LECTURE – CONFLICT OF LAWS

If X, a Filipino citizen who resides in Bacolod, will marry Y, another

Filipino citizen who resides in Quezon City, but who was born in Bontoc,
Mountain Province, in Cebu City, then you, as a scholar of the law, will
immediately conclude that no foreign law is involved and that Philippine law
will apply.

Now let’s say that we have X, a Filipino citizen who resides in

Bacolod, who will marry Y, a Russian who resides in Ireland, in Hong
Kong. Questions are: (1) What legal system will govern the personal rights
and obligations of X and Y as husband and wife?; (2) What legal system will
govern their property relations?

Before you reached this class, you were already introduced by your
professors in Civil Law, Criminal Law, Taxation Law and other subjects to
Conflict of Laws and what you must follow when you are confronted with a
Conflict of Laws problem.

Like, you know about Articles 15 and 16 of the Civil Code. You
know about Article 2 of the Revised Penal Code. These laws are some
Rules in Philippine Conflicts of Laws. This subject is just a review of what
you have already learned. What I will teach you is application.

Thus, before anything else, we must ask: What is Conflicts of Laws?

CONFLICT OF LAWS – is that part of the municipal law of a state which
directs its courts and administrative agencies when confronted with a legal
problem involving a foreign element whether or not they should apply a
foreign law or foreign laws.

Memorize the four (4) elements of Conflict of Laws: (1) it is part of

the municipal law of a state; (2) there is a directive to courts and
administrative agencies; (3) there is a legal problem involving a foreign
element; and, (4) there is question of whether to apply a foreign law or
foreign laws.

The most important element is number 3 – the presence of a foreign

element. So, going back to the previous problem, we can conclude that: if a
legal transaction involving nationals arises in their own state, then there will
be no Conflict of Laws situation. Therefore, what you must look out for is
the presence of a foreign element.

In the bar exams, watch out for foreign elements. It is your clue that
the problem involves a Conflict of Laws. The examiner will always ask you
to decide. In other words, you will be acting as a judge. Now, you might
want to become a judge one day. Not a judge in a beauty contest but a judge
in court. I am here to teach you what to do.
 The basic cause of Conflict of Laws is naturally “variance”. Every
known state has a set of laws of its own. What you know is just Philippine
law. Unlike doctors, nurses, engineers and other students of the sciences,
your knowledge is limited to the confines of your state. Unless you are
informed or have studied the laws of foreign states, you won’t know what
their laws are or if they are the same as ours.

Conflict of Laws, as a subject, has three (3) aims, scopes or functions:

(1) determine which country has jurisdiction; (2) find out if the applicable
law is a foreign law or a set of foreign laws; and, (3) determine the force,
validity and effectiveness of a foreign judgment.

Let’s tackle the first function – Jurisdiction.

When a court is confronted with a Conflict of Laws problem, it is

primarily confronted with a question of jurisdiction.

Now, you know what jurisdiction is all about. I don’t have to lecture
on this. It will be a great insult not only to you but more so to your
professor in Civil Procedure.

When a court is without jurisdiction, it has no alternative but to

dismiss the case. Any judgment rendered without jurisdiction is void
because of lack of due process.

When a court is with jurisdiction, it may either: (1) refuse to assume

jurisdiction on the ground of “forum non conveniens”; (2) assume
jurisdiction and (a) apply the local or internal law; or (b) apply the foreign
law.

Refusal to assume jurisdiction based forum non conveniens – it could

be that:
(1) the evidence and the witnesses are not readily available;
(2) the court dockets are clogged;
(3) the evils of forum shopping ought to be curbed;
(4) the forum has no particular interest in the case; the parties are
neither residents or citizens; the subject matter of the litigation evolved
elsewhere;
(5) other courts are open.

Heine vs. New York Insurance Co.; 45 Fed. (2d) 426 (1940) – Heine
and other German citizens filed a case against New York Insurance Co. in
Oregon. The insurance contracts were issued in Germany, not Oregon; the
witnesses were not residents of Oregon; the records of the defendant were
either in New York or Germany; the plaintiffs were Germans and the
defendant was a New York corporation; and, the courts of Germany and
New York were open.
 Assumption of jurisdiction – the forum may either (1) apply the local
or internal law; or (2) apply the proper foreign law.

When the local or internal law must be applied:

(1) when the local or internal law expressly says so;
(2) when the foreign law has not been properly pleaded and proved;
(3) when the case involves any of the eight exceptions to the
application of the proper foreign law.

Illustrations:
(1) When the local or internal law expressly provides that it must be
the one applied – (a) Article 16, par. 2 [Filipino father dies leaving behind a
Chinese child; the estate of Filipino father shall be distributed in accord with
Philippine law]. (b) Article 1039 [the capacity of the Chinese child to inherit
from his deceased Filipino father is governed by Philippine law]. (c) Article
829 [if a will executed by an alien abroad is revoked in the Philippines, our
law in regard to formalities must be strictly complied with]. (d) Article 80
[matrimonial property relations in the absence of a marriage settlement]. (e)
Article 109, par. 4 [separate property of spouses].

When the foreign law has not been properly pleaded and proved:
(1) there is no judicial notice of a foreign law;
(2) if the foreign law is not properly pleaded and proved, it will be
presumed as the same with our law.

Proof of foreign law – (1) if the foreign law is written, see Rule 132,
Sec. 25; (2) if the foreign law is unwritten, see Rule 130, Sec. 45.

Exceptions to the application of the proper foreign law (even if

pleaded and proved) –

(1) when the foreign law, judgment or contract is contrary to a sound

and established public policy of the forum (See Article 17, par. 3).
Illustrations: (a) Joint wills are prohibited by Articles 818 and 819; (b)
Decree of divorce obtained by Filipinos abroad are voided by Article 15; (c)
Marriages between first cousins and other people mentioned in Article 38.

See Amos Bellis, et al. vs. Edward Bellis, L-23678, June 6, 1967.
Decedent made 2 wills. One governed his properties in the Philippines. He
left nothing to his recognized illegitimate children. Under Texas law, there
is no such thing as compulsory heirs and, hence, no legitimes. Article 16,
par. 2 applies not Article 17, par. 3.

(2) when the foreign law, judgment or contract is contrary to almost

universally conceded principles of morality (trafficking of women for
purposes of prostitution).
(3) when the foreign law, judgment or contract involves procedural
matters. Illustration: trial by jury.
 (4) when the case involves penal laws, judgments, contracts. See
Article 2 of the Revised Penal Code and its five exceptions. Penalty clauses
in contracts are valid and enforceable.

(5) when the case involves purely fiscal or administrative matters.

Illustration: While you may be taxed by a foreign state for income earned in
its territory, collecting the liability here through the application of a foreign
law is another matter.

(6) when the application of the foreign law, judgment or contract may
work undeniable injustice to the citizens or residents of the forum.
Illustration: contract entered into by a Filipino minor in another state.

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

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

Why do we apply the foreign law, judgment or contract if it is

properly pleaded and proved and does not fall under any of the eight (8)
exceptions we have discussed? Read the following (any major textbook will
do):

(a) The theory of comity;

(b) The theory of vested rights;
(c) The theory of local law;
(d) The theory of harmony of laws; and,
(e) The theory of justice.

With respect to foreign judgments, remember the conditions or

requisites before they can be recognized and enforced in our country:

(a) there must be proof of the foreign judgment;

(b) it must be on a civil or commercial matter;
(c) there must be no lack of jurisdiction, no want of notice, no
collusion, no fraud, no clear mistake of law or fact;
(d) it must not contravene a sound and established public policy
of the forum; and,
(e) it must be res judicata in the state that rendered it.

Foreign Judgments-Conditions before they may be recognized and

enforced in the Philippines:

1. There must be proof of the foreign judgment

2. It must be on a civil or commercial matter
3. There must be no lack of jurisdiction, want of notice, no collusion,
no fraud or mistake of law or fact.
4. The judgment must not be contrary to public policy.
 5. The judgment must be Res Judicata in the state that rendered it.

Personal law-everyone has a personal law. It could be his national

law, the law of his domicile or the law of the situs, depending on the theory
applied in the forum.

Nationality theory(Personal theory) - status and capacity of an

individual is governed by his nationality.

Domicilliary theory(Territorial theory) - status and capacity is

governed by his domicile.

Situs theory (Eclectic theory) - the place of an event or transaction is

the controlling law.

Examples of nationality theory

Art. 15, Civil Code.
Art. 16 (2), Civil Code.
Art. 21, Civil Code.
Art. 1039, Civil Code.

Who are citizens of the Philippines – see Constitution.

Problem of multiple/dual nationalities:

1. Jus soli
2.Jus saguinis

The problem with your Constitution is that it tells you who are
Filipinos but it doesn’t tell who the other people of the world are.

Art. 2 Hague Convention on Conflict of Nationality Laws:“Any

question as to whether a person possesses the nationality of a particular state
should be determined in accordance with the law of that state”.

Example: A, foreigner (Chineses) applies for naturalization and has all

qualifications but failed to resource his citizenship which is a requirement of
Chinese law (RP vs. Johnny Chavstinek G.R. L-2275, 18 May 1851).
*Note: From the viewpoint of a 3rd state, however, Johnny is a dual citizen.

Problems: successional rights –

1. X, Filipino & Chinese, died in U.S., leaves properties in RP.

Successional rights? See Art. 16 (2).

2. X, Chinese & Japanese, died in RP, leaving properties here. Prior to

his death, X was domiciled in Japan..: Japanese law. (Theory of effective
nationality)
 3. X, Chinese & Japanese, domiciled in Italy. Died in U.S., leaving
properties here?.: a. Get laws (Chinese & Japanese) on succession and apply
that in so far as they are consistent/identifcal with one another;b. In so far as
there is a conflict, refer to Italian law.

Stateless persons -

Hague Conference says:

1. law of domicile
2. law of temporary residence

Art. 16 (2)
Successional rights, no nationality? Use Domicile.

Renvoi - Literally means “a referring back”. This usually happens

when one state is following the nationality theory while the other, the
domiciliary theory.

Eg.A, English domiciled in RP, dies leaving an English child.

successional rights?

If you apply Art. 16 (2), it says national law. So, does it refer to
English internal law or to the whole English law including conflict rules?
England follows domcilliary theory. So what happens?

Solutions:
1. Reject the renvoi-apply English internal law.
2. Accept the renvoi-apply RP Law on succession

3. Theory of desistment- apply RP law on succession because English

law is inadequate.

4. Foreign court theory-apply English Law (put ourselves in the

position of an English judge and decide the case). Problem here is
“international pingpong”.

Transmission-process of applying the Law of a foreign state thru the

law of a second foreign state.

Eg.A, Italian, domiciled in RP, dies in England. If case is tried in

England, refer to domicile, which refers to nationality. So, England will
decide the case using Italian Law.