Chapter 16 – Choice of Law in Torts and Crimes
the policy reflected in that law.
Tort
 French word “torquere” or to “twist”
 It is an act or omission producing an injury to another
without any previous existing lawful relation of which
the act or omission may be said to be a natural
outgrowth or incident.
Tortfeasor
 One who, contrary to law, by his act or omission
wilfully or negligently causes damages to another and
shall indemnify the latter for the same.
Policies Behind Conflicts Tort Law
1. To deter socially undesirable or wrongful conduct
2. To rectify the consequences of the tortious act by
distributing the losses that result from accident
and products liability
Lex Loci Delicti Commissi
 The law of the place where the alleged tort was
committed determines the tort liability in matters
affecting conduct and safety.
Modern Theories on Foreign Tort Liability
1. The Most Significant Relationship
 Considers the state’s contacts (such as the
place where the tortious conduct occurred,
the place where injuries were sustained, the
domicile, residence or nationality of the
victim and torfeasor and the place where the
relationship of the parties are centered) with
the occurrence and the parties.
 The court localizes the state of the most
significant relation and assesses the event or
transaction in the light of the relevant policy
considerations of the interested states and
their underlying policies.
2. Interest Analysis
 This approach considers the relevant
concerns the state may have in the case and
its interest I having its law applied on that
issue.
 The first task of a court before which a
conflicts tort case is filed, is to determine
whether the case involves a false or true
conflict.
 There is a false conflict if only one
state has an interest in having its
law applied and failure to apply the
other state’s law would not impair
 If more than one state has an
apparent interest in applying its law
to the case there is a true conflict.
3. Cavers’ Principle of Preference
 Choice of law should be determined by
considerations of justice and social
expediency and should not be the result of
the mechanical application of a rule or
principle of selection
Foreign Tort Claims
 A tortious liability is transitory which means that the
liability resulting from the conduct is deemed
personal to the perpetrator of the wrong, following
him whithersoever he may go, so that compensations
may be exacted from him in any proper tribunal
which may obtain jurisdiction of the defendant’s
person, the right to sue not being confined to the
place where the cause of action arises.
1. Conditions for the Enforcement of Tort Claims
 In general, claims for damages arising from
torts committed abroad may be given due
course in the forum court if:
a. The foreign tort is based on a civil action
and not on a crime;
b. The foreign tort is not contrary to the
public policy of the forum; and
c. The judicial machinery of the forum is
adequate to satisfy the claim
2. Products liability of the foreign manufacturer
 If the customer-plaintiff ingests the product
or uses it in an unaltered condition and in
accordance with the manufacturer’s printed
instructions and suffers injury, he may bring
a products liability action against the
manufacturer in his home state (apply the
forum law)
3. The Alien Tort Act
 Grants US District courts original jurisdiction
over any civil action by an alien for a tort
committed in violation of the law of nations
or a treaty of the United States.
4. Philippine Rule on Foreign Torts
 On the theory of vested rights, the victim
may decide to file the case in the Philippines.
The court may give due course t said case
assuming of course that the defendant can
be served with summons in the Philippines.
 The English Rule may be followed such that
the tort committed abroad is actionable in
the country where it was committed and
 also under Philippine Law. Under this rule, c. Crimes which, although committed by Philippine
there will be no problem of choice of law nationals abroad, are punishable under
because Philippine law on torts will be Philippine Law:
applied wherever the suit is brought. i. Should commit an offense while of a
Philippine ship or airship;
Distinguishing Between Torts and Crimes.
ii. Should forge or counterfeit any coin or
TORT CRIME currency note of the Philippine Islands
It is transitory in character Crime is local in that the or obligations and securities issued by
and as such, liability is perpetrator of the wrong the Government of the Philippine
deemed personal to the can be sued only in the state Islands;
torfeasor and make shim wherein he commits the iii. Should be liable for acts connected with
amenable to suit in crime. the introduction into these Islands of
whatever jurisdiction he is the obligations and securities
found. mentioned in the preceding number;
Tort is an injury to an Crime is an injury to the iv. While being public officers or
individual who may be state where it is committed. employees, should commit an offense in
situated in any place.
the exercise of their functions; or
Torts Law assign liability to Penal Laws are promulgated
v. Should commit any of the crimes against
the perpetrators in order to to punish and reform the
national security and the law of nations,
indemnify the victim for perpetrators and deter
injuries he sustained. them and others from defined in Title One of Book Two the
violating the law. Revised Penal Code.

Lex Loci Delicti
 Law of the place where the crime was committed, is
the controlling law since it determines the specific law
by which the criminal is to be penalized and at the
same time designates the state that has the
jurisdiction to punish him.
 Nulum crimen sine lege principle requires that in
order for a person to be punished for an act, such act
should have been made punishable as a crime by law.
 Case Law has considered constructive presence
within the State as sufficient for the purpose of giving
the state jurisdiction over the offender and falling
within an extraditable offense of constructively
fleeing form justice.
 Three exceptions to the territorial rule recognized in
the Philippines:
a. Crimes committed by state officials, diplomatic
representatives and officials of recognized
international organizations. (Based of the
doctrine of state immunity from suit. The only
remedy of the local state is to ask for his recall.
But only for sovereign acts - jure imperii. If the
acts performed are private, commercial or
proprietary acts – jure gestionis, such immunity
is impliedly waived, thus liable under our
jurisdiction.)
b. Crimes committed on board a foreign vessel even
if it is within the territorial waters of the coastal
state. (So long as the effect of such crime does
not disturb our peace and order.)
Chapter 17 – Choice of Law Affecting Corporations and Other
Juridical Entities
Corporation
 An artificial being created by operation of law, having
the right of succession and the powers, attributes and
properties expressly authorized by law or incident to
its existence.
1. Personal Law of a Corporation
 Is the law of the State where it is
incorporated.
 It possesses only the rights and powers
conferred upon it in its charter. Hence, if the
law creating the corporation does not give it
authority to enter into certain contracts,
such contracts made by it in another state
shall be void despite the express permission
given by the laws of that other state.
2. Exceptions of the Rule of Incorporation Test
a. Constitutional and Statutory Restrictions
 A state, if it sees fit, may by legislation
exclude a foreign corporation
altogether, subject to constitutional
limitations, or prescribe any conditions
it may see fit as prerequisite to the
corporation’s right to do business within
its territory.
b. Control Test During War
 In wartime, the courts may pierce the
veil of corporate identity and look into
 the nationality of the controlling
stockholders to determine the
“citizenship” of the corporation.
3. Domicile or Residence of Foreign Corporations
 If the law creating such corporation
does not fix the domicile of juridical
person, the same shall be understood to
be the place where their legal
representation is established or where
they exercise their principal functions.
 A foreign corporation that has been
granted a license to operate in the
Philippines acquires domicile in the
Philippines
4. Jurisdiction over Foreign Corporations
 The prevailing rule is that with the consent
of a state, the foreign corporation shall be
recognized and will be allowed to transact
business in any state which gives its consent.
 Foreign Corporations Doing Business are
Bound by Philippine Law. Service upon
foreign corporations may be made through:
i. Its resident agent;
ii. On government official designated
by law or any of its officers or agent
within the Philippines;
iii. Any office or agent of said
corporation in the Philippine;
iv. Serving summons through
diplomatic channels
5. Right of Foreign Corporation
 Acquisition by a foreign corporation of a
license to transact business in the
Philippines is an essential prerequisite for
filing a suit before our courts.
6. Exceptions to the License Requirement
a. Isolated Transactions
 One which is occasional, incidental and
casual, not of a character to indicate a
purpose to engage in business.
 If there is no continuity of conduct and
intention on the part of the foreign
corporation to establish a continuous
business within the State.
b. Action to protect trademark, trade name,
goodwill, patent or unfair competition
 A foreign corporation engaging in
business without a license may file a
complaint for unfair competitions since
that is essentially a suit enjoining the
unfair trader from pursuing the
unlawful competition and in order to
allow the aggrieved party to recover
damages (Equity Considerations).
c. Agreements fully transacted outside the
Philippines
 A foreign corporation is allowed to
maintain an action on a transaction
wholly celebrated and consummated
abroad. The vital policy of stabilizing
commercial transactions will be greatly
jeopardized if our laws deprived foreign
corporations of this privilege.
d. Petition filed is merely a corollary defense in a
suit against it
 A foreign corporation is not maintaining
a suit in our courts but is merely
defending itself when it files a complaint
for the sole purpose of preventing the
lower court from exercising jurisdiction
over the case. As such, the foreign
corporation is not required to allege and
prove that it has capacity to sue.
7. Definition and Scope of “Transacting Business”
 A foreign corporation can do business
therein, the state consent being
presumed, except:
i. Where it is prohibited by
express statutory authority or
constitutional enactment;
ii. Where it is seeking to perform
acts which are contrary to the
public policy of the state;
iii. Where it is seeking to exercise
extraordinary and special
franchises; and
iv. Where it is seeking to perform
acts which are not authorized
by the law of the state of its
incorporation.
 Revocation of license to Transact
Business:
i. Failure to appoint and maintain
a resident agent in the
Philippines as required;
ii. Failure, after change of its
resident agent or of his address
to submit to the SEC a
statement of such change as
required;
iii. Transacting business in the
Philippines outside of the
purpose or purposes for which
such corporation is authorized
under its license;
iv. Transacting business in the
Philippines as agent of or
acting for and in behalf of any
 foreign corporation or entity
not duly licensed to do
business in the Philippines; or
v. Any other ground as would
render it unfit to transact
business in the Philippines.
 Effect of failure to Secure License to
Transaction Business
 Foreign Corporation which
does business in the
Philippines without a license
has no right to sue in the
Philippines, but can still be
sued. Although the contracts
entered into may be valid as
Partnerships
between the parties it may be
not be enforced in Philippine
courts.
Special Corporations
1. Religious Societies and the Corporation Sole
 In the absence of capital stock, the
controlling membership should be
Filipino citizens.
 Unlike a religious society which is a
corporate aggregate, a corporation sole
is an incorporated office composed of
only one person.
2. Transnational corporations
 Transnational corporations are clusters of
several corporations, each with a separate
entity, existing and spread out in several
countries, but controlled by the
headquarters in a developed state where it
was originally organized.
 They are established under and governed by
each host country’s national laws.
 The transnational corporation, which is
originally a foreign corporation organized in
a foreign country, eventually becomes a
local corporation in any of the host states by
associating with local entrepreneurs and
incorporating them under its local laws.
 While ostensibly, the personal law of the
transnational corporation is that of the host
country, the major decisions regarding its
operation and management come from the
parent corporation in the industrialized
state.
 Derivative Jurisdiction over Foreign
Corporation
 The Restatement Second on
Conflict of Laws suggests that
jurisdiction over the parent will
exist if the parent controls and
dominates the subsidiary.
 In determining whether the
separate corporate existence
of the subsidiary has been
adequately preserved, the
courts will consider whether
the subsidiary has its own
records, assets, advertising,
employees, payroll and
accounting and whether its
directors and headquarters are
different from those of the
parent.
 A partnership is formed by two or more persons who
bind themselves to contribute money, property or
industry to a common fund with the intention of
dividing the profits among themselves.
 Philippine internal law provides that if the domicile of
the partnership is not identified by the law creating it,
it is deemed domiciled in the place where its legal
representation is established or where it exercises its
principal functions. Therefore, a partnership formed
in one state but conducts its main business in another
state may be considered domiciled in the latter.
 The ground for dissolution and termination of the
partnership are fixed by the partnership’s personal
law.
 Extraterritorial Enforcement of In Personam
Judgments Against Partnerships
 If the firm is owned by an individual, his
presence in the state might be sufficient
basis for a valid personal judgment that
could be enforced against the firm’s
property elsewhere.
 If the non-resident firm was incorporated,
mere presence of a shareholder, officer or
director on personal business would not
furnish a basis for an action in personam
judgment against the corporation.
 Summon by publication cannot be made in
an action in personam.
 Suits against de facto association can be extended to
its properties, as to enforcement and satisfaction of
the claim filed.
 Suits against de jure, if sued, automatic attachment to
the subscribed capital shares and other assets.
Chapter 18 – Recognition and Enforcement of Foreign
Judgment
Distinction between Recognition and Enforcement
 Foreign Judgment – refers to all decisions rendered
outside the forum and encompasses judgments,
decrees and orders of courts of foreign countries as
well as those of sister states in a federal system of
government.
 Recognition – is a passive act of giving effect to a
judgment of Forum 1 without necessarily filing an
action in Forum 2.
 Enforcement – is an active act. It requires filing of an
action in court.
Bases of Recognition and Enforcement of Foreign Judgments
 Comity – in order to obtain reciprocal treatment from
the courts of other countries, we are compelled to
take foreign judgments as they stand and to give
them full faith and credit.
 Obligation of foreign judgments – it considers
judgment of a foreign court of competent jurisdiction
as imposing a duty or obligation on the losing litigant
(vested rights theory).
Policies Underlying Recognition and Enforcement
 Res judicata – those who have contested an issue
shall be bound by the result of the contest and that
matters once tried and decided with finality in one
jurisdiction shall be considered settled as between
the parties. Parties are thus prevented from litigating
issues that have been determined between them by
a valid local judgment.
 Merger – considers the plaintiff’s cause of action as
merged in the judgment and as a result he may not
relitigate that exact claim.
 Bar – refers to a situation where a successful
defendant interposes the judgment in his favor to
avert a second action by the plaintiff on the same
claim.
 Doctrine of collateral estoppel – renders conclusive
all essential issues of fact actually litigated in the suit
decided on by the foreign court. It is concerned with
issue preclusion by barring relitigation of an issue
already litigated on in a prior proceeding.
Requisites for Recognition or Enforcement
1. The foreign judgment was rendered by a judicial or
quasi-judicial tribunal which had jurisdiction over the
parties and the case in the proper judicial
proceedings.
 Action in personam – jurisdiction is based on
the consent of the parties or the relation of
the parties or events to the forum
 Action in rem – jurisdiction is anchored on
the power of the state over the property
found within the territory.
 Due process is denied – foreign judgment is
void for recognition and enforcement.
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 in another action.
 If judgment is interlocutory or provisional in
character – it creates no obligation on the
forum court to recognize or enforce it.
4. The state where the foreign judgment was obtained
allows recognition or enforcement of Philippine
judgments
 Based on the principle of international
comity.
5. The judgment must be for a fixed sum of money.
 Foreign judgment specifies performance or
delivery – forum court has nothing to
enforce
6. The foreign judgment must not be contrary to the
public policy or the 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.
 What is required is extrinsic fraud – outside
of the judgment. It signifies that the party
had been deprived of his day in court. Such
as, collusion by the parties, suppression of
an important document or the presentation
in evidence of a forged will or falsified
affidavit.
 If intrinsic fraud – it might result in a trial de
novo.
Grounds for Non-Recognition
1. A foreign judgment is not conclusive if –
a. Judgment was rendered under a system which
does not provide impartial tribunals or procedure
compatible with the requirements of due process
of law
b. Foreign court did not have jurisdiction over the
defendant
c. Foreign court did not have jurisdiction over the
subject matter
2. A foreign judgment need not be recognized if –
a. Defendant in the proceedings in the foreign court
did not receive notice of the proceedings in
sufficient time to enable him to defend
b. Judgment was obtained by fraud
 c. Cause of action or claim for relief on which the
judgment is based is repugnant to the public
policy of this state foreign judgment conflicts
with other final and conclusive judgment
d. Proceeding in the foreign country was contrary to
an agreement between the parties under which
the dispute in question settled otherwise than
the proceeding in that court
e. In the case of jurisdiction based only on personal
service, the foreign court was a seriously
inconvenient forum fir the trial of the action.

Note: The first three grounds are mandatory and the last three
are discretionary.

Modern Developments in Enforcement of Foreign Judgments

1. Hague Conference on Private International Law

2. EEC Convention of 1968
3. Uniform Foreign Money-Judgments Recognition Act

Procedure for Enforcement

1. The Philippine Law requires that a petition should be

filed in the proper court;
2. Attaching an authenticated copy of the foreign
judgment to be enforced.
 Authentication calls for the Philippine consul
assigned to the country where the foreign
judgment was decreed to certify that had
been rendered by a court of competent
jurisdiction.

Modes of Recognition of a Foreign Judgment

1. Executoire Procedure / Validation Proceeding

 It is the filing of a petition in the court of
competent jurisdiction to inquire the validity
of the foreign judgment.
 Adopted by the Philippines
2. Authentication
 Procedure adopted in court to determine
the authenticated copies of the foreign
judgment which has been already
authenticated by the officer of the consular
office situated in the foreign country with
the consular seal
3. Registration
 Judgment in a foreign country with he
consular seal is brought to the civil registry
to register and record the judgment.