CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Conflict of Laws
Introduction
Designations
1. Private International Law – This is how other authors would refer
to the subject as known in some jurisdictions.
2. Conflict of Laws – In the Philippines, this is the official designation
of the subject. No less than the Department of Education and the
Supreme Court chose this designation.
TN: These two designations are one and the same.
The term “Private International Law” is misleading
Private international law was not chosen by DepEd and SC because it is
misleading. Internationally, it is often confused with Public International
Law while there is a world of difference between the two. It will be a
misnomer.
Conflict of Laws v. Public International Law
Conflict of Laws
Public International Law
As to persons involved
Governs private individuals
or corporations
Governs sovereign states and
entities that are internationally
recognized or possessed of
international personality
As to nature
Municipal or domestic
in character
International in character
Applies to transactions which
only sovereign states or entities
with international personality
are concerned and which
generally affect public interest
As to remedies applied
Judicial or administrative
tribunals in accordance with the
rules of procedure of the
country where they sit
at the subject matter, there really is no conflict. Precisely, the Conflict
of Laws rules are designed to avoid conflict. But that is the best that
they can come up with.
Conflict of Laws Defined
Book:
1. That part of law which comes into play when the issue before the
court affects some fact, event or transaction that is so clearly
connected with a foreign system.
2. It embraces those 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.
3. 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
foreign or foreign laws.
Every country has its own set of laws
The study of Conflict of Laws is founded on one universally recognized
principle that every country has its own set of laws. We have a
community of nations governed by laws with respect to the relationship
between nations. The member state itself has its own set of rules that
governs its internal relationships—between States and citizens; and the
relationship between citizens with respect to other citizens.
COL is part of Municipal Law
It is not international in character. “Municipal Law” means the internal
or local law of each state.
General classifications of laws governing every State
Two general classifications of laws governing every State
As to transactions involved
Deals with transactions strictly
private in nature, in which
country as such has generally
no interest
Atty T: However, using Conflict of Laws is also a misnomer. If you look
Concerned states may first
resort to peaceful remedies like
mediation, negotiations,
conciliation, arbitration, etc. If
these fail, they may resort to
forcible remedies like severance
of diplomatic relations,
retorsions, reprisals, pacific
blockade, collective measures
under UN Charter and war.
1. Purely domestic laws – Laws which govern disputes involving
purely domestic elements.
2. Conflict of Laws or Private International Law – Laws which govern
disputes involving a foreign element.
Example 1: Purely domestic dispute calling for the application
of purely domestic laws.
The dispute involves a breach of contract where Ms. Ibanez entered into
a contract with Mr. Cabatana for the performance of Lingam Massage
Services. They are both Filipinos and the contract is to be executed and
performed in the Philippines.
All the important elements of the contract relate to the Philippines:
citizenship of the parties, place of execution and performance. Hence, it
is a dispute involving purely domestic elements. Thus, the resolution of
the dispute will involve Philippine laws, whether involving the capacity
of the contracting parties, or the intrinsic and extrinsic validity of the
contract.
Example 2: A dispute involving foreign element calling for the
application of Conflict of Laws.
Ms. Ibanez is a citizen of Spain while Mr. Cabatana is a citizen of Russia.
The contract is executed in Japan and the service is to be performed in
1|U N I V E R S I T Y O F S A N C A R L O S
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Vietnam. The suit is filed before Philippine court.
If the dispute revolves around the issue as to capacity or the extrinsic
validity of the contract, there will be two or more laws applicable relating
to two or more different countries involved. Therefore, this dispute has
a foreign element because it involves different countries. The significant
components of the dispute – citizenship, place of execution and
performance of the contract – relate to different countries.
Q. When does a dispute involve a foreign element?
ANS: When facts, events, and transactions occur in two or more states
Examples of our Conflict of Laws
1. Nationality Theory
Article 15, Civil Code
Laws relating to family rights and duties, or to the status, condition
and legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad.
If there is an issue involving a Filipino regarding:
a) Status
b) Legal Capacity
c) Condition
and are affected by various laws of the different states involved. In the
resolution of the dispute, a court where the case is pending has to make
a choice as to which laws pertaining to various States involved should
be applied.
Atty T: It doesn’t matter where the Filipino is found, he may be
Book: Any case which involves facts occurring in more than one state or
anywhere in the world, because our own COL rule provides that he
is governed by Philippine law.
nation, so that in deciding the case, it is necessary to make a choice
between the laws of different states or countries.
Atty T: This is a critical question for the court to know which set of laws
to apply – purely domestic laws or conflict of laws rules.
How the court deals with a COL situation
In our study of Conflict of Laws, the seat of dispute is always the
Philippine setting, invested with a foreign element. This is brought
before Philippine court, prompting it to apply our own Conflict of Laws.
We don’t care about Conflict of Laws abroad. It is possible, however,
that what will be applied is a foreign law when our own Conflict of Laws
say so.
Example:
The issue is about wills – Ms. Ibanez, a Tanzanian citizen, executed a
will in Tanzania, but she happened to fall in love with the Philippines.
She stayed in the Philippines for several years and acquired several
properties. Eventually, she died and left a substantial amount of estate
in the Philippines. She also left several husbands.
Issue: Who among the husbands is entitled to the properties left by Ms.
Ibanez?
Since the case involves a conflict of law, the forum should apply our own
conflict of laws rule. Under our Conflict of Rules on Succession (Art. 16,
par. 2), the national law of the testator will apply in so far as the order
of succession, the amount of successional rights, validity of the
testamentary provision and the capacity of the heir to inherit.
Thus, in this case, since the nationality theory applies, then the national
law of Ms. Ibanez (Tanzanian laws) will apply as provided by our very
own COL rule.
Important: The seat of the controversy is our own court and the
applicable laws are our own conflict of laws rules.
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2. Situs of the Crime
Article 2, Revised Penal Code
Application of its provisions. — Except as provided in the treaties
and laws of preferential application, the provisions of this Code shall
be enforced not only within the Philippine Archipelago, including its
atmosphere, its interior waters and maritime zone, but also outside
of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship
2. Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into
these islands of the obligations and securities mentioned in the
presiding number;
4. While being public officers or employees, should commit an
offense in the exercise of their functions; or
5. Should commit any of the crimes against national security and
the law of nations, defined in Title One of Book Two of this
Code
Atty T: Only crimes committed within the Philippine territory can be
prosecuted, therefore, our courts have no jurisdiction over crimes
that happened outside of the Philippine territory except on instances
where the protective theory applies.
GR: Territoriality principle
XPNs: Protective theory
(Article 2 of the RPC – the five mentioned above)
Example: A Filipino commits a crime in Russia against a fellow
Filipino. Our courts cannot have jurisdiction over the said case
because our courts can only acquire jurisdiction over crimes which
happened in the Philippines.
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
3. Lex rei sitae or lex situs
Article 16, Civil Code
Real property as well as personal property is subject to the law of
the country where it is stipulated.
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.
Important: If the dispute involving a property involves:
1. Validity of the transaction (either the extrinsic or intrinsic
validity of the contract), or
2. Capacity of the contracting parties
Then the issues should be resolved on the basis of Lex Rei Sitae
(Art. 16)
GR: Real property as well as personal property is subject to the
law of the country where it is situated.
XPN: Article 16, 2nd par. Governed by the national law of the
decedent.
4. Lex loci celebracionis
Article 17, Civil Code
The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which
they are executed.
5. Property relations of spouses
Article 80, Family Code
In the absence of a contrary stipulation in a marriage settlement,
the property relations of the spouses shall be governed by
Philippine laws, regardless of the place of the celebration of the
marriage and their residence.
Atty T: Where one of the parties of the marriage is a Filipino, the
property relations should be governed by Philippine laws.
Exceptions: Art. 80, par. 2, Family Code. This rule shall not apply:
1. Where both spouses are aliens;
2. With respect to the extrinsic validity of contracts affecting
property not situated in the Philippines and executed in the
country where the property is located; and
3. With respect to the extrinsic validity of contracts entered into
in the Philippines but affecting property situated in a foreign
country whose laws require different formalities for its
extrinsic validity.
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Three Stages in the resolution of a COL problem
Q. What are the three stages in the resolution of a conflict of
laws problem?
ANS:
1. Determination of jurisdiction
2. Choice of law
3. Enforcement of judgment
Determination of jurisdiction
Jurisdiction
Jurisdiction is determined by the law of the country where the suit is
lodged or filed.
Three kinds of jurisdiction:
1. Jurisdiction over the person
It is the competence or power of a court to render a judgment that
will bind the parties involved.
Jurisdiction over the:
a) Plaintiff – acquired by instituting the action by the proper
pleading
b) Defendant – acquired when he enters his appearance or by
coercive power of legal process exerted by the court over him
(personal or substituted service of summons)
General rule: Strict compliance with the rules is required for court
to acquire jurisdiction. The question of erroneous service of
summons must be raised before judgment is rendered, otherwise,
this would be a clear case of waiver.
Exception: Defective service may be cured by actual receipt of
summons by the defendant, or if in any other manner, knowledge
of the existence of the case should come to his attention.
How service of summons is effected:
If it is an action in personam:
1. Personal service
2. Substituted service
TN: Service by publication is not sufficient, whether the defendant
is in the Philippines or not.
When service by publication authorized
1. Actions in rem
2. Quasi in rem
3. Action involving the personal status of plaintiff (Rule 14. sec.
15. 1997 Rules on Civil Procedure)
When extraterritorial service of summons effected
Sec. 15, Rule 14, ROC
1. When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the
plaintiff or
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
2. 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, in which the defendant has
or claims a lien or interest, actual or contingent, or
3. When the defendant is a non-resident but the subject of the
action is properly located in the Philippines, in which the relief
demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or
4. When property of a non-resident defendant has been
attached within the Philippines.
How extraterritorial service effected
3. Jurisdiction over the res
Jurisdiction over the particular subject-matter in controversy,
regardless of the persons who may be interested therein.
Basis: The presence of the property within the territorial jurisdiction
over the persons whose interests in the property are affected.
Purpose: To impose a personal liability on anyone but it is to affect
the interests of all persons in a thing.
Examples: Land registration cases and admiralty cases
Important: If the court has no jurisdiction, then the court shall
dismiss. If it has jurisdiction, determine whether:
Such service may, by leave of court, be effected:
1. By personal service (Sec. 6, Rule 14)
2. By publication, but copy of the summons and the order of
the court must be sent by registered mail to the defendant’s
last known address.
3. In any other manner that the court may deem sufficient (i.e.
registered mail. See Midgely v. Fernandez)
2. Jurisdiction over the subject or nature of the action
Book: It is the power to hear and determine cases of the general
a) To assume jurisdiction, or
b) To dismiss it on the ground of forum non conveniens
TN: It is the law of the forum that determines whether the court has
jurisdiction or not over the case.
Principle of forum non conveniens
Even if the court has jurisdiction, it may, in the exercise of its jurisdiction,
still dismiss the case, not because of lack of jurisdiction, but because it
believes that it is not the convenient forum.
class to proceedings in question belong.
Atty T: This principle has nothing to do with jurisdiction. The court may
It is conferred by law and cannot be conferred by consent of the
parties (e.g. Constitution and Judiciary Reorganization Act, as
amended).
The allegations of the complaint or petition read in the light of the
proper jurisdictional law that confer jurisdiction. The Court must
also consider the possible enforceability of its decision in foreign
states subject to the rights of said states.
Except from the Supreme Court whose jurisdiction is vested by the
Constitution, all other courts have their jurisdiction defined by law.
Therefore, jurisdictional issues over subject matter or nature of the
action should be determined by the law/s that created the courts
in the Philippines. Such laws are:
1. B.P. 129 which created various courts and apportioned their
respective jurisdiction.
2. RA 7691 which amended B.P. 129 and expanded the
jurisdiction of the lower courts. Some amendments are:
(a)
When the action is purely monetary, the jurisdictional
limit of MTCs is P400,000. If it exceeds such amount, the
jurisdiction is with RTC.
dismiss the action even if it has jurisdiction if forum non conveniens
applies.
But this is discretionary on the part of the court. The purpose of this is
to avoid universal forum shopping which would result in harassment and
vexation of the defendant.
Example: When a non-resident citizen initiates an action in another state
of which neither of the parties is a resident. The obvious reason here is
to inconvenience the defendant or to shop for a friendly forum. The
plaintiff may believe that the court or the law of that country are more
sympathetic to his cause. Another reason is litis pendentia. There is
already a case pending; another case cannot anymore be pursued in
another state. That second case may be dismiss on the ground of forum
non convenience.
When forum non conveniens does not apply; Elements
The court may or may not dismiss a case on the ground of forum non
conveniens because it is discretionary. The court may proceed with the
case involving a foreign element, conduct trial and render judgment if
the following requisites are present:
1. The Philippine court is one to which the parties may conveniently
resort to.
(b) When the action is one that involves title to or
possession over real property, if the assessed value is
P20,000, jurisdiction is with MTC.
2. The Philippine court is in the position to render an intelligent
decision as to the findings of facts and law.
(c)
3. The Philippine court has the adequate machinery to enforce its
decision.
If incapable of pecuniary estimation such as specific
performance or injunction, jurisdiction is lodged with the
RTC.
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CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
When Philippine court is deemed an inconvenient forum
The following are instances when the court may dismiss the case on
the ground of forum non conveniens:
1. Parties involved are not residents of the Philippines
factual finding on the matter. The Philippine court was also not in the
position to enforce the judgment because the defendant was in China
and summons was not served.
Navida et al v. Dizon et al.
Facts:
2. Material witnesses are not residents or cannot be found in the
Philippines and it will be too costly to bring them before the
Philippine court to testify.
3. Documentary or object evidence to establish one’s cause of action
or defenses are not found in the Philippines.
4. Forum shopping
This was a class suit involving a product liability tort brought about by
workers in banana plantations in Davao and General Santos. The
workers alleged that due to the exposure to the pesticide manufactured
by the defendants, they were inflicted with diseases. The workers
accused the defendants for negligence for exposing them to risk. Cases
were filed in General Santos and Davao. The defendants, being
nonresidents, raised the issue of forum non conveniens.
Atty T: If these instances are present in a case, the court may find that
Issue:
Philippine court is not the convenient forum. Therefore, the case may
be dismissed.
Whether the Philippine court was the convenient forum to decide the
dispute.
Manila Hotel v. NLRC
Ruling:
Facts:
Yes. It was the convenient forum. The SC took note of the fact that the
plaintiffs were all Filipinos. The workers, material witness, and the
doctors were all based in the Philippines. The place where they claimed
to have been exposed to the pesticide were located in the Philippines.
The alleged cause of action also took place in the Philippines. Taking
consideration of all these, the SC found that the Philippine court was the
convenient forum.
Defendants in this case sought the dismissal of the action on the ground
of forum non conveniens. This involves a Filipino worker who had a job
in Oman as a worker. While working there, he received a job offer from
the Manila Hotel in Beijing, China. The Filipino eventually quit his job in
Oman and accepted the work in China.
But while working in China, he was retrenched to the Tiananmen Square
Massacre. The employer alleged that because of the political upheaval,
they experienced losses so they had to terminate the Filipino worker.
The Filipino worker sued the Hotel in the Philippines.
Issue:
Whether or not the NLRC was the convenient forum to decide the
dispute.
Ruling:
No. There are three elements that are required before a Philippine court
can proceed taking cognizance of a dispute involving foreign elements:
Forum non conveniens cannot be a ground for a motion to
dismiss
American Bank v. CA
All the elements required for purposes of the Philippine court taking
cognizance of the case were present. The case here could not be
dismissed for forum non conveniens.
Forum non conveniens can be a basis for dismissal of an action, but it
cannot be a ground for a motion to dismiss. The case will be dismissed
by the court after trial on the merits but we cannot file a motion to
dismiss based on forum non conveniens.
1. The local court is the court to which the parties can conveniently
resort to
2. It must be in the best position to render an intelligent decision as
to the facts or the law
3. It must have the adequate machinery to enforce the ruling.
Philsec Investment; Raytheon International; Hazegawa and
Nippon Cases
None of these requisites were present in this case. The Defendants were
neither residents nor doing business in the Philippines. The employment
contract sued upon, negotiation, perfection, and perfection of the
contract all took place outside the Philippines. There is no way that the
Philippine court be the convenient forum and neither is it in the best
position to render an intelligent decision as to the facts or the law
because the employment contract was governed by foreign laws,
applying lex loci celebracionis.
(1) It is not one of the grounds under Rule 16 – and the court said
that the said grounds are exclusive, and therefore FNC is not an
appropriate ground.
The issue was not whether the termination should be governed by
foreign law. The issue was whether or not the NLRC was the right forum
to decide if the termination of the Filipino Worker was justified because
of the alleged political upheaval, and the SC took this as a factual issue
which took place in China. The SC was not the right forum to make a
5|U N I V E R S I T Y O F S A N C A R L O S
The SC said that a party invoking forum non conveniens cannot get a
dismissal of the case by filing a motion to dismiss. This ruling is premised
on two justifications:
Atty T: I don’t agree with the SC that MTD can only be filed based
on the grounds enumerated under Rule 16. There are grounds for
a dismissal of the action that can be alleged in the MTD although
this ground is not one of the grounds enumerated under Rule 16.
The grounds on Rule 16 are not exclusive.
Example: Failure to prosecute, or violation of the rule on nonforum shopping (two ways – filing two or more actions involving
the same parties and issues; failure to comply with the
requirement of filing certification of non-forum shopping)
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
(2) The dismissal of the dispute involving a foreign element requires
factual determination of the grounds relied upon.
Choice of Law
Atty T: This is the 2nd stage – after the court has decided that it is the
The circumstances that would show that the Philippine court is an
inconvenient forum should be established as a fact. The grounds
relied upon should be established as a fact, therefore it cannot be
a ground for a MTD, but it can be raised as a defense. The factual
determination should be done after trial on the merits. Because
it’s a matter of defense and therefore best threshed out after trial
on the merits.
If you are the defending party and you believe that the Philippine
court is an inconvenient forum, your remedy is to file an answer
and incorporate as one of your defenses forum non conveniens.
If the court finds merit because of the factual circumstances, then
the court may dismiss, but only after the trial on the merits.
The concern of the SC is that it requires a factual determination
of the basis therefor – meaning those circumstances which show
that the Philippine court is an inconvenient forum requires the
presentation of evidence to establish the said facts. These factual
determination can only be done by trial on the merits.
Atty T: This is not accurate because the rule on Evidence in Motion
– requires a party to submit evidence to prove the factual ground
relied upon on the MTD. Presentation of evidence cannot only be
done in trial on the merits. The express provision of the rules,
specifically the rule on evidence in motion, allow a party to
present evidence in support of his motion, especially when the
motion is based on a factual ground. Under this rule, the
proponent may ask the court for hearing and during the hearing,
present evidence to prove the factual ground relied upon in the
motion to dismiss. What I am trying to say is, presentation of
evidence is not the exclusive province in the trial on merits. It can
be done in a proceeding or the hearing for the motion to dismiss.
If the Philippine court is believed to be the inconvenient forum
and we do not want our parties to go through the inconvenience,
the court would inconvenience them first before dismissing it.
What will happen is if the court dismisses it, if you are the party
plaintiff, you will have to file the action somewhere else years and
years after litigation.
TN: For the purposes of the bar, the rule is settled. You cannot
file a MTD on the ground of FNC. The remedy is file an answer
incorporating it as one of your defenses.
Atty T: There is a remedy under the rules when you don’t file a
MTD and instead, you opt to file an answer and incorporate all
your grounds in the MTD. You have the option to ask for the court
for a preliminary hearing on the affirmative defenses. The effect
is it is as if a MTD is filed. The court will hear your affirmative
defenses. There is no MTD, instead there is an answer. But before
proceeding in trial, the court may hear the defenses in your
answer. This remedy and MTD are both not available when it
comes to FNC. This is best resolved after a full-blown trial.
convenient forum to decide on the merits of the case. This is the stage
where the court will now apply the rules on conflict of law.
Important: Where the court has jurisdiction and is the convenient
forum, the court will proceed to trial. In the resolution of the dispute,
since the case involves a COL problem, the court will apply our COL rules
and eventually the applicable law which could either be a foreign law or
Philippine law.
Jurisdiction v. Choice of law
When the law applicable in the resolution of the dispute is a foreign law,
the remedy of the party is not to file a motion to dismiss the case on the
ground of lack of jurisdiction. Such ground cannot be used just because
the law applicable is a foreign law.
Jurisdiction
First step in resolving a COL
dispute and determined by
using Philippine law and rules
Involves issue of whether the
court has jurisdiction
Choice of law
Second step in resolving
a COL dispute
Involves issue of which law
should apply
Possible only after the court
assumes jurisdiction and
conducts trial
Important: It should be clear that just because the case is filed before
Philippine court, it does not necessarily mean that the law applicable
should always be Philippine law. There is no inconsistency with a
Philippine court deciding a case and a foreign law applied in the
resolution thereof. Case in point is Hazegawa and Nippon v. Kitamura.
Hazegawa and Nippon v. Kitamura
Facts:
This involves an Independent Contractor Agreement (ICA) entered into
by and between Japanese nationals. In said contract, Kitamura was
engaged as Project Manager by Nippon in its STAR Project. When STAR
Project was near completion, DPWH engaged Nippon in another project,
BBRI Project. In the contract, Kitamura was named as the Project
Manager.
However, Hazegawa, Nippon’s General Manager, informed Kitamura
that the company will no longer renew his ICA. Kitamura demanded to
be assigned in BBRI Project but Nippon insisted that his contract was
for a fixed term that had expired. Kitamura then filed for specific
performance and damages with RTC. Nippon filed a Motion to Dismiss
on the ground that the court has no jurisdiction over the case because
the laws applicable are the Japanese laws since the parties are Japanese
nationals, the contract was in Niponggo, and it stipulated that any
dispute that may arise out of the contract shall be resolved by Japanese
laws.
Atty T: The contention of Nippon is like saying that if the foreign law is
the applicable law, the Philippine court has no jurisdiction.
6|U N I V E R S I T Y O F S A N C A R L O S
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Examples: Law on public officials and the discharge of their
Ruling:
functions
In the resolution of a COL problem, three successive stages are
involved:
e) Law on public officials and the discharge of their functions
(1) Determination of jurisdiction
(2) Choice of law
(3) Enforcement of the judgment
f)
Examples: prostitution, corruption, bribery
The issue of which law is applicable is relevant only insofar as the second
stage is concerned, where the court is already in the stage of making a
choice of law. This stage takes place after the court has assumed
jurisdiction and conducts trial. The issue of which law is applicable has
nothing to do and is irrelevant insofar as the issue of jurisdiction is
concerned which is in the first stage.
g) Foreign law will endanger vital interest of the state,
especially security
h) If the foreign law although applicable is contrary to the
established sound public policy of the forum, then the law of
Philippines shall apply.
Even if assuming that the issue can be resolved by applying Japanese
laws, it does not necessarily follow that the Philippine court has no
jurisdiction. Jurisdiction is determined by the Philippine law and under
the existing laws, RTC, where the instant case was filed, has jurisdiction
over action for specific performance which is an action incapable of
pecuniary estimation.
Examples:
1. A divorce law cannot be enforced if both parties are
Filipinos
2. a joint will executed by Filipinos is not valid
How courts discharge the burden of making the choice of law
3. Incestuous marriages under the Family Code and those
considered void by the Code by reason of public policy
between Filipinos are null and void
1. The court has to recognize that there are instances where it has no
choice but to apply internal law (even if there is a foreign element)
Atty T: Our laws on public policy is superior over foreign laws.
Example: Art. 80 of the Family Code1
Philippine public policy always prevails. This is reinforced by
Art. 17 (3rd paragraph) of the Civil Code.
Where one of the parties to a marriage is a Filipino, our law
provides that their property rights shall be governed by the
Philippine law.
Article 17 par. 3, Civil Code
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.
2. The court has to recognize that there are instances where foreign
law, although applicable, is not applied. Instead, the court should
apply the Philippine law.
a) When the foreign law is procedural in nature
Contrary to the universally accepted principle of morality
Cases where public policy prevailed over foreign law
This is governed by the law of the forum (lex fori) – law of
the country where the court sits.
Book: There are no vested rights in rules of procedure.
Cadalin v. POEA
Exception: When the law is both procedural and substantive,
Involves labor complaints filed by Filipino contract workers working in
Bahrain. They were dismissed from work. They returned to the
Philippines and filed complaints against their employer. The respondents
interposed the defense of prescription. The employers argued that, in
the contract, the parties expressly stipulated that any dispute of the
contract shall be governed by the laws of Bahrain, applying lex loci
celebrationis. Based on the pertinent law imposed in Bahrain, the
prescriptive period of the labor complaint is 1 year.
like the rules on prescription, and the Statute of Frauds
which under Philippine law are substantive.
b) Penal in nature
Book: Territoriality principle applies (Article 2, RPC)
A “penal clause” in a contract entered into abroad may,
however, be enforced here because such clause is not
criminal in nature but only provides for liquidated damages.
c) Fiscal, revenue or tax laws
d) Administrative laws
1
Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property relations
of the spouses shall be governed by Philippine laws, regardless of the place of the celebration
of the marriage and their residence. Property relations of the spouses where one of the parties
7|U N I V E R S I T Y O F S A N C A R L O S
Facts:
Ruling:
Even if Bahrain law is supposed to be the law applicable, following the
stipulation of the parties and the fact that the employment contract was
performed in Bahrain, we cannot recognize that law because that would
be in contrary to our public policy - our constitutional protection to labor
clause. Instead, the court applied our own labor laws, such that
monetary claims prescribe in 3 years.
is a Filipino, in which case, the law of the Philippines shall apply.
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
American Bank v. American Realty Corporation
Facts:
Loan transactions between Bank of America and 3 borrowers who are
all foreign corporations. When the borrowers failed to pay the loan, they
requested for the restructuring of their loan. The bank agreed on the
condition that these 3 borrowers should put up a collateral. American
Realty Corp (ARC), a corporation organized under Philippine laws, as
guarantor, and in compliance with the demand of the bank, executed a
REM over its properties in the Philippines to secure the loan.
Despite the restructuring agreement, the 3 corporate borrowers failed
to pay, which prompted the bank to institute an action for collection of
the loan before the courts in England and Hongkong. During the
pendency of the collection suit, the bank also foreclosed the mortgage
constituted by ARC over its properties located in the Philippines. It
succeeded in the foreclosure.
This prompted ARC to institute an action for damages, alleging that it
was illegal for the Bank of America to still foreclose the mortgage when
it already decided to collect the unpaid loan by filing a collection suit
before the courts in England and Hongkong, invoking the rule enforced
in the Philippines which prohibits the splitting of a single cause of action.
The rule provides that a single cause of action may allow a party to
resort to two or more remedies but because there is only one cause of
action, the resort to these remedies should be on an alternative basis
and not cumulative. If the party avails of one remedy arising from one
single cause of action, he is deemed to have abandoned the other
remedies.
Applying the principle, ARC argues that since Bank of America already
decided to collect the loan by filing a collection suit before the courts of
England and Hongkong, it should not have foreclosed the mortgaged.
The bank argued that in all the loan contracts between the bank and
the borrowers, it is stipulated that any dispute that may arise out of the
transaction should be governed by the laws of England. Under English
law, splitting a single cause of action is not prohibited and thus the
creditor may resort to both remedies: to file an action for collection and
at the same time, enforce the security (mortgage).
Issue:
Whether the Philippine law or English law should apply.
Ruling:
The Philippine law should apply.
It is true that by applying our own conflict of law rules on contract,
English law is applicable (choice of law clause). However, even if the
laws of England is the applicable law, the Philippines cannot recognize
the same for being against a sound and established public policy of the
forum. In this case, the public policy sought to be protected is the
principle proscribing the splitting up of a single cause of action.
Important: Even if the foreign law should have been applicable
pursuant to our Conflict of Law rules, such application cannot be had if
such application would contravene our own public policy.
8|U N I V E R S I T Y O F S A N C A R L O S
Other principles which may help the court in discharging its
burden of making the proper choice of law:
1. Processual presumption
2. Characterization
3. Renvoi
Processual Presumption
Processual presumption
When the proper foreign law has not been properly proved, the court of
the forum may presume that said foreign law is the same as its local or
domestic law, which it can now apply.
Yao Kee v. Gonzalez
Facts:
The case was about marriage with lex loci celebracionis as the
connecting factor. It was alleged that the supposed marriage took place
in China, without a solemnizing officer as per custom.
Chinese laws would have applied pursuant to our COL rule (lex loci
celebracionis or the law of the place where the marriage was
solemnized). However, the Chinese law applicable was not sufficiently
established by the party alleging the same.
Ruling:
Pursuant to the principle of processual presumption, it is presumed that
the laws of China on marriage is the same with Philippine laws. In the
Philippines, a solemnizing officer is required for there to be a valid
marriage, to whom the parties must personally appear and take oath.
Therefore, contrary to the law in Philippines on marriage, the supposed
marriage in China is void since it was solemnized without a solemnizing
officer.
Asiavest Ltd v. Antonio Heras
Facts:
This was an action for enforcement of a foreign judgement. Asiavest
limited obtained a judgment from the Hong Kong Courts against Heras.
Since Heras was not in Hong Kong and such judgment could not be
enforced against him there, Asiavest filed the action in the Philippines
(action for enforcement of foreign judgment).
By way of defense, Heras argued that the judgment in Hong Kong is
void because of lack of jurisdiction over his person. He alleged that the
service of summons effected upon him in the Philippines was not made
in accordance with the laws of Hong Kong. In this case, Heras invoked
Hong Kong law on the service of summons.
Unfortunately, he failed to sufficiently prove the pertinent law of Hong
Kong on service of summons.
Ruling:
The Supreme Court had to rely on the principle of processual
presumption and had to apply Philippine Law in this case.
Under Philippine law on the service of summons, in an action in
personam, summons can only be served personally. Personal service
summons presupposes that the summons was served upon him in the
territory of the country where the case was filed. This means
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Atty: Consular authentication is indicated with a Red Ribbon
extraterritorial service of summons is not allowed.
In the case at bar, Heras was not in Hong Kong when the summons was
served, so applying Philippine Law on service of summons in actions in
personam, the summons should have been served on Heras while he
was still in Hong Kong. Even though the rule is that when a defendant
is temporarily out of the country, extraterritorial service can be done,
such rule will not apply because Heras was not out of Hong Kong
temporarily, he was out of Hong Kong permanently. Applying Philippine
law on the matter, the extraterritorial service of summons served upon
him was invalid and the judgment cannot be enforced.
Modes of Proving Foreign Law
Section 24, Rule 132
Proof of official record. — The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody. If the office in which the
record is kept is in foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general, consul, vice consul,
or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept,
and authenticated by the seal of his office.
Section 25, Rule 135
What attestation of copy must state. — Whenever a copy of a document
or record is attested for the purpose of evidence, the attestation must
state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be under
the official seal of the attesting officer, if there be any, or if he be the
clerk of a court having a seal, under the seal of such court.
1. By official publication
Atty T: Foreign law, judgment or document can be proven by
presentation of the official publication of such. If you resort to this
mode, you have to look for the counterpart of the Official Gazette
of the foreign country. It must be the official publication of the law.
2. By certified true copy of the original law
Requisites:
(a)
The certified true copy of the original law must be
accompanied by an attestation by the legal custodian of the
foreign document. The attestation must indicate that the
certified copy is the faithful copy of the original copy under
the custody of the person executing the certification.
Note: Legal custodian here is the head of the national library
or Congress itself as the official repository of our laws.
(b) Attached to the certified true copy of the law must be the
certification of the Philippine Consular Official of the Country
where the foreign document is from. The certification must
contain that the Philippine Consular official in the foreign
country undertakes to ensure that the person attesting to
the authenticity is indeed the legal custodian, therefore
assuring to us that the document is indeed authentic.
9|U N I V E R S I T Y O F S A N C A R L O S
which is the distinguishing feature of a consularized
document. It shows that the document is foreign and that it
is duly authenticated. Without that authentication, the
foreign document is inadmissible as evidence in our court.
3. Testimonies of expert witnesses
Atty T: It is another mode to prove foreign law. It is not mentioned
by the rules but by jurisprudence.
Asia Vest Limited v. Herras
Facts:
Herras tried to prove that the service of summons violated the Hong
Kong Law referring to the extraterritorial service of the summons. In his
effort to prove Hong Kong Law on the matter, he presented a witness
who purports to testify that the service of summons did not follow Hong
Kong Law.
Ruling:
The SC said that while it is true that a foreign law may be proved by a
testimony of an expert witness, the problem with Herras here is that,
his witness only testified on his conclusion that the service of summons
was not made in accordance with the Hong Kong Law on the matter.
There was failure to prove the specific Hong Kong Law which governs
service of summons.
Manufacturers Hanover Trust Co. v. Guererro
Facts:
Involves an action for damages filed by a bank depositor against a bank
for allegedly illegally withholding his account and some other illegal acts.
In his complaint, the plaintiff sought to recover all forms of damages
that can be found in the book (MENTAL damages), but the bank argued
that based on their contractual relations, the parties stipulated that
whatever dispute that may arise out of their contract should be
governed by the laws of New York. It so happened that under the laws
of New York the only kind of damage that can be recovered is actual,
other forms are not recoverable.
In its effort to prove the foreign law in NY on the matter, the bank
presented an affidavit of a supposed expert witness. But again, the bank
committed the same mistake as Herras did. The witness simply made
his personal conclusion that under the laws of NY, other forms of
damages are not recoverable.
Ruling:
SC said, while it is true that a foreign law may be proved by a testimony
of an expert witness, in this case, the witness was not able to prove
sufficiently the NY Law because he failed to point out the specific NY
Law.
Important: It is settled that an expert witness may prove a foreign law
but make sure that the witness can prove the existence of the foreign
law itself.
Theoretically, even if this is possible, you will be burdened with two
problems. First, you will have to present the foreign law itself and at the
same time, you will present a witness. The most practical way is to
submit a copy of the foreign law that is duly authenticated by the
Philippine Consular Official. This is the common practice.
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Characterization
Characterization
The process of assigning a certain set of facts or factual situation to its
proper or correct legal category. By characterizing the legal problem,
the court or the parties involved reach the proper solution whether to
apply local law or the proper foreign law.
Saudi Arabia Airlines v. CA
go back to Saudi Arabia in the guise of asking her help in the
investigation of the culprits when in truth and in fact, the purpose
there was to charge and prosecute him for the crime, took place in
the Philippines.
3. The defendants in one way or the other, was deemed to be doing
business in the Philippines having a sales agent for purposes of
selling airline tickets.
Gibbs v. Government of Philippine Islands
Facts:
Facts:
An action for tort where a Filipina was illegally dismissed by her
employer, Saudi Arabia Airlines, arising from the incident where she
almost got raped. She went to the Philippines and filed a civil action for
damages. The defendants were based in Saudi Arabia so there is foreign
element involved. Especially so that some acts which were parts of the
complaint also took place in Saudi Arabia. This is thus a Conflict of Laws
problem.
This involves an American who happens to have several properties in
the Philippines. When the wife died, he went to the office of the Registry
of Deeds in the place where the properties were located and asked that
the titles of the properties be transferred solely in his name brought
about by the death of his American wife.
Issue:
How does the principle of characterization become relevant in this case?
Ruling:
First aspect: The Factual Problem
The principle of characterization serves its purpose in the case because
there was a problem as to which applicable law is proper. The Supreme
Court first classified the factual problem. It looked at the complaint and
determined that it was based on human relations provisions of the Civil
Code, Article 19 and 20. In short, the SC determined that the action is
one for tort arising from that incident resulting in termination of her
employment. It is not a complaint for illegal dismissal or a labor
complaint but one for tort action for damages.
Second Aspect: The Connecting Factor/Point of Contact/Legal Solution
The SC correspondingly applied the connecting factor which refers to
the conflict of laws rules in the Philippines on tort. The COL rules in the
Philippines that governs torts is the principle of lex loci delicti commissi
(the law of the country where the tortious act is committed).
Q. What is the lex loci delicti commissi when the action is based
on two or more tortious acts occurring in two or more States?
Important: ANS: Apply the Most Significant Relationship Rule. The
country where most of the significant components of the transaction or
event took place is deemed to be the lex loci delicti commissi.
Atty T: It is therefore inevitable that the court will determine where the
tortious act was committed. Had the tortious act sued upon been a
single act, there would have been no problem determining the lex loci
delicti commissi. What makes this case a little complicated is if the
complaint is founded on a series of alleged tortious conduct, some of
which occurred in Saudi Arabia, some in the Philippines.
Given the following factual circumstances which are the most significant
events or circumstances relating to the transactions or events sued
upon, the Supreme Court said Philippines is the place of commission:
1. The complainant, the stewardess is a Filipino national
2. The acts of deception employed by the airline in convincing her to
10 | U N I V E R S I T Y O F S A N C A R L O S
The registrar of deeds agreed to act favourably on the request, but he
imposed a condition that he should first pay the corresponding estate
tax because under the tax laws in the Philippines, when someone dies
leaving certain properties, estate tax should be paid.
Mr. Gibbs refused, contending that his request for the transfer of titles
of properties solely in his name is not based on succession but based on
the laws in the US governing accretion, a principle relating to property.
Thus, there is no basis for the register of deeds claim for payment of
estate tax because the transfer of the title sought for is not based on
succession and there was no transmission of rights.
Under US laws, the interest of a wife in the property acquired during the
marriage is only inchoate, it is not an existing right of ownership. When
the wife dies ahead of the husband, the property by law is deemed to
be owned solely by the husband. So that when the wife dies, nothing is
transferred to the husband because the wife did not have an existing
right, only inchoate.
Ruling:
First aspect: The Factual Problem
The SC first determined that this is a conflict of laws problem involving
property, and not succession. Applying the Philippine conflict of laws
rule on property, Article 16, which is lex rei sitae or lex situs (the law of
the place where the property is situated), the problem should be
resolved by applying Philippine law.
Q. What is the Philippine Internal Law that governs ownership
by the spouses over properties acquired during the marriage?
ANS: Under the laws then existing at the time or before the Family Code
was passed, the Philippines adopted the property regime of conjugal
partnership where the husband and the wife essentially owned the
properties. Both of them have existing interest over the properties
belonging to the conjugal partnership.
Unlike the laws in the US where the wife’s interest over the property is
only inchoate, ours in the Philippines, it’s really an existing right. When
the wife dies, following that principle, his or her interest over the
property, which was then existing at the time when she was still alive,
will be transmitted to the husband pursuant to the laws on succession.
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Applying our tax laws, estate tax should be paid. By applying the Conflict
Rules on Property, the Supreme Court applied our Internal Law
particularly the law that govern ownership by spouses over properties
acquired during the marriage.
The Filipina contested the intrinsic validity of the will (amount of
successional rights), arguing that she is entitled to get more from the
estate of her father. She invoked Philippine law. Under Philippine law,
the illegitimate child is entitled to ½ of what the legitimate child is
entitled to.
Renvoi Doctrine
Sir: Another principle that may help the court in discharging its burden
by making the proper choice of law is the problem of the renvoi.
Issue:
Whether the will is intrinsically valid insofar as the apportionment of the
estate is concerned.
Renvoi problem
The problem of the renvoi literally means “the referring back and forth
of the issue from one law to another.” This is otherwise known as the
“international football”.
Ruling:
No.
Atty T: The factual problem is with regard to wills and succession and
Important: The “renvoi” does not contemplate of a situation where the
case is tossed back and forth between two courts. There is only one
court involved and that is the Philippine Court. What is being referred
back and forth is the law applicable to resolve the issue.
the connecting factor is Art. 16, 2nd par, referring to the national law of
the testator. In this case, the US Law has two general classifications,
the internal law and COL.
Two classifications under the US law:
Example: The case is filed before Philippine court so the court is
confronted with a particular “conflict of law” problem about wills and
succession, particularly the intrinsic validity of a will. Classifying the
factual problem to be one falling under succession, then the Philippine
court will apply our COL rules on wills & succession and that is Article
16 (governed by the national law of the decedent).
Q. When does the problem of renvoi arise?
ANS: When there is a doubt as to whether the reference of the law of
the forum to a foreign law, either refers to:
(a) The internal law of the forum, or
(b) The entire body of law of that foreign country including its conflict
of law rules.
Two general classifications of Conflict of Law
COL presupposes that ever state has its own set of laws and every set
of laws has two general classifications:
1. Internal law
2. Conflict of Law rules
COL of the Philippines
Our own conflict of laws simply refer to a foreign law. It does not make
any specific reference.
Example: Article 16 (Intrinsic Validity of Will) – Testate or Intestate
succession shall be governed by the national law of the decedent.
Atty T: It does not specify which classification of law. There lies the
confusion because the two sets of laws in that particular country may
not be the same.
Edward Christensen v. Aznar
Facts:
Edward is an American Citizen domiciled in the Philippines. During his
lifetime, he executed a will which affects properties located in the
Philippines. He has 2 daughters: legitimate (American Citizen) and
illegitimate (Filipina). In the will of Edward, the bulk of his estate is left
to the legitimate daughter while a morsel of his estate was left to the
Filipina.
11 | U N I V E R S I T Y O F S A N C A R L O S
1. Internal Law – do not adopt a system of legitime. Any person can
dispose of his estate by will in the manner he or she deems fit
without any limitation imposed by law. (Contrary to Philippine law)
2. COL (involving foreign element) – adopts the domiciliary theory –
the law of the country where the testator is domiciled at the time
of death governs.
Since Edward was domiciled in the Philippines at the time of his death,
applying the COL rule in US, the issue relating to the intrinsic validity of
the will is referred back to Philippine law.
Atty T: Here lies the confusion since our COL rule does not specify which
classification of law to apply. The results may vary depending on what
law is to be applied:
(a) If we apply the internal law of the US – Filipina daughter does not
have cause of action
(b) If we apply the COL of US – Filipina daughter has a cause of action
How the court resolves the doubt brought by renvoi
There are four suggested solutions according to literature
1. Court will accept the renvoi
Important: This is what is adopted in the Philippines following the
ruling in the case of Christensen v. Aznar.
2. Court will not accept the renvoi
Once the foreign law’s own COL rules refer the issues to a foreign
law, the forum will not accept it and insist that the foreign law of
that country should be applied.
Atty T: Had the SC applied this solution, the Filipina could not have
recovered what is due to her under Philippine law. The case chose
to accept it because Helen is a Filipino, which solution is more
favorable to the Filipino.
Christensen doctrine: Our forum shall accept the referring back of
the issue to us and apply our internal law.
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Atty T: By the employment of the word “should/shall”, it is
therefore mandatory. It also appears that this is the only solution.
Based on this ruling, authorities on COL are one that the solution
adhered to in the Philippines is to accept the referring and apply
our own internal law.
3. Theory of Mutual Disclaimer
This is more or less the same as the first solution. The forum court
should reject any referring back of the issue and apply the internal
law of the forum.
4. Foreign Court Theory
What the court of a foreign country will do if confronted with the
same problem should be done as well by the forum court.
Atty T: The last two theories are not so popular.
Conflict Rules on Personal Law
Personal law
The law which attaches to a person wherever he may go. It is the law
that generally governs the following:
1. Family rights and duties
2. Status
3. Condition
4. Legal capacity
Specific matters falling under “Status”
1. Single, married or divorced
2. Minor, of age or senior citizen
3. Can pertain to the personal qualification of the individual like
profession
Atty T: All these personal circumstances pertain to one’s identity as he
is known by society. Status, simply put, pertains to one’s place in society.
His name included.
Status v. Capacity
Status
Personal Law – Nationality Theory
Personal Law may refer to:
(a) National law
(b) Law of domicile
(c) Law of the situs of the event or transaction
Important: The Philippines follows the nationality theory. This is our
conflict of laws rule on personal law (Article 15, Civil Code).
Article 15, Civil Code
Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad.
Example:
Two Filipinos entered into a contract of marriage in Hongkong where
the marrying age is 15. In the Philippines, 18 is the allowable age of
marriage. A COL dispute could arise. Which law is applicable in
determining the legal capacity of the parties to contract marriage –
Hongkong or Philippine law?
ANS: Philippine law applies, following Article 15 of the Civil Code.
Rules on Divorce
Divorce obtained abroad is binding upon the alien spouse
Regardless of who between the spouses (whether it be the Filipino or
the foreigner spouse) obtained the divorce abroad, the divorce decree
insofar as the alien spouse is concerned, is valid and binding, so long as
it was obtained in accordance with the alien spouse’s national law.
Divorce obtained by Filipino spouse will not capacitate him or
her to remarry
Under Article 26 of the Family Code, the Filipino spouse is not
capacitated to remarry if he or she (Filipino spouse) obtained the divorce
decree abroad. The only divorce that will capacitate the Filipino spouse
to remarry is that kind of divorce which is obtained by the alien spouse,
provided that the national law of the alien spouse allows divorce.
Capacity
 Place of an individual in
society
 It is only part of one’s
status.
 Consists of personal qualities
and relationships, more or
less permanent, with which
the state and the community
are concerned.
 It is the sum total of his
rights and obligations.
 Includes the civil status,
paternity
and
filiation,
minority, capacity to enter
into transactions, name, sex,
and his profession in certain
cases
Article 26, 2nd par, Family Code
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.
Van Dorn v. Romillo
Facts:
The case involves an American husband and a Filipina wife. The Filipina
wife initiated and obtained a divorce decree. She returned to the
Philippines and started to manage a business. When the American
husband realized that the business is doing well, he followed his wife in
the Philippines and filed an action that he be allowed to administer the
same business (post-divorce business).
He contends that he is still the husband because divorce is not
recognized in the Philippines and under Philippine law, there should be
joint administration of conjugal properties. Note that this is done after
the divorce decree was obtained.
12 | U N I V E R S I T Y O F S A N C A R L O S
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Ruling:
divorce decree should be acknowledged.
Applying nationality theory, the divorce decree is binding upon the alien
spouse. Our public policy against divorce does not extend to the alien
spouse. The husband is American so his status must be governed by
American law. American law recognizes divorce, so insofar as the
American spouse is concerned, the divorce is valid. He is no longer the
husband.
Q. Suppose in Van Dorn, it is the American husband who acquired
certain business after the divorce decree was obtained abroad and the
Filipina wife filed an action to participate in the management; or suppose
after the divorce decree was obtained in Germany, Pilapil, the wife,
discovered that while they were married, the German husband was
playing around and the Filipina wife instituted concubinage; or in
Dacasin, it was the Filipina wife who filed an action to enforce the
contract?
Atty T: The SC did not rule on the validity of the divorce insofar as the
Filipina wife was concerned.
Pilapil v. Ibay - Somera
Facts:
This involves a couple, a German and a Filipina. The German husband
obtained a divorce before the German courts. Thereafter, he returned
to the Philippines where he discovered that while they were still married,
the wife was having an affair with another man. Thus, he instituted a
complaint for adultery against his Filipina spouse.
Ruling:
The legal personality to institute a criminal action for adultery should be
determined at the time of the filing of the action. Since the German is
governed by his own law, the divorce decree that he obtained in
Germany should be considered as valid insofar as he is concerned.
Consequently, by virtue of the divorce decree, he ceased to be her
husband and cannot thus file a complaint for adultery.
Dacasin v. Dacasin
Facts:
ANS: The focus now is on the party who is ascertaining her right as a
spouse. This is not the one contemplated in these three sets of cases
because we are now focusing on the binding effect on the Filipino
spouse. Under the nationality theory, this is not recognized.
Take consideration on the rules on property, not the issue on divorce.
Look at the cases where the Supreme Court recognized the validity of
the divorce - Somera, Van Dorn, & Dacasin. The recognition there is
really partial. It is always focused on the alien spouse because the alien
spouse is governed by the nationality theory. He or she is governed by
his or her national law. The only instance where the divorce is
recognized in its entirety is the 2nd par, by express provision of Art. 26.
Important: The only recognized divorce decree is the one obtained by
alien spouse. If it were the other way around, it cannot be given any
effect insofar as the Filipino spouse is concerned for being against public
policy.
Q. What if the divorce decree was applied for by both spouse through a
joint application? The foreign spouse already remarried, but the Filipina
wanted to remarry.
A Filipina spouse obtained a divorce decree abroad. Thereafter, she and
her ex-husband had a contractual agreement regarding the custody of
their only child. The husband thereafter went to Philippine court to
enforce their contractual agreement.
ANS: Apply either the rule of strictissimi juris or liberal interpretation.
Ruling:
So, the question is which interpretation should be considered. But, if you
look at the policy in divorce, it should be construed strictly because that
provision in Art. 26 is an exception to our general policy on divorce.
Remember in the PH, our policy is to favor the sanctity of marriage. Any
doubt should be resolved in favor of marriage. Divorce is a mode of
dissolving, so I should say, under the strict construction, that situation
may not fall squarely under Art. 26. In effect, the Filipino spouse cannot
remarry.
Van Dorn v. Romillo settled the matter by holding that an alien spouse
of a Filipino is bound by a divorce decree obtained abroad. Thus,
pursuant to his national law, the German spouse is no longer the
husband of the Filipina.
Important: The Supreme Court, in all these cases, uniformly wrote that
pursuant to nationality theory, divorce is valid abroad. Since the
husbands in these cases are Americans/Germans and the laws of their
countries recognize the divorce decree, then they are deemed by law to
be no longer the spouse of the Filipina.
Questions from the class
Q. Why was the Family Code (involving compulsory maternal custody)
invoked if on the part of the Filipino mother, she was still married, while
on the foreign husband, he was divorced?
ANS: The one who seeks to enforce the contract is a foreigner, and he
is using Philippine public policy to benefit him. That is absurd. A divorce
decree is obtained which applies to him as a foreigner.
Q. What if it was the father who was the Filipino?
ANS: The ruling is, insofar as the Filipino spouse is concerned, the
13 | U N I V E R S I T Y O F S A N C A R L O S
On one hand, it complies with Art. 26 because the foreign spouse applied
for it. On the other hand, it also violates the public policy because it was
the wife who obtained it.
The rule on divorce would differ depending on who obtained the divorce.
So if it was the foreigner who obtained the divorce, which capacitates
him to remarry, the Filipina is also capacitated to remarry.
Q. How about in cases of dual citizens? E.g. Fil-am Wife & American
Husband?
ANS: The principle of dual citizenship exists only from the perspective
of a third state. Insofar as Philippine law is concerned, that individual is
a Filipino. If a question relates to a status of a Filipino who happens to
be a dual citizen, he is considered as Filipino. That problem of dual
citizenship, in reality, exists only from the perspective of a third state.
For example, Mr. Gocuan was born to Filipino parents in the US. So
under jus soli, he is American, and under jus sanguinis, he is Filipino.
From the perspective of China, that is a problem. How will China deal?
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Apply the various significant relationships, such as domicile. If you have
been living in the US, by applying the effective nationality doctrine, you
are American.
Q. What if the person figures into a dispute in the Philippines
where the resolution of the case hinges on their gender?
Restrictions under Article 26
of the foreign law has its own limitation. It cannot be applied if it belongs
to the exceptions in the application of a foreign law. In this case, it is in
contravention to the public policy of the forum.
Under Article 26 of the Family Code, a Filipino spouse can only remarry
so long as:
(a) The divorce was obtained by the alien spouse
(b) The law of the alien spouse allows him or her to remarry
Atty T: The second paragraph of Article 26 was added only at the last
minute. It was not part of the original text of the Family Code. The
insertion of the provision was precipitated by the ruling rendered in the
case of Van Dorn v. Romillo.
SC recognized the divorce decree abroad partially in the sense that it
was recognized as valid only in so far as the alien spouse is concerned.
Therefore, the alien spouse is free to remarry. But in so far as to the
Filipino spouse, the divorce decree is not recognized by reason of public
policy. Hence, the Filipino spouse cannot remarry.
So in order to avoid a situation where “a Filipina remains to be the wife
of a man who is no longer her husband”, Congress inserted 2nd par of
Art 26, capacitating the Filipino spouse to remarry but in a restrictive
situation – only when the divorce decree is obtained by the alien spouse.
If a divorce decree obtained by the Filipino spouse will be recognized
and will capacitate her to remarry, then it will be an overhaul of our
public policy on divorce; might as well open ourselves to divorce
altogether.
ANS: The trouble of nationality theory which may call for the application
Silverio v. Republic
Facts:
Rommel was born male but later on had a sex reassignment surgery in
Thailand. She then decided to file a petition in court to achieve two
things: (1) to be declared officially as female, and (2) to change his
name from Rommel to Melly.
Ruling:
The SC dismissed the petition holding that sex classification of an
individual is determined at birth and once sex is determined, this
becomes immutable and can never be changed even by a sex
reassignment surgery. There is no law that authorizes change of sex on
the basis of sex reassignment surgery. The proper forum is not the court
but with the legislative body.
Atty T: Although SC dismissed the petition, it left a promise of a future
success. The SC dismissed the petition simply on the ground that there
is no law in the Philippines that recognizes sex transplant as a mode of
changing one’s gender. In the Philippines, we adhere to the principle of
immutability of gender. Gender is determined at birth by the physical
examination of one’s genitalia. The remedy here is legislation.
Important: But, if it were the other way around, in Van Dorn where
the husband is managing the business in the Philippines and the wife
now goes into court “I am the wife and the divorce decree does not bind
me”, the decision would have been different. The Supreme Court would
have said “allow her to manage the business.” We do not recognize
divorce in so far as the Filipino spouse is concerned.
Q. Is same sex marriage obtained by foreigners abroad
recognized under Philippine law?
Summary of rules:
Article 15, Civil Code (Nationality theory)
Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad.
GR: Divorce is against public policy in the Philippines. Therefore it is not
recognized.
XPN: If obtained by the alien spouse, pursuant to Article 26 of the
Family Code, it is recognized in the sense that the Filipino spouse can
remarry.
Important: If the Filipino spouse was the one who obtained the divorce
abroad, the divorce is valid on the part of the alien spouse (if his national
law recognizes divorce), but void on the part of the Filipino spouse for
being against public policy. The Filipino spouse cannot thus remarry.
Rules on Same Sex Marriage and Sex Transplant
Same sex marriage and sex transplant
Along the principle of national law, if a person in Thailand is a
transgender and surgery is a recognized valid mode of acquiring or
changing one’s gender, such person’s gender should be resolved by the
laws of Thailand. Philippines usually does not care about the person’s
status. We leave it to their country’s law and court.
14 | U N I V E R S I T Y O F S A N C A R L O S
ANS: There may be conflicting legal positions between the nationality
theory and the public policy principle. Both are equally legally correct.
(Sir’s opinion)
Article 17, par 3, Civil Code (Public policy principle)
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.
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Conflict Rules on Contracts
Three components of a contract
1. Extrinsic validity
2. Intrinsic validity
3. Capacity of the contracting parties
TN: Each component is governed by different Conflict of Laws rule.
Q. Is the contract valid?
Two kinds of lex contractus
Under the principle of liberality of contracts, the policy of our State is
really to give life to the intention of the parties. For purposes of Conflict
of Laws rule on contracts insofar as intrinsic validity is concerned, the
following shall govern:
1. Lex Loci Voluntatis
The law voluntarily agreed upon by the parties through a ‘choice
of law clause’.
ANS: Verify first which aspect of the contract is being assailed as invalid.
A contract may be extrinsically invalid but intrinsically valid, and vice
versa. It may also be that the contract is both intrinsically and
extrinsically valid but the parties are also not capacitated. Still, the
contract cannot be considered valid. These three components must be
valid in all respects, following all the respective connecting factors.
Exceptions:
a. If the stipulation is contrary to law, morals, good custom and
public policy, etc.
b. If the law stipulated has no relation at all to the contract.
2. Lex Loci Intentionis
Extrinsic Validity
Extrinsic Validity
This relates to form and solemnities of a contract, which may include:
1.
2.
3.
4.
Whether the contract is valid when it is written or orally done.
Whether it is valid when it is not notarized.
Whether it is valid when there are no instrumental witnesses.
4. Procedure in the execution of contract.
Atty: These are matters outside the substantive aspect of a contract.
Lex Loci Celebracionis
Our Conflict of Laws rule on contract as far as extrinsic validity is
concerned is Lex Loci Celebrationis.
Article 17, Civil Code
The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they
are executed.
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.
Intrinsic Validity
Intrinsic validity
This relates to the substantive aspect of a contract, which may include:
1.
2.
3.
4.
Validity of the subject matter of the contract
Validity of the terms and conditions of the contract
The rights, duties, and liabilities of the parties under the contract
Interpretation of the terms and conditions of the contract
Lex contractus
While there is no specific provision in our laws that really governs
intrinsic validity of a contract, it is recognized in our jurisdiction that we
follow Lex Contractus, based on the general principles of contract
particularly the so called ‘liberality of contracts’ under Article 1306 of the
Civil Code.
Article 1306, Civil Code
The contracting parties may establish such stipulations, clauses, terms
and conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order, or public policy.
15 | U N I V E R S I T Y O F S A N C A R L O S
The law impliedly agreed upon by the parties, applying the principle
of Most Significant Relationship. – This is applied in the absence of
lex voluntatis.
Phil Guarantee v. VP Eusebio
Facts:
This case involves a contract with three layers of counterbonds. VP
Eusebio was called upon to reimburse the third guarantor, Phil
Guarantee.
Phil Guarantee’s argument:
All the performance bonds were validly called. VP Eusebio should be
liable to reimburse the guarantor, Phil Guarantee, on the basis of its
solidary undertaking. It was alleged that he incurred delay since the
project was not completed within the stipulated completion period.
VP Eusebio’s argument:
It is not liable because it did not incur in delay. The reason for the
delay is attributable not to VP Eusebio but to the Iraqi government.
Therefore, since it did not incur any delay, it did not violate the terms
and conditions of the agreement.
The liability on the performance bond is premised on the liability of the
principal contractor. If the contractor is not liable, then the guarantor
is not liable. There was no basis to call on the guaranty of their
performance bond.
Issue:
Whether the contractor, VP Eusebio, incurred delay in the performance
of its obligation to construct a medical facility in Iraq, making it liable
for breach of contract.
Ruling:
No. A conflict of law dispute was involved because this is obviously a
transaction involving foreign elements.
1. The project was undertaken in Iraq.
2. The owner of the project is a foreign State.
3. The contractor is a Philippine Corporation (VP Eusebio).
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
The issue to be determined is the liabilities of the parties under the
contract. This pertains to intrinsic validity. Therefore, the case is
governed by Lex Contractus.
For Lex Contractus to apply:
1. The first principle is the so-called Lex Loci Voluntatis. The Court
should look for the law expressly agreed upon by the parties in
their contract.
2. In the absence of any stipulation for the choice of law clause, the
court should apply Lex loci intentionis referring to the law
impliedly agreed upon by the parties which should be determined
by the circumstances of the case, applying the so-called Most
Significant Relationship rule.
The project being undertaken in Iraq, the owner of the project is the
Iraqi government, the significant relationship pertains to Iraq.
Therefore, the law applicable is that of Iraq to determine whether the
contractor committed a breach of its obligation.
The problem, however, is that the applicable law of Iraq was not
sufficiently proven, so the SC had to apply processual presumption and
applied our internal law in obligations of contract particularly Art. 1169,
Civil Code.
“Art. 1169. XXX In reciprocal obligations, neither party incurs
in delay if the other does not comply or is not ready to comply
in a proper manner with what is incumbent upon him. From the
moment one of the parties fulfills his obligation, delay by the
other begins.”
Applying this principle, SC made a definitive finding that the contractor
may not be defaulted for the delay when in the first place the delay is
attributable to Iraqi Government. The remaining portion of the project
involves the mechanical and electrical component which the equipment
had to be sourced from abroad and the currency used in international
trade is US Dollars. But the Iraq Government paid the contractor in
dinar so the contractor cannot import the equipment causing delay to
the project.
Intrinsic validity of the contract which may involve issue regarding
liability of the parties whether there is breach of contract between the
parties is governed by Lex Contractus which may either be Lex
Voluntatis or Lex Intentionis.
Atty T: But this ruling has been shaken by other rulings in other cases.
United Airlines v. CA
Facts:
Ruling:
It was error for the CA to apply the US Law because the dispute relates
to a contract. The factual situation falls under COL on contracts and
therefore Phil. COL rule on contract should be applied which is Lex
Contractus.
In applying this principle, the SC referred to the execution of the
contract. The tickets which serve as the contract between the
passenger and the airline were issued in the Philippines and therefore,
it is in the Philippines that the contract was deemed executed.
Pursuant to the Lex Contractus principle, the laws in the Phils should
be applied and under Philippine law, if there is non-compliance with
the check-in requirement, the airline has all the right to deny boarding
to a passenger.
Atty T: This ruling is not in accord with the case of Eusebio and is
contrary to Art. 17 of our Civil Code. It is already a settled doctrine that
Lex contractus is the COL rule that governs the intrinsic aspect of the
contract where place of execution is not a relevant factor. Place of
execution is relevant only in applying Lex loci celebrationis which
relates only to the extrinsic aspect. The issue of whether the airline
was liable relates to the intrinsic aspect of a contract. The application
of the SC in this case of the law of the place of execution is wrong. The
court ruled the same in the case of:
PCL Shipping Lines v. NLRC
Facts:
This involves a seaman who got injured in his ankle when he was
cleaning the kitchen of the vessel. His request for treatment was denied
by the captain so he jumped off the vessel. He was then hospitalized.
After which, he was terminated by his employer so he sought for illegal
termination.
It was admitted that the employee was not given notice before his
termination. It was argued however by the employer that in the foreign
law which it invoked, notice and hearing are not required in the
termination of employees.
Issue:
Whether there was violation of the requirement of due process in the
termination of the employee.
Ruling:
Yes. Since the contract was executed in the Phils and with approval of
the POEA, then Philippine Law applies.
Atty T: The court applied the Philippine law on contract which is Lex
This is about an airline passenger who was denied boarding by United
Airlines. He was claiming that he and his family were discriminated
against. They sued for damages under Philippine courts. The defense
of the airline company is that the passengers did not comply with the
check-in requirement. While their tickets were confirmed, the check-in
requirement must still be complied with.
contractus but SC’s understanding of Lex contractus is the law of the
place where the contract was executed. This is a mistake. In fact, it
cannot even be argued that the matter of termination of employment
is an extrinsic aspect of a contract which calls for the application of lex
loci celebracionis. This is clearly an intrinsic aspect. Here, the SC was
correct in designating the term lex contractus but its understanding is
actually lex loci celebracionis which is wrong.
CA – There was compliance with check-in requirement but assuming
that there was no compliance, such will not defeat their claim for
reimbursement because of the denial of their boarding rights invoking
a Federal Law (US Law). They are still entitled to demand
compensation.
The jurisprudence on the matter renders these cases conflicting. The
doctrine in Eusebio is more accord with the existing laws. We cannot
really justify the ruling that issue of liability of the party concerns itself
with extrinsic as to be governed by the law of the place where the
16 | U N I V E R S I T Y O F S A N C A R L O S
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
contract was executed. Liability is intrinsic and therefore not governed
by lex loci celebracionis. Lex contractus does not equate with lex loci
celebracionis.
Most Significant Relationship
The Most Significant Relationship (MSR)
In the absence of any stipulation for the choice of law clause, the court
should apply Lex Loci Intentionis referring to the law impliedly agreed
upon by the parties which should be determined by the circumstances
of the case, applying the so-called Most Significant Relationship rule.
Examples of important components of contract:
1.
2.
3.
4.
5.
Citizenship and residence of parties
Place where the contract was negotiated
Place where the contract was perfected
Place where contract is to be performed
Place where subject matter is located
TN: So an analysis of the components of contract will tell the forum
court the law that parties impliedly agreed upon in entering into the
contract.
Important: However, in case that it is impossible to determine which
law to apply or which country has the most significant relationship, you
apply the law of the country where the contract shall be upheld as valid.
This is consistent with the principle of liberality of contracts – the
intention of the parties should be given life, and definitely they intended
their contract to be valid.
The MSR rule can be applied to both the extrinsic and intrinsic
aspects of the contract
A. Extrinsic validity
GR: Extrinsic validity is governed by lex loci celebrationis or the
law of the place where the contract was executed.
XPN: When the place of execution was incidental only to the
contract. In which case, the Most Significant Relationship rule
must be applied.
Example: The parties are Japanese and Chinese. They
accidentally met in Hawaii, when both of them took a short a
vacation. They were in the airport of Hawaii when they suddenly
entered into a contract. The place of execution is Hawaii. The oral
contract was valid in Hawaii. However, if you take in to
consideration other aspect or components of the transaction,
nothing relates to Hawaii, except that during the execution of the
contract, both of the parties happened to be in Hawaii.
Atty T: This is a case where the place of execution is incidental,
meaning the place of execution has nothing to do with the
contract because all other elements took place or pertain to
another state. As when the parties simply happen to meet in a
certain state by chance or in a vacation in which they entered to
a contract and it is to be performed and all other aspects of the
contract in another state.
You do not apply lex loci celebrationis because the place of
execution is merely incidental or casual to the contract. In this
case, apply the Most Significant Relationship Principle.
17 | U N I V E R S I T Y O F S A N C A R L O S
Important: When the place of execution has no relationship at
all to the contract and that the other significant components of
the contract is somewhere else, such place is only incidental.
B. Intrinsic validity
On the other hand, intrinsic validity that calls for the application
of lex voluntatis, or the law stipulated by the parties. In the
absence of stipulation, you apply the lex loci intentionis (The law
impliedly agreed upon) by applying the most significant
relationship principle.
Important: In both, extrinsic and intrinsic, the law applicable should
have a relation to the transaction or subject of the contract, otherwise
whether extrinsic or intrinsic, the lex loci celebrationis rule shall not
apply.
Lex voluntatis applies only to the intrinsic aspect of a contract
If the issue is the extrinsic validity of the contract which naturally calls
for the application of lex loci celebracionis, but the place of execution is
merely incidental to the contract – apply Lex loci intentionis by applying
the Most Significant Relationship Rule.
Do not make the mistake of applying lex contractus (which could either
be voluntatis or intentionis). If the issue is extrinsic validity but the place
of execution is merely incidental to the contract – immediately apply lex
loci intentionis or the MSR rule.
Important: Lex voluntatis never applies when the issue is the extrinsic
validity of a contract. Thus:
(a) If extrinsic validity – either lex loci celebracionis or lex loci
intentionis applying the MSR rule.
(b) If intrinsic validity – lex contractus (either lex loci voluntatis or
lex loci intentionis applying the MSR rule)
Capacity of the Contracting Parties
Nationality theory
Atty T: This third aspect of the contract relates to personal law. Under
Article 15, NCC, the respective legal capacities of the parties to the
contract should be determined by their respective national laws.
Article 15, Civil Code
Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad.
Important: Note however that the principle which provides that the
legal capacity of the contracting parties should be governed by their
respective national laws applies only to ordinary contracts.
Q. What are ordinary contracts?
ANS: Those contracts which do not involve transfer, conveyance, sale,
mortgage, etc. of a property, whether real or personal. Otherwise, lex
rei sitae will apply.
General rule: Nationality theory.
Example: There is contract of service with a Japanese firm to perform
in a concert in the Philippines. The parties are a Japanese national and
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
a Filipino. When the talent fee was received by the performer, she did
not show up on the night of the performance. The Japanese firm sued
for breach of contract, claiming return of the talent fees.
At the time the contract was entered into, one of the parties was still 16
years old. In Japan, majority age is 15, while in the Philippines, 18. The
defense is lack of legal capacity to enter into that contract and therefore
it cannot be enforced as she is still a minor under Philippines law.
Issue: Validity of the contract in relation to the capacities of the parties.
Conflict Rules on Property
Lex Rei Sitae
Lex rei sitae
Article 16, Civil Code
Real property as well as personal property is subject to the law of the
country where it is situated. xxx
Atty T: Conflict of laws rule on property is lex rei sitae. This applies
whether the property is real or personal.
Apply the nationality theory – to be determined by PH law. If the
Japanese’s legal capacity is disputed, apply Japanese law. Even if a
minor under PH law, the party is considered legally capacitated under
his own law, applying Art. 15, CC.
Exception: Lex Rae Sitae under Article 16 (1) – the law where the
property involved in the contract is located shall govern.
Important: The nationality rule does not apply if the subject matter of
the contract involves property, whether real or personal. The rule on lex
rei sitae governs all the components of the contract.
Example: A contract of sale was entered between a Japanese and a
Filipino involving a condominium unit located in the Philippines. The
Japanese buyer refused to pay. The seller then filed for an action for
specific performance to compel the Japanese to pay. The Japanese
argued that the contract cannot be enforced because he is still a minor
(17 years old) under Philippine law. Decide.
ANS: Since the contract involves a sale of real property in the Philippines,
all the components of the contract, including the issue of legal capacity
of the Japanese, is governed by lex rei sitae. Applying Philippine law
therefore, he is still a minor.
Important: If the issue relates to the legal capacity of the parties,
determine the nature of the contract to know what law shall govern:
(a) Ordinary contract - Apply the nationality theory
(b) Involves property – Apply the lex rei sitae
Summary of COL rules on contract
Aspect of a contract
Applicable law
Lex loci celebracionis
Extrinsic validity
XPN: If place of execution is merely
incidental – Lex loci intentionis,
applying the MSR rule
Q. When should lex rei sitae be applied?
ANS: Lex rei sitae should be applied when the issue at hand involves
any of the following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Sale
Mortgage
Easement
Chattel
Registration of Real Estate
Barter to or exchange of property
All transactions involving title to or possession of real property
Important: Lex rei sitae governs all aspects of the contract involving
property (intrinsic, extrinsic and legal capacity)
Laurel v. Garcia
Facts:
This involves the controversial proposed sale of Roppongi property
during the time of Pres. Cory Aquino. Her flagship program at the time
was agrarian reform. Government needed to raise substantial revenue
and so it thought of disposing the Roppongi property to generate funds
to finance its agrarian reform program. This was opposed by certain
partners as the intended sale is perceived to be a violation of the local
patrimony provision enshrined in the Constitution.
Laurel’s argument: Roppongi property is part of public domain intended
for public service. The property was originally intended for use of PH
consular offices but did not pursue due to lack of resources; invoked Art.
420 NCC, defining patrimonial property, and the general principle that
properties belong to public domain is beyond the commerce of man and
cannot be subject to contract, dispositions, or sale.
Garcia’s argument: Art 420 is not applicable since the Roppongi property
is located in Japan, referring to the principle of lex rei sitae.
Issue:
Whether or not Roppongi property can be validly sold.
Intrinsic validity
Lex contractus (lex loci voluntatis or
lex loci intentionis
Capacity of
contracting parties
Lex nationali
Exception common to all:
If the contract involves property – all aspects of the
contract is governed by lex rei sitae or the law of the place
where the property is located.
18 | U N I V E R S I T Y O F S A N C A R L O S
Ruling:
No. Interpretation of lex rei sitae is misplaced because this is not a
conflict of laws problem. Lex rei sitae will only come into play when there
is a dispute in ownership and title over real property. There is no issue
on ownership of the Roppongi property because everyone agreed that
the property belongs to the Republic of the Philippines.
Moreover, the invocation of lex rei sitae is inadequate because the
government did not cite the specific Japanese law on the matter. The
real issue here is the authority of the government officials concerned to
sell the Roppongi property as well as the procedure adopted to effect
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
the proposed sale. Again, issue is not on title or ownership of property.
because the properties are located in the Philippines.
Atty T: One can always argue that the issue on the authority to sell can
There was no issue as to title or ownership because the issue only
revolved on the formality of the compromise agreement – whether the
contract was valid if it was not authenticated and executed without
witnesses.
fall under the matter of capacity. Procedure and disposition can be
argued as referring to intrinsic validity. An argument can be made that
although there is no issue on ownership, the issue on whether or not
the officers who proposed to sell the property are really authorized to
sell might be a valid concern to be governed by lex rei sitae, akin to
issue of capacity. But just because the main case does not resolve itself
on the question of ownership or title, all these matters are not to be
governed by lex rei sitae.
Situation: Ms. Siao owns a condominium unit in the Philippines.
Because she stays abroad, she executed a SPA in Japan in favor of a
Japanese friend. She authorized her Japanese friend to sell the property
in her behalf. A contract was entered into for the sale of the
condominium unit located in the Philippines to a third party.
The issue revolves on whether or not the sale is valid because the one
who signed the contract (the agent of the seller) has no authority –
meaning SPA is not recognized in the country of the buyer for it should
be the seller herself who should sign the contract. But in the Philippines,
the seller may be represented by somebody duly authorized by SPA.
Here, there is no issue of ownership or title. The issue is on the authority
of the agent to sell the property which is located in the Philippines in
behalf of the principal. Should this not be governed by lex rei sitae?
Republic v. Sandigangbayan
Facts:
After the ouster of President Marcos, PCGG was created for the sole
purpose of running after the Marcos family and those who are perceived
to be cronies of the Marcoses. One of them was Benedicto. His
properties which were alleged to be ill-gotten were sequestered by the
PCGG. Numerous cases were filed, mostly in the United States.
After years of litigation, PCGG & Benedicto agreed to a compromise.
Under this compromise agreement, Benedicto undertook to cede to the
government certain properties in exchange for immunity from
prosecution, in his favor and his family. After this compromise
agreement was approved by the Sandiganbayan, the government
turned around and assailed the agreement on the ground that the
compromise agreement was not duly authenticated and did not comply
with the requirement of witnesses.
Obviously, the government invoked the lex loci celebracionis principle
because the compromise agreement was executed abroad. It can be
inferred that the argument of the government was under the law there,
it should be a void compromise agreement.
Issue:
Whether lex loci celebracionis applies.
Ruling:
No. While lex loci celebracionis is our conflicts rule on contracts, which
means that the forms and formalities should be governed by the place
where the contract was executed, this principle does not hold when the
contract involves properties because what shall apply is lex rei sitae.
Lex rei sitae governs all aspects of the contract. Thus, even if the issue
was the extrinsic validity of the agreement, Philippine law applies
19 | U N I V E R S I T Y O F S A N C A R L O S
Applying lex rei sitae, which applies Philippine law on the matter, certain
formal requirements in the execution of contract are simply for purposes
of convenience and not really requirements for their validity. The fact
remains that essentially the contract is valid.
Atty T: Even if a dispute does not involve ownership or title over
property, if it concerns itself with matters that are governed by lex rei
sitae, like formality of a contract involving property, lex rei sitae can still
be applied, unless we say that authority to sell or the procedure adopted
to effect the sale are not matters that fall under lex rei sitae – in
reference to Laurel v. Garcia case.
Important: According to sir, the case of Laurel should be circumscribed
to the peculiar circumstances of the case. It should not create a
precedent. We should not be misled into thinking that lex rei sitae can
only be invoked if the dispute involves title or ownership of property.
Situation: Mr. Gocuan and Ms. Siao entered into a contract of sale,
where the property belonging to Ms. Siao is to be bought by Mr. Gocuan.
Mr. Gocuan, despite signing of the contract, refused to pay. Hence, Ms.
Siao went to court to enforce the contract. Suppose Mr. Gocuan argued
that the contract is not enforceable between them because it is not
notarized – a question that relates to the extrinsic aspect of the contract.
There were no disputes as to ownership or title, but it relates only to
the formality of the contract. This is to be governed by lex rei sitae.
Atty T: There is an unofficial reason for the ruling in the Laurel case.
The reason is the SC does not want the Roppongi property to be
disposed of. It does not want to prostitute the history between Japan
and the Philippines because it was supposed to be a compensation for
the suffering of the Filipinos in the hands of the Japanese during the
war. It’s a national treasure.
Exceptions to Lex Rei Sitae
1. If the property is only incidental to the contract
Even if the contract involves property, but the property is only
incidental to the contract and the main issue is the rights and
liabilities of the parties, the following rules shall govern:
(a) Extrinsic Validity –lex loci celebracionis
(b) Intrinsic Validity –lex contractus
(c) Legal Capacity – lex nationali
Example: Mr. Gocuan entered into a contract with Ms. Siao, a
Chinese national, to render landscaping & gardening services in her
residential house.
Atty T: This is a contract that involves property, the house, but this
is not governed by lex rei sitae. The contract is really about the
service to do gardening. Any dispute that may arise is governed by
the rule on ordinary contracts.
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
2. If the issue, while involving property, concerns succession.
If the dispute involves property ownership, but the root cause
relates to succession – whether testate or intestate, the conflict of
laws rule on succession applies. Following Article 16, 2nd par, the
national law of the decedent should govern.
Conflict Rules on Wills and Succession
Two components of wills
For purposes of conflict of laws rule, a will’s validity should be
determined by two components:
(a) Extrinsic Validity – Governed by lex loci celebracionis, Articles 815,
816, 817
(b) Intrinsic Validity – Governed by the nationality theory
Extrinsic validity
Lex loci celebracionis
The rule which governs the extrinsic validity of a will is Article 17 of the
Civil Code, which speaks only of one law and that is lex loci celebrationis
– the law where the will was executed.
Important: However, this is not the only provision that deals with the
extrinsic validity of the will. Article 815, 816 and 817 of the Civil Code
also deal with extrinsic validity.
Rules:
1. Testator is a Foreigner
A. Will executed abroad
Article 816, Civil Code
The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law
of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this
Code prescribes.
Atty T: This governs a situation where the testator is a
foreigner and the will was executed abroad. Even if executed
abroad, the will can be probated in the Philippines so long as
the property involved is located in the Philippines.
This article does not mention lex loci celebrationis. The law
mentioned is that the will may be probated in the Philippines
if the will is executed in accordance with the formalities under
any of the following laws:
(a) The law of his domicile – a person can be a domicile of
one country yet a national of another. This is equated
to residence.
(b) The law of the country of which testator is a national
(c) Philippine Law
Q. What happens if the foreigner executes a will in a place
other than his country, other than his domicile and other than
Philippines? Is this valid? Can it be probated in the Philippines?
ANS: Yes. Follow Article 17. This applies to everyone.
20 | U N I V E R S I T Y O F S A N C A R L O S
Important: Insofar as the foreigner is concerned, there are
then four possible laws that he may avail that will govern the
extrinsic validity of the will, including the law of the place
where the contract was executed or lex loci celebracionis.
B. Will executed in the Philippines
Article 817, Civil Code
A will made in the Philippines by a citizen or subject of another
country, which is executed in accordance with the law of the
country of which he is a citizen or subject, and which might
be proved and allowed by the law of his own country, shall
have the same effect as if executed according to the laws of
the Philippines.
Atty T: If the foreigner executes a will in the Philippines, that
will may be probated in the Philippines if it is executed in
accordance with the formalities prescribed under his national
law and Philippine law following lex loci celebrationis.
Important: You have to distinguish a situation where a
foreigner executes a will abroad or in the Philippines. Because
if it is executed in the Philippines, there are only two laws that
he should comply with, either national law or lex loci
celebrationis (Philippine law).
2. Testator is a Filipino
A. Will executed abroad
Article 815, Civil Code
When a Filipino is in a foreign country, he is authorized to
make a will in any of the forms established by the law of the
country in which he may be. Such will may be probated in the
Philippines.
Atty T: Article 815 is consistent with Article 17, both only
speak of one law – Lex loci celebrationis. If you look at these
two provisions, if the Filipino executes a will in the Philippines,
Philippine law governs. If a will is executed elsewhere, its
extrinsic validity should be compliant with the laws of the
country where it was executed.
B. Will executed in the Philippines
Obviously, follow Philippine law.
Q. Can a Filipino execute a will abroad using Philippine law?
ANS: At first glance, it can be argued that if a Filipino executes a will
abroad in accordance with Philippine laws, it is not supposed to be
probated in the Philippines since it is not extrinsically valid. Because
supposedly, it is lex loci celebrationis that should be applied.
Tolentino argued however that there is a bias of law towards foreigners.
He is particularly concerned with the disparity and disadvantage on the
part of the Filipino as to the effects of Articles 815 and 816.
If you look at 816, a foreigner who executes a will abroad may follow
Philippine law but 815 disallows a Filipino to avail Philippine law when
he executes a will abroad.
According to Tolentino, whose opinion is persuasive, it is not the
intention of the Congress to invalidate the will executed by a Filipino
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
abroad if it complies with the formalities prescribed under Philippine
laws. What he is saying is that the will executed by the Filipino abroad
using Philippine laws on extrinsic validity should be probated, recognized
and approved by the Philippine courts. Otherwise, a foreigner would be
in a better position than a Filipino on the matter of compliance with
extrinsic validity under Philippine laws.
TN: The capacity of an heir to inherent falls under intrinsic validity,
therefore governed by the national law of the decedent.
Important: This is under Article 1039, not Article 16 par 2 because the
latter article only mentions three items, and capacity of the heir to inherit
is not one of them, but still included anyway since it is included by the
express provision of Article 1039.
Atty T: Tolentino is right. The adequate solution here is legislation.
However, I wonder why up to now, not a single right-minded
Congressman bothered to formalize the opinion of Tolentino. This
provision has never been amended. But this opinion has been well
received. This came out in the bar and the suggested answer was to
adopt Tolentino’s answer. We are safe with Tolentino if we invoke
Tolentino.
Summary on Conflict Rules on Extrinsic Validity
The capacity of the testator is not one of those mentioned under Article
16 nor under Article 1039.
concerned, capacity of the parties to enter into a contract is governed
by his national law.
A. Will executed abroad
National law
Law of domicile
Philippine law
Lex loci celebracionis (Art. 17)
B. Will executed in the Philippines
(a) National law
(b) Lex loci celebracionis
If testator is a Filipino
Q. So what law governs the capacity of the testator?
ANS: One school of thought states that the capacity of the testator to
make a will is subsumed under the concept of extrinsic validity and
therefore the law that must govern is what governs the extrinsic validity
of the will. (The problem is, what is that law?)
Some writers jump into conclusion that it should be lex loci celebracionis
pursuant to Article 17. However, there are other laws governing the
extrinsic validity of the will – Articles 815, 816, 817, which do not
necessarily involve lex loci celebracionis.
Example: If a German national executes a will in Colombia (his place of
A. Will executed abroad
(a) National law
(b) Lex loci celebracionis
B. Will executed in the Philippines
(a) Philippine law
Intrinsic validity
Nationality Theory
Article 16, 2nd par.
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.
Atty T: Intrinsic validity of wills is governed by Nationality Theory. This
is enshrined in the 2nd paragraph of Article 16 on testate and intestate
succession.
Important: National law of the decedent, not national law of the heir.
Matters under intrinsic validity
1.
2.
3.
4.
Capacity of the testator
Atty T: Ordinarily, this is not extrinsic, because insofar as contract is
If testator is a Foreigner
(a)
(b)
(c)
(d)
Article 1039, Civil Code
Capacity to succeed is governed by the law of the nation of the
decedent.
Order of succession
Amount of successional rights
Intrinsic validity of testamentary provisions
Capacity of an heir to inherit (Article 1039)
21 | U N I V E R S I T Y O F S A N C A R L O S
domicile), but following the laws of the Philippines, under Article 816,
such is a valid will. The validity of the extrinsic aspect of the will is
determined by Philippine law, but that is not the lex loci celebracionis,
the will being executed in Colombia.
Therefore, it cannot be argued that the law of Colombia determines the
capacity of the testator, when that testator follows the laws of the
Philippines in executing the will in Columbia.
Important: Again, this is not accurate since lex loci celebracionis is not
the only law recognized in the Philippines as the law that determines
extrinsic validity. If we are to say that legal capacity of the testator is
subsumed in the context of extrinsic validity, then all the laws allowed
under our laws for purposes of extrinsic validity should also apply.
Q. How to harmonize?
ANS: To harmonize, if we were to say that capacity of the testator is to
be governed by the law that governs extrinsic validity, then the other
laws allowed, aside from lex loci celebracionis, so long as they are
appropriate in the given circumstances, should be the determining law.
Thus, if a Puerto Rican citizen executed a will in Japan following
Philippine law, Philippine law, even if it is not the lex loci celebracionis
should govern all aspects of extrinsic validity of the will, including the
legal capacity of the testator.
Otherwise, an absurd situation would result where his legal capacity is
determined by the law of the place where the will was executed (Japan),
but the extrinsic validity of the will follows the Philippine law, which is
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
not the lex loci celebracionis. There will be two laws governing the
extrinsic validity of the will (one for formalities, one for capacity).
When the elements of authenticity are duly established, then the will is
approved because it is extrinsically valid.
Laws governing legal capacity of the testator
Important: The capacity of the testator to make a will is an extrinsic
validity issue (not intrinsic).
Important: Since legal capacity of the testator falls under extrinsic
validity, the same rules apply as those discussed under the topic on
extrinsic validity.
For purposes of determining the law governing a will executed abroad,
we shall refer to Arts. 17, 815, 816 & 817 of NCC.
If testator is a Foreigner
A. Will executed abroad
(a)
(b)
(c)
(d)
Foreign will probated abroad
National law
Law of domicile
Philippine law
Lex loci celebracionis (Art. 17)
B. Will executed in the Philippines
(a) National law
(b) Lex loci celebracionis
If testator is a Filipino
It is not enough that one should prove that the testator is of sound mind
and it is done voluntarily. One should also prove the foreign law
applicable to its extrinsic validity using Rule 132, Sections 24 and 25.2
This is the rule when the will is probated abroad first.
The probated will under foreign law should undergo reprobation in the
Philippines.
Types of probate of foreign wills
1. Foreign will is probated for the first time in the Philippines.
2. Foreign will is reprobated in the Philippines.
Requirements to Probate a Will
C. Will executed abroad
(a) National law
(b) Lex loci celebracionis
D. Will executed in the Philippines
(a) Philippine law
Probate of Wills
Probate, defined
Book: It is the process of proving before a competent court the due
execution of a will, that the testator was possessed with testamentary
capacity, and the approval by the court of the said will.
1. Jurisdictional facts, i.e. death of testator
2. The fact that the testator left a will
3. The fact that the testator resides in a place over which the RTC
acting as probate court has jurisdiction or if the testator does not
reside in the Philippines, the fact that the testator left properties in
the place where the court exercises its jurisdiction.
Atty T: Whether it is probate for the first time or reprobate, the only
issue there is the genuineness and due execution of the will, which
essentially refers to the fact that the testator was of sound and disposing
mind at the time he executed the will, that he freely and voluntarily
executed the same, and that the will was executed in accordance with
the formalities required for extrinsic validity.
No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court.
In other words, probate deals with the extrinsic validity of the will. If the
will is found to be extrinsically valid, then the court will approve it. The
intrinsic validity is only implemented after its approval.
Important: The law of the forum shall apply because probate is
procedural in nature.
Foreign will probated for the first time in the Philippines
Probate concerns the extrinsic validity of the will
The concern in a probate proceeding is the authenticity of the will. Rules
75 and 77 of the Rules of Court are applicable. Probate does not concern
with the intrinsic validity, although the determination of the intrinsic
validity of the will would come out as a matter of course as soon as the
extrinsic aspect is proven by the order of proving the will.
Q. When is a will considered authentic?
ANS:
1. When the testator is of sound mind at the time he executed the
will
2. When the execution of the will is done voluntarily
3. When the formalities of the will is executed in accordance with the
law of the place of execution.
2
Refer to page 9 of this reviewer for the codal provisions
22 | U N I V E R S I T Y O F S A N C A R L O S
Requirements:
1. Prove the foreign law which provides the formalities for the
extrinsic validity of the will (this is the only foreign law that needs
to be proven)
2. Present witness to prove the genuineness and due execution of the
will. Hence, one must bring in all the witnesses to testify in court
which is costly.
Foreign will reprobated in the Philippines
Requirements:
1. Prove the genuineness and the due execution of the judgment of
the court approving that foreign will.
How? By presenting a publication of the decision or the certified
copy of the decision duly authenticated as provided under Secs 24
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and 25 of Rule 132.2.
4. Article 38
The following marriages shall be void from the beginning for
reasons of public policy:
2. The court approving the will must have jurisdiction over the
probate proceeding.
a) Between collateral blood relatives whether legitimate or
illegitimate, up to the fourth civil degree
b) Between step-parents and step-children
c) Between parents-in-law and children-in-law
d) Between the adopting parent and the adopted child
e) Between the surviving spouse of the adopting parent and the
adopted child
f) Between the surviving spouse of the adopted child and the
adopter
g) g) Between an adopted child and a legitimate child of the
adopter
h) Between adopted children of the same adopter, and
i) Between parties where one, with the intention to marry the
other, killed that other person's spouse, or his or her own
spouse.
3. Proponent needs to prove the procedure on probate in the foreign
country where the foreign will was probated.
TN: This is different from the laws prescribing the extrinsic validity
of the will.
Atty T: Reprobate is less costly because it dispenses with the
requirement of presentation of witnesses. However, the requirement of
proof foreign law is more burdensome. In the sense that you need to
prove more foreign laws than the laws you need to prove when the will
is probated for the first time in the Philippines. Also, in practice, it is
more difficult to prove foreign law especially when the system of law in
other country is different from ours like in England which follows the
common law system.
Conflict Rules on Marriage
Article 26, Family Code
All marriages solemnized outside the Philippines, in accordance with the
laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under
Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
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.
Kinds of marriages under Article 26
Atty T: Based on our lex loci celebracionis principle relating to conflict of
laws rule on marriage, we need to distinguish five kinds of marriage for
purposes of Article 26.
1.
2.
3.
4.
5.
Marriage
Marriage
Marriage
Marriage
Marriage
between
between
between
between
between
Filipinos abroad
Foreigners abroad
Foreigners in the Philippines
a Foreigner and a Filipino in the Philippines
a Foreigner and Filipino abroad
Between Filipinos abroad
Lex loci celebracionis
The Conflict of Laws Rule on Marriage is Article 26. Lex loci celebracionis.
If marriage is valid abroad, it should be valid in the Philippines, except
if it falls under the exceptions.
Exceptions:
Situation: Filipino + Filipino = married abroad
Rule: Lex loci celebracionis applies.
If it is valid in the place of execution, then it is valid in the Philippines,
unless it falls under the listed exceptions.
1. Article 35, paragraphs 1, 4, 5, and 6
a) Those contracted by any party below eighteen years of age
even with the consent of parents or guardians
b) Those bigamous or polygamous marriages not failing under
Article 41
c) Those contracted through mistake of one contracting party as
to the identity of the other; and
d) Those subsequent marriages that are void under Art 53.
2. Article 36 of the Family Code
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.
3. Article 37 of the Family Code
Marriages between the following are incestuous and void from the
beginning, whether relationship between the parties be legitimate
or illegitimate: a) Between ascendants and descendants of any
degree; and b) Between brothers and sisters, whether of the full
or half blood.
23 | U N I V E R S I T Y O F S A N C A R L O S
Between Foreigners abroad
Situation: Foreigner + Foreigner = married abroad
Rule: Lex loci celebracionis applies.
If it is valid in the place of execution, then it is valid in the Philippines.
Q. But do the exceptions apply?
ANS: There is a seeming conflict here. (This will be answered later)
Illustrations:
1. Marriage in Germany between 17 year old Germans.
Suppose the marriage is between two German nationals in
Germany who are both 17 years old. In Germany, 15 is the age of
majority. The marriage is thus valid in Germany.
Under Article 26 following lex loci celebracionis, if valid in the place
of execution or celebration, then also valid in the Philippines. But
do the exceptions apply? Because one of the exceptions is if either
CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
one of the parties is below 18, the marriage is void, even if valid
abroad.
Between a Foreigner and a Filipino in the Philippines
Situation: Foreigner + Filipino = married in the Philippines
Obviously, if the exceptions in Article 26 are to be applied to
foreigners, then the marriage is void in the Philippines.
2. Marriage in the Philippines between 17 year old Germans.
But let’s tweak the facts a little. Essentially same facts as above,
only that the marriage was solemnized in the Philippines. So
marriage in the Philippines between 17 year old German nationals.
Is it valid?
ANS: Yes. The law in the Philippines on marriage involving
foreigners is lex loci celebracionis but their legal capacity should be
governed by nationality theory. Since they are German nationals
and in Germany they are of age, then they are deemed to be legally
capacitated, and the marriage in the Philippines should be valid.
Rules:
A. Lex loci celebracionis applies (Philippine law), but
B. Nationality theory governs the legal capacity of the foreigner
Important: Under Article 21 the Family Code, if a party to a marriage
is a foreigner, instead of submitting birth certificate or baptismal
certificate, he is required to submit a certificate of legal capacity from
his respective consular official. The foreigner’s government will certify
that their national is legally capacitated to marry under their laws.
Thus, it is legal for a minor who is a foreigner to contract marriage in
the Philippines if under his foreign law, he is legally capacitated, by
express provision of Article 21.
Between a Foreigner and a Filipino abroad
Important: Taking into considerations the two situations presented,
this will result in an obvious absurdity, as when the marriage of two
German nationals solemnized in the Philippines is valid, but is void if that
same marriage is solemnized in their own country.
Situation: Foreigner + Filipino = married abroad
Atty T: In other words, if the marriage was solemnized in the Philippines,
Example: The marriage between a Filipina and a German, both are 17,
we honor and recognize their national law concerning legal capacity, but
if the marriage was celebrated in their own country, we do not. That is
absurd.
Q. So going back to the question of ‘do the exceptions apply to
foreigners?’
ANS: No. According to Agpalo, the exceptions under Article 26 apply
only to Filipino citizens. This is true because if you look at all the
exceptions, they refer to status, condition and legal capacity. Under
Article 15, these are all governed by nationality theory.
Important: Thus, marriage between foreigners abroad, if valid
in the place of celebration, is valid in the Philippines, even if
void under the exceptions.
Atty T: The only exception according to Sempio Dy in her book is when
the marriage is universally recognized as incestuous (Article 37). But
with respect to the rest of the exceptions – they do not apply to
foreigners.
Between Foreigners in the Philippines
Situation: Foreigner + Foreigner = married in the Philippines
Rules: A. Lex loci celebracionis applies (Philippine law), but B.
Nationality theory governs the legal capacity of the parties
Example: If the marriage between the two Germans were solemnized in
the Philippines, such will be valid since legal capacity is governed by the
German Laws under the Nationality Theory. Therefore, the marriage will
be valid.
Atty T: The problem lies here.
was solemnized in Germany. Under German Law, the age of majority is
15. Applying lex loci celebracionis rule, since it is valid in Germany, it
should be valid in the Philippines. However, it falls under one of the
exceptions – because the Filipina is below 18.
Two different views:
1. Marriage is indivisible.
The marriage is void because the Filipina is below 18, which falls
under the exceptions to Article 26.
2. Marriage is divisible.
The marriage is valid as to the German but void as to the Filipina.
Taking cue from the divorce argument, marriage can be viewed in
a divisible manner. This would in effect create a Hybrid Marriage –
partly valid, partly void.
Q. How do we treat this kind of marriage?
ANS: According to Paras, in such a case, we have to adopt the policy of
the Philippines which favors validity of marriage. In fact, validity of
marriage is presumed. This kind of marriage should be considered valid.
Important: Up to now, it has never been resolved. Just be aware of
the conflicting views. Sir will not ask us to pick one. Just take a position
and defend it with all your heart!
Q. Is same sex marriage between two foreigners abroad valid?
ANS: It does not fall under any of the exceptions in Article 26. Applying
lex loci celebracionis, it can be valid. Article 15 (Nationality Theory) also
supports the validity of same sex marriage.
Important: The contrary argument is the public policy argument under
Article 17, par 3. Jurisprudence has constantly ruled in favor of public
policy over the nationality theory or lex loci celebracionis rules. Bank of
America v. American Realty, Cadalin v. POEA, WN Construction cases
have ruled that even if foreign law is applicable, but if such foreign law
24 | U N I V E R S I T Y O F S A N C A R L O S
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contravenes public policy, it must not be applied.
Nullity of Marriage and Legal Separation
Article 17 par. 3, Civil Code (Public policy argument)
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.
Nullity of marriage
Atty T: The same argument can be made to defeat the argument
Rules:
involving gender realignment. On the point of his foreign law, his
present realigned gender should be recognized. But there is always
public policy countering that argument. In Silverio v. CA, there is no law
that recognizes realignment of gender through surgery. The remedy is
legislative, not judicial.
Q. Why should the public policy argument overrule the principle
of sovereign equality of States? If a sovereign state recognizes
you are female, why should our public policy argument overrule
their sovereignty?
ANS: You can argue that way but that is not the prevailing sentiment
in the Supreme Court. The seat of the discussion is Philippine
jurisdiction. We are really more on public policy based on literature and
jurisprudence.
Q. What if there are two foreigners, one of whom is a
transwoman considered legally female in the country of origin,
can they legally marry here in the Philippines?
ANS: What must first be resolved is her capacity, if she is male or female
here. The transwoman was born male but realigned to female. If we are
to apply public policy, we cannot recognize that the transwoman is
female because she was born male. If the nationality theory is to be
used, we can recognize that she is indeed female. The Supreme Court
never resolved this with finality so we can never say which is which. But
the prevailing doctrine leans toward public policy. It’s a very gray area.
Literature on the matter has it, that for purposes of nullity of marriage,
we also apply lex loci celebracionis, which is what governs marriage
rules. The grounds for nullity must be determined by the laws of the
country where it was solemnized and apply the exceptions (Articles 35
(1) (4) (5) (6), 36, 37, 38) which shall be used to nullify the marriage.
A. If the parties are Filipinos whose marriage was solemnized abroad
and should they seek nullity of their marriage in the Philippines,
the grounds available are those provided for by the laws where
the marriage is solemnized, and those provided in the Philippines
(those falling under the exceptions)
B. If the parties are foreigners, the only grounds available are those
provided for by the laws where the marriage is solemnized.
Legal Separation
Apply the Nationality Theory.
Important: Don’t apply lex loci celebracionis because the issue here
does not have anything to do with marriage because the marriage still
exists. The rules applicable are the rules on status, and thus determined
by nationality theory.
In case of a petition for legal separation, the grounds that must be used
are those grounds provided for in the national law of the party involved
which governs his or her legal capacity.
Example: If German spouses celebrated their marriage in Hongkong, but
seeks legal separation in the Philippines, the grounds that must be used
are those found in German laws.
-END-
Q. Isn’t it a generally accepted principle that if an issue has
been adjudicated with finally, it will be binding in this forum?
ANS: The case of Fujiki case states that a foreign judgment rendered
in a foreign court is prima facie evidence but our court will still determine
whether or not it is consistent with our public policy. Foreign decisions
are still subject to public policy consideration. There are instances where
the court should apply internal law, and one of those instances when
the case falls under the exception of the application of the foreign law
(as when the latter is against public policy)
TN: In controversial issues, Sir will not ask which side is correct. He will
only ask us to pick a side and support it.
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