M.

Conflict of Laws ( Civil Code, Art 15-18)

Introduction:
It is important to know the difference between public international law
versus private international law.

PRIVATE INTERNATIONALPUBLIC INTERNATIONAL

LAW (CONFLICT OF LAW)LAW
1. As to nature Municipal in character
International in character
2. As to persons involved Deal by private
Parties involved are
individuals sovereign states and
other entities possessed
of an international
personality
3. As to transactions Transactions are private Transactions are entered
involved on between private into which generally
individuals affect public interest;
those which in general
are of interest only to
sovereign states
4. As to remedies or Resort to Municipal Remedies may be
sanctions Tribunals peaceful or forcible

Coquia’s book
NATURE AND FUNCTION OF PRIVATE INTERNATIONAL LAW ( just in case
examiner will ask you to define, its possible as a sub question to a major
question)
Private international law, otherwise known as conflict of laws is that part of
municipal law which determines whether in dealing with a legal situation,
the law

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 Private international law, otherwise known as conflict of laws is that part of
municipal law, which determines whether in dealing with a legal situation,
the law of another state will be recognized and given effect, or applied.
One of the earliest writers simply defined this branch of law as those
universal principles of right and justice which govern courts of one state
having before them cases involving the operation and effect of laws of
another state.

The foreign law or judgment of one state is recognized and applied in this
country provided that in a similar situation, Philippine laws and judgments
are also recognized and applied. Ultimately, the main object and function of
conflict of laws to achieve justice in every case where a foreign element is
involved.

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

Meaning whenever or wherever you are , your status will always be governed
by Philippine laws
What do we mean by status?
Personal qualities and relations , more or less permanent in nature and not
ordinarily terminable at his own will such as his being married or not or such
as his being legitimate or illegitimate .

If you are married here in the Philippines , when you go abroad you are still
married.

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 If babae ka dito sa Pilipinas, then when you go abroad babae ka parin sa
ibang bansa.
If you are single here, then you are still single abroad.

Take note Article 15 is what we call the Nationality principle. Remember that
Article 15 refers to the family rights and duties including the parental
authority, marital authority, support etc and etc.

Take note Article 15 is a rule of private international law or conflicts of law.

Conflict of laws is that there are conflicting laws between the national laws
and foreign laws.
Definition:
Private International Law or Conflict of Laws - that part of the municipal law
of the state, which directs its courts and administrative agencies, when
confronted with a legal problem involving a foreign element, whether or not
they should apply
foreign laws.

JURISDICTION v. CHOICE OF LAW

In the judicial resolution of conflicts problems, three consecutive phases are
involved: jurisdiction, choice of law, and recognition and enforcement of
judgments.

Corresponding to these phases are the following questions:

(1) Where can or should litigation be initiated?
(2) Which law will the court apply? and
(3) Where can the resulting judgment be enforced?

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 Analytically, jurisdiction and choice of law are two distinct concepts.
Jurisdiction considers whether it is fair to cause a defendant to travel to this
state; choice of law asks the further question whether the application of a
substantive law which will determine the merits of the case is fair to both
parties.

The power to exercise jurisdiction does not automatically give a state

constitutional authority to apply forum law. While jurisdiction and the choice
of the lex fori will often coincide, the “minimum contacts” for one do not
always provide the necessary “significant contacts” for the other. The
question of whether the law of a state can be applied to a transaction is
different from the question of whether the courts of that state have
jurisdiction to enter a judgment.

JURISDICTION AND CHOICE OF LAW

As generally understood, conflict of laws is that part of the municipal law of a state
which directs courts or government agencies to apply a foreign law in a case where
a foreign element is involved.
Unless the case falls under any of the exceptions to the rule of comity, the
Philippine Judge is called to apply a foreign law if properly pleaded and proved.

Art 17, paragraph 3 of the present Civil Code is one of the exceptions when we
cannot apply the foreign laws of other state.
More exceptions from Coquia’s book:
The generally accepted exceptions to the application of foreign law comity are:
Where the foreign law invoked is:
(1) contrary to public policy;
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(2) contrary to good morals ( contra bonus mores);
(3) the foreign law is penal in character,
(4) the foreign law is procedural;
(5) it involves personal or real property in the Philippines;
(6) It is fiscal or administrative law;
(7) the foreign law might result in injustice to the people of the forum, and
(8) the foreign law might endanger foreign relations.

I. JURISDICTION
Three Stages in Judicial Resolution Of
Conflict Problems
1. Jurisdiction
2. Choice of law
3. Recognition and enforcement of judgments
(Raytheon International v. Rouzie, G.R. No.
162894, 2008)

Major Questions in Analyzing a Conflict of

Laws Problem
1. Jurisdiction - where can or should litigation be
initiated?
2. Choice of law - which law will the court apply?
3. Recognition and enforcement of foreign
judgments - where can the resulting judgment

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be enforced? (Hasegawa vs. Kitamura, G.R.
No. 149177, 2007)
Jurisdiction Over the Subject Matter
• Power to hear and determine cases of
general class to which the proceedings in
question belong.
• It is conferred by the sovereign authority,
which organizes the courts and defines it
powers.
• Jurisdiction over subject matter is fixed by law
and cannot be conferred by consent of the
parties or their voluntary submission. (Davao
Light v. Court of Appeals, G.R. No. 111685
2001)

To succeed in its motion for the dismissal of

an action for lack of jurisdiction over the
subject matter of the claim, the movant must
show that the court or tribunal cannot act on
the matter submitted to it because no law
grants it the power to adjudicate the claims.
(Hasegawa vs. Kitamura, G.R. No. 149177,
2007)

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Jurisdiction Over Persons
It is the competence of a court to render decision
that will bind the parties to the suit.
Jurisdiction Over the Res
It is the jurisdiction over the subject matter of the
controversy, regardless of the persons who may
be interested therein. It may be classified as
follows:
(a) Action in Rem – purpose is to affect the
interests of all persons in a thing, thus the
court of the forum may render judgment as
long as it has jurisdiction over the res.
(b) Quasi in Rem – purpose is to affect interests
of particular persons in a thing, thus the court
of the forum may render judgment as long as
it has jurisdiction over said persons.
(c) Action in Personam – purpose is to impose
personal liability upon the defendant
Note: In all kinds of jurisdiction, due process
requires that the State must have a reasonable
basis for exercising jurisdiction; to be reasonable
the jurisdiction must be based on some minimum
contacts that will not offend traditional notions of

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fair play and substantial justice (Salonga, Private
International Law, p. 44, 1995).

JURISDICTION:
• Authority of a tribunal to hear and decide a case and possible enforceability in
foreign states, subject to the rights of said states (Paras)
• In international law, it is often defined as the right of a State to exercise authority
over persons and things within its boundaries, subject to certain exceptions
JUDICIAL JURISDICTION VERSUS LEGISLATIVE JURISDICTION (Coquia)
• Judicial Jurisdiction is the power or authority of a court or administrative tribunal
to try a case, render judgment and execute it in accordance with law while
Legislative Jurisdiction which is the power of the state to promulgate laws and
regulations and enforce them on all persons and property within its territory

FOUR MAJOR QUESTIONS TO BE CONSIDERED IN CONFLICT OF LAWS PROBLEM -

1. Has the court jurisdiction over the person of the defendant or over his property
2. Has the court jurisdiction over the subject matter, usually referred to as
“competency”
3. Has the suit been brought in the proper venue in cases where a foreign element
is involved and
4. Is there a statute or doctrine under which a court otherwise qualified to try the
case may or may not refuse to entertain it

JURISDICTION OVER THE PERSON

• is the power of the court to render judgment that will be binding on the parties
involved: the plaintiff and defendant (Paras)

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Acquired through
Plaintiff - institution of action by proper pleading
Defendant - voluntary appearance or by the coercive power of legal process
exerted over the person (Paras)
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
Jurisdiction over the person of the defendant is acquired through voluntary
appearance or personal or substituted service of summons (Coquia)

Jurisprudence about jurisdiction over the person:

WILLIAM GEMPERLE V. HELEN SCHENKER
19 SCRA 45 (Jan. 23, 1967 GR No. L-18164)
ISSUE : Whether or not the court can acquire jurisdiction over the person of an alien
defendant?
HELD : Yes, where a Swiss citizen, residing abroad was served with summons
through his wife who was residing in the Phil. and who was his representative and
attorney-in-fact in a prior civil case which was filed at her behest in her
aforementioned capacity, the trial court acquired jurisdiction over his person by
means of service of summons to his wife. As a the wife had authority to sue in his
behalf, so she was also empowered to represent him in suits filed against him,
particularly in a case which is aconsequence of the action brought by her in his
behalf.
SPS. DOMINGO BELEN vs. HON. PABLO CHAVEZ
G.R. No. 175335, March 26, 2008

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ISSUE : Whether or not the RTC acquired jurisdiction over the person of the
petitioner.
HELD : Yes. Even if the service of summons was defective upon non- resident
defendants, the appearance of Atty. Alcantara impliedly authorized by the
defendants to appear on their behalf and his filing of numerous pleadings were
sufficient to vest jurisdiction over the persons of the defendants.

M.1.b.
JURISDICTION OVER THE PROPERTY
• is the subject matter of litigation results either from the seizure of the
property under a legal process or from the institution of legal proceedings
wherein the court’s power over the property is recognized and made
effective
• this kind of jurisdiction is referred to as in rem jurisdiction. Another form
of jurisdiction is quasi in rem jurisdiction which affects only the interests of
particular persons in the thing.
NOTE: Summons of publication is effective in the following cases –
• if the action is in rem
• quasi in rem
• involves personal status of plaintiff

MINIMUM CONTACTS TEST AND FUNDAMENTAL FAIRNESS TEST

• Due process requires only that in order to subject a defendant to a judgment in
personam, is 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

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• In both in rem and quasi-in rem actions, all that due process required 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 contacts which jurisdiction will be asserted over a
defendant outside of state territory

M.1.C
JURISDICTION OVER THE SUBJECT MATTER
• is conferred by law and defined as the authority of a court to hear and decide
cases of the general class to which the proceedings in question belong
• acquire through the allegations in the petition or complaint, read together with
the proper jurisdictional law, that will confer jurisdiction on the court

CLASSIFICATION OF ACTIONS (as to object)

Please connect this to remedial law
What is action in personam, action in rem and quasi in rem action

Jurisprudence about jurisdiction over the subject matter

DONAH PERKINS V. ROXAS June 19, 1941 GR No. 4751
Facts:
Summons by publication were then served upon the nonresident defendants,
Idonah and Englehard
ISSUE : Whether or not CFI can assume jurisdiction over the subject matter of the
case. HELD : Yes, because jurisdiction over the subject matter is the nature of the
cause of action which is conferred by the sovereign authority which organizes the
court. In the case at bar the respondent’s action calls for the adjudication of title to

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certain shares of stock of the corporation and the granting of affirmative reliefs
which fall within the general jurisdiction of the CFI of Manila.

WAYS OF DEALING WITH A CONFLICTS PROBLEM / WAYS OF DISPOSING

CONFLICTS CASES
1. Dismiss the case for lack of jurisdiction
2. Dismiss the case on the ground of Forum Non-Conveniens
3. Assume jurisdiction and apply the forum law

1. DISMISS THE CASE FOR LACK OF JURISDICTION

Effect of absence or presence of Jurisdiction (Paras)
1. when a court is without jurisdiction, it has no alternative except to dismiss the
case for
being null and void due to lack of due process
2. if a tribunal possesses jurisdiction, it may:
a. refuse to assume jurisdiction on the ground of forum non convenience or
b. assume jurisdiction, in which case it may:
- apply the internal law of the forum (lex fori) or
- apply proper foreign (lex causae)

2. DISMISS THE CASE ON THE GROUND OF FORUM NON-CONVENIENS

• refusal of assume jurisdiction because it would prove inconvenient for the forum
•a forum may resist imposition upon its jurisdiction even when jurisdiction is
authorized by law on the ground that the forum is inconvenient or the ends of
justice would be best served by trial in another forum or the controversy may be

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more suitably tried elsewhere (Doctrine of Forum Non-Conveniens)
ELEMENTS:
a. the forum state is one to which the parties may conveniently resort to;
b. it is in a position to make an intelligent decision as to the law and the
facts; and
c. it has or is likely to have power to enforce its decision
MANIFESTATIONS:
• the witnesses and evidence may not be readily available
• the court dockets of the forum may already be clogged; to permit
additional cases would inevitably hamper the speedy administration of
justice
• the evils of forum-shopping ought to be curbed
• the forum has no particular interest in the case
• other courts are open: certainly the case may be better tried in said
Courts.
M.1.2.
Forum non conveniens refers to a court's discretionary power to decline to exercise
its jurisdiction where another court, or forum, may more conveniently hear a case.

Under the doctrine of forum non conveniens, a Philippine court in a conflict-of-laws

case may assume jurisdiction if it chooses to do so, provided, that the following
requisites are met: (1) that the Philippine Court is one to which the parties may
conveniently resort to; (2) that the Philippine Court is in a position to make an
intelligent decision as to the law and the facts; and (3) that the Philippine Court has
or is likely to have power to enforce its decision.46 All these requisites are present
here (Continental vs Basso)

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DOCTRINE OF FORUM NON-CONVENIENS by Coquia
Most textbooks used in the Philippines cite only foreign decisions applying the
doctrine of forum non -conveniens. The doctrine means that even if the local
court has jurisdiction over the parties and the subject matter, it may decline to try
the case on the ground that the controversy may be more suitably tried
elsewhere. In other words, it is inconvenient for the local court due to the
difficulty of securing evidence and the attendance of witness. If an important
element of the incident occurred in another state, on which case the court in that
state is in a better position to appreciate its evidence.

Jurisprudence for forum non-conveniens

HEINE V. NEW YORK INSURANCE CO., 45 Fed (2d) 426 (1940)
ISSUE : Whether or not the Oregon court can refuse to take cognizance of the case.
HELD : Yes, the Oregon court can refuse to take cognizance or to assume
jurisdiction over the case on the ground of forum non-conveniens, were both
parties are not residents of the place where the court was located and exercising
jurisdiction and especially the courts of Germany and New York are open and
functioning. But it may also take cognizance of the case in the exercise of its sound
discretion.

RAYTHEON INTERNATIONAL INC., vs. STOCKTON ROUZIE, JR., G.R. No. 162894,
February 26, 2008
ISSUE : Whether or not the complaint should be dismissed on grounds of forum non
conveniens
HELD : No. Under the doctrine of forum non conveniens, a court in conflict of laws
cases, may refuse impositions on its jurisdiction where it is not the most convenient
or available forum and the parties are not precluded from seeking remedies

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elsewhere. In the said case, petitioner’s averments of the foreign elements in the
instant case are not sufficient to oust the trial court of its jurisdiction. The
propriety in dismissing a case based on the principle of forum non conveniens
requires a factual determination thus, it is more properly considered a matter of
defense.

3. ASSUME JURISDICTION AND APPLY THE FORUM LAW

• As a general rule, no rule of Private International Law would be violated if the
courts
should decide to dispose cases, according to the internal law of the forum
• EXCEPT: 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 of things
INSTANCES WHEN INTERNAL / DOMESTIC LAW SHOULD BE APPLIED:
1. when a specific law of the forum expressly provides or decrees in its conflict rules
that internal law should apply
Examples:
i. Article 16 of the Civil Code – real and personal property subject to the law of
the country where they are situated and testamentary succession governed by
lex nationalii
ii. Article 829 of the Civil Code – makes revocation done outside the Philippines
valid according the law of the place where will was made or lex domicilii
iii. Article 819 of the Civil Code – prohibits Filipinos from making joint wills even if
valid in foreign country
2. when the proper foreign law has not been properly pleaded and proved

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• NOTE: as a general rule, courts do not take judicial notice of foreign laws must
be pleaded and proved
• The following actions may be resorted in case of failure to prove and plead the
proper foreign law
i. Dismiss the case for inability to establish cause of action
ii. Assume that the foreign law of the same as the law of the forum
(processual presumption)
iii. Apply the law of the forum
3. when the case involves any of the exceptions to the application of the proper
• foreign law as when the foreign law is contrary to an important public policy of
the forum
• penal in nature
• procedural in nature
• purely fiscal and administrative in nature
• application of the foreign law may work undeniable injustice to the
citizens of the forum
• the case involves real or personal property situated in the forum
• contrary to good morals
• application might endanger the vital interest of
the state
Jurisprudence about Foreign Law was not properly pleaded and proved
FLEUMER V. HIX, 54 PHIL 610 March 17, 1930 GR No. L-32636

ISSUE : Whether or not proof of Virginia law was properly laid down.
HELD : No, because there was no showing that the book which he presented was
an official publication of West Virginia, nor there was an attestation by the officer
having the custody of the original and there was no proof that the law he

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presented was still enforced at the time alleged will was executed.
Phil. court are not bound to take cognizance of a foreign law which must be
proved as a fact and in the absence of such proof it is considered as the same as
ours.
Furthermore, the due execution of the will was not established because it was not
acknowledged by the testator in the presence of two competent witnesses or that
these witnesses subscribed to the will in the presence of the testator and of each
other as the law of West Virginia seems to require.

PHILIPPINE TRUST CO. V. BOHONAN 106 Phil 997, January30, 1960 L-12105
ISSUES : 1) Whether or not the court shall again take judicial notice on Nevada law
2) Whether or not Nevada law shall apply in the disposition of the estate
of a foreign individual
HELD : 1) Not anymore because it has already been presented and admitted in court
during the probate of the will and that appellant did not dispute the said law.
In addition, the other appellants, children of the testator, do not dispute the
provision of the laws of the State of Nevada. Thus, the court can taken
judicial notice without proof of such law having been offered at the hearing
of the project of partition.
2) Nevada law shall apply. Art.16 of the Civil Code provides that the validity of
testamentary disposition the amount of successional right the order of
succession, the intrinsic validity of the will and capacity to succeed shall be
the governed by the law of the person whose succession is under
consideration regardless of the nature of the property and regardless of the

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place where the property is situated.

M.2. [Link] ON CHOICE OF LAW

Choice of law - deals with the problem that arises when two or more states have a
connection to cases about which their respective laws differ.
Each court must then choose which laws to apply based on choice of law rules that
themselves rest on public policy.
Choice of Law seeks to answer two important
questions:
1. What legal system should control a given
situation where some of the significant facts
occurred in two or more states; and
2. To what extent should the chosen legal
system regulate the situation (Saudi Arabian
Airlines v. CA, GR No. 122191, 1998)

M.2.1
CHOICE OF LAW RULES
PROPERTY
Lex situs rule - the Civil Code gives exclusive importance to the lex situs, regardless
of the nature of the property; thus, it provides that real property as well as
personal property is subject to the law of the country where situated. (Art.16)

Exceptions:
Scope of Lex Situs Rules as to Immovables
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(a) Capacity to take and transfer immovables;
Exception: Lex rei sitae is not applicable where the issue is the authority of a State
official to validly dispose of property belonging to the State and the validity of the
procedures adopted to effect its sale. (Laurel v. Garcia, G.R. No. 92013, 1990).

Exception To The Lex Situs Rule As To

Immovables: (SCOFT)
i. Succession - capacity to succeed, order of succession, amount of successional
rights and 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. (Arts. 16 and 1039).
Parties’ Contractual Obligations -
where the issue involves the rights and liabilities of the parties inter se as a
matter of contractual obligation, even though the subject matter of the contract
is the land, the governing law is the law that regulates the contract as a whole.
Principal Obligation Secured - validity and effect of the principal obligation,
which the encumbrance secures are determined by principles applicable to
contracts in general.
Contract to Transfer - while the validity of the transfer of immovable is governed
by the lex situs rule, the validity of the contract to transfer is determined by the
proper law of the contract.

When the property within the situs belongs to a Foreign State. (Holy See v.
Rosario, G.R. No. 101949, 1994)
ISSUE:

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Did the Holy See properly invoke sovereign immunity for its non-suability?
ruling:
There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According to the classical or absolute theory, a sovereign
cannot, without its consent, be made a respondent in the courts of another
sovereign. According to the newer or restrictive theory, the immunity of the
sovereign is recognized only with regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure gestionis (United States of America
v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International
Law 194 [1984]).
In the case at bench, if petitioner has bought and sold lands in the ordinary course
of a real estate business, surely the said transaction can be categorized as an act
jure gestionis. However, petitioner has denied that the acquisition and subsequent
disposal of Lot 5-A were made for profit but claimed that it acquired said property
for the site of its mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.
Under Art.31 (A) of the 1961 Vienna Convention on Diplomatic Relations, a
diplomatic envoy is granted immunity from the civil and administrative jurisdiction
of the receiving state over any real action relating to private immovable property
situated in the territory of the receiving state which the envoy holds on behalf of
the sending state for the purposes of the mission. If this immunity is provided for a
diplomatic envoy with all the more reason should immunity be recognized as
regards the sovereign itself, which in this case is the Holy See.

Moreover, the Department of the Foreign Affairs has formally intervened and
officially certified that the Embassy of the Holy See is a duly accredited diplomatic
missionary to the Republic of the Philippines and as such is exempt from local
jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic
mission or embassy in this court.

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ELEMENTS OF CONFLICT OF LAWS
1. Legal problem or case involving a foreign element; and
2. Determination of whether the law or judgments of other State/s will govern and
if so, the extent of recognition/application in the forum. [Coquia and Aguiling-
Pangalangan, Conflict of Laws, 2000]

M.2.2.
Renvoi Doctrine

It is a French word which means “refer back” or “return.”

Procedure whereby a jural matter presented is referred by the conflict of laws rules
of the forum to a foreign state, the conflict of law rule of which, in turn, refers to
the matter to the law of either the forum or a third state.

Double Renvoi
Occurs when the local court, in adopting the foreign court theory, discovers that
the foreign court accepts the renvoi.
THE PROBLEM OF RENVOI
A. RENVOI, definition
• procedure whereby a jural matter is presented which the conflict of laws rules of
the forum refer to a foreign law, the conflict of law of which in turn, refers the
matter back to the law of the forum (remission) or a third state (transmission)
• literally means referring back : problem arises when there is doubt as to whether
a reference to a foreign law –
a. is a reference to the internal law of said foreign law; or

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 b. is a reference to the whole of the foreign, including its conflicts rule
B. VARIOUS WAYS OF DEALING WITH THE PROBLEM OF RENVOI
SOLUTIONS TO THE RENVOI
1. Reject the renvoi
• meaning, we do not want the problem to be sent back to us; that we do
not want the matter to be referred back to us (Paras)
• if the conflicts rules of the forum refer the case to the law of another state,
it is deemed to mean only the internal law of the state. Thus, the court will apply
the foreign law (Coquia)

2. Accept the renvoi

• apply or accept it by reference to the whole law, including the conflicts rule of
the foreign law (Paras)
• 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 rule). Thus, the court will recognize the referral back and apply local law.
(Coquia)

3. Follow the DESISTMENT THEORY (also referred to as the MUTUALDISCLAIMER

OF JURISDICTION THEORY)
• meaning, we desist or refrain from applying the foreign law because it is
inadequate as it is founded on a different basis
• the reason for the desistance is that the forum court upon reference to another
state’s law sees that such law is limited in application to its own national and
has no provision for application to a non-national(Paras)
• the forum court upon reference to another state’s law sees that such law is
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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 but the process used by the forum court is to desist applying the
foreign law. (Coquia)
4. Use “FOREIGN COURT THEORY”
• meaning, the local forum, in deciding the case, will put itself in the position of the
foreign court and whatever it does respecting the case, the Philippine court will
likewise do. (Paras)
• foreign court assumes the same position that the foreign court would take if the
case is litigated in the foreign state: Hence –
a. if the foreign court would accept the renvoi, the local court shall apply the
foreign law.
b. if the foreign law would reject the renvoi, the local court shall apply lex fori
c. if the foreign court would apply the desistment theory, the local court shall
apply the foreign law
d. if the foreign court would use the foreign court theory, then international
pingpong would ensue (Coquia)

other important terms related to renvoi

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

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• the process of applying the law of a foreign state thru the law of a second
foreign state
DOUBLE RENVOI versus TRANSMISSION
• double renvoi deals with 2 countries while transmission deals with three or more
countries
• double renvoi deals with referring back while transmission with a transmitting
SUGGESTED CONCLUSION
• the theory to be adopted must consider the circumstances of a given situation
that will best result in fairness, equity and justice
Jurisprudence on Renvoi
AZNAR V GARCIA 117 Phil 106, 7 SCRA 95 (1963)
ISSUE : Which law shall apply?
HELD : Phil. law shall apply. There are two rules in California on the matter, the
internal
law which will apply to Californian citizens domiciled in California and the conflicts
rule which will apply to Californian citizens domiciled n other states which states
that “If there is no law to the contrary in the placed where personal property is
situate, it is deemed to follow the person of its owner and is governed by the law
of his domicile.
As the domicile of the deceased who was citizen of California was the Phil., the
validity of the provisions of his will depriving his acknowledged natural child of the
latter’s legacy should be governed by the Phil. law. Therefore Helen’s legacy shall
be increased.

Usefulness of Renvoi (to avoid unjust results):

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BELLIS VS BELLIS 20 SCRA 359 (1968)
ISSUE : Whether or not respondents entitled to that residuary estate of the
decedent. Whether or not renvoi shall be applied.
HELD : No, because under Art.16 of the NCC that in case of intestate and
testamentary succession, both with respect to the order of success and to the
amount of successional rights, and to the intrinsic validity of testamentary
provision and the capacity to succeed shall be governed by the national law of the
person whose succession is under consideration, whatever may b e the nature of
the property and regardless of the place wherein said property may be found.
Testamentary provisions that successional right to decedent’s estate would be
governed by law other than the national law of the decedent is void.
Renvoi doctrine because the decedent is a resident and citizen of Texas at the time
of his death. Renvoi can be applied only if the decedent is a citizen of one
country but a resident in another at the time of his death. So that even if Texas
has a conflict rule regarding successional right the same would not result in a
reference back to Phil. law but would still refer to Texas Law.
A. Extent of Judicial Notice
• Section 1, Rule 129, Rules of Court , 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, the admiralty and
maritime courts of the world and their seals, the political constitution and history
of the Philippines, the official acts of the legislative, executive and judicial
departments of the Philippines, the laws of nature, the measure of time, and the
geographical divisions
• Section 2, Rule 129, Rules of Court , Judicial Notice, when discretionary –

25
a court may take judicial notice of matters which are of public knowledge, or are
capable of unquestionable demonstration, or ought to be known to judges
because of their judicial functions

M.2.3 Doctrine of Processual presumption:

NOTE: there is no judicial notice of any foreign law. A foreign law must be properly
pleaded and proved as a fact, otherwise, our courts will presume that the foreign
law is the same as our internal law. This is called the Doctrine of Processual
Presumption.

Processual Presumption of Law

This rule means that 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. [Sempio-Diy, Handbook on Conflict of Laws,
2004

Other relevant terms:

Dépeçage
phenomenon where different aspects of a case involving a foreign element may
be governed by different systems of laws.

M.2. a to h

a. Lex Nationalii
NATIONALITY
26
Article 15. Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though
living abroad.
• refers to membership in a political community.
• The Philippines adheres to the nationality law Theory
Nationality Law Theory
• is a conflict of law theory by virtue of which jurisdiction over the particular subject
matter affecting a person such as status of a natural person, is determined by the
latter’s nationality (Coquia)
• it is national law of the individual that regulates his civil status, capacity,
condition, his family rights and duties, laws on succession and capacity to succeed
Nationality vs. Citizenship
• while nationality is membership in an ethnic, social, racial and cultural group,
citizenship is membership in a political society
NATIONALITY CONFLICT RULE
• Article 15. Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though
living abroad. (9a)
A. DETERMINATION OF NATIONALITY
• Each State has the prerogative and authority to determine by its own municipal
law
who are its nationals or citizens
• The Hague Convention on Conflict of National Laws provides “it is for each state
to
determine who are its nationals. This law shall be recognized by other states insofar
as it is consistent with international convention, international customs, and the

27
principles of law generally recognized with regard to nationality.
NOTE: Nationality may be acquired by birth or by naturalization
The three kinds of citizens of the Philippines are –
1. Natural Born Citizens
2. Naturalized Citizens or Citizens by Naturalization
3. Citizens by election
1. NATURAL BORN CITIZENS – those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship.
Native born citizen is one born in the country of which he is a citizen, hence, a child
born to a Filipino mother in Germany is a natural born, but not native born citizen
Article IV of the Philippine Constitution (1987), The following are citizens of the
Philippines –
a. Those who are citizens of the Philippines at the time of the adoption of the
Constitution;
b. Those whose fathers and mothers are citizens of the Philippines;
c. Those born before January 17. 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority (within three years)
d. Those who are naturalized in accordance with law
TWO THEORIES on whether place or ancestry determines citizenship
20
1. JUS SOLI PRINCIPLE – the law of the place of one’s birth determine one’s
nationality
2. JUS SANGUINIS PRINCIPLE – one follows the citizenship of his parents; this is
citizenship by blood

28
The Philippine Constitution applies the Jus Sanguinis principle which means the rule
of descent or blood.
TALAROC V. UY, 92
Phil 52 (1952)
ISSUE : Whether or not Uy is Filipino citizen.
HELD : Filipino, a Filipino woman married to Chinese ipso facto reacquired her
Filipino
citizenship upon the death of her husband and that thereafter her minor children’s
nationality automatically followed that of the mother’s.
The rule applies only to minor children not to persons who are already in age.

CO V. ELECTORAL TRIBUNAL OF THE HOUSE OF REP.

199 SCRA 692

ISSUE : Whether or not there is a need for Ong to file a sworn statement.
HELD : Not anymore. He was already a citizen. Not only because his mother was a
natural born citizen but also his father had been naturalized when the respondent
was still a minor. He exercises his right of suffrage and established his life here in
the Phil.
The exercise of right of suffrage and the participation in election exercises
constitute a positive act of Phil. citizenship.
To require the respondent to elect Phil. citizenship, would not only have been
superfluous but would also have resulted in absurdity considering that it was the
law itself that had already elected Phil. citizenship for him.
An attack on a person’s citizenship may only be done through a direct action of

29
its nullity, not through a collateral approach
CORDORA VS. COMELEC GR. No. 176947, February 19, 2008

ISSUE : Whether or not Tambunting is a dual citizen.

HELD : Yes. Because of the circumstances of his birth, it was no longer necessary
for Tambunting to undergo the naturalization process to acquire American
citizenship. Clearly, Tambunting possessed dual citizenship prior to the filing of
his certificate of candidacy before the 2001 elections. The fact that Tambunting
had dual citizenship did not disqualify him from running for public office.
The SC reiterated a previous ruling in Mercado v. Manzano, wherein dual
citizenship is not a ground for disqualification from running for any elective local
position. Dual citizenship arises when, as a result of the concurrent application of
the different laws of two or more states, a person is simultaneously considered a
national by the said states whose parents are citizens of a state which adheres to
the principle of jus sanguinis is born in a state which follows the doctrine of jus
soli. Such a person, ipso facto and without any voluntary act on his part, is
concurrently considered a citizen of both states. In Sections 2 and 3 of R.A. No.
9225, the framers were not concerned with dual citizenship per se, but with the
status of naturalized citizens who maintain their allegiance to their countries of
origin even after their naturalization. Section 5(3) of R.A. No. 9225 states that
naturalized citizens who reacquire Filipino citizenship and desire to run for
elective public office in the Philippines shall "meet the qualifications for holding
such public office as required by the Constitution and existing laws and, at the

30
time of filing the certificate of candidacy, make a personal and sworn renunciation
of any and all foreign citizenship before any public officer authorized to
administer an oath" aside from the oath of allegiance prescribed in Section 3 of
R.A. No. 9225. In the present case, Tambunting, a natural-born Filipino, did not
subsequently become a naturalized citizen of another country. Hence, the twin
requirements in R.A. No. 9225 do not apply to him.

PROBLEMS IN APPLYING THE NATIONALITY PRINCIPLE

1. Dual or multiple citizenship
• In matters of status, he is usually considered by the forum as exclusively his own
national, his additional foreign nationality is disregarded
• In case the litigation arises in a third country, the law most consistently applied
is
at that of the country of which the person is not only a national but where he has
his domicile or habitual residence, or in the absence thereof, his residence
• In view of the rule set in the Hague Convention on Conflict of National Laws,
each
state determines who its own nationals are. Article 5 thereof provides “a third
state shall, of the nationalities which such a person possesses, recognized
exclusively in its territory either the nationality of the country of which he is
habitually and principally resident, or the nationality of the county with
which in the circumstances he appears to be closely connected”. Any
question as to whether or not a person possesses the nationality of a particular

31
state shall be determined in accordance with the state’s internal law. Hence it is
possible that an individual can be claimed as a national of two or more states.
• Application of the jus soli and jus sanguinis – A child born of parents who are
nationals of a country applying the principle of jus sanguinis, in a country applying
the jus soli has dual nationality. Thus: A Filipino citizen who marries an alien may
acquire the citizenship of his or her spouse if the spouse’s national law so allows.
A Filipino citizen however, who marries an alien shall retain Philippine citizenship,
unless by his act or omission, he is deemed under the law, to have renounced it
by taking an oath of allegiance to the spouse’s country or by express
renunciation. Another instance of dual or multiple nationalities is the case of an
individual who is naturalized citizen of another state but has not effectively
renounced his former nationality.
• In the determination of the rights of an individual who may claim multiple
nationalities in the third state, the International Court of Justice applied the
principle of effective nationality.”
MULTIPLE CITIZENSHIP ARISES DUE TO:
a. through a naturalized citizen’s failure to comply with certain legal
requirements in the country of origin
b. from a combined application of jus soli and jus sanguinis principle
c. by the legislative act of states
d. by the voluntary act of individual concerned

32
2. STATELESSNESS
• refers to an individual who has been stripped of his nationality by his own
former
government without having an opportunity to acquire another.
• Stateless persons are generally subject to the law of their domicile or habitual
residence, or in default thereof, to the law of their temporary residence
STATELESSNESS ARISES DUE TO:
1. Deprivation of his citizenship for any cause such as commission of a crime;
2. Renunciation of one’s nationality by certain acts, express or implied;
3. Voluntary release from his original state;
4. He may have been born in a country which recognizes only the principle of
jus sanguinis -- or citizenship by blood, of parents whose law recognizes only
the principle of jus soli -- citizenship by birth in a certain place. Thus he is
neither a citizen of the country of his parents.
• However, the Hague Conference of 1928 on International Private Law suggested
that personal law of stateless individuals shall be the law of the domicile or the
law
of the place of temporary residence.
• NOTE: The Convention on the Adoption on the Reduction of Statelessness
(1961)
mandates that the jus sanguinis country grants its nationality to person born
within
its territory if he would be otherwise stateless, and the jus soli country to extend
its
nationality to a person who would otherwise be considered stateless when any of
his parents is a citizen of the contracting state

33
M.2.b

Lex re sitae (Art. 16, par. 1, Civil Code)

Choice of Law in Property

Synopsis of Conflict of Rules on Property

Factual situation Point of contact

(1)Real Property (extrinsic and intrinsic (1) Lex re sitae (Art. 16, par. 1, Civil
validity of alienations, transfers, Code)
mortgages, capacity of parties, Exceptions
interpretation of documents, effects of (a) national law of decedent (Art. 16,
ownership, co-ownership, accession, par.2)
usufruct, lease, easement, police (b) national law of decedent (Art. 16,
power, par 2)
eminent domain, taxation, quieting of (c) the law intended will be the proper
title, registration and prescription law of
Exceptions: the contract (lex loci voluntatis or lex
(a) successional rights loci intentionis)
(b) capacity to succeed (d) the principal contract is governed
(c) contracts involving real property by theproper law of the contract (lex
but which do not deal with the title locivoluntatis or lex loci intentionis)
thereto Note: The mortgage
(d) contracts where real property is
given as security
(2) Tangible Personal Property (a) Lex re sitae (Art. 16, par. 1, Civil
(chooses in possession) Code)
(a) In general, tangible personal Exceptions
property (extrinsic and intrinsic (a) national law of decedent (Art. 16,
validity of alienations, transfers, par.2)
mortgages, capacity of parties, (b) national law of decedent (Art. 16,
interpretation of documents, par 2)
effects of ownership, coownership, (c) the law intended will be the proper
accession, usufruct, law of the contract (lex loci voluntatis
lease, easement, police power, or lex loci intentionis)
eminent domain, taxation, quieting (d) the principal contract is governed
of title, registration and by the

34
prescription proper law of the contract (lex loci
Exceptions: voluntatis or lex loci intentionis)
(a) successional rights Note: The pledge is governed by the
(b) capacity to succeed lex re sitae.
(c) contracts involving real property
but which do not deal with the title
thereto
(d) contracts where real property is
given as security
(b) means of transportation 1) vessels (b) 1) Law of the flag or in some cases the
2) other means place of registration
(c) thing in transit (these things have a 2) Law of the depot (storage place for
supplies) or resting place
changing status because they (c)
move) 1) Law of the destination (Art. 1753 of
The civil code)
1) loss, destruction, deterioration 2) locus regit actum (where seized)
2) validity and effect of the seizure because said place is temporary situs
of the goods 3) lex loci voluntatis or lex loci
3) disposition or alienation of the intentionis
the goods because here there is contract
(3) Intangible Personal Property (3)
(chooses in action) (a) where debtor may be effectively
(a) recovery of debts or involuntary serve with summons (usually the
or garnishment of debts domicile)
(b) voluntary assignment of debts (b) lex loci voluntatis or lex loci
(c) taxation of debts intentionis (proper law of the
(d) administration of debts contract
(e) negotiability or non-negotiability Other theories:
of an instrument 1) national law of the debtor
(f) validity of transfer, delivery or or creditor
negotiation of instrument 2) domicile of the debtor or
(g) effect on a corporation of the the creditor
sale of corporate shares 3) lex loci celebrationis
(h) effect between the parties of 4) lex loci solutionis
the Sale of corporate shares (c) domicile of creditor
(i) taxation on the dividends of (d) lex situs of assets of the debtor (
Corporate shares for
35
(j) taxation on the income from the these assets can be held liable for the
sale of corporate shares payment of the debts
(k) franchises (e) the right embodied in the
(l) goodwill of a business and instrument
taxation thereon (ex. In the case of Swedish bill of
(m) patents, copyrights,trademarks, exchange, Swedish law determines its
tradenamed\s negotiability)
(f) in general, situs of the instrument
at the
time of transfer, delivery or
negotiation
(g) law of the place of incorporation
(h) law of the place of incorporation
(i) law of the place of incorporation
(j) law of the place where the sale was
consummated
(k) law of the place that granted them
(l) law of the place where the business
is
carried on
(m) in the absence of a treaty, they
are
protected only by the state that
granted them

Note: Foreigners may sue for

infringement
of trademarks and tradenames only in
the Philippines only if Filipinos are
granted reciprocal concessions in the
state of the foreigners.

36
A. The Controlling Law
The old law on movables was mobilia sequuntur personam which meant that the
rights over movables were governed by the law of the owner’s domicile.
The applicable law is the lex situs. The conventional wisdom for lex situs is the
exercise of power, the state where the property is situated having the sole power
to decide the validity and effects of the transfer of property.
The rationale for the lex situs or lex re sitae rule now universally recognized is that
being physically a part of the country, it should be subject to the laws thereof.
B. Capacity to transfer or acquire property
The capacity of the person to transfer or acquire real property is governed by the
law of the place where the property is located.
The theory of lex sitae governs the following things connected with real property:
a)the extrinsic validity of alientation
b)Transfers
c)Mortgages
d)Capacity of the parties
d)Interpretation of documents
e)Effects of ownership
f) Co-ownership
g)Accession
h)Usufruct
i)Lease
j)Easement
k)Police power

37
l)Eminent Domain
m)Taxation
n) Quieting of title o)Registration and p)Prescription
Example:
A Japanese donated in Germany in favor of a Filipino a parcel of land in the
Philippines.
(a) The law of which country governs the formalities of the donation? Why?
Answer: The law of the Philippines – the lex re sitae governs the
formalities of the donation. (Art. 16, par. 1, Civil Code).
The law of lex celebrationis does not apply because the transaction
relates to land and must therefore be governed by the law of the place
where the land is situated.
(b) The law of which country governs the capacity of the Japanese to make
the alienation? Why?
Answer: The law of the Philippines – the lex rei sitae – governs the
capacity of the Japanese to alienate. (Art. 16, par. 1 Civil Code) Here
the doctrine of national law under Art. 15, of the Civil Code yields
precisely because the subject matter is land.
(c) The law of which country governs the intrinsic validity of the donation?
Why?
Answer: The law of the Philippines – lex re sitae governs the
intrinsic validity of the donation. (Art. 16, par. 1, Civil Code). The
general rule of lex voluntatis or lex intentionis yields to the lex re sitae
rule because the subject matter is land.

38
EXCEPTIONS TO THE RULE IN THE CASE OF REAL PROPERTY
1.) In case of successional rights – national law of the deceased
2.) Capacity to succeed – national law of the deceased
Example: A Turkish citizen died leaving parcels of land in the Philippines. How
should the
court distribute the successional rights of his heirs to said real property?
Suppose one of the compulsory heirs is a Chinese, what law governs the
capacity of this Chinese heir to inherit land in our country?
Answer: The successional rights of the heir to the parcels of land in the Philippines
shall be governed by the national law of the deceased that is Turkish law.
The capacity of the Chinese heir to inherit Philippine realty is also determined
by Turkish law for this is the decedent’s national law
3.) Contracts involving real property but which do not deal with the title to such
real property
Example: In Manila, a German, owning land in Switzerland, agreed to pay as salary
to a Japanese employee, 10% of the annual produce of the land in Switzerland, on
condition that’s said land would not be expropriated by the Swiss authorities. It
was the mutual desire of both parties that the stipulation of their employment
contract should be governed by Philippine laws. What law governs the extrinsic
and intrinsic validity of their agreement?
Answer: The extrinsic validity of the agreement is governed by Philippine law
because the contract was celebrated in our [Link] intrinsic validity shall also
be determined by Philippine law for this was likewise the lex loci voluntatis. The
fact that the contract involved land located in Switzerland is of no moment, for
the agreement does not concern itself with any transfer of title thereto, at least
as between the parties.

39
4.) Contracts where real property is given by way of security, the principal contract
(generally the contract of loan)
a) if the principal contract is valid, the validity of the accessory contract of
mortgage is still to be determined by the lex res sitae. If the mortgage is void
by the lex re sitae, the principal contract can still remain valid
b) if tested by the lex loci voluntatis or lex loci intentionis, the principal contract is
void, the mortgage would also be void, even if considered independently by
itself the mortgage would have been regarded as valid by the lex re sitae.
Example: Two Frenchmen in France entered into a contract of loan, with Philippine
land as security by way of mortgage. Assuming that in France, a contract of loan
to be valid must be in public instrument, in the Philippines it does not have to
be. Now, then if the contract of loan and contract of mortgage are in private
instrument, can the mortgage be enforced in the Philippines?
Answer: No. Since the contract of loan is in a private instrument and therefore void
in France, the contract of mortgage is rendered automatically void in our country
– for when a principal contract fails, the assessory obligations shall also be
void.

Extrinsic And Intrinsic Validity Of Conveyance

Formalities of a contract to convey property are likewise governed by the lex situs
Rules:
2. Any transfer of property which requires registration of title cannot be
accepted by the registry of property unless the formal requirements of
the lex situs are complied with
3. Lex situs law applies to the essential validity of transfer unless the lex

40
intentionis is clearly established.
4. Lex situs also governs the effects of the conveyance of properties.

RULES FOR PERSONAL PROPERTY:

Personal property may be tangible or intangible. The tangible are more
appropriately referred to as choses in possession whereas intangible are more
accurately known as choses in action.

M.2.c
Lex loci contractus — The law of the place where the contract is made governs or
lex loci contractus; as the parties did not designate the applicable law and the
Agreement was perfected in the Philippines, our Arbitration laws apply. (DFA vs.
BCA Int’l. Corp., G.R. No. 225051, July 19, 2017)
FACTUAL SITUATION POINT OF CONTACT
(1) Formal or Extrinsic Validity (1) lex loci celebrationis (Art. 17, par. 1,
Exceptions: CC
(a) alienation and encumbrance of (a) Lex situs (Art. 16, par.1, NCC)
property (b) Law of the Phils. (if made in the
(b) consular contracts Philippines
(2) Capacity of the Contracting parties (2) national law (Art. 15, civil code)
(3) Intrinsic validity (including except
interpretation of instruments and estoppel or in the case of Insular Bank
amount v. Frank, adhering the theory of lex
of damages for breach loci
celebrationis
(3) the proper law of the contract – lex
contractus meaning the lex loci
voluntatis or the lex loci intentionis
Other theories:
(a) lex loci celebrationis – defect: this
makes possible the invasion of the
national law

41
 (b) lex nationalii – defect: this may
impede commercial transactions
(c) lex loci solutionis – law of the place
of
performance – defect: there may be
several places of performance
(d) Prof. Minor’s solution:
1) perfection – lex loci celebrationis
2) cause or consideration – lex loci
considerations
3) performance – lex loci solutionis

CONFLICTS RULES FOR SPECIFIC CONTRACTS

FACTUAL SITUATION POINT OF CONTACT

(1) Sales and Barter (1)
(a) extrinsic validity (a) lex situs
(b) capacity of parties (b) lex situs
(c) intrinsic validity (c) lex situs
(2) Lease of Property
(a) extrinsic validity (2)
(b) capacity of parties (a) lex situs
(c) intrinsic validity (b) lex situs
(3) Lease of Services (c) lex situs lex
(a) extrinsic validity (3)
(b) capacity of parties (a) lex loci celebrationis
(c) intrinsic validity (b) national law
(4) Contract of Common Carriage (c) lex loci voluntatis or lex loci
of Goods intentionis
(a) extrinsic validity (4)
(b) capacity of parties (a) fixed situs of the carrier (depot)
(c) intrinsic validity (b) fixed situs of the carrier
(d) liability for loss, destruction (c) fixed situs of the carrier
or (d) law of the destination (Art. 1753)
deterioration of goods in (5) (a) lex loci celebrationis (unless the
transit agency deals with the conveyance

42
(5) Contract of Agency or encumbering of property – in
(a) extrinsic validity which case the lex situs of the
property applies)
(b) capacity of parties to be (b) national law of the parties (unless
principal or agent the agency deals with the
(c) intrinsic validity conveyance or encumbering of
(6) Simple Loan (Mutuum) property – in which case the lex
(a) extrinsic validity situs of the property applies)
(b) capacity of parties (c) lex loci voluntatis or lex loci
(c) intrinsic validity intentionis (unless the agency
(7) Commodatum deals with the conveyance or
(a) extrinsic validity encumbering of property – in
(b) capacity of parties which
(c) intrinsic validity case the lex situs of the property
(8) Money Deposits applies)
(9) Contracts with Arbitration Clause (6)
(10) Pledge, Chattel Mortgage, Real (a) lex loci celebrationis
Mortgage and Antichresis (b) national law
(a) extrinsic validity (c) lex loci voluntatis or lex loci
(b) capacity of parties intentionis
(c) intrinsic validity (7) (a) lex situs
(11) Guaranty and Suretyship (b) lex situs
(a) extrinsic validity (c) lex situs
(b) capacity of parties
(c) intrinsic validity (8) Law of the place governs the deposit
(9) Forum that has been agreed by the
parties
(10) (a) lex situs
(b) lex situs
(c) lex situs
Note: These are accessory contracts
only,
therefore, if the principal contract
(generally the contract of loan) is
defective, the accessory contract
must also be deemed defective
11. (a) lex loci celebrationis

43
 (b) national law
(c) lex loci voluntatis or lex loci
intentionis
Note:These are also accessory
contracts;
if the principal contract is
defective, the accessory contract is also
generally defective

A. Contract involving a foreign element

By reason of these differing rules, the forum court presented with a contracts case
involving a foreign element must be aware that the parties may have entered into
a contract with a particular state law in mind, expecting it to govern questions that
may arise from the contract. To do otherwise would defeat the parties reasonable
ecpectations.

B. Extrinsic validity of contracts

Lex loci celebrationis governs the formal or extrinsic validity of contracts. Art. 17
“The forms and solemnties of contracts, wills, and other public instruments shall
be governed by the laws of the country in which they are executed”. These
principles are
derived from a broader proposition that the place governs the act (locus regit
actum).
Query: How about contracts entered into by cablegram, telex or fax messages
between persons from different countries? What is deemed to be the
place of execution of the contract?
Answer: Art. 1319 of the civil code states that “Acceptance made by letter or
telegram does not bind the offeror except from the time it came to his
knowledge”. The contract in such case is presumed to have been

44
entered into the place where the offer was made.
Example: A Chinese sold in Chile to a Filipino a parcel of land in the Phils. The
Philippine formalities of such a sale should be followed. (Art. 16 par 1 of
the civil code)
Bar Q: Suppose our law provides that certain instrument shall be void and
unenforceable unless they beat a documentary stamps, and a written
contract is enteres into in the Phils. to be performed in France. The
contract was not stamped in the Philippines as required by its law. The
placing of stamp on written contract is not however required by the laws
of France. In an action brought on the contract in France, may the
defendant avail himself of the invalidity of contract?
Anwer: Since the forum of the problem is France, the answer will depend not on
Philippine Conflict of laws but on French conflict of laws. On the
assumption that the French conflicts rule on the matter is identical with
ours, it is believed that the contract should be considered valid, and the
defense of invalidity cannot be sustained. The rule to apply is evidently
lex loci voluntatis or the lex loci intentionis – that which was voluntarily
agreed upon or intended by the parties.
C. Intrinsic validity of contracts
The intrinsic validity of contracts including the considerations or cause thereof, the
interpretation of the instruments, and the nature or amount of damages for breach
or non-performance must be governed by the proper law of the contract (lex
contractus).
This is the law voluntarily agreed upon by the parties (lex loci voluntatis) or the law
intended by them expressly or implicitly (lex lcoci intentionis)

45
1. lex loci contractus or lex loci celebrationis
The law of the place of the making or lex loci contractus refers to the place
where the contract is made

2. lex loci solutionis

The law of the place of performance calls for the reference to a law other
than the place where the acts of offer and acceptance took place. All matters
relating to the time, place and manner of performance, sufficiency of
performance and valid excuses for non-performance are determined by lex
loci solutionis which is useful because it is undoubtedly always connected to
the contract in a significant way.
3. lex loci intentionis
The intrinsic validity of contracts should be governed by the law intended by
the parties or lex loci intentionis. This intention may be expressed in the
choice-of-law provision in the contract
Art. 1306 of the civil code “The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem convenient
provided they are not contrary to law, morals, good customs, public oerder or
public policy”
D. Capacity to enter into contracts
The capacity of the parties to enter into contract is generally governed by the
national law (Art. 15, civil code) Except in the case of alienation or encumbering of
properties, both real and personal, for here the capacity is governed by the lex situs

46
(Art, 16 par 1)
Another exception. is that case of Insular Gov’t v. Frank which disregarded the
nationality law principle. Frank had the capacity to enter into a contract whether in
the
US or in the Phils. since he was of majority age as determined by his national law.
The SC held that in a case not involving property that instead of national law, what
should determine capacity to enter into a contract is the lex loci celebrationis.
Bar Q: X and Y entered into a contract in Madrid, Spain wherein it was agreed that
X would construct for Y an apartment in Manila, in consideration being Y’s
house and lot in San Francisco California. The laws of what country would
govern the:
(a)validity of the contract;
(b) its performance and
(c) its consideration?
Answer: (a) The validity of the contract would depend on the lex situs namely the
Philippine law since the contract deals with a building to be constructed in
Manila. Philippine law should govern everything about the contract. (Art. 16,
par 1 civil code)
(b)Prof. Minor however would say that the validity of the contract would be
governed by the lex loci celebrationis – Spanish law; performance and
damages in case of breach would depend on the lex loci intentionis –
Philippine law; and the sufficiency of consideration would depend on lex loci
considerationis – California law.

E. Choice of law issues in conflicts contracts cases

47
Under the principle of freedom of contract, the parties may stipulate on the law to
govern their contract agreement.

Contracts with Arbitration Clause

A multinational contract that contains an arbitration clause gives rise to the
issue of whether one of the parties may compel the other to submit to arbitration
CONTRACTS OF ADHESION
It is one that is not negotiated by the parties, having been drafted by the dominant
party and usually embodied in a standardized form. It is called a contract of
adhesion
because the only participation of the other party is in affixing her signature or
adhering
thereto. Likewise known as a “take it or leave it contract”

Contracts for International Air-Transportation

Convention for the Unification of Certain Rules Relating to International
Transportation by Air or known as Warsaw Convention. The Convention which
applies to all international transportation of persons, baggage or goods
performed by aircraft for hire, enumerate instances when the carrier is liable,
fixing the maximum amount of damages to be included in each case.
However, the 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 in such case, it is proved that the servant or agent was

48
acting within the scope of his employment.

M.2.d
Lex loci celebrationis relates to the “law of the place of the ceremony” or the law
of the place where a contract is made.
M.2.f
lex fori in private international law, the law of the court seized of the dispute.
M.2.g
The lex domicilii is the Latin term for "law of the domicile" in the conflict of laws.
Conflict is the branch of public law regulating all lawsuits involving a "foreign" law
element where a difference in result will occur depending on which laws are
applied.

Explanation
When a case comes before a court and all the main features of the case are local,
the court will apply the lex fori, the prevailing municipal law, to decide the case.
But if there are "foreign" elements to the case, the forum court may be obliged
under the conflict of laws system to consider:
whether the forum court has jurisdiction to hear the case;
it must then characterise the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
then apply the choice of law rules to decide the lex causae, i.e. which law is to be
applied to each class.
The lex domicilii is a common law choice of law rule applied to cases testing the
status and capacity of the parties to the case. For example, suppose that a person
domiciled in Malaysia decides to take a "round-the-world" trip. It would be
inconvenient if this person's legal status and capacities changed every time they
changed jurisdiction, e.g. that they might be considered an infant or an adult,
married or free to marry, bankrupt or creditworthy, etc., depending on the nature
49
of the laws of the place where they happened to be. Assuming that there are no
public policy issues raised under the relevant lex fori, the domiciliary law should
apply to define all major issues and so produce an in rem outcome no matter where
the case might be litigated. The civil law states use a test of either lex patriae (the
law of nationality) or the law of habitual residence to determine status and
capacity.
APPLICATION OF THE INTERNAL OR DOMESTIC LAW
There are at least three (3) instances, when the forum has to apply the internal
or domestic law (lex fori) in adjudicating a conflicts problem set before it. These
instances are the following:

(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 (exceptions to comity):

(a) when the foreign law, judgment, or contract is contrary to a sound and
established public policy of the forum;

(b) when the foreign law, judgment, or contract, is contrary to almost universally
conceded principles of morality (contra bonos mores);

(c) when the foreign law, judgment, or contract involves procedural matters;

(d) when the case involves penal laws, contracts, judgments;

50
(e) when the case involves purely fiscal (that is, revenue-producing) or
administrative matters;

(f) when the application of the foreign law, judgment, or contract, may work
undeniable injustice to the citizens or residents of the forum;

(g) when the application of the foreign law, judgment, or contract, may work
against the vital interests and national security of the state of the forum;

(h) when the case involves real or personal property situated in the forum.

(See Art. 17, par. 3, and Art.16, par. 1, Civil Code. See also Minor, Conflict of Laws,
pp. 9-26; Goodrich, Conflict o f Laws, pp. 21-24, 30).

(Philippine Conflict of Laws by Edgardo L. Paras Eighth Edition, 1996)

When the forum assumes jurisdiction over a case, it may, under proper
circumstances:

(1) apply the internal or domestic law (lex fori); or

(2) apply the proper foreign law (lex causae).

(Philippine Conflict of Laws by Edgardo L. Paras Eighth Edition, 1996)

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M.2.g
Lex Loci Delicti
Courts follow the traditional rule of lex loci delictus in determining which state’s
substantive law is applicable to actions sounding in tort Lex loci delictus holds that
the substantive law of the place where the tort occurs applies.

It is a recognized principle of the law of the conflict of laws that the law of the state
where an alleged tort is completed controls the liability[ii]. Where a tort is
committed in one state and sued on in another, the lex loci delicti principle controls
M2.h
Lex loci solutionis
Lex loci solutionis (Latin: "law of the place of performance"), in conflict of laws, is
the law applied in the place of an event.
Lex loci solutionis - The law of the place where payment or performance under a
contract is due. This determines issues related to performance of contractual
obligations.

Applicable Laws
ACTIVITY OR MATTER TO PERSONS INVOLVED APPLICABLE LAWS
BE REGULATED BY LAW

1. Family rights and Filipino Citizens

duties, or the status, Philippine Laws apply-
condition and legal even if the citizen is
capacity of persons abroad.
This is called the rule of
Lex Nationalii

52
2. Family rights and Foreign National Lex Nationalii-
duties, or the status, The laws of the country
condition and legal of the foreign national
capacity of persons apply.

i. Filipino Citizens Philippine Laws ( but

3. Crime, public security subject to the principles
and safety- ii. Those who live and of international law and
Within Philippine sojourn in the Philippines treaties)
Territory

4. Properties both Real Filipino or Foreign Lex Rei Sitae: Philippine

and Personal National Laws (Art 16)

5. Intestate and
Testamentary Succession Filipinos Philippine Laws
( with respect to the
order of succession and
to the amount of
successional rights and
to the intrinsic validity of
testamentary provisions

6. Intestate and
Testamentary Succession Foreign National Law of the Country of
( with respect to the the Foreign National
order of succession and
to the amount of Note: The law of the
successional rights and Foreign National applies
to the intrinsic validity of even if he or she is a
testamentary provisions former Filipino.

53
 7. Formalities- Filipino or Foreign Lex Loci Celebracionis
Forms and solemnities of National -Law of the country
contracts, wills, and where executed (Art 17)
other public instruments

M.3.
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDMENTS
• a foreign judgment is recognized when it is given the same effect that it has in
the state where it was rendered with respect to the parties, the subject matter of
the action and the issued involved. Where the foreign judgment is being
presented as a defense to the claim of the plaintiff, what is involved is the
recognition of a 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. When a plaintiff asks
the court of one state to carry out and make effective a judgment obtained by
him in another state, what is involved is the enforcement of a foreign judgment.
Requisites:
1. foreign judgment was rendered by a judicial or a quasi-judicial tribunal
which had competent jurisdiction over the parties and the case in the proper
judicial proceedings in which the defendant shall have been given
reasonable notice and the opportunity to be heard;
2. it must be a judgment on civil and commercial matters;
3. the judgment must be valid according to the court that delivered it;
4. judgment must be final and executory to constitute res judicata in another

54
action
Elements of res judicata:
a. Final
b. Rendered by a competent court
c. On the merits
d. Involve the same parties, subject matter and cause of action
5. foreign judgment must not be contrary to the public policy or the good
morals of the state where it is to be enforced
6. judgment must not have been obtained by fraud, collusion, mistake of fact
or mistake of law
7. the foreign judgment must not be barred by prescription under the law of
the state in which it was promulgated or under the law of the state in which
its recognition/enforcement is sought

DISTINCTION BETWEEN RECOGNITION

AND ENFORCEMENT OF FOREIGN JUDGMENT

RECOGNITION OF FOREIGN JUGMENT ENFORCEMENT OF FOREIGN

JUDGMENT
Courts will allow the foreign judgment Plaintiff wants rout to positively carry
to be presented as a defense to a local out and make effective in the state a
litigation foreign judgment.
Involves merely the sense of justice Virtually implies a direct act of
sovereignty
Does not require either an action of a Necessitates a separate action or
special proceeding proceeding brough precisely to make
the foreign judgment effective
May exist without enforcement Necessarily carries with it recognition

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For both recognition and enforcement, proof of the foreign judgment has to be
presented. Moreover the requisites or condition for the recognition or
enforcement of foreign judgments must be present.
EFFECTS OF FOREIGN JUDGMENTS
• Under the Rules of Court, in case of judgment against a
specific thing, the judgment is conclusive upon the title of the thing.
• In case of judgment against a person, the judgment is
presumptive evidence of a right as between the parties and their successors-
ininterest by a subsequent title; but the judgment may be repelled by evidence of
want of jurisdiction, want of notice to the party, collusion or clear mistake of law
of fact.

Reasons why not all foreign judgments can be recognized or enforced in our
country:
1. The requisite proof thereof may not be adequate
2. They may contravene our established public policies
3. They may contradict one another: obviously, we cannot be guided by
contradictions
4. In some other countries the administration of justice may be shockingly corrupt
Bases for Recognition and Enforcement of Foreign Judgments
a) Theory of Comity – under this theory, we apply the foreign law because of
its convenience and finally because we want to give protection to our
citizens, residents, and transients in our land.
b) Theory of Vested Rights or Obligation of Foreign Judgments – here we
seek to enforce the final judgment not the foreign law itself but the rights
56
that have been vested under such foreign law.
c) Theory of Local Law – foreign law is applied not because it is foreign but
because our own laws, by applying similar rules, require us to do so, hence,
it is as if the foreign law has become part and parcel of our own local law.
d) Theory of Harmony of Laws – this theory insist that in many cases we
have to apply foreign laws so that wherever a case is decided, that is,
irrespective of the forum, the solution should be approximately the same,
thus identical or similar solutions anywhere and everywhere. When the goal
is realized there will be a “harmony of laws”
e) Theory of Justice – the purpose of all laws, including Conflict of Laws, is
the dispensing of justice, if this can be attained in many cases by applying
the proper foreign law, we must do so.
Policies Underlying Recognition and Enforcement
1) Res Judicata – under this principle those who have contested an issue
shall be bound by the result of the contest and that matters once tried and
decided with finality in one jurisdiction shall be considered settled as
between the parties.
2) Bar and Merger
Merger – considers the plaintiff’s cause of action as merged in the
judgment and as a result he may not relitigate that exact claim.
Bar – refers to a situation where a successful defendant interposes the
judgment in his favour to avert a second action by the plaintiff on the same
claim.
3) Doctrine of Collateral estoppel – renders conclusive all essential issues

57
of fact actually litigated in the suit decided on by the foreign court.
Whereas res judicata seeks to end litigation by disallowing a suit on the
same claim; collateral estoppels is concerned with the issue preclusion by
barring relitigation of an issue already litigated on a prior proceeding.

Requisites for Recognition and Enforcement

1. There must be proof of the foreign judgment; for the recognition, there is
no necessity for a separate action or proceeding
2. The judgment must be on a civil or commercial matter
3. There must be no lack of jurisdiction, no want of notice, no collusion, no
fraud, no clear mistake of law or fact
Note:

a. Fraud here must be Extrinsic fraud – that is fraud based on facts

not controverted or resolved in the case where the judgment was
rendered
b. Regarding clear mistake of law or fact, the supreme court of the
U.S. reversing the SC of the Phils., held that even if there is a clear
mistake of law or fact, this alone will not prevent the recognition or
enforcement of a foreign court (Hongkong) judgment which
otherwise fulfils all the other requisites

4. The judgment must not contravene a sound established policy of the forum.
Note:

58
a. An unfaithful mother, awarded by a US court custody of her child,
was denied said custody by our Philippine courts
b. A litigant not satisfied with the decision of a Philippine court,
resorted to a foreign court to obtain another remedy. Failing in this
foreign venture, he now seeks the enforcement of the Philippine
decision which he had formerly abandoned.

5. The judgment must be res judicata in the state that rendered it.
The requisites for res judicata are the following:
a. Judgment must be final
b. The court rendering the judgment must have jurisdiction
over the subject matter and the parties
c. The judgment must be on the merits
d. There must be identity of the parties, subject matter and
cause of action – except that the recognition or enforcement
of a foreign action is now the recognition or enforcement of
the foreign judgment on the original cause of action

Provisions of the Rules of Court on Foreign Judgments:

Sec. 48. Effect of foreign judgments. The effect of a judgment of
a tribunal of a foreign country, having jurisdiction to pronounce the
judgments as follows:
a) In case a judgment against a specific thing, the judgment is

59
conclusive upon the title to the thing
b) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties and
their successors in interest by a subsequent title; but the
judgment may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of
law

Whose judgment is really enforced?

It would seem that when our courts enforce a foreign judgment by
allowing it, the effect is that it is really our own court’s judgment that we
enforce.

Grounds for non-recognition

A foreign judgment is not conclusive if:
1) The judgment was rendered under a system which does not provide
impartial tribunals or procedures compatible with the requirements of due
process of law
2) The foreign court did not have personal jurisdiction over the defendant
3) The foreign court did not have jurisdiction over the subject matter

A foreign judgment need not be recognized if:

1) The defendant in the proceedings in the foreign court did not receive notice
of the proceedings in sufficient time to enable him to defend

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2) The judgment was obtained by fraud
3) The cause of action or claim for relief on which the judgment is based is
repugnant to the public policy of this state
4) The foreign judgment conflicts with another final and conclusive judgment
5) The proceeding in the foreign court was contrary to an agreement between
the parties under which the dispute in question settled otherwise than the
proceeding in that court
6) In the case of jurisdiction based only on personal service, the foreign court
was a seriously inconvenient forum for the trial of the action (forum
nonconveniens)

Procedure for enforcement

1. A petition should be filed in the proper court attaching an authenticated copy
of the foreign judgment to be enforced
Authentication calls for the Philippine consul assigned to the country where
the foreign judgment was decreed to certify that had been rendered by a
court of competent jurisdiction
2. The petition must comply with all the requisites of an enforceable judgment
3. A requirement to file action anew has been considered as “an attempt to
reconcile the principle of territorial jurisdiction of courts which demands that
the enforcement of judgment outside the territory of the rendering court must
be placed upon some other basis than the authority of the rendering court
which ceased at its jurisdictional limits – and the principle of res judicata.

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FOREIGN ARBITRAL AWARDS
RA 9285 incorporated the UNCITRAL
(United Nations Commission on International Trade Law) AWARD Model Law
FEATURES OF RA 9285 APPLYING AND INCOPORATING THE UNCITRAL MODEL
LAW:
1. The RTC must refer to arbitration in proper cases.
Under Sec. 24, the RTC does not have jurisdiction over disputes that are
properly the subject of arbitration pursuant to an arbitration clause and mandates
the referral to arbitration in such cases

2. Foreign arbitral awards must be confirmed by the RTC

Foreign arbitral awards while mutually stipulated by the parties in the
arbitration clause to be final and binding are not immediately enforceable or
cannot be implemented immediately.
Foreign arbitral awards when confirmed by the RTC are deemed not as a
judgment of the foreign court but as a foreign arbitral award and when
confirmed,
are enforced as final and executor decisions of our courts of law.
3. RTC has jurisdiction to review foreign arbitral awards
While the RTC does not have jurisdiction over disputes governed by
arbitration mutually agreed upon by the parties, still the foreign arbitral award is
subject to judicial review by the RTC which can set aside, reject or vacate it.
4. Grounds for judicial review different in domestic and foreign arbitral awards
For foreign or international arbitral awards which must first be confirmed by
the RTC, the grounds for setting aside, rejecting or vacating the awards by the

62
RTC are provided under Art. 34 (2) of the UNCITRAL Model Law.
For final domestic arbitral award also need confirmation by the RTC
pursuant to Sec 23 of RA 786 and shall be recognized as final and executor
decisions of the RTC, they may only be assailed before the RTC and vacated on
the grounds provided under Sec. 25 of RA 876.

5. RTC decision of assailed foreign arbitral award appealable

Sec. 46 of RA 9285. A decision of the RTC confirming, vacating, setting
aside, modifying or correcting an arbitral award may be appealed to the CA in
accordance with the rules and procedure to be promulgated by the SC.
The losing party who appeals from the judgment of the court confirming an
arbitral award shall be required by the appellate court to post a counterbond
executed in favour of the prevailing party equal to the amount of the award in
accordance with the rules to be promulgated by the SC.

Distinctions between foreign arbitral award from foreign judgment:

1. Foreign arbitral award is a better alternative because the same is readily
enforceable whereas foreign judgment is not readily enforceable for it requires
proof and allegations of a foreign law.
2. Foreign arbitral award, when confirmed by the RTC shall be recognized and
enforced as foreign arbitral award and not as judgment of a foreign court,
whereas foreign judgment when confirmed by the RTC shall be enforced as a
judgment of the foreign court.
3. Foreign arbitral award when validly stipulated upon by the parties shall be final
and binding whereas in foreign judgment there is no stipulation involved
executed by the parties.

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4. Foreign arbitral award is done thru alternative dispute resolution whereas
foreign judgment does not involved alternative dispute resolution because the
same should be done in regular courts proceedings.

64