NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
UNIVERSITY OF SANTO TOMAS
Faculty of Civil Law
A.Y. 2010-2011
Second Semester
CONFLICT OF LAWS
CHAPTER 1
NATURE, DEFINITION, AND SCOPE OF THE SUBJECT
Q: What factors led to development of Private International Law?
A:
1. Advances in communication and transportation;
2. Frequency and variety of events and transactions that cut
across national and territorial boundaries;
3. Diversity of legal systems
NOTE: If the world is governed by 1 State, 1 set of rules and
administered by 1 central government—there would be no such
subject as Conflict of Laws.
Q: What are the factors that give rise to Conflict of Laws?
A:
1. Division of the world into different States or territorial
units, each State or unit having different system of law;
and
2. Presence of situation containing foreign element—event
or transaction affected by diverse laws of 2 or more states
or units.
Diversity of laws
Differences in legal rules have their root cause in the particular
habits, ways of thinking, mores and customs of each group of
people.
Each state has its own rules dealing with the same aspects of human
existence—birth, personality, filial relations, marriage, separation,
divorce, property, contracts and transactions, inheritance, etc.
Eg. Divorce—US and Japan versus Philippines
Situation involving a foreign element
Presence of foreign element is inevitable since social and economic
affairs of individuals and associations are rarely confined to the
geographic limits of their birth or inception.
Q: What are the forms where foreign element may appear?
A:
1. One of the parties is an alien or has a foreign domicile;
2. Contract between national involves properties situated in
another State.
Q: What is Private International Law (PrIL)?
A:
1. It embraces universal principles of right and justice which
govern the courts of one state having before them cases
involving the operation and effect of the laws of another
state or country (Minor).
2. That department of private jurisprudence which
determines before the courts of nation each suit should be
brought, and by law of what nation it should be decided
(Westlake).
3. Part of the law which deals with the extent of which the
law of a state operates and determines whether the rules
of one or another state should be applied in a legal
situation (Judge Goodrich). Of law designated p
4. That branch of law designated to deal with conflicts
between interests of 2 or more states in applying the
policies embodied in the their respective laws (Prof.
Currie).
5. That part of the law of each state which determines
whether in dealing with a factual situation involving a
foreign element, the law or judgment of some other
State will be recognized.
a. It is part of municipal law of each state;
b. Subject is any factual situation containing a
foreign element;
c. Function is to determine whether the rules
of law or judgments of some other state or
states (and to what extent), should we
recognized or applied the forum.
NOTE: Conflict of Laws is not a separate branch of law but it
traverses and concerns almost every department of law.
Function and Object of Conflict of Laws
Q: What are the threefold functions of PrIL?
A:
1. To prescribe the conditions under which a court or agency
is competent to entertain a suit or proceeding involving
facts containing a foreign element;
2. To specify the circumstances in which foreign judgment
will be recognized as valid and binding in the forum;
3. To determine for each class of cases the particular system
of law by reference to which the rights of the parties must
be ascertained—choice of law (to determine which of the
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
several simultaneously valid legal systems is applicable to
a given set of facts.
NOTE: The legal effects of a certain set of facts are not always
determined by one legal system:
a. Cumulative:
i. A given set of facts may produce legal effects
each of which is governed by a different legal
system: e.g. marriage between 2 French
nationals in Manila: the formal validity will be
governed by Philippine law and the property
relations shall be governed by French law.
ii. A given set of facts may produce legal effects
only if certain conditions common to 2 legal
systems are fulfilled: e.g. an act committed in
the Philippines gives rise to an action for tort in
England only if it constitutes a tort according to
English law and is not justifiable under the law of
the Philippines.
b. Alternative- if an alien executes a will in the Philippines,
the formal validity of the will may be judged alternatively
by Philippine law or his own national law (Art. 817).
Q: What is the purpose of PrIL?
A: It is the promotion of the peaceable intercourse of private
persons through the rules that are eminently just and workable.
Specifically,
Deals with private individuals Deals for the most part with
States
Assumes control over Recognizes transactions in which
transactions strictly private in sovereign States are interested
nature, in which the State has
no interest
Q: What is Public International Law?
A: That body of rules and principles of action which are binding upon
States in their relations with another.
NOTE: The distinctions are not recognized by the Monists.
Accordingly, individuals alone are and can be the subjects of
International law, whether private or public.
Another school of thought broadens the applicability of PIL as to
include not only States but individuals as well. Accordingly, PIL is the
body of rules and principles which are binding upon States in their
relations with one another and upon individuals both in their
relations with States and in their relations with another in matters of
international concern.
Sempio-Dy (2004)
Q: What is Conflicts of Law?
A: It is that part of the law which comes into play when the issue
before the court affects some fact, event or transaction is so clearly
connected with a foreign system of law as to necessitate recourse to
that system.

a. For the protection of the justified and rational
expectations of parties to a transaction;
b. Application of the law of the State having dominant
interest in a given set of facts;
c. Promotion of the stability and predictability by achieving
uniformity of solution to a case wherever the forum may
be situated
d. Dispensing justice in individual cases.
Q: Distinguish between PrIL and PIL.
A: International law refers to the law that regulates the relations of
States and other entities possessing international personality. There
are no universally accepted principles of PrIL. Every state has its own
distinctive set of rules of Conflict of Laws.
a. Governs the courts of one state having before them cases
involving the operation and effect of the laws of another
state or country;
b. That part of the municipal law of a state which directs its
courts and administrative agencies, when confronted with
a legal problem involving a foreign element, whether or
not they should apply a foreign law/s.
Q: What is a Conflict of Law Case?
A: It is any case involving facts occurring in more than 1 state or
nation and thus, it is necessary to make a choice between the laws
of different states or countries.
Q: What do you mean by states?

Private International Law
The rules are national or
municipal in character
XPN: When embodied in a
convention (Warsaw in 1929 and
Hague in 1955)
Source is the will of a particular
State
Recourse is had to municipal or
national tribunals
Public International Law
The rules are international in
nature
Source is the common will of the
States
In case of conflict, recourse is
had to diplomatic channels then
to good offices, mediation,
conciliation, commission of
inquiry, and arbitration, then to
retorsion, reprisal and other
measures short of war
A: It means political subdivisions of states or countries which have
their own legal systems.
Q: Is it part of International law?
A: No. it is rather part of municipal law of each state. By municipal
law, it means the internal or local law of each state, since every state
has its own internal or local system of law, so each state also has its
own conflicts of law.
Sempio-Dy (2004)
Q: Distinguish between Conflicts of Laws from Public International
Law?
A:
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
aroused the attention of Italian jurists at the University of
Public International Conflicts of Law Bologna—reviving the study of Roman Law.
Law
As to Governs sovereign Governs private  Bartolus-Father of PrIL and most outstanding jurist of that
persons states and entities individuals or corporations time (1314-1347)
involved that are  Theory of statues was formulated to solve conflicts
internationally  Statute originally stood for the particular laws of the
recognized or several Italian city-states but was later used to mean local
possessed of laws, statutory or customary.
international
personality Real Statutes Personal Statutes Mixed Statutes
As to nature International Municipal Applied to Applied to and Apply principally to
As to Applies to transactions Transactions strictly immovable things followed a person contracts
transactions in which only private in nature in which within the territory outside his domicile
involved sovereign states or the country as such has (personal status,
entities with generally no interest. movables)
international
personality are Mobilia sequuntur
concerned and which personam
affect public interest;
th
As to a. Peaceful Judicial or administrative The French jurists of the 16 century
remedies remedies like tribunals in accordance
th
applied diplomatic with the rules of  Political organization in France in the 16 century
negotiations, procedure of the country  Coutume or customs- different French provinces’ separate
mediation, where they sit. laws
inquiry and  Since their customs differed, clashes arouse frequently
conciliation, and French jurists built upon the statute theory to resolve
arbitration, or the conflicts
judicial  Charles Dumoulin (1500-1566)- responsible for the
settlement by doctrine that parties to the contract could choose the law
international that was to govern their agreement
tribunals like the  Bertrand D’ Argentre (1519-1590)- put forward 2 theories:
UN;
b. If the remedies a. That whenever there was any doubt as to whether
fail, states statutory rule was personal or real, or whenever a
concerned may rule was partly real and partly personal, it was to be
resort to forcible deemed rea.
remedies like b. In matters of succession, where a person leaves
severance of immovables in various countries, the law of the
diplomatic countries concerned should be applied respectively to
relations, the immovable therein situated.
retorsions,
reprisals, Doctrine of comitas gentium
embargo,
boycott, non- Q: What is the Doctrine of comitas gentium?
intercourse,
pacific blockades, A: It is a development occurred in the Netherlands. Netherlands
collective obtained independence from the Reich by the Treaty of Westphalia
measures under (ends the 30 years of war in the Holy Roman Empire and the eighty
the UN; years war between Spain and Dutch Republic).
c. War
a. A new confederation of nation composed of legally
independent provinces each with its own law—fertile field
for the development of PrIL.
CHAPTER II b. Burgundus, Rodenburg, Paul Voet, John Voet and Ulrich
HISTORY AND IMPORTANCE Huber- denied that States were under any legal obligation
to apply foreign law. They contend that such application,
Earliest period-Theory of Statutes unless imposed by a treaty, results only from comitas
gentium—from considerations of courtesy and
Origin: Rise of the Italian city-states such as Florence, Milan, expediency.
Bologna, Pisa, Venice, Padua and Medina which due to their growing c. Huber and many English Writers laid down the following
wealth and progress in trade and commerce, developed customs of principles:
their own on a large scale. The resulting inter-municipal conflicts
A. Doctrine of Pure Territoriality:
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
 Laws of every state operate within the territorial
limits, and such is binding to all subjects but not
beyond those limits;
 Subjects of a state are all those who are found
within the limits of its territory, whether they
reside there permanently or whether their
presence there is only temporary;
B. Extraterritorial effect
 Every sovereign, out of comity, admits that a law
which has already operated in the country of
origin shall retain its force everywhere, provided
that this will not prejudice the subjects of the
sovereign by whom its recognition is sought.
 Extraterritorial effect may be obtained through
the application of the doctrine of comity—
designed to secure reciprocity and thereby
contribute to the advantage of all nations
concerned.
 Doctrine of Comity results from the fear of that
blanket application of territorial law to things
and persons within a state would result in
unfairness.
 Comitas was supposed to be liberally granted in
answer to the demands of international trade.
 Yet, the Dutch did not intend to abandon the
Theory of Statutes. What they maintained was
that this theory should be subordinated to the
ideas of comitas
Beginning of codifications
 The Dutch emphasis on sovereignty as the source of all
rules of Conflict of Law induced legislators in Europe to
establish rules of PrIL in their codes of civil law.
 Bavarian Code of 1756:
- It declines to accept the rule that movables
follow the person
- Lex situs (law of the place where the thing is
situated) shall prevail without any distinction
between immovables and movables and
between corporeal or incorporeal things.
 Prussian General Code of 1794-The thing may rather have
effect than be destroyed:
1. If a person has 2 domiciles, which is possible
under European laws, that domicile is decisive
under the law of which the contract or act in
question is valid;
2. If a person domiciled abroad enters into contract
within Prussian territory respecting chattels
there, the contract is valid if under the law is
either (his domicile or that of Prussia) he is
capable of entering into contracts.
NOTE: Hence, if by law of his domicile, he is incapacitated,
whereas by the law of the place where he entered into a
contract (Prussia), he is qualified to contract, then the law
under which the contract is valid is to be applied.
 French Code of 1804- Article 3 provided that French Law
concerning personal status and capacity govern
Frenchmen even when residing in foreign countries. This
established the principle that an individual’s personal law
ought to determined by his nationality rather than by his
domicile.
th
19 century jurists
Q: Who are the 2 groups of writers in PrIL?
A:
THEORETICAL (Deductive) POSITIVE (Inductive)
Began with a set of priori Studies actual rules in force and
principles, from which they endeavored to reduce them to
derive a body of consistent rules systematic order
Continental writers English and American writers
Do not claim universal validity
for their rules and are careful to
indulge in any generalization not
supported by decisions.
JOSEPH STORY (An American Judge)
 American judge
 First authoritative writer on Anglo-American Conflict of
Laws
 Publishes Commentaries on the Conflict of Laws (1834)-
he brought together the conclusions of Continental writers
and the decision sof courts in England and America.
 Brought about the renaissance of the subject
 Approach was more positive (inductive) than theoretical
 Maxims:
- Every nation possesses an exclusive sovereignty and
jurisdiction within its own territory that directly binds all
properties within its territory, and all persons who are
residents within it (territorial sovereignty)
- No state or nation can by its law directly affect or bind
property out of its own-for it would be incompatible with
the equality and exclusiveness of the sovereignty of all
nations that any nation should be at liberty to regulate
either persons or things not within its territory.
 Acceptance of Dutch Theory of Comity
SAVIGNY
 Great German jurist
 8 VOLUME OF Savigny’s System of Modern Roman Law
(1849)
 It is expedient that in cases containing a foreign element,
the same legal relations have to expect the same decision
whether the judgment be pronounced in this state or in
that.
 It is essential to bear in mind the existence of an
international community of nations having intercourse
with one another.
 Comity is beneficial and advantageous to all concerned,
the state and the individuals
 The question is not W/N the rule is related to property,
persons or acts but to classify legal relationships so as to
ascertain for every legal relation that law to which, in its
proper nature, it belongs or is subject and thus find out
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
where a relation has its seat (the situs) – the seat of a
particular legal relationship. Territorial system
 Law of the place in which that act has its seat
C. Territorial system- only the law of a state applies to
 What is the law with which the transaction or event has persons and things within its territory. Foreign law is
the closest connection? not applied in the forum.
 What is the law that has the most significant relationship  2 Factions:
to the occurrence and the parties? 1. only rights vested or acquired under
the foreign law are recognized in the
Pasquale Stanislao Mancini forum, but not the foreign law itself
2. vested rights theory is illogical and is
th
 Before 19 century: a person’s status was usually not true in practice
governed by the law of his domicile.
 Mancini delivered in University of Turin- Nationality as the History in the Philippines
Basis of the Law of Nations (1851)
 he defended the thesis that the rational basis of PIL is the  Lack of awareness in the Philippines of conflicts problems
nation and the nazionalita. posed by facts containing or involving a foreign element
 Opposing the rule on domicile, Mancini asserts the rule of  After half a century of confusion and sloppiness, some kind
nationality, and that the components of nationality are of order is beginning to emerge. American decisions are
religion, customs of life, language, race of the people, no longer adopted without question.
historical traditions, even the landscape of the country and
its climate—all of which create a spiritual unity through Sempio-Dy (2004)
the common consciousness of nationality.
 Personality of an individual is determined only by his a. Fast advance of modern technology in the means of
nationality; an individual’s personality is recognized only if communication between states;
his nationality is recognized b. Rapid growth and expansion of international trade and
 In every kind of legal system, there are 2 kinds of rules: commerce;
1. those created in the interest of private c. Influx of tourists;
individuals – binding to persons who belong to d. Massive migration;
the country by nationality; e. Great increase of business transactions of foreign
2. those for the protection of public order – binding corporations in the Philippines;
to all within the territory (criminal laws-binding
on all persons, citizens or aliens as long as they
are within the country)
CHAPTER III
MODERN DEVELOPMENTS SOURCES OF PRIVATE INTERNATIONAL LAW

Neo-statutory system Q: What are the primary sources of private international law?

 follows the statutist school of thought A:

 Assumption that 2 or more independent laws are
applicable to conflicts problem then proceed to devise 1. Codifications
some method to determine the law that shall prevail. 2. Special legislation
3. Multilateral treaties
A. Many adhere to Mancini’s theory-man’s national law 4. International conventions
should govern him wherever he may be 5. Bilateral treaties
XPN: 6. Case law
1. Concept of public order 7. International customs
2. The place governs the act 8. Constitution
3. From the need of respecting the
will of the contracting parties Codifications

International System Napoleonic Code of 1804

B. There exists or should exist, a single body of
international rules that can and should solve all legal
problems that involve a foreign element. A juridical
act should in all countries be governed by the law of
the place in which the act has its seat (Savigny).
a. The Napoleonic Code of 1894 had a considerable influence
on the different codes of Continental Europe.
b. It made French Laws applicable to French nationals,
wherever they may be as long as their status and their
capacity are concerned.

But while almost every adherent of the international German Code of 1896
system is agreed on this abstract principle, there are
wide differences of opinion on the most appropriate It contained a great part of its Conflict of Laws but deliberately left
law to govern each legal relation. certain gaps respecting the law of contracts and quasi-contracts
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
because it seemed impossible to draw up satisfactory general rules b. The 1980 U.N. Convention on Contracts for the
on the subject International Sale of Goods prepared by the
UNCITRAL
Q: What are the most outstanding codifications of PIL in the latter
years? 2. To unify the rules of PIL so that a case involving a foreign
element may be decided in the same way, irrespective of
A: the forum or place of litigation.

1. The Polish Code of PIL of 1926 Examples:

2. The Italian Code of 1938
3. The Greek Code of 1940 a. Hague Conventions on sales of goods, conflict of
nationality and domicile
The Civil Code of the Philippines (R.A. 386) b. Geneva Conventions which laid down the rules of PIL
with respect to bills of exchange and checks
a. Devoted 4 articles to the subject although there are c. UN’s 1954 Convention Relating to the Status of
several provisions in other portions which are properly Stateless Persons
rules of Conflict of Laws.
b. The 4 provisions in Chapter I are substantially a Bipartite treaties
reinstatement of the provisions found in the CC of Spain,
as influenced by the Napoleonic Code and Italian School of Q: Give the common subjects of these treaties.
Mancini.
c. The Code of Commerce which was extended to the Islands A:
by Royal Decree on August 6, 1888 and took effect on
December 1, 1888, also contains some important 1. Status of aliens
provisions affecting conflict of Laws problems. 2. Capacity of individuals and business organizations
3. Judicial assistance
Special Legislation 4. Enforcement of foreign judgments

Q: Enumerate some special legislations containing rules on Conflict Case law

of Laws.
a. Rabel, an acknowledged authority to European laws said:
A: “Even in civil law countries, conflict of law rules to a large
extent are judge-made. French and Belgian courts have to
1. Foreign Investment Act of 1991 (R.A. 7042) operate almost without written rules.
2. B.P. 68 or Corporation Code of the Philippines
3. General Banking Act (R.A. 337) Q: In the Philippines, what are the 3 categories of judicial decisions
4. Trade Marks and Trade Names Law (R.A 166) respecting Conflict of Laws?
5. Patent Law (R.A. 165)
6. Carriage of Goods by Sea Act (Com. Act 65) A:
7. Investment Incentives Act (R.A. 5186)
8. Export Incentives Act (R.A. 6135) 1. Those which are based on assumption, though not
expressed in clear language that only Philippine internal
Multilateral treaties rules govern any problem; this is the most noticeable in
cases involving contracts and personal status
Q: What are the 2 methods of avoiding or at least minimizing 2. Those which adopt Anglo-American doctrines and
conflicts between different legal systems of the world regarding precedents without regard to the provisions contained in
matters as personal capacity, marriage, divorce, business the Civil Code; this is particularly true in cases involving
associations, patents and copyrights, air travel, foreign judgments, validity of foreign divorces, at least prior to Barreto
and like matters? Gonzales v. Gonzales
3. Those cases which attempted to introduce Anglo-
A: American rules and doctrines which view not only to filling
up the gaps by the Civil Code, but also to merge them with
1. To secure by international conventions or treaties the established civil law principles.
unification of the internal rules of the various countries or
territorial units upon as many legal subjects as possible NOTE: It is only when the various legal systems have been
compared, contrasted, and their respective basic assumptions
Examples: brought out in the open, that the move for harmonizing and
eventually unifying the rules of PIL may gain some headway.
a. Warsaw Convention, as amended which regulates by
uniform rules, as regards both jurisdiction and the law Q: What are the 2 kinds of Conflict of Laws in the U.S.?
to be applied, the international carriage of persons pf
goods by aircraft, which has become the fastest and A:
most significant mode of international transportation
today
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Kenneth and King C. Hizon
1. Interstate Conflict of Laws governing conflicts between Sempio-Dy (2004)
laws of the States of the American Union and
2. International Conflict of Laws governing conflicts between Q: What are the sources of Conflicts of Laws?
a State of the Union and the Laws of other States.
A:
Q: Discuss the various Conflict of Laws clauses found in the U.S.
Constitution. 1. Direct sources

A: a. Bilateral and multilateral treaties and international

conventions;
Full faith Sets forth the measure of respect which each State b. Constitutions and statutes
and credit must give to the acts, records, and judicial c. Judicial decisions
clause proceedings of a sister state d. International customs
Privileges Imposes limits on the extent to which State may
and discriminate against the citizens of a sister State 2. Indirect sources
immunities
clause a. Natural moral law;
Interstate Limits the power of a state to apply its local law to b. Writings and treatise of thinkers and famous writers
commerce interstate transactions and upon the power of a State and jurists on the subject.
clause to determine what cases its courts shall hear
Supremacy Requires the states to give effect to Constitution,
clause statutes, and treaties of the U.S. and to authoritative
decisions of the Federal Courts in areas of national CHAPTER IV
law JURISDICTION AND CHOICE OF LAW

International customs; Law of Nations Q: What are the 3 alternatives of the courts in case of conflicts
case, that is to say, a case involving a foreign element?
There are certain rules of almost universal force which have come
down through ages past and established themselves firmly. A:

Example: the law of situs (the formalities of a legal act are governed 1. Dismiss the case, either because of:
by the law of the place where it is executed) a. Lack of jurisdiction
b. Refusal to assume jurisdiction over the case
Q: What are the matters which are delimited by the Law of 2. Assume jurisdiction over the case and apply the internal
nations? law of the forum (i.e, the lex fori)
3. Assume jurisdiction over the case and take into account or
A: apply the law of some other state/s

1. Immunities of foreign sovereigns Judicial Jurisdiction

2. Diplomatic officials and public property
3. Extent of the territorial jurisdiction over the marginal Q: What is jurisdiction?
waters
A: It is the right of a State to exercise authority over persons and
Q: What is the effect of disrespect to these matters? things within its boundaries, subject to certain exceptions.

A: It would constitute “denial of justice” and an “outrage to This is exclusive within and throughout the domain of the State,
humanity” conditioned by the rights of other States over certain persons and
things which may be found within the boundaries of the former.
Constitution Thus, a state does not assume jurisdiction over travelling sovereigns,
ambassadors, and diplomatic representatives of other States.
Example: Provisions on citizenship
Q: What is judicial jurisdiction?
Indirect sources
A: A state can take hold of any judicial matter it sees fit by making its
1. Natural law courts and agencies assume jurisdiction over all kinds of cases
2. Works and treaties of jurists and writers brought before them, apart from certain exceptions. It is the
authority of a State to exercise authority, through its courts and
Q: What is the theory of national law? agencies, to hear and adjudicate cases.

A: It presupposes a body of ideal precepts of universal validity for all Simply stated, it is the power of a court or agency to hear and
peoples, at all times, and in all places, derived from the idea of what determine an issue upon which its decision is sought.
an ideal man would do and would not do, would claim and would
concede as the claim of others, and arrived at by pure reason. Q: What are the factors that may affect judicial jurisdiction?

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Kenneth and King C. Hizon
A:
Jurisdiction over the person of the plaintiff
1. The presence, submission or appearance of the parties or
one of them Acquired from the moment he invokes the aid of the
2. The doing of certain acts within the State court and voluntary submits himself by institution of
3. The fact that the property involved in litigation is in the the suit through proper pleadings
forum
4. The fact that the parties are either citizens or residents of Jurisdiction over the person of the defendant
the State
Acquired through the ff:
Q: What is legislative jurisdiction? a. Voluntary appearance
b. Personal or substituted service of
A: A term occasionally used to denote the power of a State to summons
regulate or control, through rules of law, interests of persons in a
thing, event or situation. Principle of submission

Q: What are the types of judicial jurisdiction? A person may in some cases voluntarily submit
himself, expressly or impliedly, to the judgment of a
A: court to whose jurisdiction he would not otherwise
be subject.
Jurisdiction
over the Definition: Coercive processes
subject
matter a. The power to hear and determine cases of Personal or substituted service of summons is
the general class referred to as the Coercive processes provided by
b. to which the proceedings in question the law.
belong
c. and is conferred by the sovereign Personal service
authority which organizes the court and
defines its powers Accomplished by:

Conferred by: a. serving summons personally on the

defendant, or
a. Conferred by law b. If he refuses to receive it, by tendering it
b. It cannot be conferred by consent of the to him
parties or by their voluntary submission
c. May be found: Substituted service
1. Constitution
2. Judiciary Reorganization Act Accomplished by:

Personal a. By leaving copies of the summons at the

jurisdiction Definition: defendant’s dwelling house or residence
with some person of suitable age or
a. The competence of court discretion then residing therein
b. To render a decision that will bind the b. By leaving copies of the defendant’s office
parties to the suit or regular place of business with some
competent person in charge thereof
Bases:
Summons by publication
a. Presence
b. Domicile Q: When is summons by publication allowed?
c. Residence
d. Nationality or citizenship A:
e. Consent
f. Appearance in action 1. If the action is in rem
g. Doing business in the State 2. If the action is quasi-in rem
h. An act done in the State 3. Involves the personal status of the
i. Causing an effect in the State by an act plaintiffs
done elsewhere
j. Ownership, uses or possession of a thing Important notes:
in the State
k. Other relationships to the State which a. If a state obtains judicial jurisdiction over a
make the exercise of judicial jurisdiction party to an action, its jurisdiction
reasonable continues throughout all subsequent
Facultad de Derecho Civil 8
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
proceedings which may arise out of
original cause of action.
b. The jurisdictional basis must exist at the
commencement of the proceeding, it need
not continuously do so thereafter.
Jurisdiction
over the Jurisdiction over the res
res—actions
in rem, This is the jurisdiction over the particular subject
quasi-in matter in controversy, regardless of the persons
rem, and in who may be interested therein.
personam
Examples of action in rem
a. Action for foreclosure of a mortgage
b. Action for partition of land
c. Action to quiet title to the property
Jurisdiction
and the due Proceeding in rem
process
clause It is enforceable against the whole world, thus,
service of summons by publication is enough
In Pennoyer v. Neff, the Court said that “A
proceeding against the property is not a proceeding
against the owners of that property.” Thus, a
property cannot be subjected to a court’s judgment
unless reasonable and appropriate efforts have
been made to give the property owners actual
notice of the action. But in the case Shaffer v.
Heitner, the court held that all assumptions of court
jurisdiction, regardless of whether the proceedings
an in rem, quasi in rem, or in personam, must meet
the standards of fair play and substantial justice.
One basic principle underlies all rules of jurisdiction:
a State does not have jurisdiction in the absence of
some reasonable basis for exercising it, whether the
proceedings are in rem, quasi in rem, or in
personam. To be reasonable, the jurisdiction must
be based on some minimum contracts that will not
offend traditional notions of fair play and
substantial justice.
Examples:
a. Admiralty case
b. Land registration
c. Annulment of a marriage
Proceeding in personam
Personal service of summons or voluntary
appearance of the defendant, by himself or counsel
is required.
Due process only requires that if he is not present
within the territory of the forum, he has certain
minimum contracts with it such that the
maintenance of the suit does not offend traditional
notions of fair play and substantial justice
Example:
a. Action for damages
Proceeding quasi-in rem
Directed against the interests of particular persons
in a thing; summons by publication is sufficient
Example:
a. Action for foreclosure of mortgage
Analysis of the three methods
I. Dismissing the case; the principle of forum non-
conveniens
Q: When should the case be dismissed?
A: If the court has no jurisdiction over a conflicts case, because of
lack of jurisdiction over the subject matter or over the parties to the
suit, the court must dismiss the case.
Q: What is the principle of forum non conveniens?
A: A court may resist imposition upon its jurisdiction even when
jurisdiction is authorized by the letter of general venue statute.
Courts of equity and of law occasionally decline, in the interest of
justice, to exercise jurisdiction, where the suit is between aliens or
non-residents, or where for kindred reasons the litigation can more
appropriately conducted in a foreign tribunal.
NOTE: This depends largely upon the facts of each case and is
addressed to the sound discretion of the court.
Q: What is the interest which must be considered?
A: The private interest of the litigant such as:
a. Access to sources of proof
b. Availability of compulsory process for attendance of willing
witnesses
c. Possibility of view of premises
d. All other practical problems that make the trial of a case
easy, expeditious, and inexpensive.
II. Application of internal or domestic law
Q: As a matter of pure technicality, no rule of PIL would be violated
if the courts should decide to dispose of all cases, whether
domestic or conflicts cases, according to the internal law of the
forum. What is the reason for this?
A: A sovereign is supreme within his own territory, and according to
the universal maxim of prudence, he has exclusive jurisdiction over
everybody and everything within that territory and over every
transaction that is there effected. He can of course choose to refuse
to consider any law but his own.
Q: What are the instances when the forum has to apply the
internal or domestic law in cases involving conflicts problems?
A:
Facultad de Derecho Civil 9
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
is kept
1. Where the application of internal law is decreed d. authenticated by the
2. Where there is failure to plead and prove foreign law seal of his office
3. Where a case involves any of the exceptions to the
application of foreign law Where a case involves any of the exceptions to the application of
foreign law
Where the application of internal law is decreed
Q: What are the exceptions to this rule?
Examples:
A:
1. Where the land involved in the suit is located in the forum,
the lex situs is normally applied to the case 1. When the enforcement of the foreign law would run
2. Under Art. 80 of the FC, in the absence of a contrary counter to an important public policy of the forum
stipulation in the marriage settlements, the property 2. Where the application of foreign law would infringe goof
relations of Filipino spouses shall be governed by morality as understood in the forum
Philippine laws, regardless of the place of the celebration 3. When the foreign law is penal in nature
of the marriage and their residence 4. When the foreign law is procedural in nature
5. When the question involves immovable property in the
Where there is failure to plead and prove foreign law forum
6. When the foreign law is fiscal or administrative in nature
GR: Our courts do not take judicial notice of foreign law 7. Where the application of foreign law would involve
injustice or injury to the citizens or residents of the forum
Ratio: Only domestic laws fall within the scope of judicial notice 8. Where the application of foreign law would endanger the
vital interests of the State
Thus, if not properly pleaded and proved, the assumption is that
foreign law is the same as the local or internal law. Sempio-Dy (2004)

Q: How should the foreign law be proved? Q: How does one deal with a problem in Conflict of Laws?

A: It depends on the rules of evidence of the forum. Under A:

Philippine laws, there is distinction between written and unwritten
law. a. Determine if the court has jurisdiction over the case;

WRITTEN LAW UNWRITTEN LAW i. Court will determine whether it should assume
Examples jurisdiction over the case or dismiss it on ground
Statute or codal provision Judicial decisions and customary of forum non conveniens;
law ii. It is the law of the forum that determines
How proved whether the court has jurisdiction or not;
May be evidenced by an: May be proved by the: iii. Determine whether to apply the internal law of
a. official publication a. oral testimony of the the forum or the proper foreign law, considering
thereof or expert witness the attendant circumstances.
b. by a copy attested to b. by printed and
by the officer having published books of b. If it has no jurisdiction, the case should be dismissed on
the legal custody of reports of decisions of that ground
the record or by his the country involved
custody Q: How does the court determine whether it has jurisdiction over
c. and must be the case?
accompanied with a
certificate that such A: There are 3 kinds of jurisdiction:
officer has the
custody: i. Jurisdiction over the subject-matter;
1. secretary of ii. Jurisdiction over the person;
embassy or iii. Jurisdiction over the res.
legation
2. consul-general Jurisdiction over the subject-matter
3. consul
4. vice-consul a. Jurisdiction is conferred by law;
5. consul agent b. Defines as the power to hear and determine cases of the
6. officer in the general class to which the proceedings in question belong;
foreign service of c. It cannot be conferred by consent of the parties or by their
the Philippines voluntary submission;
stationed in the d. It must be invoked by filing the proper complaint or
foreign country in petition with the court;
which the record
Facultad de Derecho Civil 10
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
e. Element which must be considered in determining the
matter of jurisdiction: possible enforceability of its
decision in foreign states, subject to the rights of said
states;
f. It is the power of the court of the forum to render a
decision that will create legal rights and interests which
other states will recognize and enforce.
Jurisdiction over the person
a. It is the competence or power of a court to render a
judgment that will bind the parties involved;
b. Plaintiff- acquired the moment he invokes the power of
the court by instituting the action by proper pleading;
c. Defendant- acquired when he enters his appearance or by
the coercive power of legal process exerted by the court
over him.
d. Rule of submission0 deemed to consent to its exercise of
jurisdiction over his original cause of action including
counter-claims filed by the defendant, and he would then
be subject to the subject to the jurisdiction of the court;
e. As for defendant, his personal appearance or appearance
by counsel is tantamount to his giving consent to the
court’s exercise of jurisdiction over his person, except is
his appearance of that of counsel is for the sole purpose of
questioning the jurisdiction of the court;
f. Jurisdiction over the defendant may be acquired through
his voluntary appearance or by personal or substituted
service of summons on him.
Q: What do you mean by personal service?
A:
Sec. 6. Service in person on defendant.
Whenever practicable, the summons shall be served by handing a
copy thereof to the defendant in person, or, if he refuses to receive
and sign for it, by tendering it to him.
Q: What do you mean by substituted service?
A:
Sec. 7. Substituted service.
If, for justifiable causes, the defendant cannot be served within a
reasonable time as provided in the preceding section, service may
be effected (a) by leaving copies of the summons at the defendant's
residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies at defendant's office or
regular place of business with some competent person in charge
thereof.
Jurisdiction over the Res
1. It is jurisdiction over the particular subject-matter in
controversy regardless of the persons who may be
interested therein;
2. The basis is the presence of the property within the
territorial jurisdiction of the forum, even though the court
may not have personal jurisdiction over the persons whose
interests in the property are affected.
Q: What are actions quasi in rem?
A: A: Its purpose is neither to impose a personal liability or
obligation upon anyone, nor affect the interests of all persons in a
thing, but to affect the interests of the particular persons in a thing;
In such case, the court may render valid judgment when it has
jurisdiction over the particular persons whose interests are affected;
NOTE: In actions in rem, quasi in rem, or those involving the
personal status of the plaintiff, extraterritorial service of summons
by publication is allowed.
Q: How may service of summons be effected?
A: In actions in personam, service of summons may be by personal
service of substituted service. Service by publication would not be
sufficient whether the defendant is in the Philippines or not.
Q: When is service by publication allowed?
A:
1. If action is in rem;
2. If action is quasi in rem;
3. If the action involves the personal status of the plaintiff
(Sec. 15, Rule 14).
Q: When may extraterritorial service of summons be effected?
A: Sec. 15. Extraterritorial service.
a. When the defendant does not reside and is not found in
the Philippines, and the action affects the personal status
of the plaintiff or ;
b. When the defendant does not reside and is not found in
the Philippines, and the action relates to, or the subject of
which is, property within the Philippines (real or personal),
in which the defendant has or claims a lien or interest,
actual or contingent,
c. When the defendant is a non-resident but the subject of
the action is property located in the Philippines r in which
the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, and
d. When the property of a non-resident defendant has been
attached in the Philippines.
In the last case, while a writ of attachment may be issued by the
court upon application, said writ cannot be implemented until the
court has acquired jurisdiction over the non-resident defendant for
without such jurisdiction, the court has no power and authority to
act in any manner against the defendant, and any court order to
that effect will not bind said defendant.
Q: How may extra-territorial service be effected?
A: By leave of court, it may be effected:
a. By personal service;
b. By publication but a copy of the summons and the order of
the court must be sent by registered mail to the defendant’s
last known address;
Facultad de Derecho Civil 11
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
c. In any other manner that the court may deem sufficient (by 1. If the law is written:
registered mail. a. Official publication;
b. Section 25. What attestation of copy
NOTE: For illustrations, please see pp. 8-10 of Sempio-Dy’s group. must state. — Whenever a copy of a document
or record is attested for the purpose of evidence,
Q: Explain why the court may refuse to exercise jurisdiction over a the attestation must state, in substance, that the
case on the basis if the principle of forum non conveniens. copy is a correct copy of the original, or a specific
part thereof, as the case may be. The attestation
A: must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a
a. Evidence and the witness may not be readily available in court having a seal, under the seal of such court.
the forum; (26a)
b. Court dockets may already be clogged—to avoid 2. If the law is unwritten:
hampering of the speedy administration of justice;
c. Belief that the matter can be better tries and decided in a. Oral testimony of expert testimony; or
another jurisdiction: b. Printed and published booked of reports of
i. Main aspects of the case transpired there; decisions of the country involved, if proved to be
ii. Material witnesses have their residence there; commonly admitted in its courts.
d. To curb the evils of forum-shopping:
i. Secure procedural advantages; Q: What is the doctrine of processual presumption?
ii. To annoy or harass the defendant
e. Forum has no particular interest in the case: A: It means that when the proper foreign law has not been proved,
i. Parties are non-residents of the forum; the court of the forum may presume that said foreign law is the
ii. Are residents elsewhere; same as its local or domestic law, which it can now apply.
iii. Subject-matter of the case involved elsewhere.
f. Inadequacy of the local judicial machinery for effectuating Q: When a case involves any of the exceptions to the application of
the right sought to be enforced by the plaintiff; a foreign law, the rule is that the foreign law cannot be applied and
g. Difficulty of ascertaining the foreign law applicable. the courts should instead apply the domestic or local law. What
these exceptions?
Q: When does the principle apply?
A:
A: The doctrine should generally apply only if the defendant is a
corporation for if the individual is an individual, the proper forum a. When the application of the foreign law would run counter
may not be able to acquire jurisdiction over him and thus leaving the to a sound and established public policy of the forum;
plaintiff without any remedy. i. Divorce law
ii. Joint will
Q: When is the court bound to apply the internal or domestic law? iii. Incestuous marriages and those void by reason
of public policy
A: b. When the foreign law is contrary to the almost universally
conceded principles of morality (contra bonos mores);
1. When the law of the forum expressly so provides in its i. Prostitution;
conflict rules; ii. Agreements that corrupt the proper
2. When the proper foreign law has not been properly administration of justice or reward crimes;
pleaded and proved; iii. Transactions that infringe good morality
3. When the case involves any of the exceptions to the c. When the foreign law involves procedural matters;
application of the proper foreign law. i. No vested rights in procedural law
XPN: The law is both procedural and substantive:
Q: Give instances which require the application of the Philippine Prescription and Statute of Frauds
internal or domestic law. d. When the foreign law is a penal in character;
ii. Principle of territoriality
A: iii. A penal clause in a contract entered into abroad
may be enforced here because such clause is not
1. Lex situs—whenever land involved in the suit is located in criminal in nature but only provides for
the Philippines; liquidated damages.
2. Regarding the property relations of the spouses; e. When the law is purely fiscal or revenue producing or
3. When a Filipino father with American children dies, his administrative in nature;
succession shall be governed by Philippine law; i. We are not bound by foreign revenue and
4. If a will executed by an alien abroad is revoked our administrative laws;
country, the revocation must comply with the formalities f. When the foreign law might work undeniable injustice to
of Philippine law. the citizens or residents of the forum;
Q: How is a foreign law proved under the Rules of Court? g. When the application of the foreign law would endanger
the vital interests of the State;
A: h. When the case involves real or personal property located
in our country (Lex situs or lex rei sitae).
Facultad de Derecho Civil 12
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
CHAPTER V
APPLICATION OF FOREIGN LAW AND THE VARIOUS CHOICE-OF-
LAW THEORIES
Q: Why should a state apply a foreign law?
A: Application of the foreign law having the closest and most
dominant connection with an act or event permits the parties to
plan their transactions accordingly and discourage shopping around
by a plaintiff for a favorable forum, protects their rational and
justified expectations, facilitates the determination of the applicable
law, answers the need of the modern international system, and
achieves the long-range of goal of uniformity of result wherever the
forum may be located.
Hence, the ultimate explanation for the resort to foreign law should
be sought in the ends of justice.
Q: What are the theories that justify the application of the foreign
law? Enumerate and explain the various theories.
A:
THEORY DISCUSSION
Theory of The application of foreign legal systems in cases
Comity involving foreign element is proper because their
non-application would constitute a disregard of
foreign sovereignties, a lack of “comity” towards
foreign states.
Those who adhere to the principle of territoriality
would state the theory of comity in another way:
the law of one state or nation cannot operate in
another State or nation, except by comity.
Q: What is comity?
A: It signifies courtesy of one State towards
another. It involves the idea of one State stepping
back, and as a matter of courtesy, allowing the
law of another state to operate within its
territory. It is the reciprocal courtesy which one
member of the family of nations owes to others.
It presupposes friendship. It assumes the
prevalence of equality and justice.
Fallacies of theory of comity
1. It is based on the erroneous idea that a
State has a great interest in the
application of its laws by other States.
2. The application of foreign law does not
spring from the desire of the sovereign
of one State to show courtesy to other
State whose law is being applied.
Rather, it flows from the impossibility of
otherwise determining whole classes of
cases without gross inconvenience and
injustice to litigants, whether natives or
foreigners.
3. If foreign law were to be applied as a
matter of option, it would be impossible
to build up a definite body of rules of
PIL. The determination of when foreign
law would be recognized and applied
would not be settled by rules but by
unregulated discretion.
NOTE: The principle of comity is interchangeably
used with principle of reciprocity. But in the case
of Hilton v. Guyot, the reciprocity was employed
with a note of vengeance, thus giving rise to the
doctrine of retaliation.
Q: Describe the nature of comity as discussed in
Johnson v. Companie Generale Transatlantique?
A: Comity is not a rule of law, but it is a rule of
practice, convenience and expediency. It is
something more than courtesy, since it has
substantial value in securing uniformity of
decision and discouraging repeated litigation of
the same question. It therefore rests not on the
basis of reciprocity, but rather upon the
persuasiveness of the foreign judgment.
Sempio-Dy, 2004
GR: No foreign law would be allowed to operate
in another state.
XPN: Comity of nations—reciprocal courtesy
which the members of the family of nations owe
to one another.
Q: What is comity?
A: It is neither a matter of absolute obligation,
nor of mere courtesy and good will. It is a
recognition which one nation allows within its
territoryto the legislative, executive or judicial
acts of another nation, having dueregard both to
int'l duty and convenience, and to the rights of its
own citizensor other persons who are under the
protection of its laws (Hilton v. Guyot).
a. The comity based on reciprocity
b. The comity based on the persuasiveness
of a foreign judgment
Sec. 48. Effect of foreign judgments or final
orders.
The effect of a judgment or final order of a
tribunal of a foreign country, having jurisdiction
to render the judgment or final order is as
follows:
(a) In case of a judgment or final order upon a
specific thing, the judgment or final order is
conclusive upon the title to the thing; and
(b) In case of a judgment or final order against a
person, the judgment or final order is
presumptive evidence of a right as between the
Facultad de Derecho Civil 13
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or
clear mistake of law or fact. (Rule 39)
Protection of This is based on the concept of territoriality,
vested rights under which the court can apply only its own
theory territorial law. It cannot recognize foreign laws or
enforce foreign judgments. It is one of the tenets
of justice that rights acquired in one country must
be recognized and legally protected in others.
It is obvious that once it is assumed that no law
can be given extraterritorial force and effect, it is
an inconsistency to talk about the enforcement or
application of foreign law, even through comity or
courtesy.
The purpose of conflict of laws is to give effect to
rights acquired under the protection of foreign
law, and not to enforce foreign law.
Q: Discuss the formulation under Mc Donald v.
Railway.8
A: When a right is claimed upon acts occurring in
another country, courts look to the law of the
country, not to extend the binding force of a
foreign law beyond the territorial limits of the
sovereignty to which it belongs…it is not the
foreign law but the rights acquired under it which
are enforced by the courts of another country.
Q: Justice Cardozo made a profound remark in
Loucks v. Standard Oil Company of New York.
Discuss the application of the vested rights
theory.
A: A foreign statute is not a law in this state, but it
gives rise to an obligation, which if transitory,
follows the person and may be enforced
wherever the person may be found. No law can
exists as such except the law of the land; but it is
a principle of every civilized law that vested rights
shall be protected.
To the extent that it is the duty of every civilized
court to protect existing rights though vested
abroad, the theory is justified.
NOTE:
a. A tort committed in one state creates a
right of action that may be sued upon in
another unless public policy forbids
b. A right of action is property. If a foreign
statute gives the right, the mere fact
that we do not give a like right is no
reason for refusing to help the plaintiff
in getting what belongs to him.
c. The courts are not free to refuse to
enforce a right at the pleasure of the
judges to suit the individual notion of
expediency or fairness.
Fallacies of Protection of vested rights theory
a. When it is stated by the vested rights
theorists that it is not the foreign law
but the rights acquired under it which
are enforced by the courts of the other
country, there is at once involved a self-
delusion in reasoning. The obligation to
recognize the right implies the
obligation to apply the foreign law.
b. Not all the rights acquired under foreign
law are protected elsewhere, nor is
their protection always desirable.
c. The Protection of rights and interests is
not the only consideration to be taken
into account. The issue very often is
whether a disability existing under one
law should be applied by a foreign
court.
d. The law protects not only vested rights
constituted abroad but often also
foreign legal relationships, capacities or
powers out of which right or the
extinction of duties and charges or the
invalidity of acts may arise.
e. It is difficult and impracticable to apply
the theory where the material aspects
of a transaction or event touch 2 or
more States equally or almost equally.
Sempio-Dy, 2004
Under this theory, our courts enforce not the
foreign law or judgment but the right or rights
that have been vested under the law or
judgment.
If a foreign law gives a person a right, the mere
fact that the law of the forum does not give him a
similar or the same right is no reason to refuse to
help him get what belongs to him.
XPN: If the foreign law is against public policy of
the forum.
Local law The court of the forum recognizes and enforces a
theory local right, i.e., one created by its own law. It
creates its own local right, but fashions it as
nearly possible upon the law of the country in
which the decisive facts have occurred.
Origin
This theory has been accepted only by a minority
of courts in the U.S. Its origin is traceable to the
Italian jurist, Anzilotti, who once maintained that
a foreign rule cannot be applied unless it has
been appropriated by the state of the forum and
transformed into domestic rule.
Q: What is the practical merit of the local law
Facultad de Derecho Civil 14
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
theory?
A: By treating foreign law not as law but as fact
and considering it along with other facts and
giving it whatever significance it deserves in a
particular case, the court adopting the theory is
able to take into account social and economic
considerations and the demands of expediency in
the case before it.
Sempio-Dy, 2004
According to this view, we apply the foreign law
not because it is foreign but because our own law
by applying a similar rule requires us to do so;
hence, it is as if the foreign law has become part
of our own internal or domestic law.
E.g. Article 16, par. 2—requires the application of
national law of the deceased in the matter of his
testate or intestate succession.
Sempio-Dy, 2004
Theory of a. Identical or similar problems should be given
Harmony of identical or similar solutions, thus resulting in
laws harmony of laws;
b. Certainty of solutions are of particular
importance in areas where the parties are
likely to think in advance of the global
consequences of their transactions;
e.g. transactions involving real property,
person’s civil status
c. Application of the same or similar solutions
prevents the bad practice of forum-shopping.
Theory of a. Purpose of laws is the dispensation of justice;
justice b. Defect: Different persons may have different
ideas of what is just.
Revolution in U.S. Conflicts Law
Q: Describe the usual method of disposing of cases in the Conflict
of Laws.
A:
1. The court or tribunal is first to characterize or identify the
legal category into which the case before it falls—such as
contracts, property, domestic relations, tort, succession
and so forth.
2. Apply the proper connecting factor for that category of
case in order to choose the State or territorial jurisdiction
whose legal system will determine the parties’ respective
rights, duties, and other legal relations.
Q: Give examples of “escape devices”
A:
1. Renvoi
2. Public policy
3. Morality
Q: What are the 2 themes concerning choice of law?
A:
JURISDICTION-SELECTION RULE SELECTION
This raises the question whether Assets that the choice of law
any rule, formulated a priori, can rules serve no constructive
usefully and justly be applied to purpose for they purport to bind
determine which substantive a court to decide a case on the
norm shall be the basis of basis of a governing law whose
decision in a conflicts case content and relation to the issue
in dispute may make its
application in the particular
instance an exercise in futility or
positive injustice.
Thus, this requires the court to Emphasizes a choice between
apply the law of the country or different substantive rules of
jurisdiction chosen by the law, in light of the policies at
conflicts rule, irrespective of the issue. This is more favored.
content of the particular rule of
law selected.
Example:
The rule that the validity of
contract shall be governed by
the law of the place or
jurisdiction where the contract
was made (lex loci contractus)
Q: What are the various theories under the U.S. Conflicts of Law.
A:
THEORY DISCUSSION
The Second Where there is no applicable statute or codal
Restatement provision, these basic policies should be kept in
and the Law mind:
of the Most a. Choice of law rules should be designed to
Significant make the international and interstate
Relationship systems work well
Theory b. The court should apply its own local law
unless there is good reason for not doing
so
c. The court should consider the purpose of
its relevant local law rule in determining
whether to apply its own law or law of
another state.
d. Choice-of-law rule should seek to achieve
certainty, predictability, and uniformity of
result.
e. The court should seek to protect the
justified expectations of the parties
f. The court should seek to apply the law of
the State of the dominant interest
NOTE: As a general proposition, the State whose
interests are most deeply affected should have its
law applied. The law of the situs is applied to
determine the validity and effect of the conveyance
of land. Of course, as to which is the State of
dominant interest may depend upon the issue
involved in a given case.
g. The court should seek to further the
fundamental policy underlying the
Facultad de Derecho Civil 15
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
particular field of law.
h. The contract should seek to attain justice
in the individual case
Q: In the field of contracts, what are the 2 policies
which are more relevant?
A:
a. Choice-of-law rule should seek to achieve
certainty, predictability, and uniformity of
result.
b. The court should seek to protect the
justified expectations of the parties
Q: How about in cases of land questions?
A:
a. Choice-of-law rule should seek to achieve
certainty, predictability, and uniformity of
result.
b. The court should seek to protect the
justified expectations of the parties
c. The court should seek to apply the law of
the State of the dominant interest
Q: How about tort cases?
A: The court should seek to apply the law of the
State of the dominant interest
State- Focus must be put to the policies underlying the
Interest internal laws of 2 or more States in apparent
Theory conflict.
Prof. Brainerd Currie suggested the following
guidelines:
1. A court must inquire into the policies
expressed in the respective laws, and into
the circumstances in which it is reasonable
for the respective States to assert an
interest in the application of those
policies. The courts must employ the
ordinary processes of construction and
interpretation
2. If the court finds that one State has an
interest in the application of its policy in
the circumstances of the case and the
other has none, it should apply the law of
the only interested state.
Example: Lex situs rule
3. If the court finds an apparent conflict
between the interests of States, it should
reconsider. A more moderate and
restrained interpretation of the policy of
one State or the other may avoid conflict
4. If upon reconsideration, the court finds
that a conflict between legitimate
interests of the 2 states is unavoidable, it
should apply the law of the forum
5. If the forum is disinterested, but an
unavoidable conflict exists, and the court
cannot with justice decline to adjudicate
the case, it should apply the law of the
forum, at least if the law corresponds with
the law of one of the other states. Also, it
may decide the case by a candid exercise
of legislative discretion.
Cavers Q: When do you apply the Cavers Principle of
Principle of Preference?
Preference
A: When the analysis of the purposes underlying the
various competing laws indicates that there is a
genuine conflict that cannot be easily avoided.
This Cavers Principle of Preference must be used by
the courts as guides for decision for the purpose of
satisfying the demands of justice in particular
instances.
Q: Explain Cavers Principle of Preference vis-à-vis
vested rights theory.
A: Unlike vested right theorists, David Cavers
maintains that the choice of law should not be the
result of the automatic operation of a rule or
principle of selection but a search for a just decision.
The principle of preference provides solutions which
are just not only because they provide a fair
accommodation of conflicting state policies but
because they afford fair treatment to individuals
who are caught in conflict between 2 state policies.
The The approach aims at solutions that are the rational
Functional elaboration and application of the policies and
Approach purposes underlying specific legal rules and the legal
(Developed systems as a whole.
by Prof.
Arthur Von Q: Discuss the process under the Functional
Mehren and Approach.
Donald
Trautman) A:
1. Locate the concerned jurisdiction
Q: What is “concerned jurisdiction”?
A: One that has expressed an interest in relating an
aspect of the multistate transaction in question.
2. Construct for each concerned jurisdiction
a regulating rule that takes account both
of relevant policies expressed through
jurisdiction’s domestic rules and of
policies peculiar to multistate transactions
3. Apply the rules of the jurisdiction
“predominantly concerned”
4. For conflicts that persist, resolution may
be possible by applying the “most salutary
rule” from the standpoint of facilitating
multistate activity
Choice- Q: What are the basic considerations under this
influencing
considerations
theory?
Facultad de Derecho Civil 16
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
A: A: The forum should go beyond the traditional method of choosing
between one jurisdiction and another.
1. Predictability of results
2. Maintenance of interstate and 1. It should examine the competing internal laws of the
international order States involved,
3. Simplification of judicial task 2. Analyze their respective interests
4. Advancement of the forum’s 3. Evaluate the policies that are at stake, so it can make a
governmental interests rational decision as to what law to apply in order to do
5. Application of the better rule of law justice to the parties and save the ends of society in a
modern, interrelated world.
Q: What is determining consideration under the
“better rule concept”? Sempio-Dy, 2004

A: Whether one of the competing legal rules, NATURE AND COMPOSITION OF CONFLICTING RULES
compared with the other domestic rule, serves the
modern requirement of the international order, or Q: Distinguish between purely internal provision of law from a
whether it is “anachronistic” in that it is behind the conflicts rule or provision in conflicts of laws.
times.
Comparative Q: What are the fields used by Rabel in his study of A:
approach the comparison of the various legal systems?
(By Dr. Purely internal provision of law Conflict rule
Ernest Rabel) A: a. Governs a domestic It is a provision found in our own
problem—one without law which governs a factual
1. Persons and domestic relations foreign element; situation possessed of foreign
2. Obligations b. Authorizes, commands or element;
3. Property prohibits certain act or E.g. Art. 16-real property as well
4. Succession mode of conduct; as personal property is subject
5. Contracts c. E.g. Art. 796 to the law of the country where
6. Torts it is situated.
7. Business associations
Q: What are the 2 kinds of conflict rules?
Rabel brought out their similarities and
dissimilarities, examined their purposes and effects, A:
showed to what extent unification or reconciliation
is feasible, and proposed specific solutions in the 1. One-sided rule
context of the needs and requirements of a growing a. Indicates when Philippine law will apply
international community. b. Examples:
Convenient Though the convenient forum may apply its own law i. Article 15 of the NCC- laws relating to
Forum as a basic method, it should not hesitate to apply a family rights and duties, status,
Theory foreign law where the legislative or settled judicial condition and legal capacity of
rules of choice of law or the policy of the forum’s persons;
domestic rules require a different answer. ii. Article 818 of the NCC- joint wills
The Harmony Equal justice under the law requires that the
Treatment decision be the same wherever the claim is brought. 2. All-sided or multilateral rule
and A conflicts problem should receive the same a. Indicates whether to apply the local law or
Uniformity of
treatment and disposition wherever the forum may proper foreign law;
Result Theory
happen to be. b. Examples:
i. Art. 16- real property as well as
The application of foreign law in the Philippines; A proposed personal property is subject to the law
Approach of the country where it is situated;
ii. Art. 17-forms and solemnities of
Q: What is the so-called “policy-oriented approach”? contracts, wills and other public
instruments—if the contract was
A: Such approach is responsive to the demands of the international executed in the Philippines, its form
system and aware of the policy considerations that should influence and solemnities are governed by
the choice of law. This will require an analysis of every given Philippine law. if it was executed in a
problem in terms of issues involved, the identification and foreign country, such country’s law will
evaluation of the social and economic interests of the State that are apply.
concerned with the parties or the transaction, and the spelling out c. Art. 16 has been applied by the SC even to
of the policy values considered important in the solution of the persons who are citizens of countries following
problem. the domiciliary theory like Americans.

Q: What is the proper method in case of conflict of laws problem. Q: What are the parts of every conflicts rule?

Facultad de Derecho Civil 17

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
A:
NOTE: The rules for the ascertainment of foreign law are necessarily
1. Factual situation- set of facts or situation presenting a different from the rules on the determination of Philippine law.
conflicts problem because there is a foreign element
involved; the legal consequences of which are determined Q: Is every person presumed to know the domestic law?
in the second part; and
2. The point of contact or connecting factor- the law of the A: Yes.
country with which the factual situation is most intimately
connected. Q: Is that presumption applicable to foreign law?

NOTE: The first part raises while the second part answers or solves a A: No. Article 3 of the NCC which says that “Ignorance of the law
legal question. excuses no one from compliance therewith” refers to domestic law,
not to foreign law.
Examples:
Q: How would you consider ignorance of a foreign law?
a. Article 1763 of the NCC- The law of the country to which
lost cargoes are to be transported or the law of their A: Ignorance of a foreign law is ignorance of fact, not ignorance of
destination, not the law of the country where the lost the law.
cargoes were loaded or the place of embarkation.;
b. Article 1039- capacity to succeed is governed by the law of How foreign law is ascertained
the nation of the decedent.
Continental It is the duty of the judge to investigate the
Europe foreign law which he is to apply, and in the
performance of his duty he may require
CHAPTER IV assistance from the parties litigant.
ASCERTAINMENT AND PROOF OF FOREIGN LAW Philippines, Foreign law is likely any fact that must be
America, England pleaded and proved by the party invoking it.
Q: Distinguish rules of substance from rules of procedure.
NOTE: Common law courts are not presumed
A: to know the laws of foreign states. According to
the common law, the law of any other state
RULES OF SUBSTANCE RULES OF PROCEDURE than the law of the forum is not law at all, but
Refer to methods which concern Concern methods of presenting fact. Since foreign law is a matter of fact, it
the legal effect of those facts to a court the operative facts should be pleaded by the party invoking it and
after they have been established upon which legal relations proved by evidence supplied by experts on the
depend said law to a jury of laymen.
Refers to the available judicial
machinery and its mode of Development of Philippine Law
operation
Regulates such matters as: GR: Our courts cannot take judicial notice of a foreign law
a. Venue
b. Form of action XPN: Where our courts are “evidently familiar with foreign laws”
c. The sufficiency of such as the Spanish Civil Code and allied legislation, common law
pleadings doctrines and rules from which many of our laws are derived
d. Rules of services of (Delgado v. Republic, GR L-2546, 1950)
processes
e. Admissibility and NOTE: This exception does not nullify the general rule that foreign
effect of evidence law must be pleaded and proved. There must in every case be an
f. Method of appeal allegation in the pleading about the existence of the foreign law, its
g. Mode of execution of import and legal consequences on the event or transaction in issue.
judgments
Proof of foreign law
The forum applies its own procedural law
Q: How should the foreign law be proved?
Q: The traditional rule is that the forum will apply its own internal
procedural law on all these non-substantive matters. What is the A: It depends on the rules of evidence of the forum. Under
reason behind this? Philippine laws, there is distinction between written and unwritten
law.
A: Practical necessity and simplification of the judicial task constitute
the rationale of the well-known rule that the forum applies its own WRITTEN LAW UNWRITTEN LAW
procedural law. Examples
Statute or codal provision Judicial decisions and customary
Foreign law limited to substantive aspects law

Facultad de Derecho Civil 18

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
How proved the foreign law and then may seek to supplement this information
May be evidenced by an: May be proved by the: through its own research.
a. official publication a. oral testimony of the
thereof or expert witness Sempio-Dy, 2004
b. by a copy attested to b. by printed and
by the officer having published books of CHARACTERIZATION OF CONFLICTING RULES
the legal custody of reports of decisions of
the record or by his the country involved Q: What do you mean by characterization?
custody
c. and must be A: It is the process of assigning a certain set of facts or factual
accompanied with a situation to its proper or correct legal category. These categories
certificate that such may be family relations, contracts, torts, succession, property, etc.
officer has the
custody: Q: What makes the problem of characterization or classification
1. secretary of difficult?
embassy or
legation A: It arises from the fact that a conflicts situation or problem may be
2. consul-general characterized by the lex fori differently from the characterization of
3. consul lex causae or the law of the state with which to act or transaction is
4. vice-consul mostly connected).
5. consul agent
6. officer in the Q: Suppose the problem of characterization involves a
foreign service of determination as to whether the matter pertains to “substantive”
the Philippines or to “procedural” law. How is the problem to be resolved?
stationed in the
foreign country in A:
which the record
is kept a. There is no question that all procedural matters are
d. authenticated by the governed by the lex fori. Thus, matters of service of
seal of his office summons, joinder or splitting of cause of action, how to
appeal, etc. governed by the law of the forum;
Williamette Iron and Steel Works v. Muzzal (6 Phil. 471, 1935) b. The modern trend is to consider prescriptive periods or
the Statute of Frauds that the parties had in mind at the
Sec. 25 of Rule 132 does not exclude the presentation of other time transaction took place. Then, apply the intended law
competent evidence to prove the existence of a foreign law. The SC in its totality including its period of prescription and its
considered the testimony under oath of an attorney-at-law of San Statute of Frauds;
Francisco, California who quoted verbatim a section of California XPN: If the subject-,matter is property located in the
Civil Code and who stated the same was in force at the time the Philippines, in which case Philippine law applies.
obligations were contracted, as sufficient evidence to establish the
existence of said law.
Q: Suppose Bebeng, an English man, barrowed money from Ayel,
Effect of failure to plead or prove foreign law another English man, in England, evidenced by a promissory note.
Let us assume that under English law, the period to sue on the
Q: What are the effects of failure to plead or prove foreign law? promissory note is 4 years. In the Philippines, the period of
prescription is 10 years. Has the action prescribed if the action is
A: filed in the Philippines?

1. The court may dismiss the case, with judgment for
defendant, on the theory that the plaintiff relying on
foreign law had failed to prove an essential part of his
case.
2. The court may not dismiss the case, but it may hold that
where the foreign law is not properly pleaded or proved,
the presumption of identity or similarity arises, namely,
that foreign law is the same as the domestic law. This has
been followed by the Philippine SC.
3. The court may not dismiss the case, but it may assume
that by failing to plead or prove foreign law, the parties
acquiesced in having their controversy determined by law
of the forum.
NOTE: A court will rarely seek to ascertain the content of a foreign
law solely by means of its own research. Rather, the court will
usually require the parties to supply the basic information regarding
A: Yes because English law was evidently intended by the parties to
govern their transaction.
CHAPTER VII
EXCEPTIONS TO APPLICATION OF FOREIGN LAW
Nature and basis of exceptions
For the court to assume jurisdiction and apply its internal law,
despite lack of any significant connection with the factual
transaction in the conflicts case before it, would not only constitute
an example of extreme provincialism but may result in gross
injustice, particularly if the decision is taken against a defendant
who has not chosen the forum.
Facultad de Derecho Civil 19
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Q: Under the traditional view, what are the instances when the 5. Foreign state property
foreign law is not applied in the forum?
Q: According to Savigny, a German jurist, what are the 2 kinds of
A: rules of an imperative character found in any legal system?

1. Where its enforcement would run counter to some A:

important public policy of the forum
2. When its application would lead to an infringement of 1. Those rules that are enacted merely for the sake of
good morality in the wider sense of the term, as persons who are the possessors of rights
understood in th forum 2. Those rules that are not merely made solely for the benefit
3. When the foreign law is penal in nature of individuals but rest on moral grounds or on public
4. When the foreign law is procedural in nature interest
5. When the question involves immovable property in the
forum Q: Differentiate these 2 kinds of rules.
6. When the foreign law is fiscal or administrative in nature
7. Where the application of foreign law would involve A:
injustice or injury to the citizens or residents of the forum
8. Where the application of foreign law would endanger the Rules that are enacted merely Rules that are not merely made
vital interests of the State for the sake of persons who are solely for the benefit of
the possessors of rights individuals but rest on moral
NOTE: These exceptions are not mutually exclusive; most of them grounds or on public interest
overlap or are combined with one another. Becomes inapplicable where Intended to be applied in all
according to the rules of Private circumstances and cannot be
Exceptions recognized by Philippine law International Law, a foreign legal rendered ineffective by foreign
system governs the case laws and judgments.
NOTE: Private International Law is merely a part of our municipal
law. Hence, a Philippine court cannot possibly disregard the public NOTE: The forum’s public policy or interest, whenever it is clearly at
policy, the norms of morality, and the vital interest that underlie the stake in a given conflicts problem, should take precedence over the
laws of the land. application of the laws of other states.

Art. 17 (3) of the NCC Where its enforcement would run counter to some important
public policy of the forum
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public Q: What is public policy?
order, public policy and good customs shall not be
rendered ineffective by laws and judgments
promulgated or by the determinations or conventions A: It is the manifest will of the State.
agreed upon in a foreign country.
Q: Where is public policy manifested?
Philippine laws which restrain or prohibit the doing of certain acts
within the country, and other local laws designed to uphold public A:
order, public policy and good customs cannot be displaced by
foreign laws or judgments, or by determinations or conventions 1. Constitution
agreed upon elsewhere. 2. Legislative measures

Principle of territorial sovereignty NOTE: A mere dissimilarity between foreign law and local law will
not render the enforcement of the foreign law violative of the
GR: Penal laws are territorial and should apply to all persons and forum’s public policy.
things within our territory
Q: What are the 2 kinds of public policy?
XPNs:
A:
1. Limitations under the Law of Nations
2. Treaties 1. One which operates no matter where the event or
transaction takes place
Q: Who are exempted from the local jurisdiction? 2. One which operates only where the event or transaction
takes place within the forum and is not offended if the
A: transaction is completed abroad.

1. Heads of State NOTE: The determination of what public policy of a State is would
2. Diplomatic representatives not be difficult where the statute or law is so clearly worded as to
3. Foreign public vessels govern act or transactions occuring abroad.
4. Foreign merchant vessels exercising the right of innocent
passage Example: Prohibition against joint wills

Facultad de Derecho Civil 20

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Q: What if the law or statute contains no definite reference to
transactions involving a foreign element?
A: The courts are constrained to weigh the importance of
recognizing a foreign law, mainly for the sake of doing justice to the
parties who molded their conduct to conform to the requirements
of the law of another State that has a significant relationship to their
acts, as against desirability of enforcing what is conceived to be the
local public policy.
Q: What are the different ways whereby the court may use public
policy in the determination of a case?
A:
1. The court may refuse to entertain the case because
enforcement of the action is against its public policy and
dismiss the case without prejudice
2. The forum, though it has no other connection with the
case except for the institution of the suit, may entertain
the case but apply its own domestic law to decide the
controversy in favor of the plaintiff
3. The forum which has sufficient connection with the factual
event or transaction may entertain the case but invoke its
own public policy in order to apply the forum’s domestic
law.
NOTE: Public policy is relative. It varies with changing ideals,
relatively ratione temporis. What might be against public policy
yesterday may no longer be now and vice-versa.
Examples:
1. Slavery in the Roman law was legal
2. Polygamous marriage is valid in Egypt
State v. Bell (1872)
Each state is sovereign, a government within, of, and for itself, with
the inherent and reserved right to declare and maintain its own
political recognition of a fact or act contravening it public policy and
against good morals, as lawful, because it was made or existed in a
state having no prohibition against it or even permitting it.
NOTE: For some civil law writers, the repeated use of public policy
foils any worthy endeavor of building up an all-around system of
private international law since it interferes with each and every
conflicts rule. It can provide an easy excuse for the forum to apply
its own internal law and thereby defeat the underlying purpose of
this subject.
When its application would lead to an infringement of good
morality in the wider sense of the term, as understood in th forum
Q: What is the significance of the qualifying word “wider”?
A: It is used in order to prevent the danger of superior virtue on the
part of the forum. Our distinctive concepts of morality may have to
give way to the necessity of dispensing justice in individual cases,
particularly where the operative facts have arisen abroad, or where
the contract with the forum is negligible or where to disturb the
situation of the parties by refusal to apply the proper foreign law
would result in unfairness.
NOTE: A marriage may be void for some purpose and yet be valid for
other purposes.
When the foreign law is penal in nature
Mr. Justice Marshall said: No society takes concern in any crime but
what is hurtful to itself. In the enforcement of the rules of public
order of a State, other States are not concerned and should not, as a
general rule, interfere. It is an obvious principle that an act of
sovereignty can have no legal effect in the territory of another State.
Q: Distinguish enforcement from recognition of foreign penal law.
A: A state may recognize foreign penal laws for various purposes
though it will not directly enforce such in its jurisdiction.
Q: What is the test to determine whether an action is penal or not?
A: The characteristic of a penal action is that it is one on behalf of
the government of the community, not an action for remedying a
wrong done to an individual. This is the restrictive test.
Q: What is the “Cosmopolitan principle” which is adhered to by
Austria, Italy, Norway, and Russia?
A: One state has no concern in the enforcement of the penal laws of
another state.
When the foreign law is procedural in nature
GR: Matters of remedy or procedure are to be determined by the
internal law of the forum, regardless of where the trasaction
occurred out of which the claim in question arose (Foreign
procedural law is generally not enforced or recognized in the forum).
Q: What is the rationale behind this rule?
A: It is based on practicality. If foreign procedural law were to be
applied, it would involve a making over of the machinery for the
administration of justice in the forum. It is quite impossible for the
local court to adopt wholesale the trial machinery of another state.
At least in theory, these matters do not affect the actual outcome of
the case, since they only relate to the local machinery for the
enforcement or protection of the legal relations.
When the question involves immovable property in the forum
(lex situs)
Q: What is the reason behind this rule of lex situs?
A: Immovability—Immovables are part of the country and so closely
connected with it that all the rights over them have their natural
center of gravity there. Moreover, every territorial or legal unit has a
direct and permanent interest in the allocation of its wealth
resources.
When the foreign law is fiscal or administrative in nature
NOTE: This exception refers in particular to foreign revenue law,
such as tax law, local rates and the like.
Q: What is the reason for this?
Facultad de Derecho Civil 21
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
A: A sovereign has no legal duty to assist foreign governments in the 2. Connecting factor or point of contract (such as the situs of
financing of their activities. This is rested on the solid basis of the res, the place of celebration, place of celebration, the
authority and convenience. place of wrongdoing and the like)

Where the application of foreign law would involve injustice or
injury to the citizens or residents of the forum
Where the application of foreign law would endanger the vital
interests of the State
Test factors or points in contact
In every set of facts one or more circumstances are present which
may serve as the possible test for the determination of the
applicable law.

NOTE: A contract which aims to assist an enemy state, though valid Q: Give examples of the most important points of contact.
under the proper foreign law, will not be enforced in the forum.
A:

1. Nationality of a person, his domicile, his residence, his

CHAPTER VIII place of sojourn or his origin
NATURE OF CONFLICTS RULES AND THE PROBLEM OF 2. The seat of a legal or juridical person (such as corporation)
CHARACTERIZATION 3. The situs of a thing (lex situs) which is particularly
important when real rights are involved
NOTE: Private international law is a part of the national law of evert 4. The place where an act has been done (locus actus) which
state. is important in contracts and torts
5. The place where an act is intended to come into effect
Rules of Usually referred to in modern treatises as (e.g., place of performance of contractual duties, place
Public “international law” where a power of attorney is to be exercised)
intenational 6. The intention of the contracting parties (lex loci
law or Law intentionis)
of nations 7. The place where judicial or administrative proceedings are
Rules of Composed of: instituted or done (lex fori or law of the forum)
municipal or 1. Domestic or internal rules, applicable to 8. The flag of a ship
national law purely internal or domestic cases
2. Rules of private international law or The problem of characterization
conflicts of law applicable to cases
containing or involving some foreign NOTE: Every rule of law is based on situations of fact, either actual
element or imagined, since the legislator must deal with factual situations
that are expected to arise in the future, on the basis of past
Examples of conflict rules: observation and experience. It is important for a judge to
characterize his legal problem in order to get the proper solution.
1. Article 16 (1)
2. Article 17 (1) Q: What is the problem in characterization?

A: Differences in concepts of various legal systems raise the problem

Parts of a conflicts rule of whose concepts should be applied in deciding a conflicts problem.
Ideally, every legal system should ascribe the same judicial nature to
Q: What are the 2 essential parts of a conflicts rule? each institution and rule, but this is impossible, the most that we
can expect is agreement upon the legal system which should supply
A: the test of classification.

1. Real property as well as personal property Q: What is “classification, characterization or qualification”?

2. Is subject to the law of the country where it is situated.
A: It is the process of assigning a disputed question to its correct
NOTE: The legal consequences of the operative facts stated in the legal category.
first part of the rule are determined in the second part. This second
part prescribes the municipal law to which the question should be Stages of classification
referred or connected.
FIRST STAGE: A conflicts situation or legal relation
An essential element of conflicts rules is the indication of a “test or Problem of classification may be classified or characterized by
connecting factor” or “point of contact.” the lex fori in a way that may be
different from the characterization of
Thus, conflicts or choice-of-law rules, therefore, consist of: the lex causae or the law of the state
with which the transaction or act is
1. Factual relationship (such as property right, contract claim) closely connected.
SECOND STAGE: The question is what law will determine
Characterization of the the place of contracting or execution of
“point of contact” or the the contract:
Facultad de Derecho Civil 22
UNIVERSITY OF SANTO TOMAS
 NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
“connecting factor” i. All questions regarding the beginning and end of
a. Foreign law chosen under the personalty;
conflicts rule ii. Capacity to have rights in general;
b. Lex fori iii. Capacity to engage in legal transactions;
iv. Matters involving persons and family relations;
GR: The majority view seems to be that v. Testate and intestate succession
the connecting factor should generally
be determined by the law of the forum. Q: What is the criterion concerned? What are the tests?

XPNs: A: The question is “what connection should exist between an

individual and a particular state in order to subject such indiivdual to
1. The question whether the personal law of the state?”
tangible property is movable
or immovable should not be There are 2 different tests:
governed by the lex fori but 1. The necessary connection is deemed to exist between an
by the law of the situs individual and a particular state if he is one of its nationals
2. If the forum is only a place of 2. Whether the individual is domiciled in the particular state.
trial, and does not have a
significant connection with Q: What are the reasons for the application of the system of
the occurrence or the parties, personal law?
a common characterization
placed upon it by the law of A: Today, the theory of personal law is justified on:
all foreign states or countries
involved should be accepted. 1. practical considerations, and
THIRD STAGE The court should apply the selected 2. expediency.
Relates to the extent of the proper law to the factual situation
application or the Q: Why convenience?
delimination of the law
that is chosen as applicable A: It is based on the interest of the individual concerned. It is said
to the conflicts case that the legal position of a person must be the same everywhere, for
it would be unjust and difficult to have it determined in different
Characterization of a rule of law—“procedural” and “substantive” situations. The unity and identity of a person should be respected
and guaranteed by the consistent aplication of one and the same
NOTE: Foreign procedural law will not be applied in the forum. On law in all countries and in all situations.
procedural matters, the lex fori will apply its own procedural law and
only substantive law of the appropriate foreign legal system will be Q: Why expediency?
applied in the forum.
A: Each state is said to have profound interest in the status and the
family relations of its subjects or residents. In order to protect their
interests more effectively, sole jurisdiction over questions of status
CHAPTER IX is often claimed by the state of the personal law. Thus:
THE SYSTEM OF PERSONAL LAW
PRINCIPLE OF NATIONALITY PRINCIPLE OF DOMICILE
Nature of Personal law Definition
Attempts to extend its own Imposes its own laws upon
a. Distinction between laws that concern property-- statuta system of social regulation to its foreigners living within its
real and those that concern persons, their legal condition nationals living abroad borders
and civil status—the statuta personal; If a person leaves his country Looks upon the status of the
b. Universal recognition of a system of personal law- Legal without cutting off his national person, his capacities and his
position that the legal position of an individual should tie through nationalization in the personal rights as principally
normally be determined by the law of the State with which country to which he migrates, he linked with his home and his
he is deemed to be connected in a permanent way, rather should remain subject to all the family, this being the center of
than by the divergent laws of the States in which he may laws of his State and should not his life
happen to be physically present, act or to engage in by private act of emigration, be
transaction: enabled to alter his status and
i. That a person is attributed certain legal capacity
characteristics of a comparatively permanent An individualistic and liberal
character; system because it permits a
ii. These permamnet characteristics ought to be person to effectuate a change of
determined by one law for all purposes rather law governing his personal
than from case to case by different laws. status by his own private act (by
c. There is disagreement on what matters should be changing his domicile)
regulated by the personal law; Countries adhering

Facultad de Derecho Civil 23

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Philippines, France, Italy, Spain England, United States filiation; effects.
Basis iii. Adopted;
Based on the idea that an The desire to obviate iv. Minor or has NOTE: A baby has juridical
individual is more deeply rooted intervention by the State with reached the age capacuty but has no capacity to
in his nation than in his home the personal affairs of such of its of majority; act.
members as have left its v. Whether he has
territory and settled abroad capacity to enter
Disadvantages into various
1. Does not solve the 1. It is much more difficult to transactions;
problems posed by the case determine with certainty vi. Includes name,
of stateless persons and the domicile of a person sex, and his
persons with multiple than his nationality, since profession in
nationalities domicile depends largely certain cases.
on his intention, animus,
which may be hard to Q: What are the characteristics of status?
prove in some cases while
change of nationality can A:
nearly always be verified
by official documents. 1. It is conferred by statute, not by the individual;
2. The notion of domicile 2. It is a matter of public or social interest;
does not only differ widely 3. Being a concept of social order, it cannot easily be
in the different states of terminated at the mere will or desire of the parties
the world, but even within concerned;
one state 4. It is generally supposed to have a universal character.
3. There is always danger of When a certain status is created by the law of one country,
a pretended change of it is generally recognized all over the world.
domicile in order to avoid
subjection of certain acts Q: What are the different theories on how the personal law of an
to the rule imposed by the individual is determined?
real domicile.
A:
Sempio-Dy, 2004
Nationality By virtue of which the status and capacity of a
Q: What is a person’s personal law? theory/personal person is to be determined by the law of his
theory nationality or his national law.
A: It is that which attaches to him whereever he may go; the law
that governs his status, capacity, condition, family relations, and the We follow this theory.
consequences of his actuations. Domicillary By virtue of which the status and capacity of a
theory/territorial person is to be determined by the law of his
It may be his national law, law of his domicile, or the law of the situs theory domicle
of the event or transaction wherein he was involved, depending on
the theory applied and enforced in the forum. The US and other common-law country follow
this theory.
Q: Distinguish between status and capacity. Situs or eclectic Views the particualr place or situs of an event
theory or transaction as generally the controlling law.
A:
Q: Is national law the same as law of citizenship? Distinguish
STATUS CAPACITY between citizenship and nationality.
a. It is the place of an a. Refers to the only part of
individual in society, and one’s status and may be A:
consists of personal defines as the sum total of
qualities and relationships, his rights and obligations; NATIONALITY CITIZENSHIP
more or less permanent, b. There are 2 kinds of a. It refers to the A citizen is one who owes
with which the state and capactiy: membership in a allegiance to, and is entitled to
the community is political community; the protection of the State.
concerned; i. Juridical capacity b. Personal’;
b. It includes civil status of a (passive capacity)- c. More or less
person: the fitness to be permanent, not
the subject of legal temporary.
i. Single, married, relations; and
widowed, or ii. Capacity to act (active NOTE: Nationality and citizenship are the same. When our law refers
divorced; capacity)- power to to the one’s national law therefore, the law means the person’s law
ii. Paternity and do acts with legal of citizenship. Thus, the national law of Filipinos is Philippine law.

Facultad de Derecho Civil 24

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
While the national law of an alien is the law of the law of his Not all nationals are citizens All citizens are nationals
citizenship. However, once a filipino citizen is naturalized in another
country, his national law already becones the law of his citizenship; Importance
the former Filipino citizen, once naturalized as an American, now is
an American and his national law is now an American law. Q: What is the importance of nationality for a civil law country like
the Philippines?
Q: What are the reasons why some countries adopt the nationality
theory, while others adopt the domicillary theory? A: Tha national law of an individual regulates his:
a. civil status and condition,
A: b. his family rights and duties
c. intrinsic validity of the will
a. Civil law countries follow nationality theory: d. rights of succession to his properties

i. Practical considerations of convenience and Under Public International law

expediency;
ii. People in these countries are bound by a spirit of
unity, common history and mores;
iii. Their identity is guaranteed by the consistent
application of their national laws on status and
family relations wherever they may go and even
when they migrate to other countries.
b. Domicillary theory assumes that the attributes which make
up one’s status and personal relations are intimately
connected with the country where they have made their
home.
i. Adopted bt US and other common law countries
whose population consists of people of differner
nationalities with varying tradition and ideals,
and whose unity may be considered achieved by
adopting the law of their domicile law that
governs their status and family relations;
ii. Mixed population;
iii. Migration;
iv. To attain a certain fusion of their population and
to avoid the necessity of applying different law
to practically every case.
CHAPTER X
NATIONALITY
Q: What is “nationality”?
In Public International law, it is the bond of nationality that qualifies
and enables a state to extend its diplomatic protection to those of
its citizens who are in other states, and to demand reparations for
injuries that may be suffered by them for failure of said states to
conform to the so-called minimum international standard of justice.
NOTE: The General Assembly of the U.N. in 1948 adopted the
Universal Declaration of Human Rights:
a. “Every person has the right to a nationality,” and
b. “No one shall be arbitrarily deprived of his nationality nor
denied the right to change its nationality”
Determination of nationality
Q: What are the 2 rules provided under the Hague Convention in
1930 on Conflict of Nationality Laws?
A:
1. It is for the municipal law of each state (not for
international law) to determine who are the nationals of a
particular state, subject to certain limitations.
2. Any question as to whether a person possesses the
nationality of a particular state shall be determined in
accordance with the law of that State.
Q: What are the limitations on the authority of the state to define
who are its nationals?

A: It refers to membership in a political community, one that is, A:

personal and more or less permanent, not temporary.
1. It must be consistent with international treaties,
Q: Who is a “national” or a “citizen”? 2. International customs, and
3. Principles of law generally recognized with regard to
A: One who owes allegiance to and is entitled to protection from the nationality
State.
Acquisition and loss of nationality
Q: Under Philippine political law, distinguish national from citizen.
Q: What are the 5 possible modes of acquiring nationality?
A:
A:
CITIZENS NATIONAL
Limited to those who are Includes citizens as well as the 1. Birth
endowed with political and civil persons who, not being citizens, 2. Nationalization
rights in the body politic of a owe permanent allegiance to 3. Repatriation
state the State and are entitled to its 4. Subjugation
protection. 5. Cession

Facultad de Derecho Civil 25

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Birth Q: When does dual or multiple nationality arise?

Q: What are the different principles followed by different states? A: It arises from the current application of jus soli and jus sanguinis
at birth or from a refusal of certain States to accept a full application
A: of the doctrine of expatriation. Likewise, it may result from
marriage, or it may be produced by a formal or voluntary act.
1. Principle of jus sanguinis (by blood)
2. Principle of jus soli (by place) Q: What is the “right/doctrine of expatriation”?
3. Combination of both
A: It is the right of abandoning one’s nationality and embracing
Nationalization another.

Q: What is nationlization? NOTE: Where a person is simultaneously a national of the state of

the forum and some other state, in matters he is usually conisdered
A: It is the grant of citizenship: by the forum as exclusively its own national, his additional
a. upon application or nationality being disregarded.
b. by some act which would qualify an individual for a new
nationality In case however where a person is a national of 2 or more states but
the litigation arises in a third coutry, the law most consistently
Repatriation applied is that of the country of which the person is not only a
national but where he also has his domicile or habitual residence, or
Q: What is repatriation? in the absence of such, his residence.

A: It is the recovery of the original nationality upon fulfillment of Q: Is dual nationality the same with dual allegiance?
certain conditions.
A:
Subjugation and cession
DUAL NATIONALITY DUAL ALLEGIANCE
Subjugation and cession are political changes that result in the This cannot be avoided due to Art. IV, Sec. 5 of the 1987
establishment of new relations between the inhabitants of a diverse laws of various states Constitution:
territory and the new sovereign.
“Dual allegiance of citizens is
Subjugation and cession have become obsolete today. inimical to the national interest
and shall be dealt with by law.”
Q: What are the modes of losing nationality?
Stateless persons
A:
Q: Give instances when a person may be considered as stateless.
1. Release
2. Deprivation A:
3. Expiration
4. Renunciaiton a. It may arise in international circumstances as where a child
5. In Germany: allows their citizens to ask for release from of parents whose home country adheres to the principle of
their nationality jus soli is born in a country in which the principle of jus
6. In the Philippines: deprive their citizens of nationality upon sanguinis is in force. Neither country can claim him to be
entry into the military service of a foreign power his national.

Q: What is expiration? b. Also, tumultuous political events have rendered stateless

numerous individuals. For example, thousands of
A: It is the result of a long stay abroad without any indication of a emigrants have lost their nationality by Soviet decree.
desire to return.

Q: What is renunciation? Q: What law will govern the matters of civil status and capacity of
stateless persons following the nationality theory?
A: It is when a person repudiates his nationality in favor of another.
A: Since they have no definite nationality, they are generally subject
Q: What is substitution? to the law of their domicile or habitual residence, and in default
thereof, to the law of their temporary residence. This rule has been
A: It is the loss of natioality ipso facto by: adopted by the Hague Conference on International Private Law in
a. naturalization abroad or 1928.
b. by marriage
States with a Composite System of law
Dual or Multiple Nationality
Q: What are the 2 kinds of composite law?
Facultad de Derecho Civil 26
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon

A: Supreme Court’s flip-floopping

Lee Suan Ay v. It was not enough that the alien wife did not
1. The composite law on personal basis Galang (1959) have any of the disqualifications; she should
2. The composite law on territorial basis have all the qualifications required by the
naturalization law to become a Filipino
COMPOSITE LAW ON PERSONAL COMPOSITE LAW ON citizen by naturalization:
BASIS TERRITORIAL BASIS a. Age
Determined by religion, class orThe territory is divided into parts b. Morality qualification
race with different body of rules on c. Reside in the Philippines for 10
personal status years
Example d. Own estate in the Philippines or
India- the law is different for United States, British empire, have some lucrative trade,
Buddhists, Hindus, Poland, Mexico profession, or occupation
Mohameddans, and whites e. Able to speak or write English or
Spanish and any of the principal
NOTE: A composite law on a territorial basis makes nationality an Philippine languages
incomplete criterion. If the status or civil capaciy of an American is Zito Ngo Burca v. Not only must the aloien woman possess all
to be determined, it is obvious that it would be a futile quest to find Republic the qualifications and none of the
out what is the “American law” on his status, since there is no such disqualifications, she has to file a petition for
national law; what may be found are different state rules, naturalization in the CFI of the place where
corresponding to the 50 states of the Union. she had resided at least 1 year before the
filing of the petition
Q: What are the 3 factors which will affect the determinaiton of Mo Ya Yim Yao v. An alien woman marrying a Filipino, native-
the law governing the status of a person whose national law is Commissioner of born or naturalized, becomes ipso facto a
composite and based on territorial principle. Immigration Filipino provided she is not disqualified to be
a citizen of the Philippines under Sec. 4 of
A: the Naturalization law. To prove this, she
must prove before some agency of the
If the country to whose law reference is made has Government that she is not not disqualified
Where a unified internal regulation declaring which one to be a citizen of the Philippines by
interregional of the several private laws applies to the Naturalization.
rules exist individual concerned, this regulation is universally
accepted for the purpose of secondary reference A Filipino woman married to an alien
Where no The rule is quite generally recognized that the law
interregional of the domicile constitutes his personal law. Here, Article IV, Sec. 4 of the 1987 Constitution: Citizens of the Philippines
rules exist AND the law of nationality is supplemented by the who marry aliens shall retain their citizenship unless by their act or
The individual principle of domicile. omission they are deemed under the laws, to have renounced it.
is domiciled
within his own NOTE: Whether she acquires the nationality of her alien husband is
country determined by the law of the State of which the husband is a
Where no In this situation, the problem arises. In the national.
interregional Philippines, the case of Babcock Templeton v.
rules exist AND Rider Babcock settled the problem by reference Citizens or nationals of the Philippines
The individual to the internal law of the last domicile of the
is domiciled American national in the U.S. Article V, Section 1 of the 1987 Constitution enumerates:
outside his
own country But in 1963, in the case of Aznar v. Christensen- 1. Those who are citizens of the Philippines at the time of the
Garcia, the court applied the renvoi. Philippines
2. Thos whose fathers or mothers are citizens of the
Aliens married to Filipinos Philippines
3. Those born before Jan. 17, 1973 of Filipino mothers, who
2 different and separate treatments: elect Philippine citizenship upon reaching the age of
majority; and
1. An alien woman married to a Filipino national 4. Those who are naturalized in accordance with law
2. A Filipino woman married to an alien
NOTE: The 1987 Constitution and 1973 Constitution follows the
An alien woman married to a Filipino national principle of jus sanguinis—citizenship by blood.

Under Sec. 15 of the Naturalization Law (Commonwealth Act No. Article III, Section 1 of the 1973 Constitution
473, as amended): “Any woman married to a citizen of the 1. Those who are citizens of the Philippines at the time of the
Philippines and who might herself be lawfully naturalized, is deemed adoption of this Constitution
a citizen of the Philippines.” 2. Those whose fathers and mothers are citizens of the

Facultad de Derecho Civil 27

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Philippines NOTE: There is no doubt that this rule applies in the case of a father
3. Those who elect Philippine citizenship pursuant to the who is a natural-born of the Philippines.
provisions of the Constitution of 1935
4. Those who are naturalized in accordance with law In the case of a minor child born outside the Philippines, a
Article IV, Section 1 of the 1935 Constitution distinction must be made.
1. Those who are citizens of the Philippines at the time of the
adoption of this Constitution MINOR CHILD BORN BEFORE MINOR CHILD BORN BEFORE
2. Those who are citizens in the Philippine Islands of foreign THE NATURALIZATION AND IS THE NATURALIZATION AND IS
parents who before adoption of this Constitution, had DWELLING IN THE PHILIPPINES RESIDING OUTSIDE THE
been elected to public office in the Philippine Islands AT THE TIME OF PARENT’S PHILIPPINES AT THE TIME OF
3. Those whose mothers are citizens of the Philippines, and NATURALIZATION PARENT’S NATURALIZATION
upon reaching the age of majority, elect Philippine He is a Filipino a. He is a Filipino only during
citizenship his minority unless he
4. Thise who are naturalized in accordance with law resides permanently here
when still a minor, in which
Those who may be considered “citizens of the Philippine Islands” case he will continue to be
on May 14, 1935 a Filipino citizen even after
he becomes of age.
1. Persons born in the Philippine Islands who resided therein b. A child born after the
on April 11, 1899 and were Spanish subjects on that date, naturalization shall be
unless they had lost their Philippine citizenship on or considered a Filipino citizen,
before May 14, 1935 unless one year after
2. Natives of the Spanish Peninsula who resided in the reaching the age of minority
Philippines on April 11, 1899 and who did not declare their he fails to register himself
intention of preserving their Spanish nationality between as a Filipino citizen at the
that date and October 11, 1900 unless they had lost their Philippine consulate of the
Philippine citizenship on or before May 14, 1935 country where he resides
3. Naturalized citizens of Spain who resided in the Philippines and take the necessary oath
on April 11, 1899 and who did not declare their intention of allegiance
of preserving their Spanish nationality within the
prescribed period, unless they had lost their Philippine Those whose mothers are citizens of the Philippines and, upon
citizenship on or before May 14, 1935 reaching the age of majority elect Philippine citizenship
4. Children born of 1,2, and 3 subsequent to April 11, 1899
unless they had lost their Philippine citizenship on or Under the 1935 Constitution, those whose mothers were citizens of
before May 14, 1935 the Philippines, did not become Filipino citizens by birth, but they
5. Persons who became naturalized of the Philippines in could become Filipino citizens, if upon reaching the age of majority,
accordance with the Naturalization law since its elect Philippine citizenship.
enactment on March 26, 1920, unless they had lost their
Philippine citizenship on or before May 14, 1935 Q: Under 1935 Constitution, as of what moment must the mother
6. Children of persons embraced in 5, unless they had lost be a citizen of the Philippines?
their Philippine citizenship on or before May 14, 1935:
a. Children under 21 years of age on the date of A: 3 possible situations are contemplated:
naturalization of said persons, provided that they
were dwelling at the time in the Philippines 1. Her Filipino citizenship at the time of the birth of the child
b. Children born in the Philippines subsequent to the 2. Her Filipino citizenship at the time the child elects
naturalization of said persons Philippine citizenship
7. Foreign women married before May 14, 1935 to citizens of 3. Her Filipino citizenship at the time of her marriage to a
the Philippines who might themselves be lawfully foreigner.
naturalized in the Philippines, unless they had lost their
Philippine citizenship on or before May 14, 1935 Q: Discuss the ruling of the SC in the landmark case of Villahermosa
8. Those who had been declared as Filipino citizens or upon v. Commissioner of Immigration.
whom such citizenship had been conferred by the courts
due to the principle of res judicata A: The mother should be a Filipino at the time of such election.

Those born in the Philippines of foreign parents, who, before the
adoption of the 1935 Constitution, had been elected to public
office in the Philippines
Those whose fathers are citizens of the Philippines
The provision stresses the principle of jus sanguinis. Irrespective of
the nationality of the mother, the child of a Filipino father is himself
a Filipino.
Those whose fathers or mothers are citizens of the Philippine
(1973, 1987) Constitutions
The 1987 adopts the progressive expansion of the jus sanguinis
principle. But to benefit from this progressive provision, the mother
must be a Filipino citizen at the time of the birth of the child.
Those who are naturalized in accordance with law
Q: What is “naturalization”?
Facultad de Derecho Civil 28
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
A: It is the process of clothing an alien with the rights that belong to
a natural born citizen. It is considered not a matter of right but one
of privilege and may be enjoyed only under the precise conditions
prescribed by law.
Qualifications for naturalization
Q: What are the qualifications for naturalization?
A:
1. The petitioner must no be less than 21 years of age on the
date of the hearing of the petition
2. He must have resided in the Philippines for a continuous
period of not less than 10 years. The 10 year residence
requirement may be reduced to 5 years in certain cases
3. He must be of good moral character
4. He must own a real estate in the Philippines worth not less
than P5,000, Philippine currency, or must have some
lucrative trade, profession or lawful occupation
5. He must be able to speak and write English or Spanish and
any one of the principal Philippine languages
6. He must have enrolled his minor children of school age in
any of the public oe private schools recognized by the
Bureau of Private Schools
Q: What kind of residence is required?
A: The residence contemplated is not mere legal residence but
actual and substantial residence in order to enable the Government
and the community to observe the conduct of the applicant and to
ensure his having imbibed the principles and the spirit of our
institutions.
Q: Why is there ownership of real estate requirement?
A: To forestall the applicant’s becoming an object of charity. A
citizen must be an asset to his country, not a liability. N
Q: Should all the children be enrolled?
A: Yes. All the children concerned should be enrolled. Failure to
enroll even one of them will result in the denial of the petition even
if he happens to be out of the Philippines and could not be brought
to the Philippines because of insufficient finances, or because of the
outbreak of the civil war in China.
Disqualifications
Q: What are the disqualifications?
A:
1. Persons opposed to organized government or affiliated
with any association or group of persons who uplhold and
teach doctrines opposing all organized governments
2. Persons defending or teaching the propriety of violence,
personal assault, or assassination for the success and
predominance of their ideas
3. Polygamists or believers in the practice of polygamy
4. Persons convicted of a crime involving moral turpitude
5. Persons suffering from mental alienaiton or incurrable
contagious diseases
6. Persons who during the period of their residence in the
Philippines have not mingled soclially with the Filipinos or
who have not evinced a sincere desire to learn and
embrace the customs, traditions, and ideals of the Filipinos
7. Citizens or subjects of nations with whom the Philippines is
at war
8. Citizens or subjects of a foreign country (other than U.S.)
whose laws do not grant Filipinos the right to become
naturalized citizens or subjects thereof
Q: Will receipts for contributions to charitable organizations suffice
to prove such an intent desire to mingle socially with Filipinos?
A: No.
Steps for the naturalization proceedings
Q: Enumerate the steps for the naturalization proceedings.
A:
1. A declaration of intention to become a Filipino citizen,
unless the applicant is exempted from this requirement
2. The petition for naturalization must be filed
3. The court will schedule the hearing of the petition
4. If the petition os approved, there will be a rehearing 2
years after the promulgation of the judgment awarding
naturalization
5. Taking of the oath of allegiance to suport and defend the
Constitution and the law of the Philippines
NOTE: A uniqie feature of the procedure is the 2-year probationary
period. The decision will not be executory until after 2 years from its
promulgation. Certain conditions must first be fulfilled and proper
proof for that purpose presented.
Q: Is a judgment in naturalization case subject to the rule of res
judicata?
A: No. A judgment in a naturalization case is never final.
Letter of Instruction 491
1. Applicant must not be less than 18 years of age on the
date of the filing of the petition
2. The requirement of income must be waived with respect
to:
a. Bona fide students
b. At least 18 years of age
c. Who can become useful citizens fo the country
3. Applicant must be able to speak and write Filipino or any
of the principal Philippine dialects
4. Where the applicant was born of a Filipino mother before
the effectivity of the 1973 Constitution and has resided
continuously in the Philippines since birth, he shall be
qualified without any need of any further qualifications,
provided he is at least 18 and does not suffer from any of
the disqualifications.
Loss and reacquisition of Philippine citizenship
Q: How may a Filipino lose his citizenship?
A:
Facultad de Derecho Civil 29
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
1. Naturalization in foreign countries
2. Express renunciation of citizenship
3. Subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining
the age of 21 or more
4. Rendering service to or accepting commission in the
armed forces or a foreign country
5. Cancellation of certificate of naturalization
6. Having been declared by competent authority a deserter
of the Philippine armed forces in time of war
XPN: Plenary pardon or amnesty has been granted
7. A woman who marries an alien, if by her act or omission,
she is deemed under the law to have renounced her
Philippine citizenship
Q: How may Filipino citizenship be reacquired?
A:
1. By naturalization provided that the applicant possesses
none of the disqualifications
2. Act of Congress
Sempio-Dy, 2004
Q: What are the weaknesses of the nationality theory?
A:
1. Offers no solution to problem of stateless person or one
with dual or multiple citizenship;
2. Unfair to consider a person still bound by his national law
if he has lived in another country for most of his life and
practically all ties are with that country;
3. Difficult to change national laws—naturalization;
4. Difficulty to solve problems relating to individuals in
countries where most people have different national laws
or legal systems.
Q: What are the kinds of citizens in the Philippines?
A:
1. Natural-born citizens
2. Naturalized citizens
Q: Who are Natural-born citizens?
A: They are those who are citizens from birth without having to
perform any act to acquire or perfect their Philippine citizenship.
Q: Who are citizens by election?
A: Those born before the 1973 constitution of Filipino mothers but
of alien father who, upon reaching the age of 21 or within a
reasonable time thereafter, elected Philippine citizenship.
NOTE: They are now classified as natural-born citizens.
Q: Who are citizens by naturalization?
A: They are those who were formerly aliens but by judicial,
legislative, or administrative process, have become Filipino citizens.
Q: Distinguish between jus soli and jus sanguinis?
A:
Jus soli Jus sanguinis
A person is a citizen of the It is citizenship by blood-those
country where he was born, or whose fathers or mothers or
of the counrty of his birth. both parents are Filipino citizens
is a Filipino citizen.
This is followed by the US.
Q: Who determines whether a person is a Filipino citizen or not?
A: Each counrty or state has the sole power and authority to
determine under its internal or municipal law who are its citizens or
nationals. It shall be determiend in accordance with the law of thatv
state (Article 2 of the Hague Convention on Conflict of Nationality
Laws).
Q: May the problem of the dual or multiple citizenship of a Filipino
arise in the Philippines?
A: No, because as long as he is a Filipino citizen, our country is not
concerned if he has any other citizenship. From the point of view of
our Constitution and law, he is only a Filipino citizen.
Q: Does Sec. 5, Article IV prohibit Filipinos from having dual
citizenship?
A: No, dual citizenship cannot be avoided due to the diverse laws of
different countries of the world as to who are their citizens and who
are not. But the concern of the said provision is not with dual
citizenship per se but with naturalized citizens of the Philippines who
still maintain their allegiance to the countries of their origin.
Thus, for candidates for public office with dual citizenship, suffice it
that upon the filing of the COCs, they elect Philippine citizenshio to
terminate their status as persons with dual citizenship, considering
that their condition is the unavoidabke consequnece of conflicting
laws of different states (Mercado v. Manzano).
Q: When would the problem of dual citizenship of a filipino arise?
A: Only from the point of view of a third state. For example, if
Bebeng whose parents are Filipinos but was born and has lived all
her life in California, USA, is applying for scholarhip in a French
University, the French authorities will regard her not as a Filipino but
as an American as her California citizenship is the more effective
connecting factor in determining what is her citizenship. This the
theory of effect8ive nationality.
Accordingly, within a third state, a person, having more than one
nationailty shall be treated as if he had only one. Without prejudice
to the application of its law in personal matters and of any
conventions in force, a third state shall apply the nationalites which
any such person possesses, recognize exclusively in its territory
either the nationality of the country in which he is habitually and
principally a resident, or the nationality of the country with which in
the circusmtances he appears to be in fact mostly connected.
This may arise in any of the following cases:
Facultad de Derecho Civil 30
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
1. In case where a Filipino was born in American soil, he is a
Filipino under the rule of jus sanguinis while he is an
American under the rule of jus soli;
2. If a filipino woman marries a foreigner whose national law
allows her to become a citizen of her husband’s country
like China by such marriage, she still retains her Philippine
citizenship under Art. 6, Sec. 4, unless by her act or
omission, she is deemed to have renounced her Philippine
citizenship. Thus, she would be both a Filipino and a
Chinese citizen, if she does nothing to renounce her
Philippine citizenhip.
Q: Give exmaple of a problem involving an alien who has dual
citizenship.
A: A woman who is a Japanese citizen by blood but a Chinese citizen
by marriage, dies leaving some properties in our country where she
did some business before her death. Since Art. 16, par.2 requires us
to apply her national law in determining who are her heirs and how
much is the share of each, we should knbow which law should be
applied.
In such case, we should apply the “effective nationality” theory. If
the deceased woman was a domicilary of Japan at the time of her
death, then the Philippine court should apply Japanese law.
Otherwise, apply Chinese law. This is because the law of the counrty
of which the deceased was both a citizen and a domicilary at the
time of her death is considered more effectively connected to her
than her other national law. Stated otherwise, she was more closely
connected to the country where, being a citizen thereof, she and her
family also made it their home. Such country where she and her
family had their home was closer to her heart than her other
national law.
But if the deceased woman was residing at the time of her death in
Singapore, the solution would be different because we can no longer
say that she was more closely connected to Japan or China, the
countries of which she was a citizen at the time of his death. In this
case, the domicillary theory comes into play.
Apply first the nationality theory by taking her 2 national laws and
applying them together insofar as they are consistent and
harmonious with each other. But if they are inconsistent and in
conflict with each other, then apply the law of Singapore which was
her domicile and home at the time of her death.
Q: Who are citizens of the Philippines under 1987 Constitution?
A: Art. IV, Sec. 1.
Q: Who are citizens of the Philippines under the 1973 Constitution?
A:
1. Those who are citizens of the Philippines at the time of
adoption of 1973 constitution;
2. Those whose fathers or mothers are citizens of the
Philippines;
3. Those who elect Philippine citizenship pursuant to the
provisions of the Constitution of 1935;
4. Those who are naturalized in accordance with law.
Those who are citizens of the Philippines at the time of adoption of
1973 constitution (January 17, 1973)
1. Those who are citizens of the Philippines at the time of the
adoption of the Constitution of the Philippines;
2. Those born in the Philippine Islands of foreign parents
who, before the adoption of this Constitution, had been
elected to public office in the Philippine Islands;
3. Those whose fathers are citizens of the Philippines;
4. Those whose mothers are citizens of the Philippines and
upon reachinh the age of majority, elect Philippine
citizenship;
5. Those who are naturalized in accordance with law.
Q: Differentiate the citizenship of children born of Filipino mothers
and alien fathers under the 1935 Constitution, from those born of
of Filipino mothers and alien fathers under the 1937 Constitution.
A:While 1935 Constitution considers as Filipino citizens at birth or as
natural-born citizens only those whose fathers were Filipinos at the
time of their birth, while those born of Filipno mothers and alien
fathers still had to elect Philippine citizenship upon reaching
majority before they could be Filipino citizens, this injustice to
children born of Filipino mothers was later corrected by the 1973
and 1987 Constitutions which already consider as natural-born
citizens those born of Filipino mothers, even if the fathers were
aliens. There is no more need of electing Philippine citizenship.
NOTE: The mother should be a Filipino at the time of the mother’s
marriage to an alien.
Q: Where do you find the law providing for election of Philippine
citizenship under the 1935 Constitution?
A: Commonwealth Act. No. 625.
Q: Who were Filipino citizens at the time of the adoption of the
1935 Constitution on May 14, 1935?
A:
1. Those born in the Philippines who resided therein on April
11, 1899 (the date of the ratification of the Treaty of Paris
between the US and Spain) and were Spanish subjects on
the date, unless they had lost their Philippine citizenship
on May 14, 1935;
2. Natives of the Spanish Peninsula who resided in the
Philippines on April 11, 1899, and who did not declare
their intention of preserving their Spanish nationality
betweeb that date and October 11, 1900 (the time
provided for doing so), unless they had lost their
citizenship by May 14,1935;
3. Naturalized citizens of Spain who resided in the Philippines
on April 11, 1899 and who did not declare thei intention of
preserving their Spanish nationality between that date and
October 11, 1900, unless they had lost their citizenship by
May 14, 1935;
4. Children born of (1), (2), and (3) subsequent to April
11,1899, unless they had lost their citezenship by May 14,
1935;
5. Persons who became naturalized zitizens of the Philippines
in accordance with the procedure set forth in the
Naturalization Law since ite enactment on March 22,1920,
unless they had lost their Philippine citizenship on or
before May 14,1935;
Facultad de Derecho Civil 31
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
6. Filipino women who, after having lost Philippine
citizenship by marriage to foreigners, had subsequently
become widows and regained Philippine citizenship on or
before May 14, 1935;
7. Children of (7) who were still under 21 years of age at the
time their mothers regained Philippine citizenhship;
8. Forein women who, beforeMay 14,1935, got married to
citizens of the Philippines, who might themselves be
lawfully naturalized in the Philippines, unless they had lost
their Philippine citizenship on or before May 14, 1935l
9. All other persons born in the Philippines who, on the
strengtg of the erroenous application of the jus soli
doctrine in the Roa case, were mistakenly declared by
courts as Filipino citizens, unless they had lost their
citizenhship by May 14, 1935. These are citizens by res
judicata.
NOTE: The law on election of citizenship was effective only as long
as there were children of Filipino mothers and alien fathers who
were allowed to elect Philippine citizenship upon reaching 21 years.
Yet, after 1994, there were no longer those who could elect
Philippine citizenship, because all of them would hare already
reached 21 and they either had already elected or did not elect at
all, in which latter case they continued to be aliens following their
citizenship of their fathers.
proceeding in a court of justice, and that any such
declaration by any other officer or agency is null and void;
b. Moya Ya Lim Yao v. Comm.of Immigration- SC reversed the
Burca doctrine and held that an alien woman marrying a
Filipino, native-born or naturalized, becomes ipso facto a
Filipino provided she is not disqualified to be a citizen of
the Philippines under Sec. 4 of Commonwealth Act.No.
473;
c. Djumanton v. Domingo- SC held that there is no law
guarantying aliens narried to Filipinos the right t be
admitted into, much less given permanent residence in the
Philippines. Entry of aliens into the Philippines and their
admission as immigrants is not a matter of right, even if
they are legally married to Filipinos. Marriage of an alien
woman to a Filipino husband does not ipso facto make her
a Filipino citizenship and does not excuse her from her
failure to depart from the Philippines upon the expiration
of her extended stay here as an alien.
Q: What is naturalization?
A: It is the process of conferring on an alien the citizenship of
another country, by any of the means provided by law. it is
considered not a matter of right but one of privilege and may be
enjoyed only under the precise conditions prescribed by law.

Q: Suppose the Filipino mother of a child born under the 1935 Q: What are the different modes of acquiring Philippine citizenship
Constitution was not legally married to her alien husband, what is by naturalization?
the citezenship of the child?
A:
A: The child, being illegitimate, followed the citizenship of the
mother without need of election. Hence, the child is a Filipino from 1. By judicial process- (CA No. 475);
birth. 2. By legislative process-where citizenship is conferred by a
special act of Congress on deserving aliens;
Q: What is the citizenship of a Filipino woman who marries a 3. By administrative process (RA No, 9139)- where a Special
foreigner? Committee on Naturalization is created, with the power to
approve, deny or reject applications for naturalization filed
A: with the said Committee. Members of the Committee are
the Solicitor-General as chairman, and the Secretary of
Prior to the 1973 Under the 1973 Under the 1987 Foreign Affairsb of his representatiive and the National
Constitution Constitution Constitution Security Adviser as members.
If she acquired the A female citizen of Citizens of the
nationality of her the Philippines who Philippines who Q: What do you mean by Derivative Naturalization?
alien husband, she marries an alien marry aliens shall
lost her Philippine shall retain her retain their A: It is citizenship conferred on:
citizenship. Philippine citizenship, unless
Otherwise, she citizenship, unless by their act or 1. Wife of naturalized husband;
remained a Filipino. by her act or omission, they are 2. Minor children of a naturalized father; and
omission, she is deemed, under the 3. Alien wife of a natural-born or naturalized citizen, in the
E.g. Chinese deemed, under the law, to have latter case, the marriage having taken place after
law, to have renounced their husband’s naturalization.
renounced her Philippine
Philippine citizenship. Q: What are the qualifications for judicial naturalization under Sec.
citizenship. 2, CA No. 473, as amended?

Q: What is the citizenship of an alien woman who marries a Filipino A:

husband? Section 2. Qualifications. – Subject to section four of this Act, any
person having the following qualifications may become a citizen of
A: the Philippines by naturalization:

a. Zita Ngo Burca v. Republic (1967)- proper proceeding First. He must be not less than twenty-one years of age on the day
wherein an alien woman married to a Filipino can be of the hearing of the petition;
herself declared a Filipino citizenship is naturalization

Facultad de Derecho Civil 32

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Second. He must have resided in the Philippines for a continuous
period of not less than ten years;
Third. He must be of good moral character and believes in the
principles underlying the Philippine Constitution, and must have
conducted himself in a proper and irreproachable manner during the
entire period of his residence in the Philippines in his relation with
the constituted government as well as with the community in which
he is living.
Fourth. He must own real estate in the Philippines worth not less
than five thousand pesos, Philippine currency, or must have some
known lucrative trade, profession, or lawful occupation;
Fifth. He must be able to speak and write English or Spanish and any
one of the principal Philippine languages; and
Sixth. He must have enrolled his minor children of school age, in any
of the public schools or private schools recognized by the Office of
Private Education1 of the Philippines, where the Philippine history,
government and civics are taught or prescribed as part of the school
curriculum, during the entire period of the residence in the
Philippines required of him prior to the hearing of his petition for
naturalization as Philippine citizen.
Q: What are the disqualifications for naturalization under CA No.
473, as amended?
A:
Section 4. Who are disqualified. - The following cannot be
naturalized as Philippine citizens:
a. Persons opposed to organized government or affiliated
with any association or group of persons who uphold and
teach doctrines opposing all organized governments;
b. Persons defending or teaching the necessity or propriety
of violence, personal assault, or assassination for the
success and predominance of their ideas;
c. Polygamists or believers in the practice of polygamy;
d. Persons convicted of crimes involving moral turpitude;
e. Persons suffering from mental alienation or incurable
contagious diseases;
f. Persons who, during the period of their residence in the
Philippines, have not mingled socially with the Filipinos, or
who have not evinced a sincere desire to learn and
embrace the customs, traditions, and ideals of the
Filipinos;
g. Citizens or subjects of nations with whom the United
States 2and the Philippines are at war, during the period of
such war;
h. Citizens or subjects of a foreign country other than the
United States 3whose laws do not grant Filipinos the right
to become naturalized citizens or subjects thereof.
Q: What are the qualifications for administrative naturalization
under Sec 3, of RA. No. 9139?
A:
Section 3. Qualifications. - Subject to the provisions of the
succeeding section, any person desiring to avail of the benefits of
this Act must meet the following qualifications:
(a) The applicant must be born in the Philippines and residing
therein since birth;
(b) The applicant must not be less than eighteen (18) years of age, at
the time of filing of his/her petition;
(c) The applicant must be of good moral character and believes in
the underlying principles of the Constitution, and must have
conducted himself/herself in a proper and irreproachable manner
during his/her entire period of residence in the Philippines in his
relation with the duly constituted government as well as with the
community in which he/she is living;
(d) The applicant must have received his/her primary and secondary
education in any public school or private educational institution
dully recognized by the Department of Education, Culture and
Sports, where Philippine history, government and civics are taught
and prescribed as part of the school curriculum and where
enrollment is not limited to any race or nationality: Provided, That
should he/she have minor children of school age, he/she must have
enrolled them in similar schools;
(e) The applicant must have a known trade, business, profession or
lawful occupation, from which he/she derives income sufficient for
his/her support and if he/she is married and/or has dependents, also
that of his/her family: Provided, however, That this shall not apply to
applicants who are college degree holders but are unable to practice
their profession because they are disqualified to do so by reason of
their citizenship;
(f) The applicant must be able to read, write and speak Filipino or
any of the dialects of the Philippines; and
(g) The applicant must have mingled with the Filipinos and evinced a
sincere desire to learn and embrace the customs, traditions and
ideals of the Filipino people.
Q: What are the disqualifications for naturalization under RA No.
9139?
A:
Section 4. Disqualifications, - The following are not qualified to be
naturalized as Filipino citizens under this Act:
(a) Those opposed to organized government or affiliated with any
association of group of persons who uphold and teach doctrines
opposing all organized governments;
(b) Those defending or teaching the necessity of or propriety of
violence, personal assault or assassination for the success or
predominance of their ideas;
(c) Polygamists or believers in the practice of polygamy;
(d) Those convicted of crimes involving moral turpitude;
Facultad de Derecho Civil 33
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
(e) Those suffering from mental alienation or incurable contagious
diseases;
(f) Those who, during the period of their residence in the Philippines,
have not mingled socially with Filipinos, or who have not evinced a
sincere desire to learn and embrace the customs, traditions and
ideals of the Filipinos;
(g) Citizens or subjects with whom the Philippines is at war, during
the period of such war; and
(h) Citizens or subjects of a foreign country whose laws do not grant
Filipinos the right to be naturalized citizens or subjects thereof.
Q: How may Philippine citizenship be lost (CA. No. 63)?
A:
Section 1. How citizenship may be lost. – A Filipino citizen may lose
his citizenship in any of the following ways and/or events:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining twenty-one
years of age or more: Provided, however, That a Filipino may not
divest himself of Philippine citizenship in any manner while the
Republic of the Philippines is at war with any country;
(4) By rendering services to, or accepting commission in, the armed
forces of a foreign country: Provided, That the rendering of service
to, or the acceptance of such commission in, the armed forces of a
foreign country, and the taking of an oath of allegiance incident
thereto, with the consent of the Republic of the Philippines, shall not
divest a Filipino of his Philippine citizenship if either of the following
circumstances is present:
(a) The Republic of the Philippines has a defensive and/or
offensive pact of alliance with the said foreign country; or
(b) The said foreign country maintains armed forces on
Philippine territory with the consent of the Republic of the
Philippines: Provided, That the Filipino citizen concerned,
at the time of rendering said service, or acceptance of said
commission, and taking the oath of allegiance incident
thereto, states that he does so only in connection with his
service to said foreign country: And provided, finally, That
any Filipino citizen who is rendering service to, or is
commissioned in, the armed forces of a foreign country
under any of the circumstances mentioned in paragraph
(a) or (b), shall not be permitted to participate nor vote in
any election of the Republic of the Philippines during the
period of his service to, or commission in, the armed
forces of said foreign country. Upon his discharge from the
service of the said foreign country, he shall be
automatically entitled to the full enjoyment of his civil and
political rights as a Filipino citizen;
(5) By cancellation of the of the certificates of naturalization;
(6) By having been declared by competent authority, a deserter of
the Philippine armed forces in time of war, unless subsequently, a
plenary pardon or amnesty has been granted; and
(7) In the case of a woman, upon her marriage to a foreigner if, by
virtue of the laws in force in her husband's country, she acquires his
nationality.
NOTE: Under the 1973 and 1987 Constitutions, the woman in no. 7
above retains her Philippine citizenship unless by her act or
omission, she is deemed under the law to have renounced her
Philippine citizenship.
Q: How may Philippine citizenship be reacquired under CA 63?
A:
Section. 2. How citizenship may be reacquired. – Citizenship may be
reacquired:
(1) By naturalization: Provided, That the applicant possess none of
the disqualification's prescribed in section two of Act Numbered
Twenty-nine hundred and twenty-seven,
(2) By repatriation of deserters of the Army, Navy or Air Corp:
Provided, That a woman who lost her citizenship by reason of her
marriage to an alien may be repatriated in accordance with the
provisions of this Act after the termination of the marital status;4
and
(3) By direct act of the National Assembly.
Q: What is the procedure incident to the reacquisition of Philippine
citizenship?
A:
Section 3. Procedure incident to reacquisition of Philippine
citizenship. – The procedure prescribed for naturalization under Act
Numbered Twenty-nine hundred and twenty-seven,5 as amended,
shall apply to the reacquisition of Philippine citizenship by
naturalization provided for in the next preceding section: Provided,
That the qualifications and special qualifications prescribed in
section three and four of said Act shall not be required: And
provided, further,
(1) That the applicant be at least twenty-one years of age and shall
have resided in the Philippines at least six months before he applies
for naturalization;
(2) That he shall have conducted himself in a proper and
irreproachable manner during the entire period of his residence in
the Philippines, in his relations with the constituted government as
well as with the community in which he is living; and
(3) That he subscribes to an oath declaring his intention to renounce
absolutely and perpetually all faith and allegiance to the foreign
authority, state or sovereignty of which he was a citizen or subject.
Q: How about repatriation? How can it be effected?
A:
Facultad de Derecho Civil 34
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Section 4. Repatriation shall be effected by merely taking the
necessary oath of allegiance to the Commonwealth6 of the
Philippines and registration in the proper civil registry.
CHAPTER XI
DOMICILE
Q: What is “domicile”?
A: It is the place with which a person has a settled connection for
certain legal purposes, either because his home is there or because
that is the place assigned to him by law.
Q: How is domicile acquired?
A: Every person acquires at birth a domicile of origin, which may be
different from the place where he is born or that in which his
parents are residing at the moment, but the country in which his
father is domiciled at the time of his birth.
Domicile and Residence
Q: Distinguish domicile from residence.
A:
RESIDENCE DOMICILE
Used to indicate the place of Denotes fixed, permanent
abode, whether permanent or residence to which, when
temporary absent, one has the intention of
returning
Residence is not domicile Domicile is residence coupled
with intention to remain for an
unlimited time
DOMICILE OF CHOICE CONSTRUCTIVE DOMICILE
The place freely chosen by a The place assigned by law to
person with full legal capacity as persons under legal disability,
his home such as:
a. Infants (follows the
domicile of his
parents)
b. Minors (follows the
domicile of his
parents)
c. Prisoners (domicile
before his
imprisonment) and the
like
A:
1. Adoption of some Anglo-Saxon rules based on domiciliary
principles
Example: test in determining validity of a divorce decree
obtained abroad
2. Inadequacy of the nationality principle when applied to
stateless persons, persons of multiple nationality and
persons belonging to countries having a composite system
of law
3. The occasional reference by Philippine law to the lex
domicilii in determining the validity of certain acts:
a. On the formal validity of a will executed by an alien
abroad
b. On the revocation of a will done outside the
Philippines
Q: What are the functions of domicile in conflict of laws?
A:
JUDICIAL Whether court has jurisdiction bases on their
JURISDICTION residence or domicile of one of the parties
CHOICE OF LAW A will executed by an alien may be considered
formally valid if for formally valid by his
domicile
GOVERNMENTAL The state of the domicile may subject a person
BENEFITS AND to certain forms of personal taxes
BURDENS
No uniform concept of domicile—variety of meanings
What law detemines domicile
Q: What law will determine what is domicile?
A: A Philippine court will apply its own concept of domicile.
Q: How did the league of nations try to eliminate the so-called
“conflict of the conflict of laws relating to domicile”?
A: By combining the theory of territoriality with the lex fori principle.
The courts of each country determine under its own domestic
legislation whether an individual is or is not domiciled therein;
where two or more foreign laws conflict in respect of domicile that
concept prevailing in the place of actual residence should be
preferred.

Importance of domicile in the Philippines Basic principles of domicile

Q: What is the importance of domicile? 1. No natural person can ever be without a domicile
2. A person cannot have 2 simultaneous domiciles
A: 3. Every natural person as long as he is free and sui juris may
have and change his domicile at pleasure
1. It is an important point of contract in determining the 4. A domicile once acquired is retained unless a new one is
personal law of an individual gained
2. Bases for the exercise of judicial power 5. The presumption in favor of the continuance of an existing
domicile. Therefore, the burden of proof is on the one who
Q: In the Philippines, we follow the nationality principle. Discuss alleges that a change of domicile has taken place.
the reasons why domicile is important.
Legal classification of domicile
Facultad de Derecho Civil 35
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
May be changed from one place There can only be one place of
Q: What are the 3 kinds of domicile? to another origin for every person
Less easiy abandoned and more
A: easily reverts

1. Domicile of origin Minors

2. Domicile by operation of law (constructive domicile)
3. Domicile of choice NOTE: Under the Family Code, both the father and the mother
exercise joint authority over the children, except where there is
DOMICILE OF ORIGIN The domicile of a person’s parents at the disagreement between them, in which case the father’s authority
(Domicilium originis) time of his birth prevails.
a. If the father is dead or if the child
is illegitimate, its domicile follows a. Thus, the domicile of the minor follows that of both
that of the mother parents.
b. Legitimated child takes the b. Should there be any change in the domicile of parents
mother’s domicile at the time of during the minority, that of the child also changes
birth, but upon legitimation, his irrespective of his desire or the desire of his parents
constructive domicile becomes XPN: When the child has been duly emancipated
that of the father c. If either parents of the minor child died, the child follows
c. A foundling, i.e., deserted child the domicile of the surviving parent
has his domicile of origin in that d. The remarriage of the surviving parent shall not affect the
of his natural parents but upon parental authority over the children, unless the court
adoption, takes the domicile of appoints another person to be the guardian of the person
the adopting parents, which or property of the children
becomes the constructive e. In case the parents are separated, the FC says that the
domicile of the child parental authority shall be exercised by the parent
CONSTRUCTIVE The domicile established by law after birth designated by the court
DOMICILE in the case of persons under legal disability, f. A child born illegitimate takes the domicile of his mother
(Domicilium regardless of their intention or voluntary
necessarium) act Married women
Domicile of choice The place voluntarily chosen by a person sui
juris as his home and to which, whenever Family Code: The right to decide the question of where the family
he is absent, he has the intention of domicile should be established is now a joint prerogative of the
returning husband and the wife. Otherwise, the court is authorized to decide.

This arises when an existing domicile GR: The spouses are obliged to live together
whether of origin or not, is abandoned and
replaced by a new one XPN: The court may exempt one spouse from living with the other.

Q: What are the 4 requisites for a domicile Q: What are the 3 conclusions on domicile of choice?
of choice?
A:
A:
1. To acquire a fresh domicile, residence and intention must
1. Capacity concur
2. Freedom of choice 2. To retain existing domicile, either residence or intention to
3. Residence remain must be present
4. Intention to make that the place 3. To abandon domicile, residence in the new place and
of home intention to abandon the old place must concur

NOTE: The last 2 requisites are the 2
elements necessary for the acquisition of a
new domicile
Q: Distinguish constructive domicile from domicile of origin.
NOTE: The fact that physical presence in a place is for an illegal or
immoral purpose should have no effect on the acquisition of
domicile except as the purpose of the presence may indicate that
the required domiciliary intention is not present.

A:

CONSTRUCTIVE DOMICILE DOMICILE OF ORIGIN Sempio-Dy, 2004

Assigned after birth Established at the moment of
birth Q: What is the Domiciliary Theory under Conflicts of Law?
Assigned to persons under legal Assigned only to infants
disabilities

Facultad de Derecho Civil 36

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
A: It is the theory whereby the status, condition, rights, obligations, A: It is the forum that applies in determining the domicile in
and capacity of a person arte governed by the law of his domicile or determining the domicile of a litigant before its courts.
the lex domicilli.
Q: What are the different kind of domicile?
Q: What is domicile?
A:
A:
Domicile of The domicile assigned by law to a person at the
a. The place where a person has his true, fixed, permanent origin moment of his birth
home and principal estlishment, and to which, whenever
he is absent, he has the intention of returning; NOTE: This is acquired at birth; therefore, it never
b. Place where a person has a settled connection for certain changes.
legal purposes, either because his home is there or
because that is the place assigned to him by law; Assigned by law.
c. For the exercise of civil rights and fulfillment of civil Constructive The domicile assigned by law to a person after birth
obligations, the domicile of natural persons is the place of domicile or on account of a legal disability, like minority,
their habitual residence (Art. 50, NCC). domicile by insanity, imprisonment, etc.
operation of
Q: Are domicile and residence the same? law NOTE: This is given after birth to those who lack
capacity to choose their own domicile, like minors,
A: insanes, etc.

Domicile Residence May change from time to time like when the
Refers to the relatively more Temporary stay of a person in a parents of a minor change domicile several times.
permanent abode of a person given place
Denotes a fixed, permanent Indicate a place of abode, Assigned by law.
residence to which, when whether permanent or Domicile of Domicile of a person sui juris because he has his
absent, one has the intention of temporary; choice home there to which, whenever absent, he intends
returning. to return.

NOTE: Residence is not domicile but domicile is residence coupled Is the result of the volunatry will and action of a
with intention to remain for an unlimited time. A man can have one person concerned.
domicile for one and the same purpose at any time, but he may have
numerous places of residence. Q: State some basic principles regarding one’s domicile of choice.

Q: Distinguish between domicile from citizenship. A:

A: 1. No person can ever be without a domicile or every natural

person person must have a domicile;
Domicile Citizenship 2. A person cannot have 2 simultaneou domiciles;
Speaks of one’s permanent Indicate ties of allegiance and 3. A natural person, free and sui juris can change his domicile
place of abode loyalty at pleasure;
4. A domicile once acquired, it is retained untile a new one is
Q: Why us it still important for us to know and study the gained;
domiciliary theory considering that our country follows the 5. The presumption being in favor of the continuance of an
nationality theory? existing domicile, the burden of proof is on the one who
alleges thata change of domicile has taken place;
A: 6. To acquire a new domicile of choice, the following must
concur:
1. In some cases, our own law makes the law of the a. Residence or bodily presence in the new
domiciliary of a person the controlling factor in the locality;
solution of conflicts cases; b. An intention ti remain there (animus
e.g. Art. 829-revocation of will manendi);
2. Sometimes, our law makes either the law of one’s c. An intention not to return to the former
nationality or that of his domicile as the controlling factor; abode.
e.g. Art.816
3. In case of stateless individuals, or those with dual or Q: What are the rules in determining one’s domicile of origin?
multiple nationalities, the domiciliary theory runs to the
rescue of the nationality theory.\ A:

Q: What determines one’s domicile, his national law or the lex 1. If the child is legitimate, his domicile of origin is that of his
fori? parents at the time of his birth; if the parents are
separated, the domicile of the custodial parentl;

Facultad de Derecho Civil 37

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
If the child is ilegitimate, his domicile of origin is that of
the mother at the time of his birth;
If the child is legitimated, the domicile of his father at the
time of his birth controls, since the effects of legitimation
retroacts to the time of the child’s birth.
2. The domicile of origin of an adopted child is the domicile
of his real parents at the time of his birth, not the domicile
of the adopters;
3. The domicile of origin of a foundling is the country where
it was found.
Q: Give some rules in determining one’s constructive domicile.
A:
1. Minors
a. Legitimate-domicile of both parents. In case of
disagreement, that of the father, unless there is
a judicial order to the contrary;
b. Illegitimate- domicile of the mother;
c. In case of absence or death of either parent, the
domicile of the present parent. Even in case of
the marriage of the surviving parent, still his/her
domicile determines the constructive domicile of
the minor child;
d. If the child is adopted, the domicile of choice of
the adopter is the child’s constructive domicile.
a. Convict or prisoner- domicile is the one he had
possessed prior to his incarceration;
b. Soldiers-domicile is their domicile before their
enlistment;
c. Publioc officiails or employees abroad like
diplomats, consular officials-their domicile is the
one they had before they were assigned
elsewhere, unless they voluntarily adopt their
place of employment as their permanent
residence.
ECLECTIC THEORY
Q: What is the situs or eclectic theory?
A: Under this theory, the capacity, condition, status, or capacity of a
person is governed not necessarily by the law of his nationality or
the law of his domicile but by the law of the place where an
important element of the problem occurs or is situated.
a. If the participation is active-when he does the act
voluntarily, the governing law is the law of the actula situs
of the transaction or event;
b. If the participation is passive as when the effects of the act
are set forth or determined by law, the governing law is
the law of the legal situs-domicile of an individual
concerned.
E.g. The marriage between Filipinos in Hongkong:

2. Insane, idiots, imbeciles a. Validity of marriage is governed by the actual situs—lex

loci celebrationis;
a. It is the law which assigns their domicile to b. With respect to the rights and obligations and property
them; relations of the Filipino people, they are governed by the
b. If they arev below the age of majority, the rules natioanl law of the spouses (Article 80, FC)
on minors apply to them;
c. If they are of age and have guardians, they
follow the domicile of choice of their guardians.
If theu have no guardians, their constructive
domicile is their domicile of choice before they
became insane.

3. Married women

a. Valid marriage:
i. Constructive domicile of wife us the
domicile of both spouses, unless the
law allows the wife to have a separate
domicile, for valid and compelling
reasons;
ii. If there is legal separation between
spouses, the wife can have her own
domicile of choice;
iii. If there is separation de facto, the wife
can also have a separate domicile.
b. If the marriage is voidable- applly the same rules
as when the marriage is valid. Yet, after
annulment, the wife can freely select her own
domicile of choice;
c. If the marriage is void-the wife can have a
domicile separate from the husband.

4. Other persons:

Facultad de Derecho Civil 38

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon

F. MARRIAGE, DIVORCE AND OTHER ENCOUNTERS ARTICLE XV

THE FAMILY
CHAPTER XVI-Marriage
Section 1. The State recognizes the Filipino family as the foundation of the
Q: Why do conflicts problems arise in connection with marriage as nation. Accordingly, it shall strengthen its solidarity and actively promote
a contract? its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of

A: Because different countries or states, depending on their public
policy, culture or code or morality have different laws in determining
the validity of marriage as a contract (Sepmpio Diy, 2004).
Marriage as a contract and as an Institution
the family and shall be protected by the State.
Section 3. The State shall defend: The right of spouses to found a family in
accordance with their religious convictions and the demands of responsible
parenthood;

Article 1. Marriage is a special contract of permanent union between a man The right of children to assistance, including proper care and nutrition, and
and a woman entered into in accordance with law for the establishment of special protection from all forms of neglect, abuse, cruelty, exploitation
conjugal and family life. It is the foundation of the family and an inviolable and other conditions prejudicial to their development;
social institution whose nature, consequences, and incidents are governed by
law and not subject to stipulation, except that marriage settlements may fix The right of the family to a family living wage and income; and
the property relations during the marriage within the limits provided by this
Code. (52a) The right of families or family associations to participate in the planning
and implementation of policies and programs that affect them.
Q: Distinguish between marriage and an ordinary contract.
Section 4. The family has the duty to care for its elderly members but the
State may also do so through just programs of social security.
A:
Q: What is marriage?
Marriage Ordinary contract
Marriage is a contract because A:
of the element of mutual a. It is a special contract of permanent union between a man
consent and a woman;
It is different from ordinary Not necessary b. Yet, marriage is and should be defined in broader terms
contract as it can only be than those in which it is understood in internal Philippine
contracted only by and between law.
persons of opposite sex
If one of the parties had A person may enter into as Marriage problems in conflict of laws
previously entered into a similar many ordinary contracts as he
contract with one who is still can Q: What are the policy considerations in marriage?
living, the marriage is not valid
Parties to a marriage contract Parties are usually free to do so A:
cannot mutually withdraw from
the relationship if and when 1. Predictability;
they please 2. To sustain marriages entered into in good faith;
Regulated by law Regulated by the terms and 3. Marriage is a matter of public concern and all States have
conditions stipulated by the rules stating how marriages may be contracted and
parties prohibiting certain marriages: a). incestuous and b).
Cause of dissolution of marriage polygamous marriages.
contract is different from those
of an ordinary civil contract. a. Problem of what law governs the creation of marriage
relation;
RATIO: Once contract is b. Problem of recognition of the marriage and protection to
perfected, marriage becomes an be given the relation and incidents arising from the
enduring relationship. marriage relation in States other than that in which the
Creates a status which once relationship was created;
created is treated as a res, a c. Predictability- it is not socially desirable for a couple to be
thing which has legal existence considered married in one State but not in another. This is
independent of the control of known as limping marriages.
the parties to it and which has a d. A policy that upholds the validity of marriage relation
situs assigned to it by law. protects the justified expectations of the contracting
parties—upholding the values of certainty and
It is a creature of law and may predictability;
be destroyed only in the manner e. Yet, the forum, when confronted by a marriage deemed
specified by law. particularly offensive to its own standards, will strike down
a marriage validly contracted in other jurisdictions, if it is
CONSTITUTIONAL PROVISION against its norms of public policy or morality.

Facultad de Derecho Civil 39

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Formal validity
Q: What law governs formal validity of marriage?
A: It is the law of the place where a marriage is celebrated. This is in
consequence of the maxim locus regit actum—place governs the act.
Thus, if valid by law of the place of celebration, the lex loci
celebrationis, it is also valid in other places though by the law of the
latter other formalities are required.
Q: What do you mean by formal validity or formal requirements of
marriage?
A: It refers to the external conduct required of the parties or of the
solemnizing officers essential to the formation of a legally valid
marriage.
Q: What are the formal requisites of marriage?
A: Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in
Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of
the contracting parties before the solemnizing officer and their
personal declaration that they take each other as husband and
wife in the presence of not less than two witnesses of legal age.
(53a, 55a)
i. Physical examination preceding the marriage;
ii. Proper person to solemnize it;
iii. Necessity of formal ceremony; and
iv. Manner of performance of the ceremony.
NOTE: Formal requisites apply only when the marriage is held in the
Philippines.
Q: What is the function of such formalities?
A:
1. To guarantee the finality and seriousness of the
solemnized act;
2. Publicize the marriage;
3. Furnish trustworthy evidence of its concurrence.
Q: What is the effect of the absence of any of these formal
requisites?
A: It will render the marriage void ab initio.
Q: What is the effect mere irregularity in the formal requisites?
A: It will not affect the validity of marriage but the party or parties
responsible for the irregularity shall be held liable.
Philippine law on formal validity
Art. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution.
Prohibitive laws concerning persons, their acts or property, and
those which have, for their object, public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)
ART. 26, FAMILY CODE
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35 (1), (4), (5) and
(6), 3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine law.
(As amended by Executive Order 227)
RATIO: Where the parties choose a place as the loci celebrationis of
their marriage, they are considered to have subjected all questions
of forms to the law of that place, and if valid there it should be
considered valid everywhere.
i. It is necessary to prove the content of the foreign law and
the fact of conformity of said marriage to the
requirements of the said foreign law;
ii. In the absence of proof of the foreign law, the
presumption arises that it is the same as Philippine
internal law;
iii. Courts cannot take judicial notice of foreign laws. They
must be alleged and proved as any other fact.
Proxy marriages
Q: State the rule in case of proxy marriages.
A:
Proxy marriages where permitted by the law of the place where the
proxy participates in the marriage ceremony, are entitled to
recognition in countries to the lex loci relebrationis rule in so far as
the formal validity is concerned.
Common-law marriage
Q: What is common-law marriage?
A: It is a marriage accomplished by cohabitation and agreement
without formal ceremony.
NOTE: In the case of Eugenio v. Velez, the SC reiterated the rule that
common-law marriages are not recognized under Philippine internal
law.
Marriage on board a vessel on the high seas
Facultad de Derecho Civil 40
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Since the nation whose flag ship is flying has jurisdiction over the Art. 21. When either or both of the contracting parties are citizens
ship, the rule is that compliance with this law is required for a of a foreign country, it shall be necessary for them before a
marriage to be validly contracted. marriage license can be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective diplomatic
Consular marriages or consular officials.

i. There are states which authorizes their consular or Stateless persons or refugees from other countries shall, in lieu of
diplomatic agents in foreign countries to solemnize the certificate of legal capacity herein required, submit an affidavit
marriages; stating the circumstances showing such capacity to contract
ii. Art. 10. Marriages between Filipino citizens abroad may be marriage. (66a)
solemnized by a consul-general, consul or vice-consul of
the Republic of the Philippines. The issuance of the NOTE: The effect of Art. 21 is to leave it to the government of the
marriage license and the duties of the local civil registrar alien to decide almost conclusively the question of whether he or
and of the solemnizing officer with regard to the she can marry in the Philippines.
celebration of marriage shall be performed by said
consular official. (75a) Philippine law on substantive Validity
iii. Marriages performed before a consular or diplomatic
agent empowered by a sending state to officiate marriage Marriages celebrated abroad Marriages contracted in the
is valid in the receiving state only if the latter has agreed Philippines
to his acting in that capacity; otherwise, such marriage Law of the place of celebration:
may be declared invalid in the courts of the place of
celebration. Art. 26. All marriages
solemnized outside the
Substantive validity Philippines, in accordance with
the laws in force in the country
Q: What is the effect of absence of such requisite? where they were solemnized,
and valid there as such, shall
A: It shall render the marriage void or voidable. also be valid in this country,
except those prohibited under
Q: What are the 2 essential requisites of marriage? Articles 35 (1), (4), (5) and (6),
3637 and 38. (17a)
A:
Art. 2. No marriage shall be valid, unless these essential requisites GR: Valid where celebrated,
are present: valid everywhere.
(1) Legal capacity of the contracting parties who must be a male
and a female; and XPN:
(2) Consent freely given in the presence of the solemnizing officer.
(53a) 1. In case of Filipino
nationals who marry
Q: What law governs the substantive validity of marriage? abroad before
Philippine consulate or
A: diplomatic officials;
2. Marriages that are
1. lex loc celebrationis- law of the place of the celebration of prohibited under
marriage; and Philippine law:
NOTE: It works as an inducement to evade local bigamous or
prohibitions since it makes marriage possible for persons polygamous
who could not marry under their domiciliary or national marriages; marriages
laws by merely giving to another State to have their contracted through
marriage solemnize there. mistake of one party
2. personal law of the contracting parties—either the law of as to the identity of
their domicile or nationality) another.

NOTE: Conflicts relating to marriage may be complicates because Incestuous marriages

more than 1 country may be involved.
Art. 37. Marriages between the following are incestuous and void
GR: A marriage should be upheld if valid according to the law of the from the beginning, whether relationship between the parties be
place of celebration. legitimate or illegitimate:

XPN: Marriage itself or the enjoyment of the incidents of the marital (1) Between ascendants and descendants of any degree; and
relationship would offend the strongly-held notions of decency and (2) Between brothers and sisters, whether of the full or half blood.
morality of the State that has a close relationship to the contracting (81a)
parties.

Facultad de Derecho Civil 41

UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon

Abroad Philippines
CHAPTER XV Art. 26. All marriages There is no foreign element
ANNULMENT AND DIVORCE solemnized outside the
Philippines, in accordance with
Q: Give the distinctions between marriage and divorce? the laws in force in the country
where they were solemnized,
A: and valid there as such, shall
also be valid in this country,
Divorce Annulment except those prohibited under
Decree of divorce dissolves The decree does not recognize Articles 35 (1), (4), (5) and (6),
marriage and relieves the the existence of the marriage. 3637 and 38. (17a)
spouses from their marital Lex loci celebrationis determines
obligations whether there is any defect in
Presupposes that the marriage Its legal effect is to declare that substance which would render
relation had a lawful existence the marriage never existed the marriage invalid.

Annulment
1. What court has jurisdiction to declare that a marriage is
annulled?
2. What law governs the annulment of a marriage?
NOTE: Jurisdiction to annul must always be distinguished from the
law that determines the cause or ground for annulment.
Jurisdiction to annul
GR: It is the law of the domicile of the parties.
RATIO:
1. It is the State of the domicile that has the greatest interest
in the domestic relations of the contracting parties;
2. Domiciled aliens may bring their matrimonial causes
before the local courts instead of compelling them to
travel to, and sue in their respective countries.
3. Jurisdiction over the non-resident defendant is not
essential.
Where the wife was a national of the firm before marriage,
jurisdiction is likewise assumed for 2 reasons:
1. Protection of its own national; and
2. There is no possible change of nationality that if the
marriage is declared void, there is no possible change of
nationality as a result of the marriage and the court is
therefore competent.
Q: What is the law governing annulment or nullity>
Where the contracting parties are aliens, or where one is an alien
and other is a national, the national law of the alien determines
whether he possesses the capacity to marry.
Art. 21. When either or both of the contracting parties are citizens
of a foreign country, it shall be necessary for them before a
marriage license can be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective diplomatic
or consular officials.
Stateless persons or refugees from other countries shall, in lieu of
the certificate of legal capacity herein required, submit an affidavit
stating the circumstances showing such capacity to contract
marriage. (66a)
NOTE: It is their national law that decides whether the marriage
concluded is void, voidable or non-existent. Where the parties have
different national laws, each of the 2 laws must consulted in order
to determine the consequences of failure to comply with the
requirement imposed by each. All other matters of substance not
concerned with capacity to marry, aliens marrying in the Philippines
are governed by Philippine internal law, the lex loci celebrationis.
ARTICLE 36
Psychological Incapacity
Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only after its
solemnization. (As amended by Executive Order 227)
Purpose: to harmonize civil law with policy and practice of the
Catholic Church:

A: 1. As a substitute for divorce;

GR: The law that governs formal and substantive validity of contract
of marriage also governs the questions as to whether there is a valid
cause for annulment.
All questions involving formalities are governed by the law of the
place where the marriage is performed (Lex loci celebrationis).
With respect to intrinsic validity, our conflict of law distinguishes
between marriages performed abroad and those performed in the
Philippines.
2. To give parties to Church-annulled marriages a cause of
action to have their marriages declared void by the civil
courts;
3. To give a remedy to parties long imprisoned by marriage
that exists in name only because of the inability of one of
them to perform the essential obligations of marriage.
Q: What is psychological incapacity?
A: He who suffers from psychological incapacity knows what
marriage is all about, including the rights and obligations of spouses.
Hence, he is able to give his fee and voluntary consent to marriage
Facultad de Derecho Civil 42
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
but due to some psychological disorder, he is unable to assume the
essential obligations of marriage.
NOTE: As long as no appeal is taken to higher courts, the annulment
of orders of said trial courts have the same function as divorce
decrees.
Q: Does Article 36 have retroactive effect?
A: Yes. It applies to marriages solemnized before the effecivity of the
Family Code. Under Article 39, such an action or defense shall
prescribe in 10 years after the FC takes effect up to 1998. But if the
marriage is celebrated after the effectivity of the Family Code, the
action for declaration of nullity of marriage does not prescribe.
Imprescriptibilty is the rule for marriages that are void for other
grounds, such as lack of capacity to marry or absence of consent.
Santos v. CA
"Psychological incapacity" should refer to no less than a mental (not
physical) incapacity that causes a party to be truly incognitive of the
basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by
Article 68 of the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law
has been to confine the meaning of "psychological incapacity" to the
most serious cases of personality disorders clearly demonstrative of
an utter intensitivity or inability to give meaning and significance to
the marriage.
The other forms of psychoses, if existing at the inception of
marriage, like the state of a party being of unsound mind or
concealment of drug addiction, habitual alcoholism, homosexuality
or lesbianism, merely renders the marriage contract voidable
pursuant to Article 46, Family Code. If drug addiction, habitual
alcholism, lesbianism or homosexuality should occur only during the
marriage, they become mere grounds for legal separation under
Article 55 of the Family Code. These provisions of the Code,
however, do not necessarily preclude the possibility of these various
circumstances being themselves, depending on the degree and
severity of the disorder, indicia of psychological incapacity.
Divorce
Under Roman law, entrance into and dissolution of marriage relation
is treated as a private affair of the spouses. The Philippines does not
adhere to this view:
Art. 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the
spouses and the delivery of the children's presumptive legitimes
shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect third persons. (n)
Although absolute divorce are considered contrary to our concept of
public policy and morality, our courts have not gone as far as saying
that all divorce decrees obtained everywhere in the world are void.
Only Filipino couples as a general rule, are covered by the policy
against absolute divorces. Aliens may obtain divorces abroad which
may be recognized in the Philippines, provided they are valid
according to their national law.
Philippine Conflicts Rule on Divorce
As long as they are Filipino citizens, they cannot obtain a divorce
decree abroad which would be recognized in the Philippines. Also,
Philippine courts are not available to aliens for the purpose of
obtaining absolute divorce decrees.
ART. 26-Where a marriage between a Filipino citizen and a foreigner
is validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine law.
(As amended by Executive Order 227)
Barretto Gonzalez v. Gonzalez
While the decisions of this court heretofore in refusing to recognize
the validity of foreign divorce has usually been expressed in the
negative and have been based upon lack of matrimonial domicile or
fraud or collusion, we have not overlooked the provisions of the Civil
Code now in force in these Islands. Article 9 thereof reads as follows:
The laws relating to family rights and duties, or to the status,
condition and legal capacity or persons, are binding upon Spaniards
even though they reside in a foreign country.
And article 11, the last part of which reads:
. . . the prohibitive laws concerning persons, their acts and their
property, and those intended to promote public order and good
morals, shall nor be rendered without effect by any foreign laws or
judgments or by anything done or any agreements entered into a
foreign country.
It is therefore a serious question whether any foreign divorce
relating to citizens of the Philippine Islands, will be recognized in this
jurisdiction, except it be for a cause, and under conditions for which
the courts of Philippine Islands would grant a divorce.
Arca v. Javier
The courts in the Philippines can grant divorce only on the ground of
adultery on the part of the wife or concubinage on the part of the
husband, and if the decree is predicated on another ground, that
decree cannot be enforced in this jurisdiction. The above
pronouncement is sound as it is in keeping with the well known
principle of Private International Law which prohibits the extension
of a foreign judgment, or the law affecting the same, if it is contrary
to the law or fundamental policy of the State of the forum. (Minor,
Conflict of Laws, pp. 8-14). It is also in keeping with our concept or
moral values which has always looked upon marriage as an
institution. And such concept has actually crystallized in a more
tangible manner when in the new Civil Code our people, through
Congress, decided to eliminate altogether our law relative to
divorce. Because of such concept we cannot but react adversely to
any attempt to extend here the effect of a decree which is not in
consonance with our customs, morals, and tradition.
Recognition of foreign divorces under present law
Because of the change by the Civil Code—which in effect is a return
to the Siete Partidas under which only legal separation or relative
divorce was allowed—it is pertinent to inquire whether foreign
divorce decrees are entitled to recognition in the Philippines.
Facultad de Derecho Civil 43
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Filipino couples cannot obtain absolute divorces abroad which will
be entitled to recognition in the Philippines. No matter how long H
and W, both Filipinos, may have resided in California, the rule is that
a divorce decree they may obtain in California will not be considered
valid in the Philippines.
Where the absolute divorce decree involves alien spouses, the rule
is to recognize the decree, if valid by their national law, in spite of
the fact that internal municipal law may not recognize absolute
divorce but only legal separation.
Marriages where one of the spouses is a national of the Philippines
Situation where by national law of the husband, she acquires his
nationality by the mere fact of marriage
Where the H is a citizen of the Philippines, and the alien wife
becomes a Filipino citizen by the fact of marriage
An alien woman who marries a Filipino becomes ipso facto a Filipino
citizen provided she does not suffer from any of the disqualifications
under the Revised Naturalization Law. Yet suppose despite her
marriage to a Filipino national she retains her nationality in addition
to her marriage to a Filipino national, she retains her nationality in
addition to her Philippine citizenship and is able to obtain a divorce
decree abroad which is valid under her own national law, may the H
remarry?
Art. 26. XXX Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under
Philippine law. (As amended by Executive Order 227)
Van Dorn v. Romillo, Jr.
There can be no question as to the validity of that Nevada divorce in
any of the States of the United States. The decree is binding on
private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of
the Union. What he is contending in this case is that the divorce is
not valid and binding in this jurisdiction, the same being contrary to
local law and public policy.
It is true that owing to the nationality principle embodied in Article
15 of the Civil Code, 5 only Philippine nationals are covered by the
policy against absolute divorces the same being considered contrary
to our concept of public police and morality. However, aliens may
obtain divorces abroad, which may be recognized in the Philippines,
provided they are valid according to their national law. 6 In this case,
the divorce in Nevada released private respondent from the
marriage from the standards of American law, under which divorce
dissolves the marriage. As stated by the Federal Supreme Court of
the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce
from the bond of matrimony by a court of
competent jurisdiction are to change the existing
status or domestic relation of husband and wife,
and to free them both from the bond. The
marriage tie when thus severed as to one party,
ceases to bind either. A husband without a wife,
or a wife without a husband, is unknown to the
law. When the law provides, in the nature of a
penalty. that the guilty party shall not marry
again, that party, as well as the other, is still
absolutely freed from the bond of the former
marriage.
Thus, pursuant to his national law, private respondent is no longer
the husband of petitioner. He would have no standing to sue in the
case below as petitioner's husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his own country's
Court, which validly exercised jurisdiction over him, and whose
decision he does not repudiate, he is estopped by his own
representation before said Court from asserting his right over the
alleged conjugal property.
To maintain, as private respondent does, that, under our laws,
petitioner has to be considered still married to private respondent
and still subject to a wife's obligations under Article 109, et. seq. of
the Civil Code cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render support to
private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to
be served.
Relative divorce or legal separation or separation from bed and
board
Since this kind of divorce does not put an end to the marriage but
merely authorizes the separation of the spouses, the marriage
undergoes a very inconvenient suspension and is intended to
operate as a continual invitation to the parties to return to their first
love.
Legal Separation;
Reconciliation as a precondition
Art. 59. No legal separation may be decreed unless the Court has
taken steps toward the reconciliation of the spouses and is fully
satisfied, despite such efforts, that reconciliation is highly
improbable. (n)
Q: What are the consequences of reconciliation?
A: Art. 66. The reconciliation referred to in the preceding Articles
shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside,
but the separation of property and any forfeiture of the
share of the guilty spouse already effected shall subsist,
unless the spouses agree to revive their former property
regime.
The court's order containing the foregoing shall be recorded in the
proper civil registries. (108a)
Q: What are the causes of legal separation?
A:
1. Adultery on the part of the W and concubinage on the part
of the H as defined in the Penal Code;
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Kenneth and King C. Hizon
2. An attempt by one spouse against the life of the other.
Q: What are the grounds for legal separation?
A:
Art. 55. A petition for legal separation may be filed on any of the
following grounds:
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a
child of the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the petitioner, to
engage in prostitution, or connivance in such corruption
or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child by
nature or by adoption. (9a)
Q: Who may claim this action?
A: It may be claimed only by the innocent spouse, provided there
has been non-condonation of or consent to the adultery or
concubinage. Where both spouses are offenders, a legal separation
cannot be claimed by either of them. Collusion between the parties
to obtain legal separation shall cause the dismissal of the petition.
Q: What are the grounds to deny a petition for legal separation?
A:
Art. 56. The petition for legal separation shall be denied on any of
the following grounds:
(1) Where the aggrieved party has condoned the offense or
act complained of;
(2) Where the aggrieved party has consented to the
commission of the offense or act complained of;
(3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground
for legal separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to obtain
decree of legal separation; or
(6) Where the action is barred by prescription. (100a)
Art. 57. An action for legal separation shall be filed within five
years from the time of the occurrence of the cause. (102)
Art. 58. An action for legal separation shall in no case be tried
before six months shall have elapsed since the filing of the
petition. (103)
Q: What are the effects of judicial decree of legal separation?
A:
Art. 61. After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have the
same powers and duties as those of a guardian under the Rules of
Court. (104a)
Art. 62. During the pendency of the action for legal separation, the
provisions of Article 49 shall likewise apply to the support of the
spouses and the custody and support of the common children.
(105a)
Policy consideration on absolute divorce
Total ban or divorce has resulted in at least 2 undesirable
considerations:
1. Trend in favor of granting annulment or nullity of marriage
where divorce would be the more honest and effective
remedy; and
2. Those with money and means are the only ones able to
free themselves from the coercive reach of Philippine law
either by changing their nationality or by mitigating to
other countries.
G. CONTRACTS
Q: What is a contract?
A: It is the meeting of minds between 2 persons whereby one binds
himself, with respect to other, to give something or render some
service.
Although a contract may create a status like marriage or creates or
transfers real rights or title to property (sale), the specific subject of
contract in Conflict of Law is limited to purely civil or commercial
transactions.
Q: What are the basic policy considerations in contracts?
A:
1. That of giving effect to the justified expectations of the
contracting parties (protection of the expectations of the
parties)
2. The policy of carrying out their intention should result in
enforcing their agreements in any state whose courts or
agencies have the competence to hear and adjudicate
cases brought before them.
Q: When does the Conflict of law arise in contracts?
A: It is when there is a foreign element in the contract that problem
arise, for then, the forum will have to decide what law should be
Facultad de Derecho Civil 45
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
applied in determining the existence or nonexistence of a contract,
as well as its validity, both extrinsic and intrinsic, and the capacity of
the contracting parties.
Q: What are the options of the court in which
Extrinsic validity of contracts
GR: Extrinsic validity of contracts is governed by the lex loci
celebrationis or lex loci contractus.
Art. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.
XXX
Q: Suppose a contract is entered into by parties in 2
different countries by cablegram, telefax, or fax. What
is the place of execution?
A: Art. 1319. Consent is manifested by the meeting of the offer
and the acceptance upon the thing and the cause which are to
constitute the contract. The offer must be certain and the
acceptance absolute. A qualified acceptance constitutes a counter-
offer.
Acceptance made by letter or telegram does not bind the offerer
except from the time it came to his knowledge. The contract, in
such a case, is presumed to have been entered into in the place
where the offer was made. (1262a)
Thus, the lex loci celebrationis is the country of execution. In
American law however, a contract is deemed entered into in the
place where the acceptance of the offer is mailed or posted.
Q: Suppose the place of execution is merely casual or accidental
like a Chinese and a Filipino who, meeting accidentally in Hong
Kong, enter into a certain contract or agreement there to be
performed in the Philippines.
A: In such case, the law which has the most significant relationship
to the transaction should be applied. Thus, the court should apply
the law which the parties must have assumed would be applied to
give effect to their transaction—Philippine law.
XPN:
1. When the lex loci celebrationis contravenes an established
and important policy of the forum; or
2. To apply it would work gross injustice to the people of the
forum;
3. If the transaction is contra bonos mores.
Capacity of Parties
Q: What determines the capacity of parties to a contract?
A:
1. Personal law of the parties
i. By the national law of the parties in countries
following the nationality theory, and by the law
of the domicile in countries following the
domiciliary theory;
ii. XPNs:
a. Contracts involving alienation or
encumbrance of properties, both real
and personal in cases in which
capacity of the contracting parties is
governed by the lex situs.
2. In the Philippines, Art.15 of the NCC provides that capacity
of a Filipino is governed by the Philippine law, and this is
so because we follow the nationality theory.
Q: What law governs the capacity of the Filipino in the following
specific problem?
a. A 20 yr. old Filipino enters into a contract in Italy where
the age of majority is 21. Can the Filipino later plead his
incapacity under Italian law to avoid liability under the
contract?
b. An 18 yr. old alien, who has no capacity to contract under
his national law wherein the age of majority is 21, enters
into in the Philippines. Can he later plead his incapacity
under his national law to evade the contract?
A:
a. No, because under Philippine law, he has capacity to
contract.
b. No, because to apply the natural law of the alien in
determining his capacity to contract would require
Filipinos to first ascertain what the personal law of that
alien is sometime with great difficulty, such that business
transactions with aliens would be greatly impeded.
RULE:
a. If the contract is entered into in the Philippines, or the
performance of the contract would be in the Philippines,
we should apply, not the personal law of the parties, but
the proper law of the contract or the law intended by the
parties, to determine their capacity;
b. We should limit the application of Art. 15 to agreements
involving family and domestic relations, while we should
apply the proper law of the contract in business or
commercial transactions.
Intrinsic validity
GR: Intrinsic validity of contract is governed by the proper law of
contract—lex loci voluntatis or the lex loci intentionis:
a. We have no specific provision of law applicable to conflict
of law rules on the intrinsic validity of contracts;
b. Yet, the policy of the law is to give effect to the intention
of the parties.
Art. 1306. 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 order, or public policy.
(1255a)
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
REM, b. Capacity of the parties –lex situs
c. Thus, we should apply the proper law of the contract—lex Antichresis c. Intrinsic validity- lex situs
loci voluntatis (the law expressly agreed upon by the
parties) or the lex loci intentionis (law impliedly agreed These are governed by the lex situs because they
upon by the parties) which is the law of the place that has are contracts of encumbrances of property, real or
the most substantial connection with the transaction, or personal.
the law that may the presumed to have been intended by
the parties to bind their transaction. But since they are accessory contracts, if the
principal contract secured by them is void, they
Q: What are the limitations on the court’s choice of law in are also void.
determining the validity of contracts?
Contract of If it is mutuum, apply, rules on contracts in
A: loan general:

a. Parties cannot select a law that has no connection at all a. Extrinsic validity- lex loci celebrationis
with the transaction; b. Capacity of the parties – personal law of
b. GR: If such law change, it is the new law that should be the parties
applied; c. Intrinsic validity- lex loci intentionis or
XPN: When the change is so revolutionary that it could lex loci voluntatis.
never have been contemplated by the parties.
c. Several laws may be selected, each of which will govern If it is commodatum, apply the lex situs because it
the different elements of the transaction; is a real contract.
d. If under the selected law, the contract is legal, but in the Lease of These personal contracts, hence the law on
place of performance, it is illegal, the selected law should service contracts will apply:
prevail and the contract should be considered legal. (employment),
Otherwise, the place of performance, which could be agency, a. Extrinsic validity- lex loci celebrationis
merely accidental, will control. Besides, the place of guaranty or b. Capacity of the parties – personal law of
performance may be different under different laws. suretyship the parties
e. Assuming that the law of the place of performance can be c. Intrinsic validity- lex loci intentionis or
ascertained, still, questions of substantial and essential lex loci voluntatis.
validity should be governed by the proper law of the
contract. Only minor details, should be governed by the But an agency to alienate or encumber real is
law of performance; governed by the lex situs.
f. While the parties may stipulate on the proper law of
contract, they cannot stipulate on the jurisdiction of courts Contract of This is a contract to render service; therefore, the
or to oust our courts of their jurisdiction; transportation law on contract applies:
g. Parties cannot also contract away applicable provisions of or carriage
our law that are heavily impressed with public interest or a. Extrinsic validity- lex loci celebrationis
which involve public policy (like labor laws); b. Capacity of the parties – personal law of
h. Cognitive clause- specify which courts would have the parties
jurisdiction in case of breach or default in payment, or it c. Intrinsic validity- lex loci intentionis or
may be one that waives the DR’s right to notice lex loci voluntatis;
(confession of judgment). d. Liability for loss, destruction or
deterioration of goods in transit, the law
Special kinds of contracts of destination of goods;
e. If the COGSA governs, the limitation of
Barter, sale or a. Extrinsic validity- lex situs the liability of the carrier applies, unless
donation b. Capacity of the parties –lex situs the shipper declares the goods and
c. Intrinsic validity- lex situs inserts such declaration in the BOL.

Lease of If the contract is for international air

property A. If it creates real rights, such as those fro transportation:
a period of more than 1 year or is
registered, apply lex situs; a. Liability of the airline in case of death,
B. If the lease I from month to month, injury to passengers, or loss or damage
week to week, or day-day, and does not to cargo is governed by the Warsaw
create real rights, apply the law on convention as amended;
contracts: b. But if there was malice, gross
a. Extrinsic validity- lex situs negligence, bad faith, or improper
b. Capacity of the parties –lex situs discrimination on the part of the carrier
c. Intrinsic validity- lex situs or its agents, the carrier is liable for
damages beyond those limited by the
Warsaw Convention.
Pledge, CM, a. Extrinsic validity- lex situs
Facultad de Derecho Civil 47
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
H.TORTS
Q: What is tort?
A:
a. It is a legal wrong committed upon the person or property
independent of contract;
b. The concept of quasi-delict or culpa aquiliana includes all
acts or omissions committed through fault or negligence
causing damage to another, independent of contract;
c. Includes all cases where a person damage to another
through negligence, or with no intention to do so—
unintentional wrongs;
d. In American law, tort has a broader meaning for it includes
legal wrongs not only committed through negligence but
also those committed with malice or willful intent—
independent of the contract.
Concept of tort in the Philippines
Art. 20. Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for the same.
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter. (1902a)
Q: What law governs liability for torts?
A: It is governed by the lex lox delicti commissii—the law of the place
where the delict or wrong was committed;
RATIO:
a. State where the social disturbance occurred has the
primary duty to redress the wrong and determine the
effects of the injury;
b. To compensate the victim for the damage or injury
suffered.
Q: How is the locus delicti determined, especially if the wrong
conduct is committed in one state and the injuries are sustained in
another, or the conduct is a continuing act that spans several
years?
A:
Civil law a. Locus delicti is where the act began;
theory b. RATIO: The rule on torts are intended to
regulate human conduct such that a person
who willfully and negligently are contrary to
the social norms must be held liable for the
injury caused.
Common a. Locus delicti is the place where the wrongful
law act became effective;
theory b. RATIO: Without an injury, there is nothing to
protect and there is no necessity for judicial
relief.
Theory of It is the place which has the most substantial
Dr. Rabel connection with the wrongful act.
State of the most significant relationship
The rights and obligations of the parties in case of tort
is determined by the local law of the state which has
the most significant relationship to the occurrence and
the parties.
Saudi Arabia v. CA
The Philippine law shall apply because it was in the
Philippines that private respondent deceived plaintiff-
stewardess; P was working for R here; P’s nationality
and domicile were here; we were intimately
concerned with the ultimate outcome of the case not
only for the benefit of the litigants but also for the
vindication of our country’s system of law and justice
in a transitional setting.
Q: What are the conflict rules on marine torts?
A:
a. If the tort is committed aboard a public vessel, whether on
the high seas or in a foreign territorial waters, the law of
the flag is the lex loci delciti commissii;
b. If the tort is committed aboard a private merchant vessel
on high seas, the law of registry is the lex loci delciti
commissii;
c. If 2 vessels collide and are from the same state, the law of
registry is the lex loci delciti commissii;
d. If the vessel come from different states with identical laws,
apply said identical laws;
e. If the vessel come from different states with different
laws, the lex loci delciti commissii is the general maritime
law as understood and applied by the forum where the
case is filed.
Q: Is a foreign tort actionable or may be subject of an action for
damages in the Philippines?
A: Yes, provided that jurisdiction is acquired over the defendant and
certain conditions are present:
a. Foreign tort must not be penal in nature;
b. Enforcement of the tortuous liability should not
contravene our public policy; and
c. Our judicial machinery must be adequate for such
enforcement.
NOTE: While procedural matters are governed by the lex fori—
Philippine law, since the case is filed here, all substantive matters
are governed by the lex loci delciti commissii.
i. Period of prescription of the action is governed by lex loci
delciti commissii since under Philippine laws, prescription
is substantive not purely procedural;
ii. Proper parties, measure of damages and question of
whether the act complained of is considered the
proximate cause of injury, are all governed by the lex loci
delciti commissii;
iii. Burden of proof and the defenses that may be interposed
by the D are also governed by lex loci delciti commissii.
I. CORPORATIONS
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Q: What is a corporation?
A: It is an artificial being created by operation of law, having the
right of succession and powers, attributes and properties expressly
authorized by law or incident to its existence.
Q: What is a foreign corporation?
A: It is one formed, organized or existing under any laws other than
those of the Philippines and whose law allows Filipino citizens and
corporations to do business in its own country or state.
Q: What are the different theories in determining the personal or
governing law of a corporation?
A:
Theory that A corporation can evade many responsibilities by
personal law simply organizing in one state and performing its
is the law of functions in another state.
the place of
incorporation NOTE: This is followed in the Philippines.
If the Corporation was organized in the Philippines,
it is a Philippine or domestic corporation; if
organized elsewhere or abroad, it is a foreign
corporation.
XPN:
1. For constitutional purposes, even if a
corporation was incorporated in the
Philippines, it cannot exploit or develop
our natural resources or operate public
utilities unless 60% of the capital is
Filipino owned;
2. War time purposes- apply the control
test: pierce the veil of corporate identity
and go into the nationality of the
controlling SH to determine whether a
corporation is an enemy corporation.
Theory of the Board may meet in different states although this
place or defect may be cured by expressly providing in the
center of AOI or by-laws where the principal meeting of the
management board is.
Theory of the Corporation may have its enterprise scattered all
place of over the world. Besides, physical acts of the
exploitation corporation are not as important as the decisions
reached by its BOD.
Q: Where is the domicile of the corporation?
A:
Art. 51. When the law creating or recognizing them, or any other
provision does not fix the domicile of juridical persons, the same
shall be understood to be the place where their legal
representation is established or where they exercise their principal
functions. (41a)
Even a defectively organized corporation which the law regards a de
facto insofar as innocent third persons are concerned can possess a
domicile for its de facto existence.
Under the Corporation Code, the AOI of a Philippine corporation
must state the place where the original office of the corporation is
to be established or located which must be within the Philippines.
Thus, the place of incorporation of a Philippine corporation is also its
domicile.
As for a foreign corporation that has been granted license to operate
or to do business in the Philippines, it acquires domicile in this
country by virtue of said license.
Granger Associates v. Microwave Systems Inc.
Purpose of requiring foreign corporations to secure a license to do
business in the Philippines is to enable the courts to acquire
jurisdiction over them or the regulation of their activities in our
country.
Q: What law governs the personal law of the corporation?
A:
1. Requisites for the formation of the corporation;
2. Required no. of incorporators and members of the BOD;
3. The kinds of shares of stock allowed;
4. Transfer of stocks in a way that it would be binding on the
corporation;
5. Issuance, amount and legality of the dividends;
6. Powers and duties of the officers, SH, and members.
Q: What law governs the validity of the corporate acts and
contracts?
A:
Sec. 129. Law applicable. - Any foreign corporation lawfully doing
business in the Philippines shall be bound by all laws, rules and
regulations applicable to domestic corporations of the same class,
except such only as provide for the creation, formation,
organization or dissolution of corporations or those which fix the
relations, liabilities, responsibilities, or duties of stockholders,
members, or officers of corporations to each other or to the
corporation. (73a)
Q: May a foreign corporation sue and be sued in the Philippines?
A: Yes, if it has the necessary license to do business here. The license
is required not to forbid corporation from performing single acts but
not to prevent it from acquiring a domicile for purposes of business
without taking the steps necessary to render it amenable to suit in
the local courts.
East International Import and Export v. Nankai Kogyo Co.
Q: What does transacting or doing business mean?
A: It connotes a continuity of business dealings and arrangements.
Even a single act or transaction may be an act of ordinary business
of the corporation if it is not merely incidental or casual but of such
character as to distinctly indicate a purpose to do other business in
Facultad de Derecho Civil 49
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NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
the state and to make the state a base of operations for the conduct
of a part of the foreign corporations’ ordinary business.
Q: How may our courts acquire jurisdiction over a foreign
corporation doing business in the Philippines?
A: By service of summons on:
1. Its residents agent designated in accordance with law for
that purpose;
2. If no such agent, on the government designated by law to
that effect; or
3. On such of its officers or agents within the Philippines.
Q: Suppose a foreign corporation transacts business without first
obtaining the necessary license, what is the status of its contract?
A: The contract is unenforeceable—the contract cannot sue in
courts until the necessary license is obtained. After the issuance of
the license, suits may be instituted even on the pre-license contracts
which are considered as valid.
Yet, the person who contracted with the corporation may be
considered in estoppels if he had received benefits from the
contract.
Q: May a person sue a foreign that transacted business with him
without a license?
A: Yes, because the corporation cannot put up a defense its own
failure to comply with the law. but the court must be able to acquire
jurisdiction over the corporation.
Q: If the corporation sells its products through an agent, is that
doing business here?
A: if the corporation sells its products in the Philippines through a
resident merchant on commission basis, it is the merchant, not the
corporation, that is doing business here. But if the foreign
corporation sells its goods in the Philippines through an exclusive
distributing agent, it is doing business here because the agent is
acting only in behalf of its principal.
Q: May a corporation not doing business in the Philippines sue?
A: Yes;
1. In isolated transactions;
2. To protect its reputation, corporate name and good will;
3. For infringement of trademark or trade-name, unfair
competition or false description of products and
infringement of patent.
Q: What is the rule that applies to multinational or transnational
corporations?
A: Since they are incorporated under the local law of each state
where they are doing business, the branches are separate entitles
governed by the said local laws, but in reality, the major decisions in
their operation and management are controlled by their mother or
parent corporation. Yet, the branches, having incorporated in the
states where they are established, are governed by the internal law
of the states, and their personal laws are the local laws of the host
states.
Q: May a foreign corporation be sued after it had already
withdrawn from business in the Philippines?
A: Yes, on contracts previously entered into by it. Fairness demands
that the citizens and residents of the Philippines be afforded the
opportunity to sue in the foreign countries where they are
domiciled. Conversely, the foreign corporation that has withdrawn
should also be allowed to sue on validly existing contracts, entered
into previous to the cessation of its business here.
J. PROPERTY
Q: Are the conflict of law rules on real and personal property the
same?
A: Lex situs or Lex rei sitae- the law of the place where the property
is located or situated, with respect to real property. Thus, the law of
the place where it is situated governs everything concerning real
property.
A reference to the lex situs of real property satisfies the need for
certainty, predictabilty, anil uniformity, as well as the reasonable
expectations of the parties, in dealing with real property.
Recently, the same has been adopted with respect to personal
properties so that situs is easily ascertainable, making it convenient
for the parties and third persons who may be affected by rights in
rem created over personal properties to have those rights enforced
and made effective.
RATIO: Personal property may be separated from its owner, who
may be taxed on its account at the place of where the property is
located, although he is not a domiciliary, citizen or resident of the
state which imposed the tax.
XPN:
1. Succession--
Art. 16
XXX
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found. (10a)
2. Contracts involving real property but do not deal with title
or real rights over the property, the issue being the
contractual rights and liabilities of parties, are governed by
proper law of the contract: lex loci voluntatis or the lex
loci intentionis.
3. In contracts where real property is given as security by
way of mortgage to secure a principal contract (loan), the
loan is governed by the proper law of the contract
between the parties, while the accessory contract of
mortgage is governed by the lex situs;
4. While the validity of a transfer of land must be determined
by the lex situs, the validity of a contract to transfer is
determined by the proper law of the contract.
Facultad de Derecho Civil 50
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
Q: Does the Philippines adopt the Lex situs or Lex rei sitae? Credits or a. Involuntary transfer or assignment of
debts debt—situs is the place where the DR may
A: Yes. be served with summons, which is his
domicile;
Art. 16. Real property as well as personal property is subject to the b. Voluntary assignment or transfer of credit—
law of the country where it is stipulated. proper of the contract controls—proper law
Xxx of the original transaction out of which the
close in action or credit arose.
Q: What matters connected with real property are governed by lex c. Situs of debt for taxation purpose is the
situs? domicile of the CR, where the collectible
credit may be taxed;
A: d. For the purpose of administering debts, the
situs is the place where the assets of the DR
1. Extrinsic and intrinsic validity of transactions over real are actually situated.
property such as alienation, transfers and mortgages;
2. capacity of the contracting parties; Negotiable Q: What law determines whether the instrument
3. interpretation of documents; instruments is negotiable or not?
4. effects of ownership;
5. co-ownership; A: Law governing the rights embodied in the
6. Accession; instrument. Thus, it is a Philippine check,
7. usufruct; Philippine law will apply;
8. lease, easement;
9. queting of title, registration; NOTE: The law that determines the validity of the
10. prescription; transfer, delivery, or negotiation of negotiable
11. police power; instrument at the time of transfer, delivery or
12. eminent domain; negotiation.
13. taxation. Shares of stock a. Sales of corporate stocks are governed by
of corporations the law of the place of incorporation, since
Q: What constructive suits is given to choses in possession that are it is there that the transfer is recorded in
usually in motion? the books of the corporation.
b. Attaching or execution CRs are not bound
A: by the transfer unless entered into in the
books of the corporation unless said CR
1. vessels are governed by: actually knew of the unregistered transfer;
c. CM or pledges of corporate shares of stock,
a. law of the flag, if it is a public vessel; even if registered in the corporate books,
b. law of the country or place of registry, if it is a do not bind the corporation, but the parties
private or commercial vessel. Yet, if the vessel is are bound as long as they are validly
docked at a foreign port, said port is deemed as entered into by them;
its temporary status. d. Sale of corporate shares between parties is
governed by the proper law of the contract
2. goods in transit are governed by: because this is really a contract. In many
cases, proper law of the contract is the
a. as to liability for loss, destruction or place where the certificate is delivered to
deterioration of goods in transit, the law of the buyer;
destination is applied; e. Taxation on dividends received by the
corporate shares is governed by the law of
Art. 1753. The law of the country to which the the place of incorporation.
goods are to be transported shall govern the Franchises They are special privileges conferred by the
liability of the common carrier for their loss, government on an individual or a corporation and
destruction or deterioration. are subject to the law of the state that granted
them.
b. Validity and effect of seizure of goods in transit Goodwill of a Art. 521. The goodwill of a business is property,
are governed by law of the place where the business and and may be transferred together with the right
goods were seized which is their temporary taxation to use the name under which the business is
status; thereon conducted. (n)
5. Disposition or alienation of goods in transit is generally
governed by the proper law of the contract between The goodwill of the business, is governed by the
parties (lex loci voluntatis or the lex loci intentionis. law of the place where the business is carried on.
Q: What are the rules governing constructive situs to intangible Patents, GR: Patents, etc. are protected only by the state
personal properties or choses in action? copyrights, that granted or recognized them.
trademarks,
A: tradenames Art. 520. A trade-mark or trade-name duly

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UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS
Kenneth and King C. Hizon
and registered in the proper government bureau or
servicemarks office is owned by and pertains to the person,
corporation, or firm registering the same, REFERENCES:
subject to the provisions of special laws. (n)
 Salonga, Jovito. Private International Law
R.A. No. 638  Sepio-Dy, Alicia V. Handbook on Conflicts of Laws. 2004.
MPC Printers.
Section 7. A new section is hereby added to
Republic Act Numbered One hundred and sixty-
six, just below section twenty-one thereof, to
read as follows:

"Section 21-A. Any foreign corporation or

juristic person to which a mark or trade-name
has been registered or assigned under this act
may bring an action hereinunder for
infringement, for unfair competition, or false
designation of origin and false description,
whether or not it has been licensed to do
business in the Philippines under Act Numbered
Fourteen hundred and fifty-nine, as amended,
otherwise known as the Corporation Law, at the
time it brings complaint: Provided, That the
country of which the said foreign corporation or
juristic person is a citizen, or in which it is
domiciled, by treaty, convention or law, grants a
similar privilege to corporate or juristic persons
of the Philippines."

Article 8 of the Union Convention for the

Protection of Industrial Property: a Trade name
shall be protected in all countires of the Union
without the obligation of filing of registration
whether or not it forms part of the trade name.

Philips Export B.V. v. CA

A corporation’s right to use its corporate and

trade name a property right, a right in rem which
is entitled to protection like any other tangible
property and cannot be impaired or defeated by
subsequent appropriation by another corporation
in the same field.

Emerald Garment v. CA

Actual use in commerce in the Philippines is an

essential prerequisite for the acquisition of
ownership over a trademark.

Any foreign corporation, being a national or

domiciliary of a country which is a party to a
convention, treaty or agreement relating to
intellectual property rights to which the
Philippines is also a party o which extends
reciprocal rights to our nationals by law shall be
entitled to benefits to the extent necessary to
give effect to any provision of such convention.

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UNIVERSITY OF SANTO TOMAS