• CONFLICT OF LAWS

(Private International Law)

Atty. JP Leo Fuentes Asong

Two names for the subject are in common use; however, they are interchangeable. Neither is wholly
accurate or properly descriptive.

The name ‘conflict of laws’ is somewhat misleading, since the object of this branch of the law is to
eliminate any conflict between two or more systems of law which have competing claims to govern the
issue which is before the court, rather than to provoke such a conflict, as the words may appear to
suggest.

However, it was the name given to the subject by A. V. Dicey, when he published his treatise, the first
coherent account by an English lawyer of its rules and principles, in 1896 and it has been hallowed by
use ever since.

Another name is ‘private international law’, which is in common use in Europe. This is even more
misleading than ‘conflict of laws.’

‘Private’ distinguishes the subject from ‘public’ international law, or international law simpliciter.

• Public International Law distinguished

PIL is the name for the body of rules and principles which governs states and international organizations
in their mutual relations.

It is administered through the International Court of Justice, other international courts and arbitral
tribunals, international organisations and foreign offices, although, as part of a state’s municipal or
domestic law, it is also applied by that state’s courts.

Its sources are primarily to be found in international treaties, and the practice of states in their relations
(or custom).

•
NATURE AND SCOPE OF
CONFLICT OF LAWS

Conflict of laws (also known as private international law) is that part of law which comes into play when
the issue before the courts affects some fact, event or transaction that is so clearly connected with a
foreign system of law as to necessitate recourse to that system. (Chesire, Private International Law)

Conflict of laws embraces those universal principles of right and justice which govern the courts of one
state having before them cases involving operation and effect of the laws of another state or country
(Minor, Conflict of Laws)

Conflict of laws is that part of law which comes into operation whenever the domestic court is faced
with a case involving one or more foreign elements.

This foreign element maybe an event which has occurred in a foreign country, for example, an Filipino
tourist is injured in a road accident in Spain; it maybe the place of business of one of the parties, for
example, a Filipino company agrees to purchase computer software from a company incorporated in
New York; or it may be a foreign domicile, for example, an Filipina marries a man domiciled in Iran.

The most important component of a conflict of law problem is the presence of a foreign element.
Without foreign element, the case is only a domestic problem with no conflicts dimension.
Private international law is concerned with the legal relations between private individuals and
corporations, though also with the relations between states and governments so far as their
relationships with other entities are governed by municipal law, an example being a government which
contracts with individuals and corporations by raising a loan from them.

‘International’ is used to indicate that the subject is concerned not only with the application by “X”
courts of “X” law but of rules of foreign law also.

The word is inapt, however, in so far as it might suggest that it is in some way concerned with the
relations between states (it is even more inapt if it suggests ‘nations’ rather than states).

• Phases in Conflict Resolution

I. Jurisdiction

II. Choice of law

III. Recognition and enforcement of judgments

These phases are important for purposes of determining the applicable theories of law a well as the
defenses available thereto.

The three phases are separate from each other and a defense in one phase is not a defense in other
phases.

lex loci contractus: the law of the place where the contract was made; (b) lex loci solutionis: the law of
the place where the contract is to be performed; (c) lex loci celebrationis: the law of the place where the
marriage was celebrated; (d) lex loci delicti: the law of the place where the tort was committed; (e) lex
domicilii: the law of the place where a person is domiciled; (f) lex patriae: the law of the nationality; (g)
lex situs: the law of the place where the property is situated; (h) lex fori: the law of the forum, that is,
the internal law of the court in which a case is tried.

Extraterritoriality

Laws are generally territorial in application. They can be extraterritorial when so provided by the
legislative branch of government.

example: Article 15, 16 NCC

• Small vs. United States

544 U.S. 385 (2013)

Small was convicted in Japan for smuggling and was sentenced by a Japanese court to 5 years of
imprisonment. After serving sentence, Small returned to the U.S., and purchased a gun from a
Pennsylvania gun dealer. He was then charged for “unlawful gun possession” under a statute that
provided that it shall be “unlawful for any person... who has been convicted in any court, of a crime
punishable by imprisonment for a term exceeding one year... to.. possess any firearm.”

Small pleaded guilty then challenged his conviction on the ground that his earlier conviction in Japan,
being a foreign conviction, fell outside the scope of the unlawful gunpossession statue.

Issue: Whether the unlawful gun possession statute had extraterritorial application such that foreign
convictions are covered in its scope.

Held: No. Only domestic convictions are covered by the statute.

In determining the scope of the the statutory phrase we find help in the “commonsense notion that
Congress generally legislates with domestic concerns in mind.”

• How does one deal with

a conflict of laws situation?

1. determine whether the court has jurisdiction over the case

 No jurisdiction? Dismiss

 Has jurisdiction? Assume or dismiss on ground of forum non conveniens

2. determine whether to apply the internal law of the forum or the proper foreign law

• Jurisdiction

Jurisdiction is the power and authority of the court to hear, try and decide a case.

• Jurisdiction over the subject matter

It is the power or authority to hear and determine cases of the general class to which the proceeding in
question belongs.

It is conferred by [substantive] law. It cannot be conferred by the voluntary act or agreement of the
parties, cannot be acquired through or waived, enlarged or diminished by their act or omission.

• Jurisdiction over the subject matter

- how determined

It is determined by the allegations of the complaint regardless of whether or not the plaintiff is entitled
to his claims asserted therein.

• Jurisdiction over the parties

Jurisdiction over the plaintiff is acquired by his filing of the complaint or petition.

Jurisdiction over the defendant is obtained either by a valid service of summons upon him or by his
voluntary submission to the court’ s authority. It is required only in an action in personam and not a pre-
requisite in an action in rem and quasi in rem.

The defendant’ s voluntary appearance in the action shall be equivalent to service of summons. [sec. 20,
Rule 14]

• Actions

An action is the legal and formal demand of one’s right from another person made and insisted upon in
a court of justice.

 A civil action is one by which a party sues another for the enforcement or protection of a right,
or the prevention or redress a wrong. [sec. 3(a), Rule 1]

 A criminal action is one by which the state prosecutes a person for an act or omission
punishable by law. [sec. 3(b), Rule 1]

 The purpose of a special proceeding is to establish a status, a right or a particular fact. [sec. 3,
Rule 1]

• Real and personal actions

An action is “real” when it affects title to or possession of real property, or an interest therein. (sec. 1,
Rule 4). It must involve the following issues: title to, ownership, possession, partition, foreclosure of
mortgage or any interest in property.

All other actions are personal.

Personal actions:

1. Declaration of nullity of marriage

2. Specific performance

3. Action to annul a contract of loan

4. Action for damages to real property

The distinction between real and personal actions is important for the purpose of determining the
venue of the action.

 A real action is “local” – the venue depends upon the location of the property involved.

 A personal action is “transitory” – the venue depends upon the residence of plaintiff or
defendant, at the option of plaintiff, or in the case of a non-resident defendant, where he may
be found, at the election of plaintiff.

• Action in personam

It is an action against a person on the basis of his personal liability. [e.g. ejectment, injunction, specific
performance, action for sum of money, damages] It is not necessarily a personal action. (e.g, action to
recover, title to or possession of real property)

Jurisdiction over the person of the defendant is necessary.

• Action in rem

It is an action against the thing itself instead of against the person. It is directed against the whole world.
(e.g. declaration of nullity of marriage, land registration, action to recover real property, probate of a
will)

• Action quasi in rem

It is one wherein an individual is named as defendant and the purpose of the proceeding is to subject his
interest therein to the obligation or lien burdening the property. (e.g. accounting, partition, attachment,
foreclosure of mortgage, quieting of title).

In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a pre-
requisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res.
Summons must be served to satisfy the requirements of due process.

• Jurisdiction over the res

It refers to the court’ s jurisdiction over the thing (particular subject-matter) or the property which is the
subject of the action. It is acquired either:

1.) by the seizure of the property under legal process, whereby it is brought into actual custody of the
law [attachment]; or
2.) as the result of the institution of legal proceedings, in which the power of the court is recognized
and made effective. [e.g. property in the Philippines of non-resident defendants]

• Service in person on the defendant

In an action in personam, it is the preferred mode of service.

a) This is done by handling a copy

b) If he refuses, server to tender a copy [section 6, Rule 14]

If the defendant cannot be served in person within a reasonable time, only then can substituted service
can be availed of (section 6, Rule 14).

• Substituted service of summons

a) Leaving copies of the summons at the defendant’ s residence [with a person of suitable age and
discretion]; or

b) Leaving copies of the summons at the defendant’ s office or regular place of business [with some
competent person]

• Service by publication

It is available only in actions in rem or quasi in rem. It is permissible against a resident under section 14,
Rule 14 (identity or whereabouts of the defendant are unknown) and in section 16, Rule 14 (“any
action”- defendant is a resident temporarily out of the Philippines). BUT it is not proper against a non-
resident in an action in personam.

• Extraterritorial service

It can only be effected when an action is either in rem or quasi in rem when the defendant is a A.) non-
resident, and B.) he is not found in the country.

1. When the action affects the personal status of the plaintiff;

2. When the action relates to, or the subject of which the property within the Philippines, in which
the defendant claims a lien or interest, actual or contingent;

3. When the relief demanded in such action consists, wholly or in part, in excluding the defendant
from any interest in property located in the Philippines;

4. When the defendant non-resident’ s property has been attached within the Philippines.

In these instances, service of summons may be effected by:

a) Personal service out of the country, with leave of court;

b) Publication, with leave of court, in which case a copy of the summons and the order of the court
shall be sent by registered mail to the last known address of defendant; or

c) Any manner the court may deem sufficient.

• Forum Non Conveniens

It simply means that the forum is not convenient.

It may be that the chosen forum, or the place where the suit is filed, has no substantial connection to
the parties or to the dispute that it becomes very inconvenient to litigate the suit in the chosen venue.
The defense of forum non conveniens is usually interposed by way of a motion to dismiss.

Instances where a court may desist from exercising jurisdiction:

1. The belief that the matter can be tried and decided elsewhere, either because the main aspects
of the case transpired in a foreign jurisdiction or the material witnesses have their residence
there;

2. The belief that the non-resident plaintiff sought the forum (forum shopping) merely to secure
procedural advantages or to convey or harass the defendant;

3. The unwillingness to extend local judicial facilities to non-residents or aliens when the docket may
already be overcrowded;

4. The inadequacy of the local judicial machinery for effectuating the right sought to be maintained;

5. The difficulty of ascertaining the law.

6. The evidence and witness may not be readily available in the forum;

7. The court dockets of the forum may already be clogged so that to permit additional cases would
hamper the speedy administration of justice;

8. Other courts are open and the case may be better tried in said courts.

• Saudi Arabian Airlines vs. Rebesencio

14 January 2015

Facts: Rebesencio, et al were hired by Saudi Arabian Airlines and became Permanent Flight Attendants.
On various dates in 2006, they were terminated from service on the ground that they became pregnant.
They filed a complaint with the NLRC for illegal dismissal, among others. Saudia challenged the
jurisdiction of the LA on the ground of forum non conveniens.

Issue: Whether Philippine courts offer a convenient and adequate forum for the adjudication of
respondent’s complaint

Held: Yes.

1. There is no basis for concluding that the case can be more conveniently tried elsewhere. Saudia
is doing business in the Philippines. All 4 respondents are Filipino citizens maintaining residence
in the Philippines and have no other connection to the Kingdom of Saudi Arabia.

2. Records are bereft of any indication that respondents filed their Complaint in an effort to
engage in forum shopping or to vex and inconvenience Saudia.

3. There is no indication of unwilingness to extend local judicial facilities to non-residents or aliens. That
Saudia has managed to bring the present controversy all the way to this court proves this.

4. It cannot be said that the local judicial machinery is inadequate for effectuating the right sought to be
maintained. Summons was properly served on Saudia and jurisdiction over its person was validly
acquired.

5. Philippine law properly governs the present dispute.

• After court has acquired jurisdiction and has decided to assume jurisdiction

Instances when forum has to apply internal or domestic law (lex fori):
 1. When the law of the forum expressly so provides in its conflicts rules;

2. When the proper foreign law has not been properly pleaded and proved;

3. When the case involves any of the exceptions to the application of the proper foreign law (e.g.
Exceptions to comity)

• 1. When the law of the forum

expressly so provides in its conflicts rules

a) 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.

b) Art. 16

c) Art. 829 (revocation of wills

d) Art. 89, FC

• 2. When the proper foreign law has

not been properly pleaded and proved

Reason: It is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts are
not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.

Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the
introduction of evidence, of the existence and territorial extent of states, their political history, forms of
government and symbols of nationality, the law of nations [treaties, international conventions], the
admiralty and maritime courts of the world and their seals, the political constitution and history of the
Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws
of nature, the measure of time, and the geographical divisions. (1a) [Rule 129]

Instances when the foreign laws are already within the actual knowledge of the court

(a) when they are well and generally known or

(b) they have been actually ruled upon in other cases before it and

(c) none of the parties concerned do not claim otherwise.

• How is foreign law

proved and pleaded?

If written, it may be proved by:

1. An official publication thereof; or

2. A copy of the law attested by the officer having legal custody of the record or by his deputy,
accompanied by a certificate of any Philippine embassy, consular, or foreign service officer in
the foreign country where the record is kept, and authenticated by the seal of his office. (Rule
132, sec. 25)

If unwritten:

1. The oral testimony of expert witness; or

2. By printed and published books of reports of decisions of the country involved, if proved to be
commonly admitted in its courts. (Rule 130, sec. 45)
Section 24. Proof of official record. — The record of public documents referred to in paragraph (a) of
Section 19 [written official acts, or records of the official acts of the sovereign authority, official bodies
and tribunals, and public officers, whether of the Philippines, or of a foreign country], when admissible
for any purpose, may be evidenced by an official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such officer has the custody.

If the office in which the record is kept is in foreign country, the certificate may be made by a secretary
of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office. (25a) [Rule 132]

• Wildvalley v. CA
October 6, 2000

In the Orinoco River in Venezuela, it is a rule that ships passing through it must be piloted by pilots
familiar to the river. Hence, in 1988 Captain Nicandro Colon, master of Philippine Roxas, a ship owned
by Philippine President Lines, Inc. (PPL), obtained the services of Ezzar Vasquez, a duly accredited pilot in
Venezuela to pilot the ship in the Orinoco River. Unfortunately, Philippine Roxas ran aground in the
Orinoco River while being piloted by Vasquez.

As a result, the stranded ship blocked other vessels. One such vessel was owned Wildvalley Shipping Co.,
Ltd. (WSC). The blockade caused $400k worth of losses to WSC as its ship was not able to make its
delivery. Subsequently, WSC sued PPL in the RTC of Manila.

It averred that PPL is liable for the losses it incurred under the laws of Venezuela, to wit: Reglamento
General de la Ley de Pilotaje and Reglamento Para la Zona de Pilotaje No 1 del Orinoco. These two laws
provide that the master and owner of the ship are liable for the negligence of the pilot of the ship.
Vasquez was proven to be negligent when he failed to check on certain vibrations that the ship was
experiencing while traversing the river.

Issue: Whether Philippine President Lines, Inc. is liable under the said Venezuelan laws.

No. The two Venezuelan Laws were not duly proven as fact before the court. Only mere photocopies of
the laws were presented as evidence. For a copy of a foreign public document to be admissible, the
following requisites are mandatory:

(1) It must be attested by the officer having legal custody of the records or by his deputy; and

(2) It must be accompanied by a certificate by a secretary of the embassy or legation, consul general,
consul, vice consular or consular agent or foreign service officer, and with the seal of his office.

And in case of unwritten foreign laws, the oral testimony of expert witnesses is admissible, as are
printed and published books of reports of decisions of the courts of the country concerned if proved to
be commonly admitted in such courts.

Failure to prove the foreign laws gives rise to processual presumption where the foreign law is deemed
to be the same as Philippine laws. Under Philippine laws, PPL nor Captain Colon cannot be held liable for
the negligence of Vasquez. PPL and Colon had shown due diligence in selecting Vasquez to pilot the
vessel. Vasquez is competent and was a duly accredited pilot in Venezuela in good standing when he
was engaged.

• Doctrine of Processual Presumption

When the proper foreign law has not been properly proved, the court of the forum may presume that
said foreign law is the same as its local or domestic law, which it can now apply.
When the proper foreign law has
been properly pleaded and proved...

generally, our courts should give the same interpretation as that given by the foreign courts.

• 3. When the case involves any of the exceptions to the application of the proper foreign law

a) When the application of the foreign law would run counter to the sound and established public
policy of the forum

i. Art. 26, FC

ii. Joint wills (Arts. 818-819)

iii. Incestuous marriages and void marriages

iv. When the foreign law is contrary to the almost universally conceded principles of
morality (contra bonos mores)

b) When the foreign law involves procedural matters (no vested rights)

d) When the foreign law is penal in character

e) When the law is purely fiscal (e.g. revenue-producing) or administrative in nature

f) When the foreign law might work undeniable injustice to the citizens or residents of the forum [e.g.
age to execute contract different for each state]

g) When the application of the foreign law would endanger the vital interests of the state

Reasons for the application

of a foreign law

 Theory of comity (reciprocal courtesy)

A foreign judgment is a presumptive evidence of a right as between the parties and their successors-in-
interest [sec. 48, Rule 39]

 Vested-rights theory

Rights once acquired under a foreign law or judgment should be enforced regardless where the suit is
for its enforcement was filed.

 Theory of Justice

Dispensation of justice – purpose of laws

 Theory of local law

A foreign law is applied because our own law, by applying a similar rule, requires us to do so. [e.g. Art.
16(2) – If decedent was American and children are Filipinos, apply national law in re testate/intestate
succession]

 Theory of harmony of laws

Identical or similar problems should be given identical or similar solutions. (e.g. Lex situs governs
transactions involving real property in the interest of uniformity)

Note: Each does not mutually exclude one another; no single theory holds whole truth
 • Nature and Composition of Conflicts Rules

A conflicts rule is a provision found in our own law which governs a factual situation possessed of a
foreign element.

2 kinds:

a) One-sided rule (indicates when Philippine laws apply)

e.g. Art. 15; Art. 818 (joint wills)

b) All-sided/ multilateral rule (indicates whether to apply foreign or Philippine law)

e.g. Art. 16 par. 2; Art. 17 (formalities of contracts, wills, etc. – governed by law where they are
executed)

Parts:

a) Factual situation [raises a legal question]

Set of facts presenting a conflicts problem

a) Point of contact/connecting factor [answers a legal question]

 An analysis is made with respect to which jurisdiction or fora has the most connection to
the case.

 law of the country with which the factual situation is intimately connected

e.g. Art. 1753; Art. 1039 (capacity to succeed – national law of decedent)

Example:

Art. 16. Real property as well as personal property is subject to the law of the country where it is
situated.

 The factual situation is - real property as well as personal property

 The point of contact is - the law of the country where it is situated

These "test factors" or "points of contact" or "connecting factors" could be any of the following:

(1) The nationality of a person, his domicile, his residence, his place of sojourn, or his origin;

(2) the seat of a legal or juridical person, such as a corporation;

(3) the situs of a thing, that is, the place where a thing is, or is deemed to be situated. In particular, the
lex situs is decisive when real rights are involved;

(4) the place where an act has been done, the locus actus, such as the place where a contract has been
made, a marriage celebrated, a will signed or a tort committed. The lex loci actus is particularly
important in contracts and torts;

(5) the place where an act is intended to come into effect, e.g., the place of performance of contractual
duties, or the place where a power of attorney is to be exercised;

(6) the intention of the contracting parties as to the law that should govern their agreement, the lex loci
intentionis;
(7) the place where judicial or administrative proceedings are instituted or done. The lex fori — the law
of the forum — is particularly important because matters of "procedure" not going to the substance of
the claim involved are governed by it; and because the lex fori applies whenever the content of the
otherwise applicable foreign law is excluded from application in a given case for the reason that it falls
under one of the exceptions to the applications of foreign law; and

(8) the flag of a ship, which in many cases is decisive of practically all legal relationships of the ship and
of its master or owner as such. It also covers contractual relationships particularly contracts of
affreightment.

• Characterization of
Conflicts Rules

 Characterization (classification/qualification) is the process of assigning a certain set of facts or

factual situation to its proper or correct legal category. It is a process of spotting the legal issues
as presented by the facts of the case.

 This involves identification of the issue/s in the problem.

 It is comparable to a lawyer studying a case for the first time and who is trying to develop a
theory of the case. An important step is pinpointing the branch of law implicated by the
problem. Is it contract, torts, etc.?

 After identifying the branch of law, the next step will be determining whether there is a conflicts
problem by the presence of a foreign element.

“Before a choice of law can be made, it is necessary for us to determine under what category a certain
set of facts or rules fall. This process is known as characterization or the Doctrine of Qualification. It is
the process of deciding whether or not the facts relate to the kind of questions specified in a conflict
rule.

The purpose of characterization is to enable the forum to select the law. So, our starting point of
analysis here is not a legal relation but a factual situation, event, or operative fact.”

• Factors which give rise to the problem of characterization

1. Different legal systems attach to the same legal term different meanings

2. Different legal systems may contain ideas completely unknown to one another

3. Different legal systems apply different principles for the solution of problems

• Personal Law

A person’ s personal law may be defined as that which attaches to him wherever he may go – the law
that generally governs his status, capacity, condition, and family relations.

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even though living abroad.

• Theories in determining
Personal Law

1. Nationality/ Personal theory

 Status and capacity are determined by national law

 The Philippines follows this theory

  Domiciliary/ Territorial theory

 Status and capacity are determined by law of domicile (lex domicilii)

3. Situs or eclectic theory

 Views the particular place or situs of an event as the controlling law

 2 kinds of participation of individual concerned

a) If voluntary – law of actual situs

b) If passive (i.e. as when the effects of the act are determined by law) – law of the
legal situs (domicile of individual)

Example: Marriage of Filipinos in London, UK

Voluntary – lex loci celabrationis

Passive – property relations

• Nationality Theory

 Who determines nationality?

Art. 1. “It is for the State to determine under its own law who are its nationals. This law shall be
recognized by other States insofar as it is consistent with international conventions, international
customs and the principles of law generally recognized with regard to nationality.”

Art. 2 “Any question as to whether a person possesses nationality of a particular State shall be
determined in accordance with the law of that State.” [Hague Convention on Conflict of Nationality
Laws]

• Citizenship

“Citizenship is man’s basic right for it is nothing less than the right to have rights. Remove this priceless
possession and there remains a stateless person, disgraced, degraded in the eyes of his countrymen.”
(C.J. Warren, Perez vs. Brownell, 356 U.S. 44)

The core of citizenship is the capacity to enjoy political rights (i.e. right to participate in government
principally through the right to vote, hold public office, petition the government for redress of
grievance.)

It denotes possession within that particular political community of full civil political rights subject to
special disqualifications (e.g. minority).

Reciprocally, it imposes the duty of allegiance to the political community.

Citizenship is personal or less permanent membership in a political community.

• How nationality or
citizenship is acquired

1. Birth

2. Naturalization

3. Repatriation
 4. Subjugation/ Cession

Modern law recognizes 3 distinct modes of acquiring citizenship:

1. Jus sanguinis (acquisition of citizenship on the basis of blood relationship)

2. Jus soli (acquisition of citizenship on the basis of place of birth)

3. Naturalization (the legal act of adopting an alien and clothing him with the privilege of a native-
born citizen) cf CA 473 and R.A. 9139

• Modes of Losing
Nationality or Citizenship

1. Release

2. Deprivation

3. Renunciation

4. Substitution (nationality lost by naturalization or marriage)

Art. 3: “A person having two or more nationalities may be regarded as its national by each of the states
whose nationality he possesses.”

• Theory of Effective Nationality

Art. 5: “Within a 3rd State, a person having 2 or more nationalities shall be treated as if he only had
one.

Without prejudice to the application of its law in matters of personal status and of any conventions in
force, a 3rd state SHALL, of the nationalities which such person possesses, RECOGNIZE exclusively in its
territory the nationality of the country:

a. in which he is habitually and principally a resident, or

b. with which the circumstances he appears to be in fact most closely connected.

Example:

X is a Filipino-American who temporarily works in Hong Kong. He is a resident of and has

properties in Manila.

Section 1, Article IV. The following are citizens of the Philippines:

1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;

2) Those whose fathers or mothers are citizens of the Philippines;

3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon
reaching the age of majority; and

4) Those who are naturalized in accordance with law.

Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having
to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine
citizenship in accordance with Paragraph (3), Section 1 hereof shall be deemed natural-born citizens.

• Naturalization
 it is the process of conferring on an alien the citizenship of another country, by any means provided by
law

1. C.A. 473, as amended by R.A. 530 [judicial]

2. R.A. 9139 [The Administrative Naturalization Law of 2000]

3. Special act of Congress

Under CA 473 - 10 Year Residency is Reduced to 5 Years when the Applicant:

1. Has honorably held office under the government;

2. Has established a new industry or introduced a useful invention in the RP;

3. Has married a Filipino woman;

4. Has been engaged as a teacher in a school not established for the exclusive instruction of
children of a particular nationality or race for a period of not less than 2 years.; or

5. Was born in the RP.

Steps in Administrative Naturalization Proceedings

1. File a DECLARATION of INTENTION

2. FILING of PETITION for naturalization [1 year from filing of declaration]

3. PUBLICATION in Official Gazette

4. HEARING of Petition

5. Promulgation of judgment awarding naturalization.

6. REHEARING of Petition [2 years from promulgation]

7. Taking an OATH of allegiance

Those who are exempted from filing a Declaration of Intention are those:

1. Born in the RP and received primary and secondary education in schools recognized by the DECS; or

2. Those who have resided in the RP for 30 years before filing the application, or

3. The widow and minor children of alien who has declared his intention to become a citizen of the
Philippines and dies before he is actually naturalized.

Disqualified from Applying for

Naturalization under CA 473/ R.A. 9139

1. Citizens or subjects or nations with whom the RP is at war, during the period of such war

2. Those: a. opposed to organized government, or b. affiliated with any association or group of

persons who upload and teach doctrines opposing all organized governments

3. Those defending or teaching the necessity of or propriety of violence and personal assault or
assassination for the success or predominance of their ideas

4. Those who are: a. polygamists, or b. believers in the practice of polygamy

5. Those convicted of crimes involving moral turpitude

6. Those suffering from: a. mental alienation, or b. incurable contagious diseases;

7. Those who, during the period of their residence in the RP:

a. have not mingled socially with the Filipinos, or b. have not evinced a sincere desire to learn
and embrace the customs, traditions and ideals of the Filipinos;

8. Citizens or subjects of a foreign country whose law do not grant Filipinos the right to be naturalized
citizens or subject thereof (Reciprocity)

Grounds for Cancellation of Filipino Citizenship Acquired through Naturalization

1. Certificate of naturalization was obtained fraudulently or illegally

2. He established his permanent residence abroad within five [5] years after his naturalization

3. The petition was based on an invalid declaration of intention

4. His minor children failed to comply with the educational requirements through his fault or
neglect

5. He allowed himself to be used as a dummy in violation of our naturalization laws [section 18]

Section 3. Philippine citizenship may be lost or re-acquired by law.

Ways of Losing Filipino Citizenship

[Expatriation]

1. By naturalization in a foreign country (BUT see R.A. 9225)

In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue of a
“greencard,” which entitles one to reside permanently in that country, constitutes abandonment of
domicile in the Philippines. With more reason then does naturalization in a foreign country result in an
abandonment of domicile in the Philippines. [Coquilla v. COMELEC, 2002]

2. By express renunciation

In Board of Immigration Commissioners vs. Go Gallano, express renunciation was held to mean
a renunciation that is made known distinctly and explicitly and not left to inference or implication.

Petitioner, with full knowledge, and legal capacity, after having renounced Portuguese
citizenship upon naturalization as a Philippine citizen resumed or reacquired his prior status as a
Portuguese citizen, applied for a renewal of his Portuguese passport and represented himself as such in
official documents even after he had become a naturalized Philippine citizen. Such resumption or
reacquisition of Portuguese citizenship is grossly inconsistent with his maintenance of Philippine
citizenship. [Yu vs. Defensor- Santiago, 1989]

The Supreme Court has consistently held that an application for, and the holding of, an alien certificate
of registration is not an act constituting renunciation of Philippine citizenship. For renunciation to
effectively result in loss of citizenship, the same must be express. Renald F. Vilando vs. House of
Representatives Electoral Tribunal, Jocelyn Sy Limkaichong and Hon. Speaker Prospero Nograles, G.R.
Nos. 192147 & 192149. August 23, 2011.
3. By subscribing to an oath of allegiance to support the Constitution or laws of a foreign country

4. By rendering service to, or accepting commission, in the armed forces of a foreign country without
the consent of the Republic.

5. By cancellation of the certificate of naturalization

6. By having been declared by competent authority, a deserter of the AFP in time of war, unless,
subsequently, a plenary pardon or amnesty has been granted

7. By marrying an alien [if a woman], if by her act or omission, she is deemed to have renounced her
Philippine citizenship (section 1, C.A. 63)

• Reacquisition of Citizenship

Citizenship once lost may be re-acquired either by naturalization or by repatriation [results in the
recovery of the original nationality] or by a direct grant by law (C.A. 63, Secs. 2, 3, 4).

 Repatriation

1. R.A. No. 2630 – applies to the repatriation of those who lost their Philippine citizenship by
accepting commission in the Armed Forces of the United States

2. R.A. No. 8171 – provides for the repatriation of, among others, natural-born Filipinos who lost
their citizenship on account of political or economic necessity

3. C.A. 63

For women who have lost their citizenship through marriage to aliens, and for natural-born Filipinos,
including their minor children, as well as persons who have lost their citizenship on account of economic
or political necessity, and who are not disqualified, repatriation is accomplished by: taking oath of
allegiance to the Republic and registering in the proper Civil Registry and in the Bureau of Immigration.
Processing of applications is done by the Special Committee on Naturalization. (R.A. 8171)

Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or
omission they are deemed, under the law, to have renounced it.

• R.A. 9225: Citizenship Retention and Re-acquisition Act

Section 2. Declaration of Policy. It is hereby declared the policy of the State that all Philippine citizens of
another country shall be deemed not to have lost their Philippine citizenship under the conditions of this
Act.

• R.A. No. 9225 was enacted to allow re-acquisition and retention of Philippine citizenship for: 1)
natural-born citizens who have lost their Philippine citizenship by reason of
their naturalization as citizens of a foreign country; and 2) natural-born citizens of the
Philippines who, after the effectivity of the law, become citizens of a foreign country. The law
provides that they are deemed to have re-acquired or retained their Philippine citizenship upon
taking the oath of allegiance.

Section 3. Retention of Philippine citizenship. Any provision of law to the contrary notwithstanding,
natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby
deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the
Republic: xxx

Natural-born citizens who, after the effectivity of this Act, becomes citizens of a foreign country
shall retain their Philippine citizenship upon taking the aforesaid oath.
By the oath dictated in the aforequoted provision, the Filipino swears allegiance to the Philippines, but
there is nothing therein on his renunciation of foreign citizenship. [Jacot vs. Dal, 2008]

As its title declares, R.A. 9225 amends C.A. 63 by doing away with the provision in the old law which
takes away Philippine citizenship from natural-born Filipinos who became naturalized citizens of other
countries and allowing dual citizenship, and also provides for the procedure for re-acquiring and
retaining Philippine citizenship. [David vs. Agbay, March 18, 2015]

Section 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or adopted, below
18 years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be
deemed citizens of the Philippines.

Section 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship
under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following conditions:

1. Those intending to exercise their right of suffrage must meet the requirements under Section 1,
Article V of the Constitution, R.A. 9189 and other existing laws;

2. Those seeking elective public office in the Philippines shall meet the qualification for holding such
public office as required by the Constitution and existing laws and, at the time of the filing of certificate
of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath;

The language of section 5(2) is free from any ambiguity. In Lopez vs. COMELEC, we declared its
categorical and single meaning: A Filipino American or any dual citizen cannot run for any elective public
position in the Philippines unless he or she personally swears to a renunciation of all foreign citizenship
at the time of the filing of certificate of candidacy. [Condon vs. COMELEC, 2012]

The citizenship requirement for elective public office is a continuing one. It must be possessed not just
at the time of the renunciation of the foreign citizenship but continuously. Any act which violates the
oath of renunciation opens the citizenship issue to attack. [Maquiling vs. COMELEC, 2013]

3. Those appointed to any public office shall subscribe and swear to an oath of allegiance to the
Republic of the Philippines and its duly constituted authorities prior to their assumption of office:
Provided, That they renounce their oath of allegiance to the country where they took that oath;

4. Those intending to practice their profession in the Philippines shall apply with the proper authority for
a license or permit to engage in such practice; and

A Filipino lawyer who becomes a citizen of another country and later re-acquires his Philippine
citizenship under R.A. 9225, remains to be a member of the Philippine bar.

However, the right to resume the practice of law is not automatic. R.A. 9225 provides that a person
who intends to practice his profession in the Philippines shall apply with the proper authority for a
license or permit to engage in such practice. [In Re: Petition to Re-acquire the Privilege to practice law in
the Philippines, B.M. No. 2112, July 24, 2012]

5. That right to vote or be elected or appointed to any public office in the Philippines cannot be
exercised by, or extended to, those who:

a. are candidates for or are occupying any public office in the country of which they are
naturalized citizens; and/or

b. are in active service as commissioned or non-commissioned officers in the armed forces of

the country which they are naturalized citizens.
Procedure under Memorandum

Circular No. AFF-05-002

1. File a verified petition either with Bureau of Immigration (if in PH) or Philippine Foreign Post
(abroad)

 Full name as shown in the foreign naturalization certificate or foreign passport

 Latest forwarding address

 Date and place of birth and civil status

 Name and citizenship of parents at the time of applicant’s birth

 Name, date and place of birth of child beneficiary

 2 recent 2”x2” photos

Proof as natural-born citizenship [Philippine birth certificate; old Philippine Passport; Voter’ s
Affidavit/I.D.; marriage contract; other documents]

 Certificate of Naturalization/ affidavits

2. After filing of petition, it shall be assigned to an evaluating officer without further proceedings

 If sufficient in form and substance: submit findings and recommendation to the

Commissioner of Immigration within 5 days from date of assignment [Order of
Approval]

 If it does not comply with requirements: applicant shall be notified to submit documents
within 30 days from receipt

 If not sufficient in form and substance: shall not be favorably acted upon by BI or PFP

The Oath of Allegiance shall be the final act to retain/reacquire Philippine citizenship.

 If in the Philippines: Commissioner of Immigration or any officer authorized under

existing laws

 If abroad: only Consul or a duly commissioned foreign service officer of PFP

Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.

Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent
application of the different laws of 2 or more states, a person is simultaneously considered a national
by said states.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by
some positive act, loyalty to 2 or more states. While dual citizenship is involuntary, dual allegiance is a
result of an individual’s volition. [Mercado vs. Manzano, 1999]

Take note that when parties enter into an agreement, their relationship is usually governed by a
particular law.

The default law is almost always the local law. This is especially true in cases where there is no foreign
element involved.
Art. 16. Real property as well as personal property is subject to the law of the country where it is
situated.

However, intestate and testamentary successions, both with respect to the order of succession and to
the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration, whatever may be
the nature of the property and regardless of the nature of the country wherein said property may be
found.

Art. 16 directs the application of lex rei sitae.

• The problem of renvoi

Renvoi means to “refer back” or “return”

In Anglo-American countries, the term used is remission (to refer a matter for consideration or
judgment)

Note: Every municipal law of a state has two parts:

a) Purely internal or domestic law as applied to domestic cases

b) Rules in conflict of laws

The renvoi problem arises when there is doubt as to whether a reference by the lex fori to the foreign
law involves

1. reference to the internal law of the foreign law; or

2. a reference to the entirety of the foreign law, including its conflict rules.

 A local law requires the forum court to apply a foreign law to the case in dispute.

 The foreign law, in turn, directs the application of the laws of the forum court to the case. Thus,
there is a reference back to the local laws of the forum court.

 This situation, if strictly followed, will result in an endless reference to two laws.

 To solve this problem, the local court must, after looking at the conflicts of law rules of the
foreign state, apply the latter’s laws.

 Thus, if the directive is the application of the forum court’s laws, the court must then follow this
to put an end to the endless throwing back of the case.

Example:

A Canadian citizen, a long-time resident of the Philippines, dies and leaves properties in the country.

California law:

a) For citizens residing in California

b) For citizens residing abroad (law of the domicile applies)

Philippine law: Art. 16 (2nd par.) – national law of decedent

Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of
another. In the present case, it is not disputed that the decedent was both a national of Texas and a
domicile thereof at the time of his death.
So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the
domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but
would still refer to Texas law.

Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the
application of the law of the place where the properties are situated, renvoi would arise, since the
properties here involved are found in the Philippines. In the absence, however, of proof as to the
conflict of law rule of Texas, it should not be presumed different from ours. Appellants' position is
therefore not rested on the doctrine of renvoi. [Bellis vs. Bellis, 1968]

There are two forms of renvoi: single or partial renvoi, and double or total renvoi.

Under single or partial renvoi, the Philippine court accepts the reference back from the country referred
to by the Philippine choice of law rule.

For instance, if a Philippine court is referred by its own choice of law rules to the law of country X, but
the choice of law rules of X refers such case back to Philippine law, then the Philippine court must apply
its own domestic law to the case.

Under double or total renvoi, the Philippine court, which is referred by its conflict rules to the foreign
country, must apply the law which a court in that foreign country would apply if it were hearing the
case.

• solutions court can adopt

when the problem of renvoi arises

1. Reject renvoi

2. Accept renvoi

 Apply Philippine law

3. Theory of desistment/ mutual disclaimer of jurisdiction theory

 Court refrains from applying national law of alien if said laws follows domiciliary theory.
(PH law applies)

4. Foreign court theory

 Simply do what the foreign court would do if confronted with the same case.

• Marriage

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad.

• Marriage as a contract

Essential requisites

1) Legal capacity (must be male and female)

2) Consent freely given in the presence of solemnizing officer

Formal requisites

1. Authority of solemnizing officer

2. Valid marriage license and exceptions

 3. Marriage ceremony

4. Marriages outside the Philippines made by Filipinos are valid in the Philippines if in
accord with laws they were solemnized, subject to exceptions [Art. 26, FC] – lex loci
celebrationis

 Marriages between foreigners in PH –

 Art. 21. When either or both of the contracting parties are citizens of a foreign country,
it shall be necessary for them before a marriage license can be obtained, to submit a
certificate of legal capacity to contract marriage, issued by their respective diplomatic or
consular officials.

 Marriages between foreigners abroad – lex loci celebrationis

 Except: 1.) highly immoral; 2.) incestuous

 Marriages between a Filipino and foreigner abroad – lex loci celebrationis

 Marriages between a Filipino and foreigner in PH - national law of the Filipino

• Marriage as a status

Two aspects

1. Personal rights and obligations (Arts. 68-73, FC for Filipinos)

2. Property relations

• Doctrine of Immutability of Matrimonial Regime

The original property regime that prevailed at the start of the marriage prevails...

... regardless of change of nationality by husband or wife or both.

What justification is there for applying a foreign law? Why not just apply the law of the forum to every
case? Cheshire and North(PrivateInternationalLaw, 12th edn, p 39) put it in the following terms:

“There is no sacred principle that pervades all decisions but, when the circumstances indicate that the
internal law of a foreign country will provide a solution more just, more convenient and more in accord
with the expectations of the parties than the internal law of England, the English judge does not hesitate
to give effect to the foreign rules.”

• Contracts

Art. 1305. A contract is a meeting of minds between two persons whereby one binds himself, with
respect to the other, to give something or to render some service.

• Basic Legal Principles

1. Freedom to stipulate (Art. 1306)

2. Obligatory force of contracts (force of law between parties)

3. Mutuality of contracts – a contract binds both parties and its validity cannot be left to the will of
one party only (Art. 1308)
 4. Relativity of contracts - contracts take effect only between the parties, their assigns and heirs
except where the rights and obligations arising from the contract are not transmissible by their
nature, by stipulation or by provision of law (Art. 1311)

• 3 stages

1. Conception/ generation (preparatory stage)

2. Perfection/ birth

3. Consummation

• Classifications

 According to names

1. Nominate

 Innominate

1. Do ut des (I give that you may give)

2. Do ut facias (I give that you may do)

3. Facio ut facias (I do that you may do)

4. Facio ut des (I do that you may give)

• According to perfection

1. Consensual

2. Real (delivery)

3. Formal

• According to certainty/fulfillment

1. Commutative – where contracting parties contemplate the assured fulfillment of the terms of
the agreement (e.g. mortgage, pledge)

2. Aleatory - where fulfillment is dependent upon chance or event which may not happen within
period stipulated (insurance contract)

• Property

The Philippines adheres to the rule of lex situs/ lex rei sitae.

Art. 15. Real property as well as personal property is subject to the law of the country where it is
situated.

• Issues governed by lex situs

1. Extrinsic Validity of Alienations

2. Intrinsic Validity of Alienations

3. Transfers (including sale, barter, exchange)

4. Mortgage
5. Capacity of the Parties

6. Interpretation of Documents

7. Effects of Ownership

8. Co-ownership

9. Possession (including adverse)

10.Accession

11. Usufruct

12.Lease

13.Easement

14.Police Power

• Exceptions to lex rei sitae

1. Succession – testate/intestate, whether the properties are real or personal and wherever they
may be located [national law of decedent, per Art. 16(2)] including:

a) Order of succession

b) Amount of successional rights

c) Intrinsic validity of testamentary dispositions

2. Capacity to succeed - [national law of decedent, per. Art. 1039]

3. Contracts involving real property but do NOT deal with title or real rights over property

Issue: contractual rights of the parties [governed by the proper law of the contract, either: lex loci
voluntatis (law of the place voluntarily agreed upon) or lex loci intentionis (law of the place intended by
the parties)]

Example: A Filipino hires an American interior designer to renovate the latter’ s house and lot in the
Philippines.

4. In contracts where real property is given as security by way of mortgage to secure a principal contract
(e.g. loan)

Loan – proper law of the contract

Mortgage – lex situs

5. Validity of a contract to transfer (personal contract that does not create rights in rem)

Art. 415. The following are immovable property:

(1) Land, buildings, roads and constructions of all kinds adhered to the soil;

(2) Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an
immovable;

(3) Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated
therefrom without breaking the material or deterioration of the object;
(4) Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands
by the owner of the immovable in such a manner that it reveals

the intention to attach them permanently to the tenements;

(5) Machinery, receptacles, instruments or implements intended by the owner of the tenement for an
industry or works which may be carried on in a building or on a piece of land, and which tend directly to
meet the needs of the said industry or works;

(6) Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their
owner has placed them or preserves them with the intention to have them permanently attached to the
land, and forming a permanent part of it; the animals in these places are included;

(7) Fertilizer actually used on a piece of land;

(8) Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either
running or stagnant;

(9) Docks and structures which, though floating, are intended by their nature and object to remain at a
fixed place on a river, lake, or coast;

(10) Contracts for public works, and servitudes and other real rights over immovable property.

• Conflict of law in property law

A conflict of law situation arises only if:

1. There is dispute over the title or ownership of an immovable

2. A foreign law on land ownership and its conveyance is asserted to conflict with a domestic law
on the same matters [Laurel vs. Garcia, 1990]

• Lex situs as applied to movable property

1. Choses in possession – usually identified with tangible objects [things that can be seen and
touched]

2. Choses in action – are rights, legal titles or claims to something [such as debts, patents, copyright,
goodwill, trademarks and shares of stock], subdivided into choses in action:

a. that are mere rights – such as the right to collect from a debtor, or

b. choses in action represented by document

If personal property is intangible – artificial/constructive situs

1. Goodwill – law of the place where business is carried on

• Torts

Article 2176 – whoever by act or omission causes damage to another, it is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this Chapter.

It could either be a direct invasion of some legal right of an individual, the infraction of some public duty
wherein which damage accrues to the individual or the violation of some private obligation by which
damage accrues to another. Anything that causes damage to another is a tort – outside any contractual
obligation.
Elements of tort action:

1. Legal duty

2. Breach of that duty

3. Damage as a proximate result

• Approaches to liability for torts

1. Lex loci delicti commissii

2. Governmental interest analysis approach

3. Lex fori

4. Most significant relationship approach

5. Qaver’ s Principle of Preference

• Lex loci delicti commissii

 This is the traditional approach.

 It employs the law of the place where the wrong was committed (place of injury).

 Based on vested rights theory

 Reasons for the rule:

a. The state where the social disturbance occurred has the primary duty to redress the wrong and
determine effects of injury

b. To compensate the victim for the damage or injury suffered

• Theories in determining
locus delicti

1. Civil law theory – place where the act began

2. Common law theory – place where the wrongful act became affective

3. Theory of Dr. Rabel – place which has the most substantial connection with the wrongful act

Illustration:

while hunting in Nevada near the boundary of California, X accidentally shot Y, who was standing on a
street in California.

• Governmental interest analysis

A three-tiered approach that involves an examination whether there is a difference in the law of the
jurisdictions involved, whether there is a true conflict of law, and if a true conflict exists, the court will
apply the law of the state whose interests is more impaired.

• Most significant relationship approach

The law of the state which has the most connection shall be applied in the resolution of the case.

The points of contact are:

 1. Place where the injury occurred;

2. Place where the conduct causing the injury occurred;

3. Domicile, residence, nationality, place of incorporation and place of business of the parties;

4. Place where the relationship, if any, between the parties is centered.

• Qaver’ s Principle of Preference

A higher standard of conduct and financial protection given to the injured party by one state is applied
by the state where the injury happened, if the latter state adopts a lower standard of conduct and
financial protection to the injured.

As a result of an illegal sale of liquor to X in state A, T, a passenger in the car driven by X, got hurt in an
accident that occurred in state B. Sued for tort by T in state A, X moved to dismiss the case on the
ground that the accident happened in state B.

Held: state B’ s law applies. In conformity with equity and justice since X‘s wrongful act was committed
in state B where X became intoxicated before leaving said state.

• Corporations

• Conflict of laws with respect to corporations generally deal with their administration,
incorporation, nationality, and domicile.

Domestic corporations are those organized under the laws of the Philippines.

Foreign corporations are those formed, organized or existing under any laws other than those of the
Philippines and whose laws allows Filipino citizens and corporations to do business in its oqn country or
state. [sec. 123, Corporation Code]

Under sec. 123, a foreign corporation must first obtain a license and a certificate from the appropriate
government agency before it can transact business in the Philippines.

If without proper license, it cannot maintain, in general, any action or proceeding before Philippine
courts.

• Note: The CC provides no definition for the phrase “doing business.” Nevertheless, sec. 1, R.A.
5455 fills in the gap.

– Includes soliciting of orders, purchases, service contracts, opening offices

– Appointing representatives or distributors qho are domiciled in the Philippines or qho in

any calendar year stay in the PH for a period or periods totalling 180 days or more;

– Participating in the management, supervision or control of any domestic business firm;

– Any other acts that imply a continuity of commercial dealings or arrangements, and
contemplate to that extent the performance of acts or works, or the exercise of some of
the functions normally incident to, and in progressive prosecution of, commercial gain
or of the purpose and object of the business organization.

 The domicile of a juridical person is the state of its incorporation.

 The “internal affairs” of a corporation are governed by the law of the state of incorporation.
Sec. 129, CC tells us that PH laws govern foreign corporations except to matters relating to
“creation, formation, organization or dissolution of corporations or those which fix the relations,
 liabilities, responsibilities, or duties of stockholders, members or officers of corporations to each
other or to the corporation.”

• CHOICE OF LAW PROBLEMS

• Marriage as defined by The Family Code:

– Art. 1

• Marriage is a special contract of permanent union between man and woman

entered into in accordance with law for the establishment of the family and an
inviolable social institution whose nature, consequences and incidents are
governed by law and not subject to stipulation , except that marriage
settlements may fix the property relations during the marriage within limits
provided by this code.

– Marriage is a mere declaration by contracting parties in the presence of the person

solemnizing the marriage and two (2) witnesses of legal age, that they take each other
as husband and wife

– Signed or marked by the said contracting parties and their witnesses

– And attested by the person solemnizing the marriage

• It is a special contract distinguished from an ordinary contract:

1. is entered into by a man and a woman

1. both are at least 18 years of age

2. solemnized by a person authorized by law

3. is a permanent union unless

- one of the parties die

- marriage is annulled or declared void in special circumstances

1. Cannot be abrogated, amended, or terminated by one of both parties at will

2. The nature and consequences as well as incidents are governed by law and not subject
to stipulation by the parties

3. Violation of marital obligations may give rise to penal or civil sanctions

• PHILIPPINE POLICY ON MARRIAGE AND THE FAMILY

• Art. XV, Sec. 2 of the Philippine Constitution

– Marriage as an inviolable social institution, is the foundation of the family and shall be
protected by the State

• Conflict of law where marriage is celebrated in another country or between people of different
nationalities

• The Philippines establishes presumption of marriage.

• Art. 220 of the Civil Code

 – In case of doubt, all presumptions favor the solidarity of the family. Thus, every
intendment of law or facts leans toward the validity of marriage, the indisolubity of
marriage bonds, the legitimacy of the children, the community of property during the
marriage, the authority of parents over their children, and the validity of defense for any
members of the family in case of unlawful aggression.

• EXTRINSIC VALIDITY OF MARRIAGE

• Lex loci celebrationis

– Law of the place of the celebration

– Covers questions relating to the formalities or “external conduct required of the parties
of of the third persons especially of public officers, necessary to the necessary to the
formation of a legally valid marriage.

• Art. 2 of the Hague Convention on Celebration and Recognition of the Validity of Marriages

– The formal requirements of marriage are governed by the law of the state of
celebration, a reiteration of a recognized principle of conflict of laws.

– All states recognized as valid marriages celebrated in foreign countries if they complied
with the formalities prescribed there.

• Formal requirements of marriage in the Philippines set forth by Art. 3 of the Family Code:

1. authority of the solemnizing officer

2. a valid marriage license except in the cases provided in Chapter 2 of this Title

3. a marriage ceremony which take place with the appearance of the contracting parties before
the solemnizing officer and their personal declaration that they take each other as husband and wife in
the presence of not less than two witnesses of legal age.

• Art. 26 of the Family Code

– 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.

• The Civil Code of the Philippines enumerates marriages that are bigamous, polygamous,
incestuous as exceptions to the rule of lex loci celebrationis (Art. 71)

• The Family Code widens these exceptions of 16 (Art. 26)

• Thus, a foreign marriage although valid in the foreign country where it was entered into will be
void in the Philippines if:

– Either or both of the parties are below 18 years old

– It is bigamous of polygamous

– A subsequent marriage is performed without recording in the civil Registry and Registry
of Properties the judgment of annulment or declaration of the nullity of the fiorst
marriage, the partition and distribution of properties of the spouses and the delivery of
the children’s presumptive legitimes

– There was mistake as to the identity of the contracting party

 – One of the parties was psychologically incapacitated to comply with the essential
marital obligations

– the marriage is void by reason of public policy

• INTRINSIC VALIDITY OF MARRIAGE

• Refers to capacity or “the general ability of a person to marry, for instances defined by
requirements of age and parental consent, but it does not refer clearly to an individual’s being
permitted to marry a specific person of a person of determinate class”

• Intrinsic requirements are controlled by the parties’ personal laws which may either be their
domicile or nationality.

• Municipal laws of each state provides the substantive requirement for valid marriage.

• Philippine law requires

– legal capacity of the parties to enter into marriage (at least 18 years of age; not barred
by any impediment to marry each other)

– Consent freely given in the presence of an authorized solemnizing officer

• Matrimonial consent means that parties are at least, not ignorant that the marriage is a
permanent union.

• Thus, in mixed marriages, the law that governs the substantive validity of marriage is the
national law of the parties.

• Though valid in a foreign country, certain marriages may be void in the Philippines on grounds of
public policy (Art 38)

– between collateral blood relatives, whether legitimate or illegitimate up to the forth civil
degree

– Between step-parents and stepchildren

– Between parents-in-law and children-in-law

– Between the adopting parent and the adopted child

– Between the surviving spouse of the adopting parent and the adopted child

– Between the surviving spouse of the adopted child and the adopter

– Between the adopted child and the legitimate child of the adopter

– Between the adopted children and the same adopter

– Between parties where one, with the intention to marry the other, killed that other
person’s spouse or his or her own spouse.

• Marriage of first cousins which used to be considered an incestuous and void from its
performance under Philippine Law (Art. 81, Civil Code) is no longer deemed incestuous.

• Many countries do not consider marriage of first cousins are not incestuous.
 • Marriage between foreigners whose national laws allow marriage of first cousins should be
considered as valid under the principle that the lex nationalii controls capacity and presumption
in favor of the validity of marriage (Art. 20, Civil Code)

• The Hague Convention of Validity of Marriages allows a contracting state of refuse recognition
of marriage if:

– nnb

– One of the spouses was already married (unless the marriage has subsequently become
valid by virtue of the dissolution or annulment of the previous marriage)

– The spouses were related to one another, by blood or by adoption, in the direct line or
as brother or sister

– One of the spouses had not attained the minimum age required of marriage nor
acquired the necessary dispensation

– One of the spouses did not have the mental capacity to consent

– One of the parties did not freely consent to the marriage

• Marriage Celebrated by a Consular Official

• Hague Convention on the Validity of Marriage (Art. 9)

– Marriage celebrated by a diplomatic agent or consular official in accordance with the

state law shall be considered valid as long as it is prohibited by the state of celebration.

– Marriage Celebrated by a Consular Official

• Philippine law allows marriage of Filipino nationals to be officiated by the Philippine consul
general, consul, or vice consul in which case the formal and intrinsic requirements under
Philippine law will be followed.

• The requirements of a valid marriage license and due publication and registration under
Philippine law will have to be complied with.

• Marriage Celebrated by a Consular Official

• It is submitted that this rule applies to a marriage between a Filipino and an alien provided that
the alien complies with the requisites under his national law. Thealien must have to submit a
certificate of legal capacity to contract marriage issued by his diplomatic or consular office.

• Marriage Celebrated by a Consular Official

• Stateless persons or refugees from other countries, in lieu to legal capacity, shall submit an
affidavit stating the circumstances showing such legal capacity to contract marriage.

• Effects of Marriage

Personal Relation Between Spouse

– Include mutual fidelity , respect, cohabitation, support and the right of the wife to use
the husband’s family name.

– if spouses are of different nationalities, national law of the husband may prevail as long
as said law is not contrary to law, customs and general morals of the forum.
 • Art. 69, Family Code gives both husband and wife the right to fix the family domicile.

• The court may find valid and compelling reasons to exempt one spouse from living with the
other.

• Effects of Marriage

Property Relations of Spouses

• The Hague Convention of the Law Applicable to Matrimonial Property Regimes

– States that the internal law designated by the spouses before the marriage or in the
absence of the spouses fix their first habitual residence is the governing law on
matrimonial property regimes.

• Art. 80, Family Code

– In the case of a contrary stipulation in a marriage settlement, the property relation 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. If 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

3. With respect to the extrinsic validity of the contracts entered into the
Philippines but affecting property situated in a foreign country whose laws
require different formalities for extrinsic validity.

• The property relations of the spouses where one is a Filipino citizen and the other is a foreigner
would still be governed by the Philippine law whether the Filipino is the husband or the wife.