Notes on Conflicts of Law (Atty.

Espinas) |1
Alcazar, JMM.

Chapter 1
Conflicts of Laws 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/s.
Elements of Conflicts of Law:
1. It is a part of municipal law
2. There is a directive to courts and administrative agencies
3. There is a legal problem involving a foreign element if the transaction in question arises
wholly within a single state, the question being raised there, no foreign element exists to cause
any interference with the usual and regular enforcement of the domestic municipal law by the
domestic tribunals.
4. There is either an application or non-application of a foreign law/s
Foreign system of law - include not only the law of foreign states, but also the law of
political subdivisions which have their own legal system.

Three-fold functions of Conflicts of Law:

To prescribe the conditions under which the courts is competent to entertain such suit
To determine for each class of cases the particular territorial system of law by reference to
which the rights of the parties must be ascertained
To specify the circumstances in which a foreign judgment can be recognized as decisive of the
question in dispute.
Specific aims of the functions
o Determination of which a country has jurisdiction
o Applicability to a particular case of either the local or the foreign law
o Determination of the force, validity, and effectiveness of a foreign judgment.

Nature
Persons involved

CONFLICT OF LAW
Municipal in character
Dealt in by private individuals

Transactions involved

Private ones between private

individuals

Remedies or Sanctions

To reseort to municipal tribunals

Paras

LAWS OF NATIONS
International in character
Parties involved are sovereign
states and other entities
possessed of an international
personality
Transactions are entered into
which generally affect public
interest
Peaceful Remedies
diplomatic negotiation, tender
and exercise of good offices,
mediation, inquiry and
conciliation, arbitration, judicial
settlement by the ICJ, reference

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to regional agencies
Forcible Remedies severance
of diplomatic relations,
retorsions, reprisals, embargo,
boycott, non-intercourse, pacific
blockades, collective measures
under UN Charter, war

Sources of Conflict of Laws

Indirect
a) Natural Moral Law - rule of human conduct implanted by God in our nature and in our
conscience
b) Works of writers considered sources, insofar as their writings have influenced judicial
decisions on the subject. (see Paras, page 14 for lists of works of writer)
Direct Sources
a) Constitutions
Section 2, Art. XII, 1987 Constitution. All lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all
other natural resources shall not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by
such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and under such terms and conditions as may be provided by law. In cases
of water rights for irrigation, water supply fisheries, or industrial uses other than the development of
water power, beneficial use may be the measure and limit of the grant. xxx
Section 3, Art. XII, 1987 Constitution. Lands of the public domain are classified into agricultural, forest
or timber, mineral lands and national parks. Agricultural lands of the public domain may be further
classified by law according to the uses to which they may be devoted. Alienable lands of the public
domain shall be limited to agricultural lands. Private corporations or associations may not hold such
alienable lands of the public domain except by lease, for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and not to exceed one thousand hectares in area.
Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than
twelve hectares thereof, by purchase, homestead, or grant. Taking into account the requirements of
conservation, ecology, and development, and subject to the requirements of agrarian reform, the
Congress shall determine, by law, the size of lands of the public domain which may be acquired,
developed, held, or leased and the conditions therefor.
b) Codifications
N.B. Civil Code took effect on August 30, 1950

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Article 15, CC. 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. (9a)
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. (10a)
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. (11a)
Article 66. When either or both of the contracting parties are citizens or subjects of a foreign country, it
shall be necessary, before a marriage license can be obtained, to provide themselves with a certificate of
legal capacity to contract marriage, to be issued by their respective diplomatic or consular officials.
Article 71. All marriages performed outside the Philippines in accordance with the laws in force in the
country where they were performed, and valid there as such, shall also be valid in this country, except
bigamous, polygamous, or incestuous marriages as determined by Philippine law.
Article 99. No person shall be entitled to a legal separation who has not resided in the Philippines for
one year prior to the filing of the petition, unless the cause for the legal separation has taken place
within the territory of this Republic. (Sec. 2a, Act No. 2710).
Article 124. If the marriage is between a citizen of the Philippines and a foreigner, whether celebrated in
the Philippines or abroad, the following rules shall prevail:
(1) If the husband is a citizen of the Philippines while the wife is a foreigner, the provisions of
this Code shall govern their relations;
(2) If the husband is a foreigner and the wife is a citizen of the Philippines, the laws of the
husband's country shall be followed, without prejudice to the provisions of this Code with
regard to immovable property. (1325a)
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. (n)

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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. (n)
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. (669)
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. (733a)
c) Special laws
d) Treaties and conventions see Paras, pages 17-18
e) Judicial decisions
Article 8, CC. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of
the legal system of the Philippines.
f)

International customs

Article 14, CC. 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.
Lex situs - law of the place where the property is situated; governs transactions concerning real
property
Lex Loci Celebrationis - law of the place of celebration or execution; governs transactions as to
formalities or solemnities
Lex nationalii - national law or Lex domicilii - domiciliary law; governs successional rights to
estate
Principle of territoriality - place or territory where a crime has been committed has jurisdiction
to try the offenses that has been committed.
Principle of generality - criminal laws of a country bind both the citizens and the aliens who are
in the said country or territory.

Chapter 2
Jurisdiction authority of a tribunal to hear and decide a case.
3 kinds of jurisdiction
1) Over the subject matter authority of the court to hear and decide cases of general class to
which the proceedings in question belong
2) Over the person power of the court to render a judgment that will be binding on the parties
involved
3) Over the res jurisdiction over the particular subject matter in controversy

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Q: How service is made on a private foreign corporation?

A: Rule 14, Sec. 12, ROC. 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.

Alternatives given to the court: If the tribunal possesses jurisdiction, it may:

Refuse to assume jurisdiction on the ground of forum non conveniens (inconvenient for the
forum)
o Our country is a sovereign state, and there is nothing in our civil or procedural
legislation that would militate against the proposition that in the exercise of our own
discretion, we may at times refuse to assume cognizance over a certain case.
Assume jurisdiction and may either: (a) apply the internal law of the forum lex fori or (b) apply
the proper foreign law lex causae.

Chapter 3

Theories supporting the application of foreign law:

Theory of Comity - apply foreign law because of its convenience, and because we want to give
protection to our citizens, residents, and transients in our land. It is the recognition which one
nation allows within its territory, to the acts of another nation, having due regard both to
international duty and convenience and to the rights of its own citizens, of other persons who
are under the protection of its laws.
Two kinds of comity:
Comity based on reciprocity Comity based on the persuasiveness of the foreign judgment
Theory of Vested Rights we seek to enforce not the foreign law, but the rights that have been
vested under such foreign law.
Theory of Local Law we apply foreign laws not because it is foreign, but because our own laws,
by applying similar rules, require us to do so; hence, it is as if the foreign law has become part
and parcel of our own local law.
Theory of Harmony of Laws
Theory of Justice - if in dispensing justice, we must apply proper foreign law, we must do so.

Collateral Matters in determining the proper foreign law to be applies:

a) Nature and Proof of Foreign Judgments
b) Nature and composition of conflicts rule
c) Characterization of conflicts rule and judgments
d) Various theories on status and capacity
e) Problem of renvoi

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Chapter 4: Nature and Proof of Foreign Judgments

Recognition of a foreign judgment v. Enforcement of a foreign judgment

Recognition of a foreign judgment
Enforcement of a foreign judgment
means that our courts will allow said foreign
exists when a plaintiff wants the courts to
judgment to be presented as a defense to a local
positively carry out and make effective in the
litigation
Philippines a foreign judgment.
Involves merely the senses of justice
Does not require either action or a special
proceeding
May exist without enforcement

Implies a directly act of sovereignty

Necessitates a separate action or proceeding
brought precisely to make the foreign judgment
effective
Necessarily carries with its recognition

Requisites before foreign judgments may be recognized and enforced in the Philippines
1) There must be proof of the foreign judgment
2) Judgment must be on a civil or commercial matter
3) There must be no lack of jurisdiction, no want of notice, no collusion, no fraud, no clear mistake
of law or fact
4) The judgment must not contravene a sound and established public policy of the forum
5) Judgment must be res judicata in the state that rendered it

Provision of the ROC on Foreign Judgments

Sec. 48, Rule 3, ROC. 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.

Chapter V: Nature and Composition of Conflict Rules

Conflicts rule provisions found in a countrys own law which govern factual situations possessed of a
foreign element.

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Examples of Conflicts Rule:

Article 815, CC. 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 1039, CC. Capacity to succeed is governed by the law of the nation of the decedent.
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.

Kinds of Conflicts Rule:

One sided rule (unilateral) indicates when Philippine internal law will apply. (see Art. 15, CC)
All sided rule (multilateral) - indicates when foreign law is to be applied.

Composition of Conflicts Rule:

1. Factual situation set of facts presenting a conflicts problem
2. Point of contact or the connecting factor law of the country with which the factual situation is
most intimately connected.

Chapter 6: Characterization of Conflicts Rule

Characterization - the process of determining under what category a certain set of facts or rules fall
Factors which give rise to the problem of characterization
1) Different legal systems attach to the same legal term with different meanings
2) Different legal systems may contain ideas or conceptions completely unknown to one another
3) Different legal systems apply different principles for the solution of problems

Steps in application of the proper foreign law:

A. Determination of facts involved B. Characterization of the factual situation - assigning of the proven facts into their particular
category
C. Determination of the conflicts rule which is to be applied
D. Characterization of the point of contact or the connecting factor
E. Characterization of the problem as procedural or substantive procedural matters are
governed by the law of the forum.
Borrowing stature directs the state of the forum to apply the foreign statute
of limitations to the pending claims based on a foreign law.
Totality approach (1) get the law intended by the parties to govern the contract,
(2) proceed to apply that intended law in its totality

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F. Pleading and proving of the proper foreign law if a duly proven foreign law has already been
given a judicial interpretation in the country of origin, it must generally be given an identical
interpretation in the Phils., unless we have a similar or identical internal law, and said internal
law has received a diametrically opposite construction before our own tribunals.
G. Application of the proper law to the problem

Theories on Characterization
Lex fori - forum merely considers its own concepts, its own characterization
Lex causae we are supposed to follow the characterization of the foreign state which is the
principal point of contact.
Universal Analytical theory (comparative approach theory) characterization comes only after
a general comparative analytical study of the jurisprudence of all the states involved.
Dual theory of Lex Fori and Lex Causae
Autonomous theory consider the characterization of the country referred to in the conflicts
rule of the lex causae
Totality theory - get the law intended by the parties to apply, and proceed to apply the
characterization given by that intended law.

Chapter 7: Various Theories on Status and Capacity

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 - mere part of status, and may be definbed as the sum total of his rights and obligations
Capacity to act (active capacity) - power to do acts with legal effects
Juridical capacity (passive capacity) fitness to be the subject of legal relations (Art. 37, CC)

Characteristics of Status
a) Conferred principally by the state, and not by the individual
b) A matter of public or social interest
c) Concept of social order, and cannot be easily terminated at the mere will or desire of the parties
concerned
d) Generally supposed to have a universal character

Theories on Personal Law:

Nationality theory by virtue of which the status and capacity of an individual are generally
governed by the law and of his nationality
Domiciliary theory regards the law of the domicile as the proper determinative law on status
and capacity
Situs theory - views the particular place or situs of an event or transaction as generally the
controlling law.

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Chapter 8: Nationality Theory

3 kinds of citizens of Philippines:

1. Natural born citizens: those born without having to perform any act to acquire or perfect
their Philippine citizenship (Art. IV, Sec. 2, 1987 Consti)
2. Naturalized citizens - those who become citizens through judicial proceedings (Art. IV, Sec. 1(4),
1987 Consti)
3. Citizens by election - become citizens by electing or choosing Philippine citizenship at the age of
21, or at a reasonable time.

Who are Filipino Citizens?

Section 1, Art. IV, 1987 Consti. 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.

Theories that determines citizenship:

Jus Soli
Jus Sanguinis

Stateless individuals, how it is brought about:

1) He may have been deprived of his citizenship for any cause
2) He may have renounced his nationality by certain acts
3) He may have voluntarily asked for a released from his original state
4) He may have been born in a country recognizing only jus sanguinis, of parents whose laws
recognizes only jus soli

Naturalization:
A judicial process, where formalities of the law have to be complied with including a judicial hearing and
approval of the petition.
Attributes of Naturalization:
A. Citizenship is not a right, it is a privilege.
B. Requisites for naturalization are laid down by Congress, courts cannot change it.
C. Only foreigners may be naturalized
D. It may be revoked, by the cancellation of the certificate of naturalization
E. It demands allegiance to our Constitution, laws, and government.
F. It is a proceeding in rem.

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Qualifications for naturalization:

Section 2, CA 473. Qualifications. Subject to section four of this Act, any person having the following
qualifications may become a citizen of the Philippines by naturalization:
First. He must be not less than twenty-one years of age on the day of the hearing of the petition;
Second. He must have resided in the Philippines for a continuous period of not less than ten
years;
Third. He must be of good moral character and believes 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 with the community in which he is living.
Fourth. 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;
Fifth. He must be able to speak and write English or Spanish and any one of the principal
Philippine languages; and
Sixth. 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 Education 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.

Disqualifications for Naturalization:

Section 4, CA 473. Who are disqualified. - The following cannot be naturalized as Philippine citizens:
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 and 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.

Steps in Naturalization:
a) Declaration of intention to become a Filipino must first be filed
b) Filing of petition for naturalization at the RTC of the province in which the petitioner has
resided for at least 1yr immediately preceding the filing of petition
c) After publication in Official Gazette, petition will be heard.
d) If petition is approved, there will be a rehearing 2 years after the promulgation of the judgment
awarding naturalization

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e) Taking of oath of allegiance to support and defend the Constitution and the laws of the
Philippines

Cancellation of the Naturalization:

Sec. 18. Cancellation of Naturalization Certificate Issued. - Upon motion made in the proper
proceedings by the Solicitor-General or his representative, or by the proper provincial fiscal, the
competent judge may cancel the naturalization certificate issued and its registration in the Civil Register:
1. If it is shown that said naturalization certificate was obtained fraudulently or illegally.
2. If the person naturalized shall, within the five years next following the issuance of said
naturalization certificate, return to his native country or to some foreign country and establish
his permanent residence there: Provided, That the fact of the person naturalized remaining for
more than one year in his native country or the country of his former nationality, or two years in
any other foreign country, shall be considered as prima facie evidence of his intention of taking
up his permanent residence in the same;
3. If the petition was made on an invalid declaration of intention;
4. If it is shown that the minor children of the person naturalized failed to graduate from a
public or private high schools recognized by the Office of Private Education of the Philippines,
where Philippine history, government and civics are taught as part of the school curriculum,
through the fault of their parents either by neglecting to support them or by transferring hem to
another school or schools. A certified copy of the decree cancelling the naturalization certificate
shall be forwarded by the clerk of the Court to the Department of the Interior and the Bureau of
Justice.
5. If it is shown that the naturalized citizen has allowed himself to be used as a dummy
requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right,
franchise or privilege.

How Philippine Citizenship May be Lost:

Section 1, CA 63. How citizenship may be lost. A Filipino citizen may lose his citizenship in any of the
following ways and/or events:
(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: Provided,That the rendering of service to, or the acceptance of such commission in, the
armed forces of a foreign country, and the taking of an oath of allegiance incident thereto, with
the consent of the Republic of the Philippines, shall not divest a Filipino of his Philippine
citizenship if either of the following circumstances is present:
(a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with
the said foreign country; or
(b) The said foreign country maintains armed forces on Philippine territory with the
consent of the Republic of the Philippines: Provided, That the Filipino citizen concerned,
at the time of rendering said service, or acceptance of said commission, and taking the
oath of allegiance incident thereto, states that he does so only in connection with his

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service to said foreign country: And provided, finally, That any Filipino citizen who is
rendering service to, or is commissioned in, the armed forces of a foreign country under
any of the circumstances mentioned in paragraph (a) or (b), shall not be permitted to
participate nor vote in any election of the Republic of the Philippines during the period
of his service to, or commission in, the armed forces of said foreign country. Upon his
discharge from the service of the said foreign country, he shall be automatically entitled
to the full enjoyment of his civil and political rights as a Filipino citizen;
(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.
The provisions of this section notwithstanding, the acquisition of citizenship by a natural born Filipino
citizen from one of the Iberian and any friendly democratic Ibero-American countries or from the
United Kingdom shall not produce loss or forfeiture of his Philippine citizenship if the law of that
country grants the same privilege to its citizens and such had been agreed upon by treaty between the
Philippines and the foreign country from which citizenship is acquired.

How Philippine Citizenship may be reacquired:

Section. 2, CA 63. How citizenship may be reacquired. Citizenship may be reacquired:
(1) By naturalization: Provided, That the applicant possess none of the disqualification's
prescribed in section two of Act Numbered Twenty-nine hundred and twenty-seven,
(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.

Chapter 9: Domiciliary theory

3 kinds of domicile:
Domicile of origin - assigned to a person by the law at the moment of birth
Constructive Domicile (by operation of law) - assigned to him by the law after birth on account
of legal disability
Domicile of choice pertains to his home, to which, whenever he is absent, he intends to
return; voluntary chosen by a sui juris.

Chapter 10: Situs Theory

Two kinds of participation:
o Active participation does the act voluntarily, governed by the law of actual situs
o Passive participation - governed by the law of the legal situs (domicile of a person)

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Chapter 11: Renvoi Theory

Renvoi means referring back. Problem arises when there is doubt as to whether a reference to a foreign
law is:
- A reference to the internal law of the said foreign law
- A reference to the whole of the foreign law, including its conflicts rule
Proposed solutions:
i.
Reject the renvoi
ii.
Accept the renvoi
iii.
Follow the desistment theory
iv.
Follow the foreign court theory
Transmission process of applying the law of a foreign state thru the law of a second foreign state

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