LECTURE 1

CONFLICTS OF LAW

By: Atty. Enrique V. dela Cruz, Jr.

 CONFLICT OF LAWS
• Conflict of laws is defined as that part of
the municipal of the state which directs
its courts and administrative agencies,
when confronted with a legal problem
involving a foreign element, to apply
either the local law or a foreign law.

• Conflict of Laws is part of the municipal

law, particularly civil law, not
international law.
DISTINGUISHED FROM INTERNAL RULES
• Internal Rules are applicable to
cases without any foreign element,
which are also part of the municipal
law, by the fact that they do not
purport to solve the problem.

• They merely point to the law to be

applied, whether local law or the
proper foreign law.
 Lex Loci Celebrationis
• Art. 17. CIVIL CODE. The forms and
solemnities of contracts, wills, and other public
instruments shall be governed by the laws of
the country in which they are executed.
• Except:
• 1. Alienation and encumbrance of property (Art.
16 – Lex Situs);
• 2. Consular Contracts
 SAMPLE PROBLEM
• A, an American from New York, and F, a
Filipino from Baguio City, entered into a
contract of employment in the Kingdom
of Saudi Arabia under which A is to pay F
monthly salary of P5,000.00 provided the
latter prays to Allah five times a day. Is
the Contract valid?
• There are two foreign elements in the
problem. A is an American, and the
contract was entered into in the Kingdom
of Saudi Arabia.
 ANSWER
• Art. 17. CIVIL CODE. The forms and
solemnities of contracts, wills, and other public
instruments shall be governed by the laws of
the country in which they are executed.
• The first paragraph of Article 17 does not decide
the case. It merely points to the law to be
applied, the lex loci celebrationis, which in this
case, is the internal law of the Kingdom of Saudi
Arabia.
• As to what Arabian law provides, we do not
pretend to know.
 CONTRAST WITH INTERNAL LAW
• PROBLEM: A donated a parcel of land to B in a
private instrument. B accepted the donation. Is the
donation valid?
• ANSWER: No, the donation was not made in a
public instrument as required by Article 749 of the Civil
Code. [There is no foreign element]
• PROBLEM: A donated a parcel of land to B in a
public instrument. B accepted the donation in a private
instrument. Is the donation valid?
• ANSWER: No, because under Article 749 of the
Civil Code both the giving and the acceptance must be
in a public instrument. [There is no foreign element]
 Monism v. Dualism
• Monists believe that international law and domestic
law are part of a single legal order; international law
is automatically incorporated into each nation's
legal system and that international law is supreme
over domestic law.

• Dualists, however, contend that international law

and domestic law are distinct. Under this view,
when municipal law provides that international law
applies within our jurisdiction, it is but an exercise
of the authority of municipal law, an adoption or
transformation of the rules of international law.
What is meant by the Principle of
TERRITORIALITY?

• It provides that penal statutes are

applicable only within the territorial
jurisdiction of the enacting state.
• Thus, a crime is punishable only
within the territorial jurisdiction
where it is committed.
 TERRITORIALITY
• Art. 14. CIVIL CODE. Penal laws
and those of public security and
safety shall be obligatory upon all
who live or sojourn in the
Philippine territory, subject to the
principles of public international
law and to treaty stipulations.
 EXTRA-TERRITORIALITY
• It provides that penal statutes may find
application even outside the territorial
jurisdiction of an enacting state
pursuant to treaty obligations and
general principles of public
international law.
• An example of extra-territoriality is
Article 2 of our Revised Penal Code.
May a Filipino convicted of a crime abroad
serve his sentence in the Philippines?

No. Under the principle of territoriality, a crime

is punishable only in the territorial
jurisdiction where it is committed.
Allowing a Filipino convicted abroad to serve
sentence in the Philippines will be
tantamount to recognizing and enforcing a
foreign judgment which is penal in nature.
This is contrary to our public policy on
territoriality (Article 14, Civil Code).
 Extra -Territoriality
• If there is a treaty for exchange of prisoners,
it becomes part of our laws and a Filipino
convicted for a crime abroad may serve his
sentence in the Philippines.
• If a Filipino is convicted of crimes against
humanity, he may also serve his sentence
here under the principle of universality,
which makes such crimes punishable in any
jurisdiction regardless of the place of
commission.
 Sample Problem: Territoriality
• Ricky and Arlene got married in Manila.
• Ricky thereafter went to London and
married Rita.
• After a month, Ricky went to San
Francisco and married Sheila.
• May Ricky be prosecuted for Bigamy in
the Philippines at the instance of his first
wife, Arlene? Why?
 Answer: Ricky is not liable for Bigamy

• Ricky did not commit any crime within Philippine

territory.
• Bigamy is committed by entering into a second
or subsequent marriage.
• Ricky’s first marriage with Arlene, which was
entered into in the Philippines, is not bigamous.
• The subsequent marriages, which are the
bigamous marriages, were all entered into
abroad, or outside Philippine territory, and
therefore beyond our criminal jurisdiction.
 Forum Non Conveniens
This principle is one of the most frequently
asked questions in the bar exams. It
was asked, in various forms, in the bar
exams of:
1991 (Question Nos. VII-A, B);
1992 (Question Nos. XIV-A, B, C);
1994 (Question Nos. I-1, 2, 3; II-1,2; XX);
2002 (Question No. XIII-B); and
2004 (Question No. III-B1; VII-B)
JURISDICTION
 What is Jurisdiction?
• In International Law,
jurisdiction is often defined as
the right of a State to exercise
authority over persons and
things within its boundaries
subject to certain exceptions.
 Universality of Jurisdiction
• Certain offenses are so heinous and so
widely condemned that any state that
captures an offender may prosecute and
punish that person;
• on behalf of the international community
regardless of the nationality of the
offender or victim or where the crime was
committed.
 FOUR QUESTIONS ON JURISDICTION
• Has the court jurisdiction over the person
of the defendant or over his property?
• Has the court jurisdiction over the subject
matter (“competency”)?
• Has the suit been brought in the proper
venue in cases where a foreign element is
involved?
• Is there a statute or doctrine under which a
court otherwise qualified to try the case
may or may not refuse to entertain it?
 Current Legal Issues
• • electronic transactions (sales and banking)
• • jurisdiction and identity (cyber crimes)
• • Privacy and security (hacking and viruses)
• • content regulation (cyber libel and e-fraud)
• • telecommunications/VoIP (franchise / costs)
• • Piracy (copyright / trademark)
• • Functional Equivalence (e-documents)
• • Automated Elections (Electoral Fraud)
 SOCIAL NETWORK SITES
• The Supreme Court in Canberra, Australia has
recently ruled that legal documents may be served
via Facebook for defendants who cannot be found.
• The defendants in the subject case failed to pay a
loan and cannot be found.
• Service of summons, subpoena and other court
process via email, blogs, myspace, friendster, or
facebook accounts is now feasible.
• http://www.Reuters.com/article/technologyNews/id
USTRE4BG0PI20081217
 FACEBOOK USED FOR BLACKMAIL

• • Facebook has already been used for

blackmail by a male student who posed as a
girl in a fictitious account.
• He was able to trick at least 31 male
classmates into sending him naked photos of
themselves and then blackmailing some for
sex acts.
• http://www.cbsnews.com/stories/2009/02/05/national/main4
777194.shtml?source=RSSattr=U.S_4777194.
 MYSPACE USED FOR FRAUD

• A woman created a fictitious boy on

MySpace and set flirtatious messages
from him to a female teenage neighbor.
• He then “dumped” the girl.
• The girl killed herself shortly thereafter.
• The woman was held civilly liable.
• http://www.smh.com.au/articles/2008/11/27/1227491672826
.html.
 Cyber Libel
• Defamatory statements made on the
internet is libel, even if the internet is not a
medium expressly enumerated in the law.
• Internet is subsumed in “any similar
means.”
• “Publication,” which is one of the
requisites, is defined as the
“communication of the defamatory matter
to some third person or persons.”
• The internet is a means of communicating.
 Publishing Libel Online
• The blogger “publishes” the post or article.
• Internet writings, including blogs, would fall
under “any similar means” of publication.
• When someone posts a comment in
another’s blog and such comment is
libelous, the owner of the blog is also liable
for libel --- similar to the liability of a
publisher of a newspaper.
 BLOGGER’S LIABILITY
• Bloggers can be both a provider and a
user of interactive computer services.
• Bloggers are users when they create and
edit blogs through a service provider,
and they are providers to the extent that
they allow third parties to add comments
or other material to their blogs.
• Under the law, any person who causes
the publication of a defamatory article is
held liable for libel.
 IS THE WEB HOST LIABLE?
• NO. The webhost is generally not liable.
• Under RA 8792, the service provider is
not liable so long as it “does not have
actual knowledge, or is not aware of the
facts or circumstances from which it is
apparent, that the making, publication,
dissemination or distribution of such
material is unlawful or infringes any rights
subsisting in or in relation to such
material.”
 INTERNET LIBEL
• The Taytay provincial prosecutor has recommended
the indictment of lawyer Argee Guevarra on libel
charges in connection with his Facebook postings
last year in which he allegedly defamed the practice
of celebrity cosmetic doctor Vicki Belo.
The complaint stemmed from his status updates in
July 2009 on the social networking site FACEBOOK
in which Guevarra referred to Belo’s clinic as a
“Frankenstein factory,” and called her “Reyna ng
Kaplastikan (queen of fakery).
 INTERNET LIBEL
• Atty. Guevarra also called for a boycott of Belo’s
company, the Belo Medical Group Inc. (BMGI), in protest
of the alleged botched buttock augmentation procedure
performed on a former patient, Josie Norcio, by one of
her doctors.

• In a June 28 resolution, the prosecutor said she found all

the elements of libel—defamation, malice,
identification and publication—in the libel complaint.
 INTERNET LIBEL
• In his counter affidavit, Atty. Guevarra said Facebook
postings were not covered by libel laws, and that the
Taytay prosecutor did not have jurisdiction over the case.
He also reasoned that the messages were a form of
privileged communication as they were not defamatory
and were only an exercise of his freedom of expression.
• He also noted that Belo and her clinic are public figures.
The Investigating Prosecutor found probable cause and
the case is now undergoing trial.
 BONIFACIO V. GIMENEZ
G.R. No. 184800, 5 May 2010
• Gimenez, on behalf of the Yuchengco Family and of the
Malayan Insurance Co., Inc. (Malayan), FILED a criminal
complaint for 13 counts of libel under Article 355 against
officers and trustees of Parents Enabling Parents
Coalition, Inc. (PEPCI).
• PEPCI was formed by a large group of disgruntled plan
holders of Pacific Plans, Inc. (PPI), which was indirectly
owned by the Yuchengco Group of Companies (YGC).
• PEPCI sought to provide a forum by which the plan
holders could seek redress by maintaining a website on
the internet under the address of www.pepcoalition.com
 BONIFACIO V. GIMENEZ
G.R. No. 184800, 5 May 2010

• Gimenez alleges that he accessed the website in Makati

and found the website to contain thirteen articles containing
highly derogatory statements and false accusations against
the Yuchengco Family, YGC, and particularly, Malayan.
• The Makati City Prosecutor’s Office, finding probable cause,
filed thirteen (13) separate Informations in the Makati RTC.
However, on appeal, the Secretary of Justice, reversed the
finding of probable and reasoned that the crime of “internet
libel” was non-existent.
• The accused then filed a Motion to Quash the Information
on the grounds that it failed to vest jurisdiction on the Makati
RTC.
IMMUNITY FROM
JURISDICTION
 Sovereign Immunity
• According to the absolute theory, a
sovereign cannot, without its consent,
be made a respondent in the courts of
another sovereign.
• According to the 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
 HOLY SEE V. JUDGE ROSARIO
• The Catholic Church entered into a contract with
Starlight Realty for the sale of the vacation house
of the papal nuncio.
• After receiving earnest money, the church sold
the same property to another buyer.
• Aggrieved, Starlight Realty sued the church for
breach.
• Summons was issued against the Holy See and
the Pope.
• The DFA certified that the Holy See (Vatican) is a
State and enjoys state immunity from suit.
 Is the Vatican a State?
- NO. Under the four elements of a state (people,
territory, sovereignty, government).
- Yes. Under the Lateran Treaty of 1929.
- Factual determination by the DFA is binding upon
the courts.
- A State, though immuned, may still be sued for
acts jure gestionis.
- Here, the sale of the vacation house of the papal
nuncio is an act jure imperii.
 TEST OF IMMUNITY

• The mere entering into a contract by a

foreign state with a private party cannot be
the ultimate test.
• The test is whether the foreign state is
engaged in the activity in the regular course
of business.
• If the act is in pursuit of a sovereign activity,
or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken
for gain or profit. (Indonesia v. Vinzon, July 23, 2003)
 INDONESIA V. VINZON (2003)
• The Republic of Indonesia entered into an agreement
for the maintenance of the Indonesian Embassy with
Vinzon Trade and Services.
• The agreement provided that the respondent would
maintain the cleanliness of the embassy and that it shall
be effective until 4 years and will be automatically
renewed thereafter unless cancelled for which there
needs to be a 30-day written notice.
• However in March 2000, when a new minister entered
service for the embassy, he terminated the agreement
for unsatisfactory service.
 INDONESIA V. VINZON (2003)
• Due to this VINZON filed a case against the
Indonesian government in the RTC of Manila.
• It alleged that the petitioner may be sued under
the Restrictive Doctrine of Immunity, that when
a sovereign state enters into a contract with a
private person, the state can be sued upon the
theory that it has descended to the level of an
individual from which it can be implied that it has
given its consent to be sued under the contract.
 INDONESIA V. VINZON (2003)
• The SC held that the mere entering into a
contract by a foreign State with a private party
cannot be construed as the ultimate test of
whether or not it is an act jure imperii or jure
gestionis.
•  If the act is in pursuit of a sovereign activity, or
an incident thereof, then it is an act jure imperii.
• Submission by a foreign state to local
jurisdiction must be clear and unequivocal.
• It must be given explicitly or by necessary
implication.
 JEFFREY LIANG V. PEOPLE (2001)
• Jeffrey was a Chinese national who was
employed as an Economist by the Asian
Development Bank (ADB);
• He uttered defamatory words to Joyce V.
Cabal, a member of the clerical staff of
ADB.
• He was sued for grave oral defamation;
• His defense is diplomatic immunity
because he is an employee of the ADB.
• Is he correct?
 JEFFREY LIANG V. PEOPLE (2001)
• The Supreme Court ruled, in essence, that
the immunity granted to officers and staff of
the ADB is not absolute;
• it is limited to acts performed in an official
capacity.
• Furthermore, the SC held that the immunity
cannot cover the commission of a crime such
as slander or oral defamation in the name of
official duty.
 JEFFREY LIANG V. PEOPLE (2001)
• “Officers and staff of the Bank, including
experts and consultants performing
missions for the Bank, shall enjoy the
following privileges and immunities:
• (a)Immunity from legal process with
respect to acts performed by them in
their official capacity except when the
Bank waives the immunity.”
 Diplomatic v. Consular Immunity
• Under Article 32 of the Vienna Convention
on Diplomatic Relations, a diplomatic agent
shall enjoy immunity from the criminal, civil
and administrative jurisdiction of the
receiving state.
• On the other hand, under Article 41 of the
Vienna Convention on Consular Relations, a
consular officer enjoys immunity from the
civil and administrative, but not criminal,
jurisdiction of the receiving state.
 When is a diplomat not Immuned?
• He shall enjoy immunity from civil and
administrative jurisdiction except in the case of:
• (i) A real action relating to property situated in
the territory of the receiving state, unless he holds
it on behalf of the sending state for the purpose of
the mission;
• (ii) An action relating to succession in which
the diplomatic agent is invoked as executor,
administrator, heir or legatee as a private person
and not on behalf of the sending state;
• (iii) An action relating to any professional or
commercial activity exercised by the diplomatic
agent in the receiving state outside his official
functions.
 When is a consul not Immuned?
• Under Article 43 of the Convention, Consular
officers are not immuned when the civil action:
• (i) Arises out of a contract concluded by a
consular officer in which, he did not contract
expressly or impliedly as an agent of the sending
state;
• (ii) By a third party for damage arising from
an accident in the receiving state caused by a
vehicle, vessel, or aircraft.