Conflicts of Laws SBC

2005 CENTRALIZED BAR OPERATIONS
266
PRIVATE INTERNATIONAL LAW

Private International Law or Conflict of
Laws
That part of the Municipal Law of a
State which directs its courts and
Administrative
agencies,
when
confronted with a legal problem
involving a foreign element, whether
or not they should apply a foreign
law or foreign laws.
Elements:
(1) Conflict of Laws is part of the
municipal law of the State;
(2) There is a directive to courts
and administrative agencies;
(3) There is a legal problem
involving a foreign element; and
(4) There is either an application or
non-application of a foreign law
or foreign laws.
Nature of Conflicts Rules: It is a part of
the national law of every state.
NOTE: A factual situation that cuts
across territorial lines and is affected by
diverse laws of two or more States is
said to contain a foreign element.
Functions:
1. To provide rules in deciding cases
where either the parties, events or
transactions are linked to more
than one state jurisdiction;
2. To
promote
stability
and
uniformity of remedies / solutions
regardless of place of suit.
PUBLIC
International Law
PRIVATE
International Law
As to nature or character
1. International in National, municipal
character
as
it or local in character
applies
in
the
international sphere
As to sources
2. Custom, treaty Generally
derived
and
general from the internal
principles of law
law of each state;
recognized
by except any conflict
civilized nations and of laws question
juridical
decisions which is governed
and teachings of the by a treaty (e.g.
most
highly
qualified publicists
Hague
Convention
on the Conflicts of
law relating to the
Form
of
Testamentary
Dispositions)
most
highly Hague
Convention
qualified publicists
on the Conflicts of
law relating to the
Form
of
Testamentary
Dispositions)
As to applicability
3. Governs rights Deals with rights
and obligations of and obligations of
States and their private individuals
relationships among and their private
themselves
transactions which
involve a foreign
element
As to persons involved
4.
Governs only Governs individuals
states
and or corporations
internationally
recognized
organizations
As to transactions
5. Recognizes trans- Assumes
control
actions in which over
transactions
sovereign States are strictly private in
interested
nature
As to remedies
6.
In
case
of All remedies are
violation
of provided
by
International Law, municipal laws of
the State may resort the State, such as
to
diplomatic resort to courts and
protest, negotiation, administrative
arbitration
or tribunals
adjudication
by
filing cases before
international
tribunals or may
even resort to use of
force or go to war
Sources:
1. Civil Codes of different countries
2. Constitution
which
contains
principles on nationality and comity
3. Special statues (E.g. Corporation
Code, General Banking Law, etc.)
4. Treaties
and
International
conventions
2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer
Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics). Jonathan
Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law),
Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal
Ethics)
San Beda College of Law
267
MEMORY AID IN CIVIL LAW
5. Treatises, commentaries and studies

of learned jurists
6. Judicial decisions
7. International customs
JURISDICTION
I. JURISDICTION OVER THE PERSON
Acquired
by
the
voluntary
appearance of a party and his
submission to authority or by service
of summons.
1. Jurisdiction over the person of
the plaintiff is acquired from
the moment he invokes the aid
of the court and voluntarily
submits himself by institution of
the
suit
through
proper
pleadings.
2. Jurisdiction over the person of
the defendant is acquired
through:
a. voluntary appearance or
b. personal
or
substituted
service of summons (section
6 and 7 Rule 14 of the
Revised Rules of Court)
II. JURISDICTION OVER PROPERTY
Results either from the seizure of
property under a legal process or
from the institution of legal
proceedings wherein the courts
power
over
the
property
is
recognized and made effective.
This kind of jurisdiction is referred
to as in rem jurisdiction in contrast
to in personam jurisdiction
Another form of jurisdiction is quasi
in rem which affects only the
interests of particular persons in the
thing.
NOTE:
Summons by publication is
authorized in three cases:
1. If the action is in rem, or
2. quasi in rem, or
3. involves the personal status of
the plaintiff
Where the suit is in personam,
jurisdiction over the defendant must be
acquired by voluntary appearance or by
personal/substituted
service
of
summons.
However,
service
by
publication may be allowed in
accordance with Sec 14, Rule 14 of
Revised Rules of Court (defendant

whose identity or whereabouts are
unknown).
Minimum
Contacts
Test
and
Fundamental Fairness Test
Due process requires only that in
order to subject a defendant to a
judgment in personam, if he is not
present within the territory of the
forum he should have certain
minimum contacts with it such that
the maintenance of the suit does not
offend traditional notions of fair play
and substantial justice.
In both in rem and quasi-in rem, all
that due process requires is that
defendant be given adequate notice
and opportunity to be heard which
are met by service of summons by
publication.
Long-arm Statutes
Statutes which specify the kinds of
contacts upon which jurisdiction will
be asserted over a defendant outside
of state territory.
III. JURISDICTION OVER THE SUBJECT
MATTER
The test of jurisdiction is whether
or not the law vests upon the
tribunal the power to enter upon the
inquiry.
Ways of Disposing of Conflicts Cases:
1. Dismiss the case, either because of
lack of jurisdiction or refusal to
assume jurisdiction pursuant to the
doctrine of forum non conveniens; or
2. Assume jurisdiction over the case
and apply the law of the forum; or
3. Assume jurisdiction over the case
and apply foreign law.
Theory of Comity the application
of foreign legal systems in cases
involving foreign element is proper
because their non-application would
constitute a disregard of foreign
sovereignties, a lack of comity
towards foreign states.
Principle of forum non conveniens
A court may resist imposition upon
its
jurisdiction
even
when
jurisdiction is authorized by law. The
CIVIL LAW COMMITTEE

CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon
SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
268
reason given for refusal to assume

jurisdiction is that to do so would
prove inconvenient for the forum.
In sustaining a plea of forum of non
conveniens, public and private
interests should be weighed:
1. Private Interest of the litigant
a. Ease of access to source of
proof
b. Availability of compulsory
process for attendance of
unwilling witnesses
c. Cost
of
obtaining
and
attendance
of
willing
witnesses
d. Possibility of viewing the
premises if appropriate
e. Other practical problems
that make trial of the case
easy,
expeditious
and
inexpensive
2. Public Interest
a. Administrative
difficulties
encountered when courts
dockets are clogged
b. Appropriateness of having
the trial in a court familiar
with the applicable state
law.
GENERAL RULE:
No
rule
of
Private International Law would be
violated if the courts should decide to
dispose of all cases, whether domestic or
conflicts cases, according to the internal
law of the forum
EXCEPTION:
Where
a
foreign,
sovereign, diplomatic official, or public
vessel or property of another State is
involved, or where a State has, by
treaty, accepted limitations upon its
jurisdiction over certain persons or
things.
Instances Justifying the Application of
Internal Law to Conflicts Cases:
1. Where application of internal law is
decreed;
2. Where there is failure to plead and
prove foreign law;
3. Where a case involves any of the
exceptions to the application of
foreign law:
a) When the enforcement of the
foreign law would run counter to
b)
c)
d)
e)
f)
g)
h)
an important public policy of the

forum;
Where the application of the
foreign law would infringe good
morality;
Where the foreign law is penal in
nature;
Where the foreign law is
procedural in nature;
When the question involves
immovable property of the
forum;
Where the foreign law is fiscal or
administrative in nature;
Where the application of foreign
law would involve injustice or
injury to the citizens or residents
of the forum; and
Where the application of foreign
law would endanger the vital
interests of the State.
CHOICE OF LAW
APPROACHES TO CHOICE OF LAW
A. Traditional or Single-aspect method
theories which have traditionally
concentra-ted on one element of a
situation in order to connect a case
to a particular legal community
1. Vested Rights Theory
o Rights acquired in one
country must be recognized
and legally protected in
other countries. The forum
will not apply before a law
but will simply recognize the
right vested by said law.
2. Local Law Theory
o In conflict problems, the
court does not enforce a
foreign law but a right
created by its own law by
treating a case as a purely
domestic case that does not
involve a foreign element.
3. Cavers' Principle of Preference
o Choice of law should be
determined
by
considerations of justice and
social expediency and should
not be the result of
mechanical application of
the rule or principle of
selection.

Ethics)
269
B. Modern or Multi-aspect method

approach where all the important
factors of the case both territorial
and non-territorial, are analyzed and
the applicable law is arrived at by
rationally elaborating and applying
the policies and purposes underlying
the particular legal rules that come
in question as well as the needs of
the interstate or international
intercourse.
1. Place of the Most Significant
Relationship
Adopts an approach which
identifies a plura-lity of factors
that must be considered in the
light of choice of law principles.
2. Interest Analysis
Urges the resolution of conflict
problems by looking at the policy
behind the laws of the involved
states and the interests each
state had in applying its own
law.
3. Comparative impairment
Calls for subordination of the
state objective which would be
least impaired.
4. Functional Analysis
Looks into the general policies of
the
states
(beyond
those
reflected in its substantive laws)
and to policies or values relating
to effective and harmonious
intercourse between states
5. Choice-influencing Considerations
Courts will prefer rules of law,
whether they are forum law or
another states law as long as
they make good socioeconomic
sense for the time the court
speaks and are sound in view of
present day conditions.
These are five major choiceinfluencing considerations which
would lead the courts to the
choice-of-law decisions in a
given case:
a. predictability of results;
b. maintenance of interstate
and international order;
c. simplification of judicial
task;
d. application of better rule
law; and
e. advancement
of
forums
interests.
6. Convenient
Theory
(forum
conveniens)
the application of a foreign law
in such a convenient forum,
which implies a susbstantial
connection with a given conflict
problem must be analytically
understood as an exception from
the basic rule calling for the
application of the lex fori.
TEST FACTORS OR POINTS OF CONTACT
Circumstances which may serve as
the
possible
test
for
the
determination of applicable law
The most important of these points
are the following:
1. The nationality of a person, his
domicile, his residence, his place
of sojourn, or his origin.
2. The seat of legal or juridical
person, such as a corporation.
3. The situs of a thing, that is the
place where the thing is, or is
deemed to be situated.
In
particular, the lex situs is
decisive when real rights are
involved.
4. The place where an act has been
done, the locus actus, such as
the place where a contract has
been
made,
a
marriage
celebrated, a will signed or a
tort committed. The lex loci
actus is particularly important in
contracts and torts.
5. The place where the act is
intended to come into effect,
the place of performance of
contractual duties, or the place
where the power of attorney is
to be exercised
6. The intention of the contracting
parties as to the law that should
govern the agreement, the lex
loci intentionis
7. The place where judicial and
administrative proceedings are
instituted or done. The lex fori
the law of the forum because
matters of procedure not going
to the substance of the claim
involved are governed by it; and
because
lex
fori
applies
CIVIL LAW COMMITTEE

270
whenever the content of the

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

foreign law, but if procedural, forum
law.
I.
Statute of Frauds
a. Substantive - if the words of the
law relate to forbidding the
obligation.
b. Procedural - if the law forbids
the
enforcement
of
the
obligation.\
II.
Statute of Limitations and

Borrowing Statutes
1. Statute of limitations
a. Substantive - when the
limitation was directed to
the newly created liability
specifically to warrant a
qualification of the right
(specificity test).
b. Procedural - if it operates to
bar only the legal remedy
without
impairing
the
substantive right involved.
2. Borrowing statute
directs the state of the
forum to apply the foreign
statute of limitations to the
pending claims based on a
foreign law
NOTE: the characterization of a
statute
of
limitation
into
procedural
or
substantive
becomes irrelevant when the
country of the forum has a
borrowing statute. It has the
practical effect of treating the
foreign statute of limitation as
one of substance.
Depecage
The
phenomenon
where
the
different aspects of the case
involving a foreign element may be
governed by different systems of
law.
Allows the other relevant interests
of the parties to be addressed;
permits the courts to arrive at a
functionally sound result without
rejecting the methodology of the
traditional approach

Ethics)
271
PROOF OF FOREIGN LAW

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

The Philippines adheres to the
nationality law theory. Article 15 of
the Civil Code provides that Laws
relating to family rights and duties,
or to the status, condition, and legal
capacity of persons are binding upon
Filipino citizens, even though living
abroad.
It is for each State to determine who
are its nationals (Hague Convention).
Thus, the Philippine Constitution
enumerates those who are citizens
of the Philippines.
Problems in Applying the Nationality
Principle
1.
Dual or Multiple Citizenship
This arises from the concurrent
application of jus soli and jus
sanguinis
a.
In matters of status, he
is usually considered by the
forum as exclusively its own
national, his additional foreign
nationality is disregarded
b.
In case the litigation
arises in a third country, the law
most consistently applied is that
of the country of which the
person is not only a national but
where he also has his domicile or
habitual residence, or in the
absence thereof, his residence.
NOTE:
Hague Convention on
Conflict
of
Nationality
Laws
formulated the following principle in
Article 5: a third state shall, of
the nationalities which any such
person
possesses,
recognize
exclusively in its territory either the
nationality of the country of which
he is habitually and principally
resident, or the nationality of the
country
with
which
in
the
circumstances he appears to be in
fact most closely connected.
2.
Statelessness
Stateless persons are generally
subject to the law of their domicile
or habitual residence, and in default
thereof, to the law of their
temporary residence.
CIVIL LAW COMMITTEE

272
A person may become stateless by

the following means:
a. Deprived of his citizenship for
any cause, such as commission of
a crime;
b. Renounciation
of
ones
nationality by certain acts,
express or implied;
c. Voluntary release from his
original state;
d. If born in a country which
recognizes only the principle of
jus sanguinis of parents whose
law recognizes only the principle
of jus soli.
NOTE: Convention on the Reduction of
Statelessness adopted in 1961 mandates
that the jus sanguini country grant its
nationality to a person born within its
territory if he would otherwise be
stateless, and the jus soli country to
extend its nationality to a person who
would otherwise be considered stateless
when one of his parents is a citizen of
the contracting state.
B. Domiciliary Theory
The individuals private rights,
condition, status, and capacity are
determined by his physical location.
NOTE: The forum determines domicile
according to its own standards.
General Rules on Domicile:
1. No person shall be without domicile
2. A person cannot have 2 simultaneous
domiciles.
3. Every natural person, as long as he is
free and sui juris, may change his
domicile at pleasure.
4. Domicile once acquired is retained
unless a new one is gained.
5. The presumption is in favor of the
continuance of domicile. The burden
of proof is on the one who alleges
that a change of domicile has taken
place.
6. To acquire a domicile a fresh
domicile, residence and intention
must concur; to retain an existing
domicile, either residence there or
intention to remain must be present;
to abandon a domicile, residence in
a new place and intention to

abandon the old place must concur
Legal Classification of Domicile
1. Domicile of origin
Persons domicile at birth
Legitimate childs domicile of
origin is that of his father and
an illegitimate childs is that of
his mother
Upon emancipation, the child
may acquire a domicile of choice
2. Constructive Domicile
a domicile assigned by operation
of law to persons legally
incapable of choosing their own
domicile (e.g. minors, mentally
disabled)
3. Domicile of Choice (voluntary
domicile)
place freely chosen by a person
sui juris
to acquire domicile of choice,
there must be a concurrence of
physical presence in the new
place and unqualified intention
to make that place ones home.
PERSONAL STATUS & CAPACITY
In the determination of status and
capacity of persons, our Civil Code
follows the nationality principle
when dealing with Filipinos.
When dealing with aliens, it depends
on which principle their country
follows but if the alien is in the
Philippines, the nationality theory is
applied by implication.
RENVOI
A procedure whereby a legal matter
presented is referred by the conflict
of laws rules of the forum to a
foreign state, the conflict of laws
rule of which, in turn refers the
matter back to the law of the forum
(remission) or a third state
(transmission).
It literally means a referring back
4 Ways of Treating the Renvoi Problem
1. Rejection
If the conflicts rules of the forum
refer the case to the law of another
state, it is deemed to mean only the

Ethics)
273
2.
3.
4.
internal law of that state. Thus, the

court will apply the foreign law.
Acceptance
If the conflicts rules of the forum
refer the case to the law of another
state, it is deemed to include the
totality of the foreign law (internal
law and conflicts of laws rules).
Thus, the court will recognize the
referral back and apply local law.
Mutual Desistment Theory
The forum court upon reference to
another states law sees that such
law is limited in application to its
own nationals domiciled in its
territory and has no provision for
application to nationals domiciled
outside of the territory. Hence, the
local court will apply local law.
This has the same result as the
acceptance of the renvoi doctrine
but the process used by the forum
court is to desist applying the
foreign law
Foreign Court Theory
Forum court assumes the same
position that the foreign court would
take if the case is litigated in the
foreign state.
Double Renvoi
It is that which occurs when the
local court, in adopting the foreign
court theory, discovers that the
foreign court accepts the renvoi.
Transmission
It is the process of applying the law
of a foreign state through the law of
a second foreign state.
CHOICE OF LAW PROBLEMS
I. FAMILY RELATIONS
Under the New Civil Code, questions
of family rights, duties, status,
conditions and capacity are governed
by lex nationalii.
A. MARRIAGE
1. Extrinsic validity - governed by lex
loci celebrationis.
GENERAL RULE:
a. All states recognize as valid
those marriages celebrated in
foreign countries if they comply
with the formalities prescribed

therein (Hague Convention).
b. The forms and solemnities of
contracts, wills and other public
instruments, shall be governed
by the laws of the country in
which they were executed
(Article 17 Civil Code).
c. All marriages solemnized outside
the Philippines, in accordance
with the laws in force in the
country
where
they
were
solemnized, and valid there as
such, shall also be valid in this
country (Article 26 Family
Code).
EXCEPTIONS: The following are void

marriages in the Philippines even if valid
in the foreign country where celebrated:
a. When either or both parties are
below 18 years of age even with
parental consent;
b. Bigamous
and
polygamous
marriages;
c. Mistake as to identity of a
contracting party;
d. A
subsequent
marriage
performed without recording in
the Civil Registry the judgment
of annulment or declaration of
nullity, partition and distribution
of properties and the delivery of
the
childrens
presumptive
legitimes;
e. Marriages where either spouse is
psychologically incapacitated;
f. Incestuous marriages; and
g. Void marriages by reason of
public policy.
NOTE: These exceptions put into
issue the capacity of the parties to
enter into the marriage and
therefore relate to the substantive
requirement for marriage. Since the
personal law of the parties, e.g., the
national law of Filipinos, governs the
questions of intrinsic validity of
marriages between the Filipinos
abroad, the above enumerations are
exceptions to lex loci celebrationis
precisely
because
they
are
controlled by lex nationalii
CIVIL LAW COMMITTEE

274
Rules on Extrinsic Validity of certain

situations:
1. Proxy marriages
GENERAL RULE: where permitted
by the law of the place where the
proxy participates in the marriage
ceremony,
are
entitled
to
recognition in countries adhering to
lex loci celebrationis rule, at least
insofar as formal validity is
concerned.
NOTE: Internal Philippine law does
not sanction proxy marriages, it is
doubtful whether this will be
recognized here.
2. Common law marriages
GENERAL RULE: if valid in the
State where the parties cohabitated
while holding themselves out as man
and wife, it is given recognition in
sister States which do not permit this
informal method of entering into the
marital status
NOTE: common law marriages are
not recognized under the Philippine
internal law
3. Marriage on board a vessel on High
seas
since nation whose flag the ship
is flying has jurisdiction over the
ship, the rule is that compliance
with this law is required for a
marriage
to
be
validly
contracted
4. Consular marriages
for
states,
including
the
Philippines (Article 10 Family
Code), which authorize their
consular or diplomatic agents in
foreign countries to solemnize
marriages in accordance with
their domestic laws
marriage
performed
by
a
consular and diplomatic agent
empowered by the sending state
to officiate marriage is valid in
the receiving state only if the
latter has agreed to his acting in
that capacity.
Effects of Marriage
1.
Personal relations between the
spouses
governed by the national law of
the parties
NOTE: if the spouses have different
nationalities, generally the national law
of the husband may prevail as long as
said law is not contrary to law, customs
and good morals of the forum.
2. Intrinsic validity - controlled by the

parties personal laws (either domiciliary
or nationality).
Doctrine of Immutability of Matrimonial

Property Regime
That the change of the nationality
on the part of the husband or the
wife or of both does not affect the
original property regime EXCEPT
2.
Property relations between the
spouses
The Hague Convention declares
that the governing law on
matrimonial property regime is:
a. The internal law designated by
the spouses before the marriage
b. In the absence thereof, the
internal law of the state in
which the spouses fix their 1st
habitual residence
Philippine
Rule
on
property
relations:
In the absence of a contrary
stipulation in the marriage
settlements,
the
property
relations of the spouses shall be
governed by Philippine laws,
regardless of the place of the
celebration of the marriage and
their residence.
This rule shall not apply:
1. Where both spouses are aliens;
2. With respect to the extrinsic
validity of contracts affecting
property not situated in the
Philippines and executed in
the
country
where
the
property is located; and
3. With respect to the extrinsic
validity of contracts entered
into in the Philippines but
affecting property situated in
a foreign country whose laws
require different formalities
for their extrinsic validity.
(Article 80 Family Code)

Ethics)
275
when the law of the original

nationality itself changes the marital
regime hence, the property regime
has to change accordingly.
B. DIVORCE AND SEPARATION
Hague convention provides that the
granting of divorce or separation
must comply with the national law
of the spouses and the law of the
place where the application for
divorce is made.
Grounds for divorce are dictated by
lex fori.
GENERAL RULE:
We only observe
relative divorce (legal separation) in the
Philippines. Divorce decrees obtained by
Filipinos abroad have no validity and no
effects thereof are recognized in this
jurisdiction.
EXCEPTION: Where
a
marriage
between a Filipino citizen and a
foreigner is validly celebrated and a
divorce is thereafter validly obtained
abroad by the alien spouse capacitating
him or her to remarry, the Filipino
spouse shall have capacity to remarry
under Philippine law (Article 26, Family
Code).
C. ANNULMENT AND DECLARATION OF
NULLITY
1. For states that follow the traditional
approach grounds would follow lex
loci celebrationis.
2. For states that are policy-centered applicable law is the law of the
state of marital domicile.
D. PARENTAL RELATIONS
Determination of Legitimacy of a Child
Legitimacy of the child is governed
by the personal law of the parents
(either domiciliary or nationality).
Philippine rule:
The legitimacy of the child is
governed by the national law of the
parents.
If parents belong to different
nationalities, legitimacy of the child
is governed by the national law of
the father.
Personal law of the illegitimate child
is the mothers personal law.
NOTE: However, in the case of

Tecson vs. COMELEC, Ronald Allan
Kelly Poe and Fornier (GR No.
161434, March 3, 2004), the
Supreme Court held that providing
neither conditions nor distinctions,
the 1935 Constitutions states that
among the citizens of the Philippines
are those whose fathers are citizens
of the Philippines.
The 1935 Constitution confers
citizenship to all persons whose
fathers
are
Filipino
citizens
regardless of whether the children
are legitimate or illegitimate.
If the child is later legitimated,
personal law of the child follows
that of the father.
Parental Authority over the Child
Personal law of the father controls
the rights and duties of parents and
children
NOTE: Reference to the personal
law of the father may result in joint
exercise of parental authority by
father and mother (e.g. Article 221
Family Code).
Fathers personal law could
grant parental authority to the
mother of the illegitimate children
(e.g. Article176 Family Code)
E. ADOPTION
Under the Domestic Adoption Act of
1998, an alien may adopt provided
that he is:
1. of legal age,
2. in possession of full civil
capacity and legal rights,
3. of good moral character,
4. no conviction of any crime
involving moral turpitude,
5. emotionally and psychologically
capable of caring for children,
6. at least sixteen years older than
the adoptee,
7. in a position to support and
care for his children,
8. his country has diplomatic
relations with the Philippines,
9. residence in the Philippines for
at least three continuous years
prior to the filing of the
application for adoption and
CIVIL LAW COMMITTEE

276
maintains such residence until

the adoption decree is entered,
10. certificate of legal capacity to
adopt in his country to be issued
by his diplomatic or consular
office, and
11. his government allows the
adoptee to enter his country as
his adopted son/daughter
The
requirement
on
residency and certificate of
qualification to adopt may
be waived for the following:
a. a former Filipino citizen who
seeks to adopt a relative
within the fourth (4th)
degree of consanguinity or
affinity; or
b. one who seeks to adopt the
legitimate son/daughter of
his/her Filipino spouse; or
c. one who is married to a
Filipino citizen and seeks to
adopt jointly with his/her
spouse a relative within the
fourth
(4th)
degree
of
consanguinity or affinity of
the Filipino spouse.
The
requirement
of
sixteen years difference
between the adopter and
the adoptee is not
applicable if the adopter
is:
i. the biological parent
of the adoptee
ii. the spouse of the
adoptees parent
Inter-Country Adoption
A socio-legal process of adopting
a Filipino child by a foreigner or
a Filipino citizen permanently
residing abroad where the
petition is filed, the supervised
trial custody is undertaken, and
the decree of adoption is issued
outside the Philippines.
II. PROPERTY
A. CONTROLLING LAW
1. Immovable property governed by
lex situs.
2. Movable property may be governed
by:
a. lex domicilii law of the owners
domicile.
b. lex situs - the law of the place
where the property is located.
c. lex loci actus law of the place
where
the
transaction
is
completed.
d. proper law law of the state
which has the most real
connection with the transfer.
Philippine Rule:
Real property as well as personal
property is subject to the law of the
country where it is situated (lex
situs). (Article 16 Civil Code).
Rationale for lex situs or lex rei
sitae rule:
the property being
physically part of the country should
be subject to the laws thereof.
B. CAPACITY TO TRANSFER OR ACQUIRE
PROPERTY
governed by lex situs.
C. EXTRINSIC AND INTRINSIC VALIDITY
OF CONVEYANCES
GENERAL RULE: Governed by lex situs.
EXCEPTIONS:
1.
Where the transaction does not
affect transfer of title or ownership
of the land
proper law of the transaction
will govern, which may be lex
intentionis or lex voluntatis.
2. When real property is offered by way
of security for the performance of an
obligation:
a. Mortgage of the land is governed
by lex situs
b. Loan contract is governed by
rules of ordinary contracts.
3. Testate or intestate succession or
capacity to succeed governed by
the national law of the decedent.

Ethics)
277
4. Under a policy centered approach,

when the situs of the movable at the
time of the transfer was insignificant
or accidental.
5. When
the
issue
involves
consideration other than the validity
and effect of the transfer the court
may look into the law of another
state which has a real interest in
applying its law.
transaction which will uphold its

validity.
The owner is thus
permitted to choose between several
legal systems:
1. Law of the temporary resting
place (e.g. interim port)
2. Lex loci actus
3. Law of the place of destination
4. Law of the last real situs of
goods
D. SPECIAL TYPES OF MOVABLE

PROPERTY
1. Choses in possession (tangible
physical objects)
GENERAL RULE: governed by the law
of the place where the property is
located at the time of transaction
determines the creation and the transfer
of interests (lex situs)
Rules governing Means of Transport:

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

transfers:
a. voluntary transfers of interests in
chattels (other than assignment for
the benefit of creditors) validity
and effect of conveyance as between
the parties are determined by the
local law of the State which, with
respect to the particular issue, has
the most significant relationship to
the parties.
b. acquisitions of title by operation of
law (e.g. acquisition by prescription
or adverse possession, validity and
priority of attachments, levies of
execution,
statutory
liens)
governed by lex situs

Rules governing goods in transitu:
a. Seizure and arrest Where the
owners creditors seize the goods in
transit, the result is that the
transport is discontinued and a
temporary resting place is thereby
created. On the law of this place
will depend on whether the seizure
was lawful or whether he has
acquired a lien, pledge, privilege, or
a similar right or what pertains to
that right.
b. Disposition of goods questions
arising from transactions involving
movables in transit may be resolved
by law of any place having
substantial connection with the
2. Choses
in
action
(intangible
movables)
a. Debts
i. Voluntary transfer or assignment
of choses in action - there are 3
theories as to the law which
should govern:
a) Law of the domicile of
the owner
b) Law of the place where
the
assignment
was
executed
c) Law of the place where
the debt is recoverable
ii. Involuntary transfer of choses in
action
(e.g. garnishment) - governed by
the law of the state where
jurisdiction
is
effectively
exercisable
against
the
garnishee.
NOTE: Jurisdiction to which the
garnishee is amenable is the
jurisdiction of the country
where
the
debt
can
be
recovered, i.e., in any country in
which the debtor is present or
can be served effectively with
process.
b. Negotiable instrument governed
by the law of the place indicated
in the instrument or place of
delivery.
c. Corporate shares as against the
corporation and third persons, the
transfer
or
assignment
are
governed by the law of the place
of incorporation.
CIVIL LAW COMMITTEE

278
d. Goodwill - governed by the law of

principal place of business.
III. CONTRACTS
A. Extrinsic validity governed by lex
loci celebrationis.
B.
Intrinsic validity there are 3
possible laws that govern:
a. law of the place where the
contract is made or lex loci
contractus
b. law of the place of performance
or lex loci solutionis
c. law intended by the parties or
lex loci intentionis
Philippine rule:
The
contracting
parties
may
establish such stipulations, clauses,
terms, conditions as they may deem
convenient provided that they are
not contrary to law, morals, good
customs, public order, or public
policy (Article 1306 Civil Code)
NOTE:
Hence, when the parties
stipulate that the contract be
governed by the specific law, such
will be recognized (lex loci
intentionis) subject to the limitation
that it is not against the law, morals
and public policy of the forum.
In the absence of an effective choice
of law, express or implied, the
contract will be governed, with
respect to the particular issue
involved, by the law which has the
closest
and
most
substantial
connection with the transaction and
the parties
C. Capacity to enter into contracts
determined by the personal laws of the
contracting parties (either nationality or
domiciliary)
D. Choice of law issues in Conflicts
Contract Cases
1. Choice of Forum Clause
parties may stipulate on the venue
of the suit in case of litigation
concerning the contract. However,
a case arising from a contract will be
litigated in the forum chosen by the
parties if the choice of forum clause
specifically identifies it as the only
venue.
when there is no fraud or

overreaching, and there is no
showing that the choice-of forum
clause would be unreasonable and
unjust, the clause must be given
effect.
2. Contracts with Arbitration Clause
In the Philippines, the provisions of
the Civil Code on arbitration and the
arbitration law RA 876 embodies a
clear legislative policy in favor of
settling controversies by a method
considered more expeditious, less
expensive and with greater chance in
some cases for substantial justice.
Many courts apply to arbitration
agreements the law of whatever
place the parties have designated as
governing, thus sustaining their
agreement to arbitrate.
3. Adhesion Contracts
Adhesion contracts are not entirely
prohibited. The one who agrees to
the contract is in reality free to
reject it entirely; if he adheres, he
gives his consent.
When there is no proof of
arbitrariness, abuse of power, or
gross negligence, the contract or
stipulation will be enforced. Such
contract is valid if it is reasonable
and just under the circumstances,
and has been fairly and freely agreed
upon.
When there is an oppressive use of
superior
bargaining
power,
a
Philippine court may be justified in
refusing to apply the contract or a
stipulation thereof on the ground
that there is no real arms-length
transaction between the contracting
parties.
4. Special Contracts
a. Sale or Barter of goods
governed by lex situs.
b. Simple loan granted by financial
institutions law of the
permanent place of business.
c. Loan granted by a private
individual or where subject
matter of loan is personal law
where the loan was obtained.

Ethics)
279
d. Pledge,
Chattel
mortgage,
antichresis lex situs.
e. Transportation by Sea:
i. Philippine ports to Foreign
ports law of the country of
destination
ii. Foreign ports to Philippine
ports
Civil Code primary law
Code of Commerce
Carriage of Goods by Sea
Act
f. International
Air
Transportation governed by
the Warsaw Convention
NOTES:
Convention applies to all
international carriage of person,
baggage or goods performed by
aircraft for hire. It does not
apply to carriage of mail and
postal packages.
liability of carrier for loss
destruction and deterioration of
goods
transported
to
the
Philippines from a foreign
country is governed primarily by
the Civil Code and not by
Warsaw Convention.
the limit of liability for baggage
lost is $1,000 and for death of
passenger is at $100,000 (Alitalia
vs. IAC and Pablo 192SCRA9)
period
of
responsibility
includes the time during which
baggage or goods are in the
charge of the carrier, whether in
an airport or in any place,
whatsoever.
It does not operate as an
exclusive
enumeration
of
instances when a carrier shall be
liable for breach of contract or
as an absolute limit of the
extent of liability nor does it
regulate or exclude liability for
other breaches of contract by
the carrier, misconduct of its
employees,
or
for
some
particular or exceptional type of
damage.
limits of liability shall not
apply if it is proved that the
damage resulted from an act or
omission of the carrier his

servants or agents done with
intent to cause damage or
recklessly and with knowledge
that damage would probably
result, provided that it is proved
that the servant or agent is
acting within the scope of the
employment.
suits may be prosecuted in any
of the following places at the
option of the plaintiff-passenger:
1. court of the domicile of the
carrier
2. court of the principal place
of business of the carrier
3. court where the carrier has a
place of business through
which the contract was
made
4. court of the place of
destination
the action will prescribe if it is
not brought within two years
from the:
1. date of arrival at the
destination
2. date on which the aircraft
ought to have arrived
3. date
on
which
the
transportation stopped
NOTE: the method of counting
the period of limitation is
determined by the law of the
forum (lex fori)
With respect to transportation
by successive carriers:
each of the carrier who
accepts the passengers or
baggage shall be subject to
the rules set out in the
convention and shall be
deemed as one of the
contracting parties insofar as
the contract deals with that
part of the transportation
which is performed under his
supervision.
the
passenger
or
representative
can
take
action only against the
carrier who performed the
transportation during which
the
accident
or
delay
occurred, unless by express
agreement the first carrier
CIVIL LAW COMMITTEE

280
has
assumed
the
responsibility for the entire
journey.
as regards baggage or goods,
the passenger or consignor
shall have a right of action
against the first carrier, and
the passenger or consignee
shall have the right of action
against the last carrier.
Furthermore, each may take
an action against the carrier
who
performed
the
transportation during which
the loss, damage or delay
took place. These carriers
shall be jointly and severally
liable to the passenger, or to
the consignor or consignee.
In cases where the convention
does not apply, the Second
Restatement holds that the
validity of the contract of
carriage as well as the rights
created thereby are determined,
in the absence of an effective
choice of law by the parties, by
the local law of the state from
which the passenger departs or
the goods are dispatched, unless
with respect to the particular
issue, some other State has a
more significant relationship to
the contract and to the parties.
IV. WILLS AND ADMINISTRATION OF

ESTATES
1. Law governing the Extrinsic validity
of wills:
a) testator is a Filipino
i. will is executed in the
Philippines Philippine law
ii. will is executed in a foreign
country
Lex loci celebrationis
governed by the laws of
the country in which will is
executed; or
Philippine law
b) testator is an Alien
i. will is executed in the
Philippines
Philippine law; or
National
law
of
the
testator
ii. will is executed in a foreign

country
National
law
of
the
testator; or
Law of Domicile; or
Lex loci celebrationis; or
Philippine law
NOTE: Joint wills executed by Filipinos
whether in the Philippines or abroad,
even though authorized by the foreign
country in which they may have been
executed, shall not be valid in the
Philippines (Article 819 Civil Code).
This prohibition does not apply to
joint wills executed by aliens, hence
a joint will executed by aliens in a
state where such will is valid shall be
considered
as
valid
in
the
Philippines.
As to joint wills
executed
by
aliens
in
the
Philippines, although the law is
silent, it has been suggested that in
accordance with the express policy
of Article 819 of the Civil Code, said
will should not be probated if it
affects the heirs in the Philippines.
2. Intrinsic validity of wills governed
by the national law of the person whose
will is under consideration.
3. Interpretation of wills governed by
the decedents national law
4. Revocation of wills
If the revocation takes place in the
Philippines, whether the testator is
domiciled in the Philippines or in
some other country, it is valid when
it is in accordance with the laws of
the Philippines
If the revocation takes place outside
the Philippines, by a testator who is
domiciled in the Philippines, it is
valid when it is in accordance with
the laws of the Philippines
Revocation
done
outside
the
Philippines, by a testator who does
not have his domicile in this
country, is valid when it is done
according to the:
a. law of the place where the will
was made, or

Ethics)
281
b. law of the place in which the

testator had his domicile at the
time of revocation;
5. Probate of wills being procedural in
character, the law of the forum governs
procedural matters.
6. Administration of Estates Philippine
law and procedure follow the main
principle of territorialism. The axiom is
that the law of the domicile governs
distribution but the law of the State
appointing the administrator or executor
governs
administration.
Hence,
administration is governed by the law of
the state where the administration takes
place or lex fori.
NOTE: The Administration extends
only to the assets of the decedent
found within the state or country
where it was granted so that an
administrator appointed in one state
has no power over the property in
another state or country.
To
administer the property situated in a
foreign state, the administrator must
be re-appointed, or a new one
named in that state.
V. TORTS
Lex loci delicti comissi or law of the
place where the alleged tort was
committed will govern.
Concepts of Place of Wrong
1. Place
of
injury
(common-law
concept) looks to the place where
the last event necessary to make an
actor liable for an alleged tort
occurs.
2. Place of conduct view the situs of
torts as the place where the tortuous
act was committed.
Obligation theory
The tortuous act gives rise to an
obligation, which is transitory and
follows the person committing the
tortuous act and may be enforced
wherever he may be found.
Theory of Most Significant Relationship
An action for tort may be filed in the
country where it has the most
significant
relationship.
In
determining the state which has the

most significant relationship, the
following factors are to be taken
into account:
1. Place where the injury occurred
2. Place of conduct
3. Domicile, residence, nationality,
place of incorporation and place
of business
4. Place
where
relationship
between the parties is centered
Conditions for the Enforcement of Tort
Claims
1. The foreign tort is based on a civil
action and not on a crime;
2. The foreign tort is not contrary to
the public policy of the forum; and
3. The judicial machinery of the forum
is adequate to satisfy the claim.
Philippine rule on foreign torts:
There is no governing specific
statutory law but courts may give
due course on the theory of vested
rights or most significant relationship
provided that there are minimum
contacts and the defendant can be
served with summons.
VI. CRIMES
GENERAL RULE: Lex loci delicti or the
law of the place where the crime was
committed
will
govern
since
it
determines the specific law by which the
criminal is to be penalized and at the
same time designates the state that has
jurisdiction to punish him.
EXCEPTIONS:
1. crimes committed by state
officials,
diplomatic
representatives and officials of
recognized
international
organizations.
NOTE: This is based on the
theory of state immunity from
suits
2. crimes committed on board a
foreign vessel even if within the
territorial waters of the coastal
state, as long as the effect of
such crime does not affect the
peace and order of the coastal
state
3. Crimes
which,
although
committed
by
Philippine
CIVIL LAW COMMITTEE

282
nationals abroad are punishable

under the local law pursuant to
the protective principle of
criminal jurisdiction (i.e. Article
2 of the Philippine Revised Penal
Code)
VII. BUSINESS ASSOCIATIONS
1. Corporation/Partnership
Personal law
GENERAL RULE: Personal law is the law
of the state where it was incorporated or
formed.
EXCEPTIONS:
a. Constitutional
and
Statutory
Restrictions (Art. XII)
b. Control test during war courts may
pierce the veil of corporate identity
and look into the nationality of
stockholders
to
determine
citizenship of the corporation
Domicile or residence of foreign
corporations
when not fixed by the law creating
them, it shall be understood to be
the place where their legal
representation is or where they
exercise their principal functions.
NOTE: A foreign corporation granted
license to operate in the Philippines
acquires domicile here.
Jurisdiction over Foreign Corporations
with the consent of the state a
foreign
corporation
will
be
recognized and will be allowed to
transact business in any state which
gives it consent.
This consent
doctrine is established in section
125, 126, 127, and 128 of the
Corporation Code of the Philippines
NOTE: all foreign corporations lawfully
doing business here in the Philippines
shall be bound by all laws rules and
regulations applicable to domestic
corporations except provisions for the
creation, formation, organization or
dissolution of corporations or those
which fix the relations the relations,
liabilities, responsibilities or duties of
stockholders, members or officers of the
corporation to each other.
NOTE: service of summons upon foreign
corporations doing business in the
Philippines may be made on:
1. Its resident agent;

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

Ethics)
283
In the absence of express provision,

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

money;
6. Foreign judgment must not be
contrary to the public policy or good
morals of the country where it is to
be enforced; and
7. Judgment must not have been
obtained by fraud, collusion, mistake
of fact or law.
Philippine rule:
The effect of a judgment or final
order of a tribunal of a foreign
country, having jurisdiction to
render the judgment or final order is
as follows:
(a) In case of a judgment or final
order upon a specific thing, the
judgment or final order is
conclusive upon the title to the
thing; and
(b) In case of a judgment or final
order against a person, the
judgment or final order is
presumptive evidence of a right
as between the parties and their
successors in interest by a
subsequent title.
In either case, the judgment or final
order may be repelled by evidence
of a want of jurisdiction, want of
notice to the party, collusion, fraud,
or clear mistake of law or fact (Rule
39, Sec. 48 of the 1997 Rules of Civil
Procedure).
CIVIL LAW COMMITTEE


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Conflicts of Laws SBC

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PRIVATE INTERNATIONAL LAW

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San Beda College of Law

5. Treatises, commentaries and studies

Revised Rules of Court (defendant

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reason given for refusal to assume

an important public policy of the

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San Beda College of Law

B. Modern or Multi-aspect method

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whenever the content of the

NOTE: If issue is substantive, apply

Statute of Limitations and

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San Beda College of Law

PROOF OF FOREIGN LAW

A. Nationality Law Theory

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A person may become stateless by

a new place and intention to

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

San Beda College of Law

internal law of that state. Thus, the

with the formalities prescribed

EXCEPTIONS: The following are void

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Rules on Extrinsic Validity of certain

2. Intrinsic validity - controlled by the

Doctrine of Immutability of Matrimonial

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San Beda College of Law

when the law of the original

NOTE: However, in the case of

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maintains such residence until

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San Beda College of Law

4. Under a policy centered approach,

transaction which will uphold its

D. SPECIAL TYPES OF MOVABLE

Rules governing Means of Transport:

Rules governing different kinds of

governed by lex situs

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d. Goodwill - governed by the law of

when there is no fraud or

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San Beda College of Law

omission of the carrier his

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IV. WILLS AND ADMINISTRATION OF

ii. will is executed in a foreign

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San Beda College of Law