No. 23 of
1976 as regards the claims in question
would contravene the public policy on
the protection to labor.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 39
K.K. SHELL SEKIYU V. CA:
A contract freely entered into should, of
course, be respected, since a contract is
the law between the parties. The
principle of party autonomy in
contracts is not, however, an absolute
principle. The rule in Article 1306, of
our Civil Code is that the contracting
parties may establish such stipulations
as they may deem convenient,
"provided they are not contrary to law,
morals, good customs, public order or
public policy."
The governing principle is that parties
may not contract away applicable
provisions of law especially peremptory
provisions dealing with matters heavily
impressed with public interest. The law
relating to labor and employment is
clearly such an area and parties are not
at liberty to insulate themselves and
their relationships from the impact of
labor laws and regulations by simply
contracting with each other.
Petitioner PIA cannot take refuge in
paragraph 10 of its employment
agreement which specifies, firstly, the
law of Pakistan as the applicable law of
the agreement and, secondly, lays the
venue for settlement of any dispute
arising out of or in connection with the
agreement "only [in] courts of Karachi,
Pakistan". The first clause of paragraph
10 cannot be invoked to prevent the
application of Philippine labor laws and
regulations to the subject matter of this
case, i.e., the employer-employee
relationship between petitioner PIA and
private respondents. We have already
pointed out that that relationship is
CHOICE OF LAW - CONTRACTS
much affected with public interest and
that the otherwise applicable Philippine
laws and regulations cannot be
rendered illusory by the parties
agreeing upon some other law to
govern their relationship.
Neither may petitioner invoke the
second clause of paragraph 10,
specifying the Karachi courts as the sole
venue for the settlement of disputes
between the parties. Even a cursory
scrutiny of the relevant circumstances
of this case will show the multiple and
forums
public
policy.
encumbrance of properties, both real
substantive contacts between
Philippine law and Philippine courts, on
the one hand, and the relationship
between the parties, upon the other:
1. the contract was not only executed in
the Philippines, it was also performed
here, at least partially;
2. private respondents are Philippine
citizens and residents, while petitioner,
although a foreign corporation, is
licensed to do business (and actually
doing business) and hence resident in
the Philippines;
3. lastly, private respondents were
based in the Philippines in between
their assigned flights to the Middle East
and Europe.
All the above contacts point to the
Philippine courts and administrative
agencies as a proper forum for the
resolution of contractual disputes
between the parties. Under these
circumstances, paragraph 10 of the
employment agreement cannot be given
effect so as to oust Philippine agencies
and courts of the jurisdiction vested
upon them by Philippine law.
TRIPLE-EIGHT CASE:
First, established is the rule that lex loci
contractus (the law of the place where
the contract is made) governs in this
jurisdiction. There is no question that
the contract of employment in this case
was perfected here in the Philippines.
Therefore, the Labor Code, its
implementing rules and regulations,
and other laws affecting labor apply in
this case. Furthermore, settled is the
rule that the courts of the forum will not
enforce any foreign claim obnoxious to
the
This public policy should be borne in
mind in this case because to allow
foreign employers to determine for and
by themselves whether an overseas
contract worker may be dismissed on
the ground of illness would encourage
illegal or arbitrary pre-termination of
employment contracts.
EXTRINSIC VALIDITY-As a G.R., the
extrinsic validity of contracts is
governed by the lex loci celebrationis
CAPACITY OF PARTIES:
A. Capacity to enter into contracts is
generally governed by the personal law
of the parties, that is by the national law
of the parties in countries following the
nationality theory, and by the law of the
domicile in countries following the
domiciliary theory. Exceptions are
contracts involving alienation or
and personal, in which, capacity is
governed by the lex situs
B. In the Phils., we follow the nationality
theory
INTRINSIC VALIDITY-As a G.R., the
intrinsic validity of a contract is
governed by the proper law of the
contract
-->In the Phils., we do not have a
specific provision of law applicable to
conflicts rules on intrinsic validity. The
policy of our law is to give effect to the
intention of the parties
LEX LOCI VOLUNTATIS-law expressly
agreed upon by the parties
LEX LOCI INTENTIONIS-law impliedly
agreed upon by the parties as
determined by many factors, especially
the law that has the most substantial
connection with the transaction, or the
law that may be presumed to have been
intended but the parties
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 40
CHOICE OF LAW - TORTS AND CRIMES
CONFLICTS RULES ON TORTS:
*Liability for torts in general is
governed by the lex loci delicti
commisii, i.e. the law of the place where
the delict or wrong was committed
THEORIES THAT AID IN THE
DETERMINATION OF LOCUS DELICTI:
CIVIL LAW THEORY -the locus delicti is
where the act began. This is so because
the rules on tort are intended to
regulate human conduct
COMMON LAW THEORY -the locus
delicti is the place where the wrongful
act became effective. The reason is that
without an injury, there is nothing to
protect and no necessity for judicial
relief
THEOR OF DR. RABEL -the locus delicti
is the place which has the most
substantial connection with the
wrongful act
MODERN THEORIES FOR
DETEMINING LIABILITY FOR TORTS:
(A) The rule of the State of the most
Significant Relationship -the local law
of the state which, with respect to the
particular issue, has the most significant
relationship to the occurrence and the
parties
(B) The interest-analysis approach -
the state which has the more relevant
and weighty interests in the case should
be considered the locus delicti
(C) Qaver's principle of Preference -
under this theory, 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.
CONFLICTS RULES ON MARITIME
TORTS:
(a) if committed aboard a public vessel,
the law of the flag is the lex loci delicti
commissii
(b) is committed aboard a private
vessel, the law of registry is the lex loci
delicti commissii
(c) if 2 vessels collided and are from the
same state, the law of registry is the lex
loci delicti commissii
(d) if the vessels come from different
states with identical laws, apply the
identical laws
(e) if the vessels come from different
states with different laws, the lex loci
delicti commissii is the general
maritime law as understood and
applied by the forum where the case is
filed
FOREIGN TORTS ACTIONABLE IN THE
PHILIPPINES?
Yes, provided we acquire jurisdiction
over the defendant (action in
personam) and certain conditions are
present:
(1) foreign tort must not be penal in
nature
(2) enforcement of tortious liability
should not contravene our public policy
(3) our judicial machinery must be
adequate for such enforcement
*Remember that while all procedural
matters are governed by the lex fori, all
substantive matters are governed by the
lex loci delicti commissii (prescription,
proper parties, measure of damages,
proximate cause, burden of proof,
possible defenses, etc.)
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 41
CRIMES
TORTS VS. CRIMES:
(A) Torts are transitory while crimes
are territorial
(B) Torts are committed against
individuals while crime is committed
against the state
(C) Tort law is for indemnification while
penal law is for punishment
(D) Tortfeasor has no intent to cause
harm while crimes are based on mens
rea
DETERMINATION OF TORT VS.
CRIME:
The determination depends on the
characterization of the act in the state
where the said act is committed
THEORIES DETERMINING WHETHER
A STATE HAS JURISDICTION TO TAKE
COGNIZANCE OF CRIMINAL CASES:
(A) TERRITORIAL THEORY -place
where the crime was committed has JD,
and its penal code and penalties will
apply
(B) NATIONALITY OR PERSONAL
THEORY -country of which the criminal
is a citizen or subject has JD to try him
from crime allegedly committed by him,
whether outside or inside its territory,
provided it is a crime under said
country's penal law
(C) PROTECTIVE THEORY -any state
whose national interests may be
jeopardized has JD, even if committed
outside its territory, and in some cases,
even if committed by an alien
CHOICE OF LAW - TORTS AND CRIMES
(D) REAL OR ECLETIC THEORY -any
state whose penal code has been
transgressed upon has JD
(E) UNIVERSALITY THEORY -any state
where the criminal is found or which
has obtained custody over him can try
him for the crime allegedly committed,
unless extradition applies
(F) PASSIVE PERSONALITY -state of
which the victim is a citizen or subject
has JD
of
a
test
or
connecting
any, between the parties is centered
**In the Philippines, as a general rule, we
or
"point
of
contact."
follow the territorial theory, and by way
of exception, the protective theory
CRIMES IN VESSELS WITHIN OUR
TERRITORIAL WATERS:
According to jurisprudence, we follow
the English Rule. Under the rules of the
UNCLOS, however, Philippine courts do
not acquire JD over crimes committed
on board a foreign vessel even if it is
within our territorial waters as long as
the effect of such crime does not disturb
our peace and order.
to
apply
the
State
accepted principle of law that a tort
most
significant
relationship
committed in one state creates a right of
LEGAL PROVISIONS
NCC
Article 19. Every person must, in the
exercise of his rights and in the
performance of his duties, act with
justice, give everyone his due, and
observe honesty and good faith.
Article 2176. Whoever by act or
omission causes damage to another,
there being fault or negligence, is
obliged to pay for the damage done.
Such fault or negligence, if there is no
pre-existing contractual relation
between the parties, is called a quasi-
delict and is governed by the provisions
of this Chapter.
RPC
ARTICLE 2. Application of Its
Provisions. Except as provided in the
treaties and laws of preferential
application, the provisions of this Code
shall be enforced not only within the
Philippine Archipelago, including its
atmosphere, its interior waters and
maritime zone, but also outside of its
jurisdiction, against those who:
1. Should commit an offence while on a
Philippine ship or airship;
2. Should forge or counterfeit any coin
or currency note of the Philippine
Islands or obligations and securities
issued by the Government of the
Philippine Islands;
3. Should be liable for acts connected
with the introduction into these islands
of the obligations and securities
mentioned in the preceding number;
4. While being public officers or
employees, should commit an offense in
the exercise of their functions; or
5. Should commit any of the crimes
against national security and the law of
nations, defined in Title One of Book
Two of this Code.
SAUDI ARABIAN V. CA:
Our starting point of analysis here is not
a legal relation, but a factual situation,
event, or operative fact. An essential
element of conflict rules is the
indication
factor
Choice-of-law rules invariably consist of
a factual relationship and a connecting
factor or point of contact, such as the
situs of the res, the place of celebration,
the place of performance, or the place of
wrongdoing.
With the widespread criticism of the
traditional rule of lex loci delicti
commissi, modern theories and rules on
tort liability have been advanced to
offer fresh judicial approaches to arrive
at just results. In keeping abreast with
the modern theories on tort liability, we
find here an occasion
of the
rule, which in our view should be
appropriate to apply now, given the
factual context of this case.
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 42
In applying said principle to determine
the State which has the most significant
relationship, the following contacts are
to be taken into account and evaluated
according to their relative importance
with respect to the particular issue:
(a) the place where the injury occurred;
(b) the place where the conduct causing
the injury occurred;
(c) the domicile, residence, nationality,
place of incorporation and place of
business of the parties; and
(d) the place where the relationship, if
LOUCKS CASE:
It must first be noted that the courts of
one country cannot execute the penal
laws of another. In this case, the
provision in the Massachusetts statute
is not penal within the rules of private
international law since it does not
award a penalty to redress a public
wrong. The purpose of the penalty in
the said statute is for the reparation to
those aggrieved by the offense.
Can a right of action under the
Massachusetts Statute be enforced in
the courts of New York? It is a generally
action that may be sued upon in another
unless public policy forbids. Jurisdiction
will not be refused and such is not
conditioned upon the existence of a
kindred statute. Although a similar
cause of action must necessarily exist in
the court where the cause of action is
being filed, the difference in the statute
providing for the cause of action affects
only the remedy but not the right.
CHOICE OF LAW - TORTS AND CRIMES
The law of the forum is material only as
to the setting of the limit in the
obligation. In this case, although there is
a difference between Massachusetts and
NY laws on torts, there is nothing that
forbids the enforcement of a foreign
right. The courts are not free to refuse
enforcement of a right.
ASAHI METAL CASE:
The mere awareness that a product may
to
defend
after
Californias
that he should reasonably anticipate
reach a remote jurisdiction when put in
the stream of commerce is not sufficient
to satisfy the requirement for minimum
contacts under the Due Process Clause.
Minimum contacts require that there be
some act by a party which would
purposefully avail itself of the privilege
of conducting activities within the
forum state. A party must do more than
intentionally put goods in the stream of
commerce even if it expected its
products to reach the forum state. Asahi
Metal has not purposefully availed itself
of the California market. Asahis actions
could constitute sufficient minimum
contacts if it advertised or marketed its
products in California or deliberately
designed them to conform to unique
California regulations. Asahi however
has not engaged in these activities and
has done nothing to indicate that it
deliberately wants to see its products
used in California.
The substantial connection with the
forum state necessary for a finding of
minimum contacts must come about by
an action of the defendant purposefully
directed toward the forum state. Even if
minimum contacts were to be found,
traditional notions of fair play and
substantial justice must be examined.
Under these facts it would be
fundamentally unfair to require Asahi
Metal
Philippines against the disastrous
interest in the suit has been terminated.
Zurcher settled the suit and the dispute
is now between two nonresident
defendants. Jurisdiction is therefore
unreasonable.
WORDLWIDE VOLKSWAGEN:
The partys contacts with the state must
be such that maintenance of the suit
does not offend traditional notions of
fair play and substantial justice. The
relationship between the party and the
state must be such that it is reasonable
to require the corporation to defend the
particular suit which is brought there.
A state court may exercise personal
jurisdiction over a party only if the
party has minimum contacts with the
forum state (see International Shoe Co. v.
Washington). The court held that there
was a total absence of circumstances
that are necessary to permit an exercise
of personal jurisdiction. The
defendants did not solicit business in
Oklahoma through salespersons or
advertising reasonably calculated to
reach the state.
Although it was foreseeable that one of
their cars could be involved in an
accident in Oklahoma, foreseeability
alone is not sufficient for personal
jurisdiction under the Due Process
Clause. The degree of foreseeability that
must exist is not the mere likelihood
that a product will find its way into the
state, but that the defendants conduct
and connection with the state are such
being haled into court there. Purposeful
availment provides clear notice of
jurisdiction.
PEOPLE V. WONG:
There are two fundamental rules on this
particular matter in connection with
International Law; to wit, the French
rule, according to which crimes
committed aboard a foreign merchant
vessels should not be prosecuted in the
courts of the country within whose
territorial jurisdiction they were
committed, unless their commission
affects the peace and security of the
territory; and the English rule, based on
the territorial principle and followed in
the United States, according to which,
crimes perpetrated under such
circumstances are in general triable in
the courts of the country within
territory they were committed. Of these
two rules, it is the last one that obtains
in this jurisdiction.
As to whether the United States has
ever consented by treaty or otherwise
to renouncing such
jurisdiction or a part thereof, we find
nothing to this effect so far as England is
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 43
concerned, to which nation the ship
where the crime in question was
committed belongs.
We have seen that the mere possession
of opium aboard a foreign vessel in
transit was held by this court not triable
by or courts, because it being the
primary object of our Opium Law to
protect the inhabitants of the
effects entailed by the use of this drug,
its mere possession in such a ship,
without being used in our territory,
does not bring about in the said
territory those effects that our statute
contemplates avoiding. Hence such a
mere possession is not considered a
disturbance of the public order.
But to smoke opium within our
territorial limits, even though aboard a
foreign merchant ship, is certainly a
breach of the public order here
established, because it causes such drug
to produce its pernicious effects within
our territory. It seriously contravenes
the purpose that our Legislature has in
mind in enacting the aforesaid
repressive statute.
(The case is a bit confusing because it
still maintains that there has to be
disturbance of public order before we
could exercise JD in this case--such in
effect follows the French Rule, and not
the English Rule. Also, remember that the
UNLCOS follows the French Rule.
According to Paras, the difference
between the English and French Rules
are merely academic. Technically, they
are just the same.)
CHOICE OF LAW - TORTS AND CRIMES + RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
NAVIDA V. DIZON:
The injuries and illnesses, which
NAVIDA, et al., and ABELLA, et al.,
allegedly suffered resulted from their
exposure to DBCP while they were
employed in the banana plantations
located in the Philippines or while they
were residing within the agricultural
areas also located in the Philippines.
The factual allegations in the amended
Joint-Complaints all point to their cause
of action, which undeniably occurred in
the Philippines. The RTC of General
Santos City and the RTC of Davao City
obviously have reasonable basis to
assume jurisdiction over the cases.
IV. RECOGNITION AND
ENFORCEMENT OF FOREIGN
JUDGMENTS
1. LEGAL PROVISIONS
RULES OF COURT
Section 48. Effect of foreign judgments
or final orders. 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.
Section 47. Effect of judgments or final
orders. The effect of a judgment or
final order rendered by a court of the
Philippines, having jurisdiction to
pronounce the judgment or final order,
may be as follows:
(a) In case of a judgment or final order
against a specific thing, or in respect to
the probate of a will, or the
administration of the estate of a
deceased person, or in respect to the
personal, political, or legal condition
or status of a particular person or his
relationship to another, the judgment or
final order is conclusive upon the title
to the thing, the will or administration
or the condition, status or relationship
of the person, however, the probate of a
will or granting of letters of
administration shall only be prima facie
evidence of the death of the testator or
intestate;
(b) In other cases, the judgment or final
order is, with respect to the matter
directly adjudged or as to any other
matter that could have been missed in
relation thereto, conclusive between the
parties and their successors in interest,
by title subsequent to the
commencement of the action or special
proceeding, litigating for the same thing
and under the same title and in the
same capacity; and
(c) In any other litigation between the
same parties or their successors in
interest, that only is deemed to have
been adjudged in a former judgment or
final order which appears upon its face
to have been so adjudged, or which was
actually and necessarily included
therein or necessary thereto.
Rule 131
Section 3. Disputable presumptions.
The following presumptions are
satisfactory if uncontradicted, but may
be contradicted and overcome by other
evidence:
(n) That a court, or judge acting as such,
whether in the Philippines or
elsewhere, was acting in the lawful
exercise of jurisdiction
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 44
RECOGNITION VS. ENFORCEMENT OF
FOREIGN JUDGMENT:
ENFORCEMET -the plaintiff or
petitioner wants the court to positively
carry out and make effective the foreign
judgment
RECOGNITION -the
defendant/respondent is presenting the
foreign judgment merely as a defense,
on the basis of res judicata
*Enforcement implies an act of
sovereignty; recognition involves
merely a sense of justice
*Enforcement requires a separate
action or proceeding brought precisely
to make the foreign judgment effective;
recognition, being a matter of defense,
needs no action or proceeding but
implies that an action or proceeding has
already been filed against the defendant
who is invoking the foreign judgment
*Enforcement cannot exist without
recognition, while recognition does not
need or does not require enforcement
REASONS FOR REFUSING TO
RECOGNIZE/ENFORCE FOREIGN
JUDGMENT:
1. The requisite proof of the foreign
judgment may not have been presented
2. The foreign judgment may
contravene a recognized and
established policy in our country
3. The administration of justice in the
country where the foreign judgment
came from may be shockingly corrupt
or not beyond reproach
CHOICE OF LAW - RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
CONDITIONS/REQUISITES BEFORE A
LOCAL COURT IN THE PHILS. CAN
ENFORCE OR RECOGNIZE A FOREIGN
JUDGMENT (SEMPIO-DIY):
1. There must be adequate proof of the
foreign judgment
2. The judgment must be on a civil or
commercial matter, not on a criminal,
revenue or administrative matter
3. There must be no lack of jurisdiction,
no want of notice, no fraud/collusion,
no clear mistake of law or fact
4. The foreign judgment must not
contravene a sound and established
public policy of the forum
5. The judgment must be res judicata
(judgment must be final; foreign court
has jurisdiction over the subject matter
and the parties; judgment must be on
the merits; there was identity of parties,
subject matter and cause of action)
NORTHWEST AIRLINES V.CA:
A foreign judgment is presumed to be
valid and binding in the country from
which it comes, until the contrary is
shown. It is also proper to presume the
regularity of the proceedings and the
giving of due notice therein.
Under Section 50, Rule 39 of the Rules
of Court, a judgment in an action in
personal of a tribunal of a foreign
country having jurisdiction to
pronounce the same is presumptive
evidence of a right as between the
parties and their successors-in-interest
by a subsequent title.
The judgment may, however, be
assailed by evidence of
1. want of jurisdiction,
2. want of notice to the party,
3. collusion, fraud, or clear mistake of
law or fact.
Also, under Section 3 of Rule 131, a
court, whether of the Philippines or
elsewhere, enjoys the presumption that
it was acting in the lawful exercise of
jurisdiction and has regularly
performed its official duty.
Consequently, the party attacking a
foreign judgment has the burden of
overcoming the presumption of its
validity. Being the party challenging the
judgment rendered by the Japanese
court, SHARP had the duty to
demonstrate the invalidity of such
judgment. In an attempt to discharge
that burden, it contends that the
extraterritorial service of summons
effected at its home office in the
Philippines was not only ineffectual but
also void, and the Japanese Court did
not, therefore, acquire jurisdiction over
it.
It is settled that matters of remedy and
procedure such as those relating to the
service of process upon a defendant are
governed by the lex fori or the internal
law of the forum. In this case, it is the
procedural law of Japan where the
judgment was rendered that
determines the validity of the
extraterritorial service of process on
SHARP. As to what this law is is a
question of fact, not of law. It may not
be taken judicial notice of and must be
pleaded and proved like any other fact.
BOUDARD V. TAIT:
The fundamental rule is that
jurisdiction in personam over
nonresidents, so as to sustain a money
judgment, must be based upon personal
service within the state which renders
the judgment.
It can not be said that the decision
rendered by the Court of Hanoi should
be conclusive to such an extent that it
cannot be contested, for it merely
constitutes, from the viewpoint of our
laws, prima facie evidence of the
justness of appellants' claim, and, as
such, naturally admits proof to the
contrary.
QUERUBIN V. QUERUBIN:
The decree is by no means final. It is
subject to change with the
circumstances. Because the decree
is interlocutory, it cannot be
implemented in the Philippines. Where
the judgment is merely interlocutory,
the determination of the question by
the Court which rendered it did not
settle and adjudge finally the rights of
the parties.
In general, a decree of divorce awarding
custody of the child to one of the
spouses is respected by the Courts of
other states "at the time and under
the circumstances of its rendition" but
such a decree has no controlling effects
in another state as to facts and
conditions occurring subsequently to
the date of the decree; and the Court of
another state may, in proper
proceedings, award custody otherwise
upon proof of matters subsequent to
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 45
the decree which justify the decree to
the interest of the child.
PHILIPPINE ALUMINUM:
In this jurisdiction, a valid judgment
rendered by a foreign tribunal may be
recognized insofar as the immediate
parties and the underlying cause of
action are concerned so long as it is
convincingly shown that there has been
an opportunity for a full and fair
hearing before a court of competent
jurisdiction; that trial upon regular
proceedings has been conducted,
following due citation or voluntary
appearance of the defendant and under
a system of jurisprudence likely to
secure an impartial administration of
justice; and that there is nothing to
indicate either a prejudice in court and
in the system of laws under which it is
sitting or fraud in procuring the
judgment.
PAWI claims that its counsel, Mr. Ready,
has acted without its authority. Verily,
in this jurisdiction, it is clear that an
attorney cannot, without a client's
authorization, settle the action or
subject matter of the litigation even
when he honestly believes that such a
settlement will best serve his client's
interest. However, PAWI failed to
substantiate this complain with
sufficient evidence. Hence, the foreign
judgment must be enforced.
Even if PAWI assailed that fraud tainted
the agreements which the US Court
based its judgment, this cannot prevent
the enforcement of said judgment.
PAWI claimed that there was collusion
CHOICE OF LAW - RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
and fraud in the signing of the
agreements. Although the US Court
already adjudicated on this matter,
PAWI insisted on raising it again in this
Court. Fraud, to hinder the enforcement
within this jurisdiction of a foreign
judgment, must be extrinsic, i.e., fraud
based on facts not controverted or
resolved in the case where judgment is
rendered, or that which would go to the
jurisdiction of the court or would
deprive the party against whom
judgment is rendered a chance to
defend the action to which he has a
meritorious case or defense. In fine,
intrinsic fraud, that is, fraud which goes
to the very existence of the cause of
action - such as fraud in obtaining the
consent to a contract - is deemed
already adjudged, and it, therefore,
cannot militate against the recognition
or enforcement of the foreign judgment.
HANG LUNG BANK:
Since petitioner foreign banking
corporation was not doing business in
the Philippines, it may not be denied the
privilege of pursuing its claims against
private respondent for a contract which
was entered into and consummated
outside the Philippines. Otherwise we
will be hampering the growth and
development of business relations
between Filipino citizens and foreign
nationals. Worse, we will be allowing
the law to serve as a protective shield
for unscrupulous Filipino citizens who
have business relationships abroad.
In its pleadings before the court,
petitioner appears to be in a quandary
as to whether the suit below is one for
enforcement or recognition of the
Hongkong judgment. The complaint
appears to be one of the enforcement of
the Hongkong judgment because it
prays for the grant of the affirmative
relief given by said foreign judgment.
Although, petitioner asserts that it is
merely seeking the recognition of its
claims based on the contract sued
upon and not the enforcement of the
Hongkong judgment, it should be
noted that in the prayer of the
complaint, petitioner simply copied the
Hongkong judgment with respect to
private respondents liability.
However, a foreign judgment may not
be enforced if it is not recognized in
the jurisdiction where affirmative relief
is being sought. Hence, in the interest of
justice, the complaint should be
considered as a petition for the
recognition of the Hongkong judgment
under Section 50 (b), Rule 39 of
the Rules of Court in order that the
defendant, private respondent herein,
may present evidence of lack of
jurisdiction, notice, collusion, fraud or
clear mistake of fact and law, if
applicable.
NAGARMULL CASE:
To the extent, therefore, that the
decisions of the Tribunal of Arbitration
of the Bengal Chamber of Commerce
and of the High Court of Judicature
of Calcutta fail to apply to the facts
of this case fundamental principles of
contract, the same may be
impeached, as they have been
sufficiently impeached by appellant, on
the ground of "clear mistake of law".
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 46
REQUISITES FOR RECOGNITION OR
ENFORCEMENT (COQUIA):
1. The foreign judgment was rendered
by a judicial or a quasi-judicial tribunal
which had jurisdiction over the parties
and the case in the proper judicial
proceedings
2. The judgment must be valid under
the laws of the court that rendered it
3. The judgment must be final and
executory to constitute res judicata
4. The state where the foreign judgment
was obtained allows recognition or
enforcement of Philippine judgments
5. The judgment must be for a fixed sum
of money
6. The foreign judgment must not be
contrary to the public policy or good
morals of the country where it is to be
enforced
7. The judgment must not have been
obtained by fraud, collusion, mistake of
fact or mistake of law
CHOICE OF LAW - RENVOI
Renvoi is a French terms which means
"refer back" or "return". In Anglo-
American countries, the term is used
"remission", which means to refer a
matter for consideration or judgment
Four solutions to the renvoi problem:
1. We may reject the renvoi
-This means that the court does not
want the problem to be sent back to us.
That is, as in the case f the testate or
intestate succession of a foreigner but
domiciled in our country, we must
simply apply his national law, or the
internal law of his country.
2. We may accept the renvoi
-Where the Court accepts the referral or
the transmission of the case back to us,
so that instead of applying the foreign
internal law, Philippine law is applied.
(single renvoi or single transmission)
3. We may follow the theory of
desistment or the mutual-disclaimer of
jurisdiction
-We refrain from applying the national
law of the deceased foreigner, although
our law tells us to do so, if said law
follows the domiciliary theory and
directs that we apply the law of the
domicile of the deceased. So in the end,
we still apply Philippine Law.
4. We apply the foreign court theory
-We would simply do what the foreign
court would do if confronted with the
same case. So that if the California court
would apply California internal law, we
would do the same. If however said
court would apply Philippine law, we
would follow suit
Transmission-not the same as renvoi
because while renvoi involves two laws,
transmission actually involves three
laws
-It is the process of applying the law of a
foreign state thru the law of a second
foreign state
Ex. A chinese citized domiciled in the
Philippines dies in England leaving
some properties there. The English
court follows the domiciliary theory, so
it will refer the matter to Philippine law.
But Philippine law follows the
nationality theory, so it will transmit
the matter to Chinese law, which is the
national law of the deceased. Hence the
English court will ultimately follow
Chinese law.'
DEFINITION:
Renvoi-procedure whereby a jural
matter presented is referred by the
conflict of laws rule of the forum to a
foreign state, the conflict of laws rule of
which, in turn, refers the matter to the
law of the forum or a third state. When
reference is made back to the law of the
forum, there is a "remission" while
reference to a third state called
"transmission"
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 47
Daisy Ducepec | Conflict of Laws - Atty. Jun Pilares | 48